EXHIBIT 10.26
PLACEMENT AGENCY AGREEMENT
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December 10, 1996
Xxxxxxx Xxxxx Securities Incorporated
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Exigent Diagnostics, Inc., a Delaware corporation (the "Company"), hereby
confirms its agreement with Xxxxxxx Xxxxx Securities Incorporated, a Delaware
corporation (the "Placement Agent"), as follows:
1. Offering. (a) The Company will offer (the "Offering") for sale through the
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Placement Agent and its selected dealers, as exclusive agent for the Company, up
to 75 units (the "Units"), plus an additional 11.25 Units to cover
oversubscriptions, if any. Each Unit will consist of 100,000 shares (the
"Shares") of the Company's common stock, $.01 par value per share (the "Common
Stock").
(b) Placement of the Units will be made on a "best efforts-all or none" basis
with respect to the first 40 Units (the "Minimum Amount") and on a "best
efforts" basis as to the remaining Units. The minimum subscription for Units
shall be one Unit, however, the Placement Agent may, in its discretion, offer
fractional Units. The Units will be offered commencing on the date of the
Memorandum (as defined below) for a period of 90 days, unless extended by the
Placement Agent and the Company for an additional 90 days or terminated earlier
as provided herein (the "Offering Period"). The date on which the Offering shall
terminate shall be referred to as the "Termination Date."
(c) Subscriptions for the Units will be accepted by the Company at a price of
$100,000 per Unit (the "Offering Price"); provided, however, that the Company
shall not accept subscriptions for, or sell Units to, any persons or entities
who do not qualify as "accredited investors," as such term is defined in Rule
501 of Regulation D promulgated under the Securities Act of 1933 (the "Act").
(d) The offering of the Units will be made by the Placement Agent on behalf of
the Company solely pursuant to the Memorandum, which at all times will be in
form and substance acceptable to the Placement Agent and its counsel and contain
such legends and other information as the Placement Agent and its counsel may,
from time to time, deem necessary and desirable to be set forth therein.
"Memorandum" as used in this Agreement means the Company's Confidential Private
Placement Memorandum dated December 4, 1996, inclusive of all exhibits, and all
amendments, supplements and appendices thereto. Unless otherwise defined, each
term used in this Agreement will have the same meaning as set forth in the
Memorandum.
2. Representations and Warranties. The Company hereby represents and
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warrants to the Placement Agent that:
(a) The Memorandum has been diligently prepared by the Company, in conjunction
with its legal counsel and independent accountants, in conformity with all
applicable law, including the Act and the requirements of all other applicable
rules and regulations of the Securities and Exchange Commission (the "SEC")
relating to offerings of the type contemplated by the Offering (the
"Regulations"), and the applicable securities laws and the rules and regulations
of those jurisdictions wherein the Units are to be offered and sold. The Units
will be offered and sold pursuant to the registration exemption provided by
Regulation D as promulgated under Section 4(2) of the Act or otherwise under
Section 4(2) of the Act as a transaction not involving a public offering and the
requirements of any other applicable state securities laws and the respective
rules and regulations thereunder in those jurisdictions in which the Placement
Agent notifies the Company that the Units are being offered for sale. The
Company has not taken nor will it take any action which conflicts with the
conditions and requirements of, or which would make unavailable with respect to
the Offering, the exemption(s) from registration available pursuant to
Regulation D or Section 4(2) of the Act and knows of no reason why any such
exemption would be otherwise unavailable to it. None of the Company, its
affiliates or, to its knowledge, its predecessors has been subject to any order,
judgement or decree of any court of competent jurisdiction temporarily,
preliminarily or permanently enjoining such person for failing to comply with
Section 503 of Regulation D.
(b) The Memorandum does not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. None of the statements, documents, certificates or other
items prepared or supplied by the Company with respect to the transactions
contemplated hereby contains an untrue statement of a material fact or omits a
material fact necessary to make the statements contained therein not misleading.
There is no fact which the Company has not disclosed to the Placement Agent and
its counsel and of which the Company is aware which materially and adversely
affects or could materially and adversely affect the business prospects,
financial condition, operations, property or affairs of the Company or any of
its subsidiaries.
(c) The Company and each of its subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation. Except as set forth in the Memorandum, the Company has no
subsidiaries and does not have an equity interest in any other firm,
partnership, association or other entity. The Company and each of its
subsidiaries is duly qualified to transact business as a foreign corporation and
is in good standing under the laws of each jurisdiction where the location of
its properties or the conduct of its business makes such qualification
necessary.
(d) The Company has all requisite power and authority (corporate and other) to
conduct its business as presently conducted and as proposed to be conducted (as
described in the Memorandum), to enter into and perform its obligations under
this Agreement and the other agreements contemplated hereby and by the
Memorandum (collectively, the "Transaction Documents") and to issue, sell and
deliver the Shares. Each of the Transaction Documents has been duly authorized.
This Agreement has been duly executed and delivered and constitutes, and each of
the other Transaction Documents, upon due execution and delivery, will
constitute, valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms.
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(e) None of the execution and delivery of, or performance by the Company under
any of the Transaction Documents or the consummation of the transactions herein
or therein contemplated conflicts with or violates, or will result in the
creation or imposition of, any lien, charge or other encumbrance upon any of the
assets of the Company under any agreement or other instrument to which the
Company is a party or by which the Company or its assets may be bound, or any
term of the charter or by-laws of the Company, or any license, permit,
judgment, decree, order, statue, rule or regulation applicable to the Company
or any of its assets.
(f) The Company has authorized and outstanding capital stock as set forth under
the heading "Capitalization" in the Memorandum. All outstanding shares of
capital stock of the Company are duly authorized, validly issued and
outstanding, fully paid and nonassessable. Except as set forth in the
Memorandum: (i) there are no outstanding options, stock subscription agreements,
warrants or other rights permitting or requiring the Company or others to
purchase or acquire any shares of capital stock or other equity securities of
the Company or to pay any dividend or make any other distribution in respect
thereof; (ii) there are no securities issued or outstanding which are
convertible into or exchangeable for any of the foregoing and there are no
contracts, commitments or understandings, whether or not in writing, to issue or
grant any such option, warrant, right or convertible or exchangeable security;
(iii) no shares of stock or other securities of the Company are reserved for
issuance for any purpose; (iv) there are no voting trusts or other contracts,
commitments, understandings, arrangements or restrictions of any kind with
respect to the ownership, voting or transfer of shares of stock or other
securities of the Company, including without limitation, any preemptive rights,
rights of first refusal, proxies or similar rights and (v) no person holds a
right to require the Company to register any securities of the Company under the
Act or to participate in any such registration. The issued and outstanding
shares of capital stock of the Company conform in all material respects to all
statements in relation thereto contained in the Memorandum and the Memorandum
describes all material terms and conditions thereof. All issuances by the
Company of its securities were exempt from registration under the Act and any
applicable state securities laws.
(g) The Shares and the Agent's Shares (as defined below) have been duly
authorized and, when issued and delivered against payment therefor as provided
in the Transaction Documents, will be validly issued, fully paid and
nonassessable, will be free and clear of all liens, charges, restrictions,
claims and encumbrances imposed by or through the Company other than as provided
in the Transaction Documents and no holder of any of the Shares or the Agent's
Securities (as defined below) will be subject to personal liability solely by
reason of being such a holder, and none of the Shares or the Agent's Securities
are subject to preemptive or similar rights of any stockholder or security
holder of the Company or, other than as described in the Memorandum, an
adjustment under the antidilution or exercise rights of any holders of any
outstanding shares of capital stock, options, warrants or other rights to
acquire any securities of the Company. A sufficient number of authorized but
unissued shares of Common Stock have been reserved for issuance upon the
exercise of the Agent's Warrants (as defined below).
(h) No consent, authorization or filing of or with any court or governmental
authority is required in connection with the issuance or the consummation of the
transactions contemplated herein or in the other Transaction Documents, except
for required filings with the SEC and applicable "Blue Sky" or state securities
commissions relating specifically to the Offering (all of which filings have
been made by, or on behalf of, the Company, other than those which are
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required to be made after the First Closing (as defined below), and which will
be duly made on a timely basis).
(i) The financial statements, together with the related notes, of the Company
included in the Memorandum present fairly in all material respects the financial
position of the Company as of the respective dates specified and the results of
its operations and changes in financial position for the respective periods
covered thereby. Such financial statements and related notes were prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods indicated. Except as set forth in such financial
statements or in the Memorandum, the Company has incurred no material
liabilities of any kind, whether accrued, absolute, contingent or otherwise or
entered into any material transactions. The other financial and statistical
information with respect to the Company and any pro forma information and
related notes included in the Memorandum or otherwise provided to the Placement
Agent present fairly the information shown therein on a basis consistent with
the audited and unaudited financial statements of the Company included in the
Memorandum.
(j) The conduct of business by the Company as presently and proposed to be
conducted (as described in the Memorandum) is not subject to continuing
oversight, supervision, regulation or examination by any governmental official
or body of the United States or any other jurisdiction wherein the Company
conducts or proposes to conduct such business, except as described in the
Memorandum and except such regulation as is applicable to commercial enterprises
generally. The Memorandum accurately describes, in all material respects, all
requisite licenses, permits and other governmental authorization to conduct its
business as presently, and as proposed to be, conducted (as described in the
Memorandum).
(k) No default by the Company or, to the best knowledge of the Company, any
other party exists in the due performance under any of the agreements referred
to in the Memorandum to which the Company is a party or to which any of its
assets is subject (collectively, the "Company Agreements") where such default
would have a material adverse effect upon the business, results of operations or
financial condition of the Company (a "Material Adverse Effect"). The Company
Agreements are the only material agreements to which the Company is bound or by
which its assets are subject, are accurately and fairly described in all
material respects in the Memorandum and are in full force and effect in
accordance with their respective terms.
(l) Except as set forth in the Memorandum, there are no actions, proceedings,
claims or investigations, before or by any court or governmental authority (or
any state of facts which management of the Company has concluded could give rise
thereto) pending or, to the best knowledge of the Company, threatened, against
the Company, or involving its assets or any of its officers or directors which,
if determined adversely to the Company or such officer or director, could result
in any Material Adverse Effect or adversely affect the transactions contemplated
by this Agreement or the other Transaction Documents or the enforceability
thereof.
(m) The Company is not in violation of: (i) its charter or by-laws; (ii) any
indenture, mortgage, deed of trust, note or other agreement or instrument to
which the Company is a party or by which it is or may be bound or to which any
of its assets may be subject; (iii) any statute, rule or regulation; or (iv) any
judgment, decree or order applicable to the Company, which violation or
violations individually, or in the aggregate, might result in any Material
Adverse Effect.
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(n) The Company does not own any real property in fee simple except as
disclosed in the Memorandum, and the Company has good and marketable title to
all property (real and personal, tangible and intangible) owned by it, free and
clear of all security interests, liens and encumbrances, except such as are
described in the Memorandum.
(o) Except as otherwise described in the Memorandum (collectively, the
"Intangibles"), the Company owns all right, title and interest in, or possesses
adequate and enforceable rights to use, all patents, patent applications,
trademarks, trade names, service marks, copyrights, rights, licenses,
franchises, trade secrets, confidential information, processes and formulations
described as owned by it in the Memorandum. Except as set forth in the
Memorandum, to the best knowledge of the Company it has not infringed upon the
rights of others with respect to the Intangibles and the Company has not
received notice that it has or may have infringed or is infringing upon the
rights of others with respect to the Intangibles, or any notice of conflict with
the asserted rights of others with respect to the Intangibles which could,
individually or in the aggregate, have a Material Adverse Effect. Except as set
forth in the Memorandum, to the best knowledge of the Company, no others have
infringed upon the Intangibles.
(p) Subsequent to the respective dates as of which information is given in the
Memorandum, the Company has operated its business diligently and only in the
ordinary course as theretofore conducted and, except as may otherwise be set
forth in the Memorandum, there has been no: (i) Material Adverse Effect; (ii)
transaction otherwise than in the ordinary course of business; (iii) issuance of
any securities (debt or equity) or any rights to acquire any such securities;
(iv) damage, loss or destruction, whether or not covered by insurance, with
respect to any asset or property of the Company; or (v) agreement to permit any
of the foregoing.
(q) The Company has filed, on a timely basis, each Federal, state, local and
foreign tax return which is required to be filed, or has requested an extension
therefor and has paid all taxes and all related assessments, penalties and
interest to the extent that the same have become due.
(r) The Company is not obligated to pay, and has not obligated the Placement
Agent to pay, a finder's or origination fee in connection with the Offering and
agrees to indemnify the Placement Agent from any such claim made by any other
person. The Company has not offered for sale or solicited offers to purchase the
Units except for negotiations with the Placement Agent. No other person has any
right, based upon acts of the Company, its officers, directors or
representatives, to participate in any offer, sale or distribution of the
Company's securities to which the Placement Agent's rights, described herein,
shall apply.
(s) The Company has and will maintain appropriate casualty and liability
insurance coverage, in scope and amounts reasonable and customary for similar
businesses.
3. Placement Agent Appointment and Compensation. (a) The Company hereby appoints
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the Placement Agent and its selected dealers as its exclusive agent in
connection with the Offering. The Company has not and will not make, or permit
to be made, any offers or sales of the Units other than through the Placement
Agent without its prior written consent. The Placement Agent has no obligation
to purchase any of the Units. The agency of the Placement Agent hereunder shall
continue until the later of the Termination Date or the Final Closing (as
defined below).
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(b) The Company has caused to be delivered to the Placement Agent copies of the
Memorandum and has consented, and hereby consents, to the use of such copies for
the purposes permitted by the Act and applicable securities laws, and hereby
authorizes the Placement Agent and its agents, employees and selected dealers to
use the Memorandum in connection with the sale of the Units until the
Termination Date, and no other person or entity is or will be authorized to give
any information or make any representations other than those contained in the
Memorandum or to use any offering materials other than those contained in the
Memorandum in connection with the sale of the Units.
(c) The Company will cooperate with the Placement Agent by making available to
its representatives such information as may be requested in making a reasonable
investigation of the Company and its affairs and shall provide access to such
employees as shall be reasonably requested. Prior to the First Closing, the
Company shall provide, at its own expense, credit or similar reports on such key
management persons as the Placement Agent shall reasonably request.
(d) The Company shall pay to the Placement Agent at each closing a placement
fee equal to ten percent (10%) of the Offering Price of all the Units sold at
such Closing, which shall be distributed from escrow (the "Placement Agent's
Fee"), and all reasonable out-of-pocket expenses incurred by the Placement Agent
on the Company's behalf including mailing, telephone, travel costs and legal
fees ("Expenses"), to be paid from the gross proceeds of the Units sold at each
Closing up to a maximum of $75,000 for the Offering (the "Expense Allowance"), a
non-refundable $35,000 portion of which has been paid to the Placement Agent.
Payment of the proportional amount of the Placement Agent's Fee and payment of
Expenses will be made out of the proceeds of subscriptions for the Units sold at
each Closing.
(e) As additional compensation hereunder, at each Closing (as defined below),
the Company shall sell to the Placement Agent or its designees for an aggregate
purchase price of $1, warrants (the "Agent's Warrants") to purchase, at an
exercise price of $1.00 per share, a number of Shares equal to twenty percent
(20%) of the aggregate number of Shares contained in the Units sold in the
Offering (the "Agent's Shares"; and, collectively with the Agent's Warrants, the
"Agent's Securities"). The Agent's Warrants shall be exercisable until the later
of the date seven (7) years after the date of the Final Closing or the date
which is three (3) years after the closing date of the initial public offering
of the Company's securities within such seven year period, whichever is later
(the "Warrant Exercise Term"). If the Company at any time has any securities
registered under the Act or the Securities Exchange Act of 1934 (the "1934
Act"), the Company agrees to register the Agent's Securities promptly on two (2)
separate occasions, at the request of the holders of a majority of the Agent's
Securities made at any time during the Warrant Exercise Term. The Company shall
pay all expenses, other than underwriters' discounts and commissions, relating
to registering the Agent's Securities covered by the first request, and the
holder(s) of such Agent's Securities shall pay all expenses arising from the
second registration. Prior to the First Closing, the Company and Placement Agent
shall enter into a warrant agreement (the "Warrant Agreement") which shall
contain such terms and other customary provisions including piggyback
registration rights for a period of nine (9) years from the Final Closing, or
for the Warrant Exercise Term, whichever is longer, and anti-dilution
protections (including, but not limited to, stock splits, reclassifications,
mergers or acquisitions, or the sale of substantially all of the Company's
stock) applicable to the issuance of additional securities at a price below the
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exercise or market price of the Agent's Warrants, other than the shares issued
to SmithKline Xxxxxxx Corporation.
(f) The Company shall also pay to the Placement Agent the Placement Agent's
Fee and Agent's Warrants with respect to, and based on, any investment by any
party ("Post Closing Investor") with which the Placement Agent has had
substantive discussions in connection with their investing in the Offering which
invests in the Company at any time on or before the first anniversary of the
later of the Termination Date or Final Closing.
(g) On or prior to the First Closing, the Company shall enter into an
Investment Banking Agreement (the "Investment Banking Agreement"), which will
provide that, in the event that at any time prior to the fifth anniversary of
the Final Closing the Company or any of its affiliates (other than SmithKline
(as defined in the Memorandum)) shall enter into any transaction (including,
without limitation, any sale or exchange of stock or assets, merger,
consolidation, acquisition, financing, joint venture or other arrangement) with
any party introduced to the Company by us, directly or indirectly, during such
period, we will be paid a finder's fee, payable at the closing thereof, equal to
a percentage of the consideration or value received by the Company and/or its
stockholders as follows: (i) 7% of the first $1 million, (ii) 6% of the next $1
million, (iii) 5% of the next $5 million, (iv) 4% of the next $1 million, (v) 3%
of the next $1 million and (vi) 2.5% of all amounts received in excess of 9
million.
(h) On or prior to the First Closing, the Company shall enter into a broker
agreement pursuant to which the Company shall agree that the Placement Agent, so
long as it provides pricing which the board of directors of the Company
reasonably believes is competitive with that available from independent third
parties, will act as the Company's exclusive broker representative for advising
the Company with respect to executive compensation benefits, insurance and
retirement planning and cash management needs.
4. Subscription and Closing Procedures. (a) Each prospective purchaser will be
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required to complete and execute one original signature page of each of the
Subscription Agreement and Registration Rights Agreement and Shareholder's
Agreement in the forms annexed to the Memorandum ("Subscription Documents"),
which will be forwarded or delivered to the Placement Agent at the Placement
Agent's offices at the address set forth in Section 11 hereof, together with the
subscriber's check or good funds in the full amount of the Offering Price for
the number of Units desired to be purchased.
(b) All funds for subscriptions received from the offering of the Units will
be promptly forwarded by the Placement Agent or the Company, if received by it,
to and deposited into the escrow account (the "Escrow Account") established for
such purpose with United States Trust Company of New York (the "Escrow Agent").
All such funds for subscriptions will be held in the Escrow Account pursuant to
the terms of the Escrow Agreement among the Company, the Placement Agent and the
Escrow Agent. The Company will pay all fees related to the establishment and
maintenance of the Escrow Account. Any interest accruing on funds in the Escrow
Account shall be utilized first to reimburse the Company for such fees and the
balance shall be distributed one-half to the Company and one-half to the
Placement Agent. Subject to the receipt of such subscriptions for the Minimum
Amount, the Company will either accept or reject the Subscription Documents in a
timely fashion and at each Closing will countersign the Subscription Documents
and provide duplicate copies of such Agreements to the Placement Agent
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for distribution to the subscribers. The Company will give notice to the
Placement Agent of its acceptance of each subscription. The Company will
promptly return to subscribers incomplete, improperly completed, improperly
executed and rejected subscriptions and give written notice thereof to the
Placement Agent upon such return.
(c) If subscriptions for at least the Minimum Amount have been accepted prior
to the Termination Date, the funds therefor have been collected by the Escrow
Agent and all of the conditions set forth elsewhere in this Agreement are
fulfilled, a closing shall be held promptly with respect to the Units sold
(the "First Closing"). Thereafter, the remaining Units will continue to be
offered and sold until the Termination Date. Additional closings ("Closings")
may from time to time be conducted at times mutually agreeable with respect to
additional Units sold with the final closing ("Final Closing") to occur
approximately 10 days from the earlier of the Termination Date or the sale of
all Units offered. Delivery of payment for the accepted subscriptions for Units
from the funds held in the Escrow Account will be made at each Closing at the
Placement Agent's offices against delivery of the Units by the Company at the
address set forth in Section 11 hereof (or at such other place as may be
mutually agreed upon between the Company and the Placement Agent). Executed
certificates for the Shares constituting the Units and the Agent's Warrants will
be in such authorized denominations and registered in such names as the
Placement Agent may reasonably request on or before the second (2nd) full
business day prior to the date of each Closing ("Closing Date"), and will be
made available to the Placement Agent for checking and packaging at the
Placement Agent's office at least one (1) full business day prior thereto.
(d) If Subscription Documents for the Minimum Amount have not been received and
accepted by the Company on or before the Termination Date for any reason, the
Offering will be terminated, no Units will be sold, and the Escrow Agent will,
at the request of the Placement Agent, cause all monies received from
subscribers for the Units to be promptly returned to such subscribers without
interest, penalty, expense or deduction.
5A. Further Covenants. The Company hereby covenants and agrees that:
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(a) Except with the prior written consent of the Placement Agent, the Company
shall not, at any time prior to the Final Closing, take any action which would
cause any of the representations and warranties made by it in this Agreement not
to be complete and correct on and as of each Closing Date with the same force
and effect as if such representations and warranties had been made on and as of
each such date, including, without limitation, incurring any material
indebtedness, disposing of any material assets or making any material
acquisition or change in its business or operations.
(b) If, at any time prior to the Final Closing, any event shall occur which
does or may materially affect the Company or as a result of which it might
become necessary to amend or supplement the Memorandum so that the
representations and warranties herein remain true, or in case it shall, in the
opinion of counsel to the Placement Agent, be necessary to amend or supplement
the Memorandum to comply with Regulation D or any other applicable securities
laws or regulations, the Company will promptly notify the Placement Agent and
shall, at its sole cost, prepare and furnish to the Placement Agent copies of
appropriate amendments and/or supplements in such quantities as the Placement
Agent may reasonably request. The Company will not at any time, whether before
or after the Final Closing, prepare or use any amendment or
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supplement to the Memorandum of which the Placement Agent will not previously
have been advised and furnished with a copy, or to which the Placement Agent or
its counsel will have objected in writing or orally (confirmed in writing within
24 hours), or which is not in compliance with the Act, the Regulations and other
applicable securities laws. As soon as the Company is advised thereof, the
Company will advise the Placement Agent and its counsel, and confirm the advice
in writing, of any order preventing or suspending the use of the Memorandum, or
the suspension of the qualification or registration of the Shares for offering
or the suspension of any exemption for such qualification or registration of the
Shares for offering in any jurisdiction, or of the institution or threatened
institution of any proceedings for any of such purposes, and the Company will
use commercially reasonably efforts (i) to prevent the issuance of any such
order and, (ii) if issued, to obtain as soon as reasonably possible the lifting
thereof.
(c) The Company shall comply with the Act and the Regulations so as to permit
the continuance of the sales of the Units, and will file with the SEC, and shall
promptly thereafter forward to the Placement Agent, any and all reports on Form
D as are required.
(d) The Company shall use its reasonable best efforts to qualify the Units for
sale under the securities laws of such jurisdictions as may be mutually agreed
to by the Company and the Placement Agent, and the Company will make such
applications and furnish information as may be required for such purposes,
provided that the Company will not be required to qualify as a foreign
corporation in any jurisdiction. The Company will, from time to time, prepare
and file such statements and reports as are or may be required to continue such
qualifications in effect for so long a period as the Placement Agent may
reasonably request.
(e) The Company shall place a legend on the certificates representing the
Shares issued to subscribers stating that the securities evidenced thereby have
not been registered under the Act or applicable state securities laws, setting
forth or referring to the applicable restrictions on transferability and sale of
such securities under the Act and applicable state laws.
(f) The Company shall apply the net proceeds from the sale of the Units to fund
its working capital requirements and for such other purposes as specifically
described under "Use of Proceeds" in the Memorandum. Except as specifically set
forth in the Memorandum, the net proceeds of the Offering shall not be used to
repay indebtedness to officers, directors or stockholders of the Company without
the prior written consent of the Placement Agent.
(g) During the Offering Period, the Company shall make available for review by
prospective purchasers of the Units during normal business hours at the
Company's offices, upon their request, copies of the Company Agreements to the
extent that such shall not violate any obligation on the part of the Company to
maintain the confidentiality thereof and shall afford each prospective purchaser
of Units the opportunity to ask questions of and receive answers from an
officer of the Company concerning the terms and conditions of the Offering and
the opportunity to obtain such other additional information necessary to verify
the accuracy of the Memorandum to the extent it possesses such information or
can acquire it without unreasonable expense.
(h) Except with the prior written consent of the Placement Agent, the Company
shall not, at any time prior to the Final Closing, engage in or commits to
engage in any transaction outside
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the scope of its business as described in the Memorandum, agree to issue or set
aside for issuance any securities (debt or equity) or any rights to acquire any
such securities except as contemplated by the Memorandum.
(i) For a period of five years from the Final Closing, the Company shall
deliver (i) to the Placement Agent and the Company's stockholders annual audited
financial statements setting forth fairly the financial position of the Company,
(ii) to the Placement Agent quarterly unaudited financial statements including
both a balance sheet and statement of income, (iii) to the Company's
stockholders a quarterly report, reviewed by the Placement Agent, of the
progress and status of the Company and an annual report setting forth fairly the
financial position of the Company, (iv) to the Placement Agent a copy of a list
of its stockholders as and when so requested and (v) to the Placement Agent such
additional information and documents concerning the business and financial
condition of the Company as the Placement Agent may from time to time reasonably
request, subject to such confidentiality agreements as the Company may
reasonably request.
(j) The Company shall pay all reasonable expenses incurred in connection with
the preparation and printing of all necessary offering documents and instruments
related to the Offering and the issuance of the Shares, the Agent's Shares and
the Agent's Warrants and will also pay the Company's own expenses for accounting
fees, legal fees and other costs involved with the Offering. The Company will
provide at its own expense such quantities of the Memorandum and other documents
and instruments relating to the Offering as the Placement Agent may reasonably
request. In addition, the Company will pay all reasonable filing fees, costs and
legal fees for Blue Sky services and related filings and expenses of counsel
with respect to Blue Sky qualifications. The Blue Sky filings shall be prepared
by the Placement Agent's counsel on behalf of the Company and all Blue Sky
filing fees shall be paid by the Company prior to any filing. At each Closing,
the Placement Agent may deduct from the proceeds of subscriptions for Units sold
at such Closing, all other fees and expenses of Blue Sky counsel outstanding as
of such date, and pay such amount directly to such counsel. Immediately
following the Final Closing, the Company will pay for an advertisement in The
---
Wall Street Journal announcing the Final Closing of the Offering in a format
-------------------
determined by the Placement Agent at a cost not to exceed $8,000.
(k) Except as permitted by the Stockholder Agreement attached as Annex C to the
Memorandum, (i) until the Termination Date, neither the Company nor any person
or entity acting on its behalf will negotiate with any other placement agent or
underwriter with respect to a private or public offering of the Company's or any
subsidiary's debt or equity securities, (ii) until the Termination Date, neither
the Company nor anyone acting on its behalf will, without the prior written
consent of the Placement Agent, offer for sale to, or solicit offers to
subscribe for Units or other securities of the Company from, or otherwise
approach or negotiate in respect thereof with, any other person and (iii) prior
to the second anniversary of the Final Closing, the Company will not, without
the Placement Agent's prior written consent sell any securities, or any rights
to acquire any securities, of the Company or create any additional classes or
series of capital stock.
(l) The following officers of the Company will continue in their current
positions following the Offering, and prior to the First Closing, the Company
will enter into employment agreements with such persons: X. Xxxxxxx Stoughton,
Xxxxxx X. Xxxxx and Xxxxxxx Xxxxxx. Such
10
agreements shall set forth terms of one (1) or two (2) years, reasonable
compensation and expense provisions, non-competition agreements and other
reasonable terms and conditions.
(m) The Company shall secure prior to the First Closing and thereafter maintain
"key man" life insurance in the amount of $3,000,000 on X. Xxxxxxx Stoughton the
Chairman and CEO of the Company and $2,000,000 on Xxxxxx X. Xxxxx.
(n) In accordance with Section 8 of the Stockholders Agreement attached as
Annex C to the Memorandum (the "Stockholders Agreement"), the Company shall
cause its Board of Directors to have at least three "independent" members who
are reasonably acceptable to the Placement Agent and who are unaffiliated with
the Placement Agent or the Company. In addition, the Placement Agent shall have
the right, for a period ending on the earlier of the effective date or five (5)
years from the Final Closing, to designate up to two (2) persons reasonably
acceptable to the Company to be, at the Placement Agent's sole discretion,
either nominees for director of the Company or advisors to the Board of
Directors of the Company. X. Xxxxxxx Stoughton shall be entitled to designate
such nominees for election to the board of directors as provided in Section 8 of
the Stockholders Agreement. All such nominees for directors shall be elected in
accordance with Section 8 of the Stockholders Agreement and the Company shall
use its best efforts (which shall include, without limitation, the solicitation
of proxies on behalf of such nominees) to cause the election of such nominees.
In the event such persons nominated by the Placement Agent are designated by the
Placement Agent to be advisors, such persons shall receive notice of and have
the right to attend all regular and special meetings of the Board of Directors
and shall be advised of all actions which the Board intends to adopt by written
consent, reasonably prior to the adoption thereof. Such advisors will receive
reimbursement of reasonable expenses and such compensation for attending
meetings equal to the compensation received by any outside director, but will
have no power to vote. The Company further agrees that it shall hold "in person"
directors' meetings no less frequently than quarterly. Thirty (30) days' advance
notice of regular meetings and such notice of special meetings as may be
required to be given to directors by statute or the Company's bylaws shall be
given to the Placement Agent. The Company agrees to indemnify and hold the
Placement Agent harmless against any and all claims, actions, awards and
judgments arising solely out of the attendance and participation of the
Placement Agent and its designated nominees or advisors at any such meeting
described herein. In the event the Company maintains a liability insurance
policy affording coverage for the acts of its officers and directors, it agrees,
if possible, to include the Placement Agent's designated advisors as insured
under such policy.
5B. Covenants of the Placement Agent. The Placement Agent hereby covenants and
--------------------------------
agrees that in connection with the making of offers to sell the Units:
(a) It will use only the Memorandum and such other written information as is
approved or supplied by the Company;
(b) It will not make any representation or warranty to any respective purchaser
of Units which is inconsistent with the Memorandum;
(c) It will not take any action which would constitute a general solicitation
or general advertising within the meaning of Rule 502 of Regulation D; and
11
(d) It will make offer only to those potential purchasers which it reasonably
believes are "accredited investors" under Regulation D.
6. Conditions of Placement Agent's Obligations. The obligations of the
--------------------------------------------
Placement Agent hereunder are subject to the fulfillment, at or before each
Closing, of the following additional conditions:
(a) Each of the representations and warranties of the Company shall be true and
correct in all materials respects when made on the date hereof and as of each
Closing Date as though made on and as of each Closing Date.
(b) The Company shall have performed and complied with all agreements,
covenants and conditions required to be performed and complied with by it under
the Transaction Documents at or before each Closing.
(c) No order suspending the use of the Memorandum or enjoining the offering or
sale of the Units shall have been issued, and no proceedings for that purpose or
a similar purpose shall have been initiated or pending, or, to the best of the
Company's knowledge, are contemplated or threatened.
(d) As of the First Closing, the Company will have an authorized capitalization
as described in the Memorandum, of which not more than 7,500,000 shares of
Common Stock shall be issued and outstanding, not including any options,
warrants or similar rights outstanding or reserved for issuance as described in
the Memorandum.
(e) The Placement Agent shall have received a certificate of the Chief
Executive Officer of the Company, dated as of each Closing Date, certifying, in
such detail as Placement Agent may reasonably request, as to the fulfillment of
the conditions set forth in subparagraphs (a), (b), (c) and (d) above.
(f) The Company shall have delivered to the Placement (i) a currently dated
good standing certificate from the secretary of state of its jurisdiction of
incorporation and each jurisdiction in which the Company is qualified to do
business as a foreign corporation, and (ii) certified resolutions of the
Company's Board of Directors approving this Agreement and the other Transaction
Documents, and the transactions and agreements contemplated by this Agreement
and the other Transaction Documents.
(g) On or prior to the date hereof and at each Closing, (i) the independent
auditors for the company shall have provided a letter confirming such matters as
the Placement Agent may reasonably request and which are customary in
transactions of this nature.
(h) At each Closing, the Company shall have (i) paid to the Placement Agent,
the Placement Agent's Fee and its Expenses actually incurred as set forth in
Section 3(d) hereof and (iii) executed and delivered to the Placement Agent the
Agent's Warrants in an amount proportional to the Units sold.
(i) On or prior to the First Closing, each of Exigent Partners, L.P., X.
Xxxxxxx Stoughton and Xxxxxx X. Xxxxx (collectively, the "Significant
Stockholders") shall have agreed in writing
12
not to sell, transfer or otherwise dispose of any of the Company's securities
beneficially owned by them or issuable to them pursuant to the exercise of
options, warrants or conversion, warrants or conversion of other securities
without the Placement Agent's written consent, which consent shall not be
unreasonably withheld, until the second anniversary of the Final Closing, except
that such persons may make transfers to a parent, spouse, sibling or descendent,
or to a trust for the benefit of any of the foregoing persons or otherwise up to
50,000 shares of Common Stock in the aggregate without the consent of the
Placement Agent; provided, however, that such transfers shall be subject to this
Section 6(i) and to Section 6(j) hereof and that the Placement Agent may require
that any such permitted transfer be made subject to a voting agreement pursuant
to which the transferring stockholder retains the right to vote all transferred
shares until the second anniversary of the Final Closing. In addition, if within
two years of the Final Closing, the Company registers any of its securities
under the Act which registration is effective, the Significant Stockholders and
any permitted transferees will extend the terms of the "lock-up" set forth in
this Section 6(i) for any additional period reasonably requested by the
underwriter, provided, however, that in the event that such registration is an
underwritten registration and the underwriter shall agree, Significant
Stockholders may sell shares in such offering in accordance with any piggy-back
registration rights granted to such persons and in effect on the date hereof as
described in the Memorandum.
(j) On or prior to the First Closing, the Company and its Significant
Stockholders shall have agreed in writing to give the Placement Agent, for a
period of five (5) years from the Final Closing, the irrevocable preferential
right of first offer described below to purchase for the Placement Agent's
account, or to act as underwriter or agent for any proposed public or private
offering of the Company's securities by the Company or any of its Significant
Stockholders, subject to, however, rights of certain existing stockholders to
purchase shares offered by the Company under the Stockholders Agreement. The
Company and its Significant Stockholders agree to offer the Placement Agent the
opportunity to purchase or sell such securities on terms no less favourable than
they can obtain elsewhere. If, within 30 business days of the receipt of a
notice of intention and statement of terms, the Placement Agent does not accept
in writing such offer to purchase such securities or to act as underwriter or
agent with respect to such offering upon the terms proposed, and subject to
Section 6(i) hereof, the Company and the applicable Significant Stockholders
shall be free to negotiate terms with third parties with respect to such
offering and to effect such offering on such proposed terms. Before the Company
or the Significant Stockholders shall accept any proposal having any significant
term less favorable to them, the Placement Agent's preferential right shall be
applied, and the procedure set forth above with respect to such modified
proposal adopted. The Placement Agent's failure to exercise these preferential
rights in any situation shall not affect the Placement Agent's preferential
rights to any subsequent offering during the term of such agreement.
13
(k) There shall have been delivered to the Placement Agent a signed opinion of
counsel to the Company ("Company Counsel"), dated as of each Closing Date,
substantially in the form of Exhibit A hereto and otherwise in form and
substance reasonably satisfactory to counsel to the Placement Agent.
(l) All proceedings taken at or prior to each Closing in connection with the
authorization, issuance and sale of the Units and the Agent's Warrants will be
reasonably satisfactory in form and substance to the Placement Agent and its
counsel, and such counsel shall have been furnished with all such documents,
certificates and opinions as they may reasonably request upon reasonable prior
notice in connection with the transactions contemplated hereby.
7. Indemnification. (a) The Company will (i) indemnify and hold harmless the
---------------
Placement Agent, its selected dealers and their respective officers, directors,
employees and each person, if any, who controls the Placement Agent within the
meaning of the Act and such selected dealers (each an "Indemnitee") against,
and pay or reimburse each Indemnitee for, any and all losses, claims, damages,
liabilities or expenses whatsoever (or actions or proceedings or investigations
in respect thereof), joint or several (which will, for all purposes of this
Agreement, include, but not be limited to, all costs of defense and
investigation and all reasonable attorneys' fees, including appeals), to which
any Indemnitee may become subject, under the Act or otherwise, in connection
with the offer and sale of the Units, whether such losses, claims, damages,
liabilities or expenses shall result from any claim of any Indemnitee or any
third party; and (ii) reimburse each Indemnitee for any legal or other expenses
reasonably incurred in connection with investigating or defending against any
such loss, claim, action, proceeding or investigation; provided, however, that
the Company will not be liable in any such case to the extent that any such
claim, damage or liability results from (A) an untrue statement or alleged
untrue statement of a material fact made in the Memorandum, or an omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in reliance upon and
in conformity with written information furnished to the Company by the Placement
Agent or any such controlling persons specifically for use in the preparation
thereof, or (B) any violations by the Placement Agent of the Act or state
securities laws which does not result from a violation thereof by the Company or
any of its affiliates. In addition to the foregoing agreement to indemnify and
reimburse, the Company will indemnify and hold harmless each Indemnitee against
any and all losses, claims, damages, liabilities or expenses whatsoever (or
actions or proceedings or investigations in respect thereto), joint or several
(which shall for all purposes of this Agreement, include, but not be limited to,
all costs of defense and investigation and all reasonable attorneys' fees,
including appeals) to which any indemnitee may become subject insofar as such
costs, expenses, losses, claims, damages or liabilities arise out of or are
based upon the claim of any person or entity that he or it is entitled to
broker's or finder's fees from any Indemnitee in connection with the Offering.
The foregoing indemnity agreements will be in addition to any liability which
the Company may otherwise have.
(b) The Placement Agent will indemnify and hold harmless the Company, its
officers, directors, employees and each person, if any, who controls the Company
within the meaning of the Act against, and pay or reimburse any such person for,
any and all losses, claims damages or liabilities or expenses whatsoever (or
actions, proceedings or investigations in respect thereof) to which the Company
or any such person may become subject under the Act or otherwise, whether such
losses, claims, damages, liabilities or expenses shall result from (A) any claim
of the
14
Company, any of its officers, directors, employees, any person who controls the
Company within the meaning of the Act or any third party insofar as such losses,
claims, damages or liabilities are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Memorandum but only with
reference to information contained in the Memorandum relating to the Placement
Agent furnished in writing to the Company by the Placement Agent, specifically
for use in the preparation thereof or (B) any violations by the Placement Agent
of the Act or state securities laws. The Placement Agent will reimburse the
Company or any such person for any legal or other expenses reasonably incurred
in connection with investigation or defending against any such loss, claim,
damage, liability or action, proceeding or investigation to which such indemnity
obligation applies. The foregoing indemnity agreements will be in addition to
any liability which the Placement Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, claim, proceeding or investigation
("Action"), such indemnified party, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, will notify the idemnifying
party of the commencement thereof, but the omission to so notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party under this Section 7 unless the indemnifying party has
been substantially prejudiced by such omission. The indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
any other indemnifying party, to assume the defense thereof subject to the
provisions herein stated, with counsel reasonably satisfactory to such
indemnified party. The indemnified party will have the right to employ separate
counsel in any such Action and to participate in the defense thereof, but the
fees and expenses of such counsel will not be at the expense of the indemnifying
party if the indemnifying party has assumed the defense of the Action with
counsel reasonably satisfactory to the indemnified party, provided, however,
that if the indemnified party shall be requested by the indemnifying party to
participate in the defense thereof or shall have concluded in good faith and
specifically notified the indemnifying party either that there may be actual or
potential conflict of interest for one counsel to represent both the indemnified
and the indemnifying party, then the counsel representing it, to the extent made
necessary by such defenses, shall have the right to direct such defenses of such
Action on its behalf but not on behalf of the indemnifying party and in such
case the fees and expenses of such counsel in connection with any such
participation or defenses shall be paid by the indemnifying party. No settlement
of any Action against an indemnified party will be made without the consent of
the indemnifying party and the indemnified party, which consent shall not be
unreasonably withheld or delayed in light of all factors or importance to such
party and no indemnifying party shall be liable to indemnify any person for any
settlement of any such claim effected without such indemnifying party's consent.
8. Contribution. To provide for just and equitable contribution, if (i) an
------------
indemnified party makes a claim for indemnification pursuant to Section 7 hereof
and it is finally determined, by a judgment, order or decree not subject to
further appeal that such claims for indemnification may not be enforced, even
though this Agreement expressly provides for indemnification in such case; or
(ii) any indemnified or indemnifying party seeks contribution under the Act, the
1934 Act or otherwise, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Placement Agent on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses (or actions in respect thereof), as
well as any other relevant
15
equitable considerations. The relative benefits received by the Company on the
one hand and the Placement Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the Offering (before deducting
expenses) received by the Company bear to the total commissions and fees
received by the Placement Agent. The relative fault, in the case of an untrue
statement, alleged untrue statement, omission or alleged omission will be
determined by, among other things, whether such statement, alleged statement,
omission or alleged omission relates to information supplied by the Company or
by the Placement Agent, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement, alleged
statement, omission or alleged omission. The Company and the Placement Agent
agree that it would be unjust and inequitable if the respective obligations of
the Company and the Placement Agent for contribution were determined by pro rata
--- ----
allocation of the aggregate losses, liabilities, claims, damages and expenses or
by any other method or allocation that does not reflect the equitable
considerations referred to in this Section 8. No person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls the Placement Agent within the meaning of the Act will have the same
rights to contribution as the Placement Agent, and each person, if any, who
controls the Company within the meaning of the Act will have the same rights to
contribution as the Company, subject in each case to the provisions of this
Section 8. Anything in this Section 8 to the contrary notwithstanding, no party
will be liable for contribution with respect to the settlement of any claim or
action effected without its written consent. This Section 8 is intended to
supersede, to the extent permitted by law, any right to contribution under the
Act, the 1934 Act or otherwise available.
9. Termination. (a) The Offering may be terminated by the Placement Agent at
-----------
any time prior to the expiration of the Offering Period as contemplated in
Section 1(b) hereof ("Expiration Date") in the event that (i) any of the
representations or warranties of the Company contained herein, in the Memorandum
or in any other Transaction Document shall prove to have been false or
misleading in any material respect when made or deemed made, (ii) the Company
shall have failed to perform any of its material obligations hereunder, or (iii)
the Placement Agent shall determine that it is reasonably likely that any of the
conditions to Closing set forth herein will not, or cannot, be satisfied. In the
event of any such termination occasioned by or arising out of or in connection
with any breach or failure hereunder on the part of the Company, the Placement
Agent shall be entitled to receive, in addition to other rights and remedies it
may have hereunder, at law or otherwise, an amount equal to the sum of: (A) all
Placement Agent's Fees earned through the Termination Date, (B) reimbursement of
all Expenses actually incurred through the Termination Date (without regard to
any limitation on the amount of Expenses set forth in Section 3(d) hereof),
including any non-refundable amounts referred to in Section 3(d) hereof, (C) all
amounts which may become payable in respect of Post-Closing Investors pursuant
to Section 3(f) hereof and (D) in the event that the Company is sold, merged or
otherwise acquired, or the Company enters into a letter of intent or completes a
public or private offering of its securities within one (1) year from the
Termination Date, an investment banking fee equal to five percent (5%) of the
total consideration received by the Company and/or its stockholders in
connection with such sale, merger, acquisition or sale of securities. In the
event of any such termination by the Placement Agent as a result of any event
described in clause (iii) or (iv) above, or pursuant to Section 4(d) hereof, not
occasioned by or arising out of or in connection with any breach or failure
hereunder by the Company, the Placement Agent will be entitled to receive the
sum of all Placement Agent's Fees earned through the Termination Date,
16
reimbursement for the amount of all Expenses actually incurred through the
Termination Date up to the maximum amount set forth herein.
(b) This Offering may be terminated by the Company at any time prior to the
Expiration Date in the event that the Placement Agent shall have failed to
perform any of its material obligations hereunder. In the event of any such
termination by the Company, the Placement Agent shall be entitled to
reimbursement for the amount of the Expenses actually incurred through the
Termination Date, and may retain any non-refundable portions thereof, but shall
be entitled to no other amounts whatsoever except as may be due under any
indemnity or contribution obligation provided herein or any other Transaction
Document, at law or otherwise.
(c) Upon any such termination, the Escrow Agent will, at the request of the
Placement Agent, cause all monies received in respect of subscriptions for Units
not accepted by the Company to be promptly returned to such subscribers without
interest, penalty, expense or deduction. Any interest earned thereon shall be
applied first to the payment of amounts, if any, due to the Escrow Agent and
next to the payment of Expenses incurred by the Placement Agent hereunder which
remain unpaid.
10. Survival. (a) The obligations of the parties to pay any costs and expenses
--------
hereunder and to provide indemnification and contribution as provided herein
shall survive any termination hereunder.
(b) The respective indemnities, agreements, representations, warranties and
other statements of the Company set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or
on behalf of, and regardless of any access to information by, the Company or the
Placement Agent, or any of their officers or directors or any controlling person
thereof, and will survive the sale of the Units.
11. Notices. All communications hereunder will be in writing and, except as
-------
otherwise expressly provided herein or after notice by one party to the other of
a change of address, if sent to the Placement Agent, will be mailed, delivered
or telefaxed and confirmed to Xxxxxxx Xxxxx Securities Incorporated, 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx XxXxxxxx, Telefax
number (000) 000-0000, with a copy to Xxxxxxx, Calamari & Xxxxxxx, 000 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxx X. Xxxxxxx, Esq., Telefax number (212)
213-1199 and if sent to the Company, will be mailed, delivered or telefaxed and
confirmed to Exigent Diagnostics, Inc., 709 Swedeland Road, X.X. Xxx 0000, Xxxx
xx Xxxxxxx, Xxxxxxxxxxxx 00000, Attn: X. Xxxxxxx Stoughton, Telefax number (610)
270-6150, with a copy to Pepper, Xxxxxxxx & Xxxxxxx, 0000 Xxx Xxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, Attn: Xxxxx X. Xxxxxxx, Esq., Telefax
number (000) 000-0000.
12. APPLICABLE LAW, COSTS, ETC. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED
---------------------------
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR UNITED STATES
FEDERAL COURT SITTING IN NEW YORK COUNTY OVER ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED HEREBY, AND
THE COMPANY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR PROCEEDING MAY BE HEARD
17
AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURT. THE COMPANY FURTHER
WAIVES ANY OBJECTION TO VENUE IN SUCH STATE AND ANY OBJECTION TO AN ACTION OR
PROCEEDING IN SUCH STATE ON THE BASIS OF A NON-CONVENIENT FORUM. THE COMPANY
FURTHER AGREES THAT ANY ACTION OR PROCEEDING BROUGHT AGAINST THE PLACEMENT AGENT
SHALL BE BROUGHT ONLY IN NEW YORK STATE OR UNITED STATES FEDERAL COURTS SITTING
IN NEW YORK COUNTY. SERVICE OR PROCESS MAY BE MADE UPON THE COMPANY BY MAILING A
COPY THEREOF TO IT, BY CERTIFIED OR REGISTERED MAIL, AT ITS ADDRESS TO BE USED
FOR THE GIVING OF NOTICES UNDER THIS AGREEMENT. THE COMPANY AND THE PLACEMENT
AGENT EACH HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DOCUMENT OR AGREEMENT
CONTEMPLATED HEREBY. THE PLACEMENT AGENT OR THE COMPANY, AS THE CASE MAY BE,
SHALL BE ENTITLED TO COSTS AND REASONABLE ATTORNEY'S FEES IN THE EVENT IT
PREVAILS IN ANY CLAIMS, ACTIONS AWARDS OR JUDGMENT UNDER THIS AGREEMENT.
13. Miscellaneous. No provision of this Agreement may be changed or terminated
-------------
except by a writing signed by the party or parties to be charged therewith.
Unless expressly so provided, no party to this Agreement will be liable for the
performance of any other party's obligations hereunder. Any party hereto may
waive compliance by the other with any of the terms, provisions and conditions
set forth herein; provided, however that any such waiver shall be in writing
specifically setting forth those provisions waived thereby. No such waiver shall
be deemed to constitute or imply waiver of any other term, provision or
condition of this Agreement. This Agreement contains the entire agreement
between the parties hereto and is intended to supersede any and all prior
agreements between the parties relating to the same subject matter. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which shall constitute a single agreement.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return this Agreement, whereupon it will become a binding
agreement between the Company and the Placement Agent in accordance with its
terms.
Very truly yours,
EXIGENT DIAGNOSTICS, INC.
By: X. Xxxxxxx Stoughton
-------------------------
/s/ X. Xxxxxxx Stoughton
Chairman and CEO
18
Accepted and agreed to this
10 day of December, 1996.
XXXXXXX XXXXX SECURITIES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Its: President
-------------------------
19
