PLACEMENT AGENCY AGREEMENT
Exhibit 10.6
Xxxxxx Xxxxx Securities,
Inc.
0 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
March 16, 2016
Ladies and Gentlemen:
This letter (this “Agreement”) constitutes the agreement between InspireMD, Inc., a Delaware corporation (the “Company”) and Xxxxxx Xxxxx Securities, Inc. (“Xxxxxx” or the “Placement Agent”) pursuant to which Xxxxxx shall serve as the exclusive placement agent (the “Services”) for the Company, on a best efforts basis, in connection with the proposed private offer and placement (the “Offering”) by the Company of its Securities (as defined Section 3 of this Agreement). The Company expressly acknowledges and agrees that Xxxxxx’x obligations hereunder are on a reasonable “best efforts basis” only and that the execution of this Agreement does not constitute a commitment by Xxxxxx to purchase the Securities and does not ensure the successful placement of the Securities or any portion thereof or the success of Xxxxxx placing the Securities.
1. | Appointment of Xxxxxx Xxxxx Securities, Inc. as Exclusive Placement Agent. |
On the basis of the representations, warranties, covenants and agreements of the Company herein contained, and subject to all the terms and conditions of this Agreement, the Company hereby appoints the Placement Agent as its exclusive placement agent in connection with a distribution of its Securities to be offered and sold by the Company in reliance upon the exemption from securities registration afforded by Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506(b) of Regulation D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the Securities Act, and Xxxxxx agrees to act as the Company’s exclusive Placement Agent. Pursuant to this appointment, the Placement Agent will solicit offers for the purchase of or attempt to place all or part of the Securities of the Company in the proposed Offering. The Company shall have the sole right to accept offers to purchase Securities and may reject any such offer, in whole or in part.
2. | Fees and Expenses. |
In connection with the Placement Agent services described above, the Company shall pay to Xxxxxx the following:
A. Placement Agent Fee. Placement Agent in cash by wire transfer in immediately available funds to an account or accounts designated by the Placement Agent an amount (the “Placement Fee”) equal to eight percent (8%) of the aggregate gross proceeds received by the Company from the sale of the Securities at the closing of the Offering (the “Closing” and the date on which the Closing occurs, the “Closing Date”); and the Company shall issue to the Placement Agent or its designees at the Closing one five-year warrant to purchase such number of shares equal to 5% of the shares of Common Stock included in the Units (as defined below) sold in this Offering at an exercise price of $0.7375 (125% of the price per Unit) (the “Placement Agent Warrants” and together with the shares of Common Stock underlying the Placement Agent Warrants, the “Placement Agent Securities”).
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3. | Description of the Offering. |
The Securities to be offered directly to various investors (each, an “Investor” or “Purchaser” and, collectively, the “Investors” or the “Purchasers”) in the Offering shall be up to 1,100,000 units (“Units”) of securities, each such Unit consisting of (a) one share of the Company’s common stock (the “Common Stock”) (the “Shares”) and (b) a warrant, which warrant is each exercisable to purchase 0.5 shares of Common Stock (the “Warrants”) at an exercise price of $0.59 per whole share (the “Warrants”). The term “Securities” shall mean the Units, the Common Stock underlying the Units, the Warrants and the Common Stock underlying the Warrants.
The Offering documents shall consist of the Securities Purchase Agreement dated March 16, 2016, and all exhibits attached thereto (collectively, the foregoing are referred to as the “Subscription Documents”). If the Company shall default in its obligations to deliver Securities to a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or expense arising from or as a result of such default by the Company under this Agreement.
4. | Delivery and Payment; Closing. |
Investors purchasing Securities shall by check or wire transfer pay for such Securities by transmitting payment to the Company at Closing. At Closing, the Company shall wire payment of all fees and expenses to the Placement Agent as provided herein. The Securities shall be registered in such name or names and in such authorized denominations as the Placement Agent may request in writing prior to the Closing Date. The Closing shall occur at such place as shall be agreed upon by the Placement Agent and the Company. In the absence of an agreement to the contrary, the Closing shall take place at the offices of Xxxxxx Xxxxxx LLP, 000 X Xxxxxx, XX, Xxxxx 000, Xxxxxxxxxx, XX 00000. Deliveries of the documents with respect to the purchase of the Securities, if any, shall be made at the offices of Xxxxxx Xxxxxx, LLP, 000 X Xxxxxx, XX, Xxxxx 000, Xxxxxxxxxx, XX 00000 on the Closing Date. All actions taken at a Closing shall be deemed to have occurred simultaneously.
5. | Term and Termination of Agreement. |
The term of this Agreement will commence upon the execution of this Agreement and will terminate at the earlier of the Closing of the Offering or 11:59 p.m. (New York Time) on March 22, 2016.
6. | Permitted Acts. |
Nothing in this Agreement shall be construed to limit the ability of the Placement Agent, its officers, directors, employees, agents, associated persons and any individual or entity “controlling,” controlled by,” or “under common control” with the Placement Agent (as those terms are defined in Rule 405 under the Securities Act) to conduct its business including without limitation the ability to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with any individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
7. | Representations, Warranties and Covenants of the Company. |
As of the date and time of the execution of this Agreement and the Closing Date, the Company (i) makes such representations and warranties to the Placement Agent as are set forth in Section 2 of the Underwriting Agreement dated March 16, 2016 between the parties, and (ii) hereby further represents, warrants and covenants to the Placement Agent that:
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8. | Conditions of the Obligations of the Placement Agent. |
The obligations of the Placement Agent hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 7 hereof, in each case as of the date hereof and as of the Closing Date as though then made, to the timely performance by each of the Company of its covenants and other obligations hereunder on and as of such dates, and to each of the following additional conditions:
9. | Indemnification and Contribution; Procedures. |
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10. | Limitation of Xxxxxx’x Liability to the Company. |
Xxxxxx and the Company further agree that neither Xxxxxx nor any of its affiliates or any of their respective officers, directors, controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), employees or agents shall have any liability to the Company, its security holders or creditors, or any person asserting claims on behalf of or in the right of the Company (whether direct or indirect, in contract or tort, for an act of negligence or otherwise) for any losses, fees, damages, liabilities, costs, expenses or equitable relief arising out of or relating to this Agreement or the Services rendered hereunder, except for losses, fees, damages, liabilities, costs or expenses that arise out of or are based on any action of or failure to act by Xxxxxx and that are finally judicially determined to have resulted solely from the gross negligence or willful misconduct of Xxxxxx.
11. | Limitation of Engagement to the Company. |
The Company acknowledges that Xxxxxx has been retained only by the Company, that Xxxxxx is providing services hereunder as an independent contractor (and not in any fiduciary or agency capacity) and that the Company’s engagement of Xxxxxx is not deemed to be on behalf of, and is not intended to confer rights upon, any shareholder, owner or partner of the Company or any other person not a party hereto as against Xxxxxx or any of its affiliates, or any of its or their respective officers, directors, controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), employees or agents. Unless otherwise expressly agreed in writing by Xxxxxx, no one other than the Company is authorized to rely upon any statement or conduct of Xxxxxx in connection with this Agreement. The Company acknowledges that any recommendation or advice, written or oral, given by Xxxxxx to the Company in connection with Xxxxxx’x engagement is intended solely for the benefit and use of the Company’s management and directors in considering a possible Offering, and any such recommendation or advice is not on behalf of, and shall not confer any rights or remedies upon, any other person or be used or relied upon for any other purpose. Xxxxxx shall not have the authority to make any commitment binding on the Company. The Company, in its sole discretion, shall have the right to reject any investor introduced to it by Xxxxxx. The Company agrees that it will perform and comply with the covenants and other obligations set forth in any purchase agreement and related transaction documents between the Company and the Investors in the Offering, if any, and that Xxxxxx will be entitled to rely on the representations, warranties, agreements and covenants of the Company contained in any such purchase agreement and related transaction documents as if such representations, warranties, agreements and covenants were made directly to Xxxxxx by the Company, provided that no such representations, warranties, agreements and covenants shall in any way limit or modify the representations, warranties, agreements and covenants set forth in this Agreement.
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12. | Amendments and Waivers. |
No supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. The failure of a party to exercise any right or remedy shall not be deemed or constitute a waiver of such right or remedy in the future. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (regardless of whether similar), nor shall any such waiver be deemed or constitute a continuing waiver unless otherwise expressly provided.
13. | Confidentiality. |
In the event of the consummation or public announcement of any Offering, Xxxxxx shall have the right to disclose its participation in such Offering, including, without limitation, the placement at its cost of “tombstone” advertisements in financial and other newspapers and journals. Xxxxxx agrees not to use any confidential information concerning the Company provided to Xxxxxx by the Company for any purposes other than those contemplated under this Agreement.
14. | Headings. |
The headings of the various sections of this Agreement have been inserted for convenience of reference only and will not be deemed to be part of this Agreement.
15. | Counterparts. |
This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original and all such counterparts shall together constitute one and the same instrument.
16. | Severability. |
In case any provision contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.
17. | Absence of Fiduciary Relationship. |
The Company acknowledges and agrees that: (a) the Placement Agent has been retained solely to act as Placement Agent in connection with the sale of the Securities and that no fiduciary, advisory or agency relationship between the Company and the Placement Agent has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Placement Agent has advised or is advising the Company on other matters; (b) the price and other terms of the Securities set forth in this Agreement were established by the Company following discussions and arms-length negotiations with the Placement Agent and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (c) it has been advised that the Placement Agent and its affiliates are engaged in a broad range of transactions that may involve interests that differ from those of the Company and that the Placement Agent has no obligation to disclose such interest and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and (d) it has been advised that the Placement Agent is acting, in respect of the transactions contemplated by this Agreement, solely for the benefit of the Placement Agent, and not on behalf of the Company.
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18. | Survival Of Indemnities, Representations, Warranties, Etc. |
The respective indemnities, covenants, agreements, representations, warranties and other statements of the Company and Placement Agent, as set forth in this Agreement or made by them respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation made by or on behalf of the Placement Agents, the Company, the Purchasers or any person controlling any of them and shall survive delivery of and payment for the Securities. Notwithstanding any termination of this Agreement, including without limitation any termination pursuant to Section 5, the payment, reimbursement, indemnity, contribution and advancement agreements contained in Sections 2, 9, and 10, respectively, and the Company’s covenants, representations, and warranties set forth in this Agreement shall not terminate and shall remain in full force and effect at all times. The indemnity and contribution provisions contained in Section 9 and the covenants, warranties and representations of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Placement Agent, any person who controls any Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or any affiliate of any Placement Agent, or by or on behalf of the Company, its directors or officers or any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and (iii) the issuance and delivery of the Securities. The Company and Placement Agent agree to notify each other of the commencement of any Proceeding against either of them promptly, and, in the case of the Company, against any of the Company’s officers or directors in connection with the issuance and sale of the Securities.
19. | Governing Law. |
This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be fully performed therein. Any disputes that arise under this Agreement, even after the termination of this Agreement, will be heard only in the state or federal courts located in the City of New York, State of New York. The parties hereto expressly agree to submit themselves to the jurisdiction of the foregoing courts in the City of New York, State of New York. The parties hereto expressly waive any rights they may have to contest the jurisdiction, venue or authority of any court sitting in the City and State of New York.
20. | Notices. |
All communications hereunder shall be in writing and shall be mailed, hand delivered or faxed and confirmed to the parties hereto as follows:
If to the Company to the address set forth above, attn: Chief Executive Officer
If to the Placement Agent:
Xxxxxx Xxxxx Securities, Inc.
0 Xxxxx Xxxxxxx Xxxxxxx – 5th Floor
Xxxx Xxxxx, XX 00000
Attention: Chief Executive Officer
Any party hereto may change the address for receipt of communications by giving written notice to the others.
21. | Miscellaneous. |
This Agreement shall not be modified or amended except in writing signed by Xxxxxx and the Company. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers and directors and controlling persons referred to in Section 9 hereof, and to their respective successors, and personal representative, and, except as set forth in Section 9 of this Agreement, no other person will have any right or obligation hereunder or be considered a third-party beneficiary hereunder. This Agreement constitutes the entire agreement of Xxxxxx and the Company, and supersedes any prior agreements, with respect to the subject matter hereof. If any provision of this Agreement is determined to be invalid or unenforceable in any respect, such determination will not affect such provision in any other respect, and the remainder of this Agreement shall remain in full force and effect. This Agreement may be executed in counterparts (including facsimile or .pdf counterparts), each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
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In acknowledgment that the foregoing correctly sets forth the understanding reached by Xxxxxx and the Company, and intending to be legally bound, please sign in the space provided below, whereupon this letter shall constitute a binding Agreement as of the date executed.
Very truly yours, | |||
InspireMD Inc. | |||
By: | /s/ Xxxxx Xxxxx | ||
Name: Xxxxx Xxxxx | |||
Title: Chief Financial Officer | |||
Agreed and accepted as of the date first above written. | |||
XXXXXX XXXXX SECURITIES, INC. | |||
By: | /s/ Xxxxxx X. Xxxxxx, Xx. | ||
Name: Xxxxxx X. Xxxxxx, Xx. | |||
Title: Chief Executive Officer |
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