CONFIDENTIAL
EXHIBIT
1.1
June
27,
2007
CONFIDENTIAL
Xxxx
X.
Xxxxx, CPA
Chief
Financial Officer
Peregrine
Pharmaceuticals, Inc.
00000
Xxxxxxxx Xxxxxx,
Tustin,
CA 92780
Dear
Xx.
Xxxxx:
This
letter (the “Agreement”)
constitutes the agreement between Xxxxxx & Xxxxxxx, LLC (“R&R”
or
the
“Placement
Agent”)
and
Peregrine
Pharmaceuticals, Inc.
(the
“Company”),
that
R&R shall serve as the exclusive placement agent for the Company, on a
“reasonable best efforts” basis, in connection with the proposed placement (the
“Placement”)
of
registered securities (the “Securities”)
of the
Company, including shares (the “Shares”)
of the
Company’s common stock, par value $0.001 per share (the “Common
Stock”)
and
supersedes all prior oral and written agreements, communications, and
understandings. The terms of such Placement and the Securities shall be mutually
agreed upon by the Company and the purchasers (each, a “Purchaser”
and
collectively, the “Purchasers”)
and
nothing herein constitutes that R&R would have the power or authority to
bind the Company or any Purchaser or an obligation for the Company to issue
any
Securities or complete the Placement. This Agreement and the documents executed
and delivered by the Company and the Purchasers in connection with the Placement
shall be collectively referred to herein as the “Transaction Documents.”
The
date of the closing of the Placement shall be referred to herein as the
“Closing
Date.”
The
Company expressly acknowledges and agrees that R&R’s obligations hereunder
are on a reasonable best efforts basis only and that the execution of this
Agreement does not constitute a commitment by R&R to purchase the Securities
and does not ensure the successful placement of the Securities or any portion
thereof or the success of R&R with respect to securing any other financing
on behalf of the Company.
SECTION
1. Compensation
and other Fees.
As
compensation for the services provided by R&R hereunder and provided R&R
only shows this potential Financing to investors pre-approved in writing by
the
Company, the Company agrees to pay to R&R fees set forth below if there is
any financing of equity or debt or other capital raising activity of the Company
(a “Financing”)
during
the term of this Agreement with any investors pre-approved in writing by the
Company and Introduced (as defined below) to the Company by R&R pursuant to
this Agreement:
(A) The
fees
set forth below with respect to the Placement:
a) A
cash
fee payable immediately upon the closing of the Placement equal to 6% of the
aggregate
gross proceeds raised in the Placement from investors Introduced by Xxxxxx
and
equal to 7% of the aggregate gross proceeds raised in the Placement from
investors Introduced through a Selected Dealer.
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
Page
2
(B) The
fees
set forth below if there is any financing of equity or debt or other capital
raising activity of the Company (a “Financing”)
within
10 months and two weeks after the expiration or termination of this Agreement
with any investors that were Introduced, as defined below, to the Company by
R&R pursuant to this Agreement:
a) A
cash
fee payable immediately upon the closing of any portion of any Financing and
equal to 6%
of the
aggregate gross proceeds raised in such Financing from such
investors.
| (C) |
The
Company also agrees to reimburse R&R’s reasonable out-of-pocket
expenses, including legal fees (with supporting invoices/receipts)
up to a
maximum of $25,000. Such reimbursement shall be payable within 30
days
after the Company’s receipt of all supporting invoices/receipts
specifically related to the services for minimum gross proceeds to
the
Company of $16,000,000.
|
| (D) |
Xxxxxx
may engage other NASD members in good standing to act as selected
dealers
in connection with the Placement (“Selected Dealers”). Such Selected
Dealers will receive a cash fee of 5% of gross offering proceeds
from
Purchasers identified by any such Selected Dealer (the remaining
2% of
such gross proceeds will remain with Xxxxxx as its lead manager
fee).
|
| (E) |
For
avoidance of doubt, “Introduce” or “Introduced” shall mean any investor
pre-approved in writing by the Company and subsequently contacted
by
R&R or a Selected Dealer in connection with the proposed
Placement.
An
electronic email or facsimile transmission from either the CFO or
CEO of
the Company clearly pre-approving specific investor(s) identified
by
R&R or a Selected Dealer shall be deemed pre-approved in writing by
Company.
|
SECTION
2. REGISTRATION
STATEMENT.
The
Company represents and warrants to, and agrees with, the Placement Agent
that:
(A) The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (Registration File No.333-139975 under
the
Securities Act of 1933, as amended (the “Securities Act”), which became
effective on January 23, 2007, for the registration under the Securities Act
of
the Shares. At the time of such filing, the Company met the requirements of
Form
S-3 under the Securities Act. Such registration statement meets the requirements
set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said
Rule. The Company will file with the Commission pursuant to Rule 424(b) under
the Securities Act, and the rules and regulations (the “Rules and Regulations”)
of the Commission promulgated thereunder, a supplement to the form of prospectus
included in such registration statement relating to the placement of the Shares
and the plan of distribution thereof and will advise the Placement Agent of
all
further information (financial and other) with respect to the Company required
to be set forth therein. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter called the
“Registration Statement”; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the “Base Prospectus”; and the
supplemented form of prospectus, in the form in which it will be filed with
the
Commission pursuant to Rule 424(b) (including the Base Prospectus as so
supplemented) is hereinafter called the “Prospectus Supplement.” Any reference
in this Agreement to the Registration Statement, the Base Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the documents
incorporated by reference therein (the “Incorporated Documents”) pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), on or before the date of this Agreement, or the
issue date of the Base Prospectus or the Prospectus Supplement, as the case
may
be; and any reference in this Agreement to the terms “amend,” “amendment” or
“supplement” with respect
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
Page
3
to
the
Registration Statement, the Base Prospectus or the Prospectus Supplement
shall
be deemed to refer to and include the filing of any document under the
Exchange
Act after the date of this Agreement, or the issue date of the Base Prospectus
or the Prospectus Supplement, as the case may be, deemed to be incorporated
therein by reference. All references in this Agreement to financial statements
and schedules and other information which is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration
Statement, the Base Prospectus or the Prospectus Supplement (and all
other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or
is deemed
to be incorporated by reference in the Registration Statement, the Base
Prospectus or the Prospectus Supplement, as the case may be. No stop
order
suspending the effectiveness of the Registration Statement or the use
of the
Base Prospectus or the Prospectus Supplement has been issued, and no
proceeding
for any such purpose is pending or has been initiated or, to the Company's
knowledge, is threatened by the Commission. For purposes of this Agreement,
“free writing prospectus” has the meaning set forth in Rule 405 under the
Securities Act and the “Time of Sale Prospectus” means the preliminary
prospectus, if any, together with the free writing prospectuses, if any,
used in
connection with the Placement, including any documents incorporated by
reference
therein.
(B) The
Registration Statement (and any further documents to be filed with the
Commission) contains all exhibits and schedules as required by the Securities
Act. Each of the Registration Statement and any post-effective amendment
thereto, at the time it became effective, complied in all material respects
with
the Securities Act and the Exchange Act and the applicable Rules and Regulations
and did not and, as amended or supplemented, if applicable, will not, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Base Prospectus, the Time of Sale Prospectus, if any, and the
Prospectus Supplement, each as of its respective date, comply in all material
respects with the Securities Act and the Exchange Act and the applicable Rules
and Regulations. Each of the Base Prospectus, the Time of Sale Prospectus,
if
any, and the Prospectus Supplement, as amended or supplemented, did not and
will
not contain as of the date thereof any untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The
Incorporated Documents, when they were filed with the Commission, conformed
in
all material respects to the requirements of the Exchange Act and the applicable
Rules and Regulations, and none of such documents, when they were filed with
the
Commission, contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein (with respect
to
Incorporated Documents incorporated by reference in the Base Prospectus or
Prospectus Supplement), in light of the circumstances under which they were
made
not misleading; and any further documents so filed and incorporated by reference
in the Base Prospectus, the Time of Sale Prospectus, if any, or Prospectus
Supplement, when such documents are filed with the Commission, will conform
in
all material respects to the requirements of the Exchange Act and the applicable
Rules and Regulations, as applicable, and will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. No post-effective amendment to the Registration Statement
reflecting any facts or events arising after the date thereof which represent,
individually or in the aggregate, a fundamental change in the information set
forth therein is required to be filed with the Commission. There are no
documents required to be filed with the Commission in connection with the
transaction contemplated hereby that (x) have not been filed as required
pursuant to the Securities Act or (y) will not be filed within the requisite
time period. There are no contracts or other documents required to be described
in the Base Prospectus, the Time of Sale Prospectus, if any, or Prospectus
Supplement, or to be filed as exhibits or schedules to the Registration
Statement, which have not been described or filed as required.
(C) The
Company is eligible to use free writing prospectuses in connection with the
Placement pursuant to Rules 164 and 433 under the Securities Act. Any free
writing prospectus that the Company is required to file pursuant to Rule 433(d)
under the Securities Act has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus
that
the Company has filed, or is required to file, pursuant to Rule 433(d) under
the
Securities Act or that was prepared by or on behalf of or used by the Company
complies or will comply in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder. The Company will not, without the prior consent of the Placement
Agent, prepare, use or refer to, any free writing prospectus.
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
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4
(D) The
Company has delivered, or will as promptly as practicable deliver, to the
Placement Agent complete conformed copies of the Registration Statement and
of
each consent and certificate of experts, as applicable, filed as a part thereof,
and conformed copies of the Registration Statement (without exhibits), the
Base
Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement,
as amended or supplemented, in such quantities and at such places as the
Placement Agent reasonably requests. Neither the Company nor any of its
directors and officers has distributed and none of them will distribute, prior
to the Closing Date, any offering material in connection with the offering
and
sale of the Shares other than the Base Prospectus, the Time of Sale Prospectus,
if any, the Prospectus Supplement, the Registration Statement, copies of the
documents incorporated by reference therein and any other materials permitted
by
the Securities Act.
SECTION
3. REPRESENTATIONS
AND WARRANTIES.
Except
as set forth under the corresponding section of the Disclosure Schedules which
Disclosure Schedules shall be deemed a part hereof, the Company hereby makes
the
representations and warranties set forth below to the Placement
Agent.
(A) Organization
and Qualification. All of the direct and indirect subsidiaries
(individually, a “Subsidiary”) of the Company are set forth on Schedule
3(A). The Company owns, directly or indirectly, all of the capital stock or
other equity interests of each Subsidiary free and clear of any “Liens”
(which for purposes of this Agreement shall mean a lien, charge, security
interest, encumbrance, right of first refusal, preemptive right or other
restriction), and all the issued and outstanding shares of capital stock of
each
Subsidiary are validly issued and are fully paid, non-assessable and free of
preemptive and similar rights to subscribe for or purchase securities. The
Company and each of the Subsidiaries is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and assets and
to
carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation or default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational or
charter documents. Each of the Company and the Subsidiaries is duly qualified
to
conduct business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, could not
have (i) a material adverse effect on the legality, validity or enforceability
of any Transaction Document, (ii) a material adverse effect on the results
of
operations, assets, business, prospects or condition (financial or otherwise)
of
the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse
effect on the Company’s ability to perform in any material respect on a timely
basis its obligations under any Transaction Document (any of (i), (ii) or (iii),
a “Material Adverse Effect”) and no “Proceeding” (which for
purposes of this Agreement shall mean any action, claim, suit, investigation
or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened) has been
instituted in any such jurisdiction revoking, limiting or curtailing or seeking
to revoke, limit or curtail such power and authority or
qualification.
(B) Authorization;
Enforcement. The Company has the requisite corporate power and authority to
enter into and to consummate the transactions contemplated by each of the
Transaction Documents and otherwise to carry out its obligations hereunder
and
thereunder. The execution and delivery of each of the Transaction Documents
by
the Company and the consummation by it of the transactions contemplated thereby
have been duly authorized by all necessary action on the part of the Company
and
no further action is required by the Company, its board of directors or its
stockholders in connection therewith other than in connection with the
“Required Approvals” (as defined in subsection 3(D) below). Each
Transaction Document has been (or upon delivery will have been) duly executed
by
the Company and, when delivered in accordance with the terms hereof and thereof,
will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of
general application affecting enforcement of creditors’ rights generally and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
Page
5
(C) No
Conflicts. The execution, delivery and performance of the Transaction
Documents by the Company, the issuance and sale of the Securities and the
consummation by the Company of the other transactions contemplated hereby and
thereby do not and will not (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws
or other organizational or charter documents, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, result in the creation of any Lien upon any
of
the properties or assets of the Company or any Subsidiary, or give to others
any
rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or
other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which
any
property or asset of the Company or any Subsidiary is bound or affected, or
(iii) subject to the Required Approvals, conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the Company or
a
Subsidiary is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a Subsidiary
is bound or affected; except in the case of each of clauses (ii) and (iii),
such
as could not have or reasonably be expected to result in a Material Adverse
Effect.
(D) Filings,
Consents and Approvals. The Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other “Person” (defined as an 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, including, without
limitation, any Trading Market) in connection with the execution, delivery
and
performance by the Company of the Transaction Documents, other than such filings
as are required to be made under applicable Federal and state securities laws
(collectively, the “Required Approvals”).
(E) Issuance
of the Securities; Registration. The Securities are duly authorized and,
when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free
and clear of all Liens imposed by the Company other than restrictions on
transfer provided for in the Transaction Documents. The Company has reserved
from its duly authorized capital stock the maximum number of shares of Common
Stock issuable pursuant to the Transaction Documents. The issuance by the
Company of the Securities has been registered under the Securities Act and
all
of the Securities, following issuance pursuant to the Transaction documents,
will be freely transferable and tradable by the Purchasers without restriction
(other than any restrictions arising solely from an act or omission of a
Purchaser). The Registration Statement is effective and available for the
issuance of the Securities thereunder and the Company has not received any
notice that the Commission has issued or intends to issue a stop-order with
respect to the Registration Statement or that the Commission otherwise has
suspended or withdrawn the effectiveness of the Registration Statement, either
temporarily or permanently, or intends or has threatened in writing to do so.
The "Plan of Distribution" section under the Registration Statement permits
the
issuance and sale of the Securities hereunder. Upon receipt of the Securities,
the Purchasers will have good and marketable title to such Securities and the
Securities will be freely tradable without restriction (other than any
restrictions arising solely from an act or omission of a Purchaser) on the
“Trading Market” (which, for purposes of this Agreement shall mean means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the Nasdaq Capital Market).
(F) Capitalization.
The capitalization of the Company is as set forth on Schedule 3(F). The Company
has not issued any capital stock since its most
recently filed periodic report under the Exchange Act, other
than pursuant to the exercise of employee stock options under the Company’s
stock option plans, the issuance of shares of Common Stock to employees pursuant
to the Company’s employee stock purchase plan and pursuant to the conversion or
exercise of securities exercisable, exchangeable or convertible into Common
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
Page
6
Stock
(“Common Stock Equivalents”). No Person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate
in
the transactions contemplated by the Transaction Documents. Except as set forth
on Schedule 3(F) or as a result of the purchase and sale of the Securities,
there are no outstanding options, warrants, script rights to subscribe to,
calls
or commitments of any character whatsoever relating to, or securities, rights
or
obligations convertible into or exercisable or exchangeable for, or giving
any
Person any right to subscribe for or acquire, any shares of Common Stock, or
contracts, commitments, understandings or arrangements by which the Company
or
any Subsidiary is or may become bound to issue additional shares of Common
Stock
or Common Stock Equivalents. The issuance and sale of the Securities will not
obligate the Company to issue shares of Common Stock or other securities to
any
Person (other than the Purchasers) and will not result in a right of any holder
of Company securities to adjust the exercise, conversion, exchange or reset
price under such securities. All of the outstanding shares of capital stock
of
the Company are validly issued, fully paid and nonassessable, have been issued
in compliance with all federal and state securities laws, and none of such
outstanding shares was issued in violation of any preemptive rights or similar
rights to subscribe for or purchase securities. No further approval or
authorization of any stockholder, the Board of Directors of the Company or
others will be required for the issuance and sale of the Securities by the
Closing Date. There are no stockholders agreements, voting agreements or other
similar agreements with respect to the Company’s capital stock to which the
Company is a party or, to the knowledge of the Company, between or among any
of
the Company’s stockholders.
(G) SEC
Reports; Financial Statements. The Company has complied in all material
respects with requirements to file all reports, schedules, forms, statements
and
other documents required to be filed by it under the Securities Act and the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
two
years preceding the date hereof (or such shorter period as the Company was
required by law to file such material) (the foregoing materials, including
the
exhibits thereto and documents incorporated by reference therein, being
collectively referred to herein as the “SEC Reports”) on a timely basis
or has received a valid extension of such time of filing and has filed any
such
SEC Reports prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects with the
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The financial statements of the Company
included in the SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the Commission with
respect thereto as in effect at the time of filing. Such financial statements
have been prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis during the periods involved
(“GAAP”), except as may be otherwise specified in such financial
statements or the notes thereto and except that unaudited condensed financial
statements may not contain all footnotes required by GAAP, and fairly present
in
all material respects the financial position of the Company and its consolidated
subsidiaries as of and for the dates thereof and the results of operations
and
cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal year-end audit adjustments.
(H) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of
the latest audited financial statements included within the SEC Reports, except
as specifically disclosed in the SEC Reports, (i) there has been no event,
occurrence or development that has had a Material Adverse Effect, (ii) the
Company has not incurred any liabilities (contingent or otherwise) other than
(A) trade payables and accrued expenses incurred in the ordinary course of
business consistent with past practice and (B) liabilities not required to
be
reflected in the Company’s financial statements pursuant to GAAP or required to
be disclosed in filings made with the Commission, (iii) the Company has not
altered its method of accounting, (iv) the Company has not declared or made
any
dividend or distribution of cash or other property to its stockholders or
purchased, redeemed or made any agreements to purchase or redeem any shares
of
its capital stock and (v) the Company has not issued any equity securities
to
any officer, director or “Affiliate” (defined as any Person that,
directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such terms are used
in and construed under Rule 144 under the Securities Act), except pursuant
to
existing Company stock option plans. The Company does not have pending before
the Commission any request for confidential treatment of information. Except
for
the issuance of the Securities contemplated by this Agreement or as set forth
on
Schedule 3(H), no event, liability or development has occurred or exists with
respect to the Company or its Subsidiaries or their respective business,
properties, operations or financial condition, that would be required to be
disclosed by the Company under applicable securities laws at the time this
representation is made that has not been publicly disclosed 1 Trading Day prior
to the date that this representation is made.
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
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6
(I) Litigation.
There is no action, suit, inquiry, notice of violation, Proceeding or
investigation pending or, to the knowledge of the Company, threatened against
or
affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or
regulatory authority (federal, state, county, local or foreign) (collectively,
an “Action”) which (i) adversely affects or challenges the legality,
validity or enforceability of any of the Transaction Documents or the Securities
or (ii) could, if there were an unfavorable decision, have or reasonably be
expected to result in a Material Adverse Effect. Neither the Company nor any
Subsidiary, nor any director or officer thereof, is or has been the subject
of
any Action involving a claim of violation of or liability under federal or
state
securities laws or a claim of breach of fiduciary duty. There has not been,
and
to the knowledge of the Company, there is not pending or contemplated, any
investigation by the Commission involving the Company or any current or former
director or officer of the Company. The Commission has not issued any stop
order
or other order suspending the effectiveness of any registration statement filed
by the Company or any Subsidiary under the Exchange Act or the Securities Act.
None of the Company’s or its Subsidiaries’ employees is a member of a union that
relates to such employee’s relationship with the Company, and neither the
Company or any of its Subsidiaries is a party to a collective bargaining
agreement, and the Company and its Subsidiaries believe that their relationships
with their employees are good. No executive officer, to the knowledge of the
Company, is, or is now expected to be, in violation of any material term of
any
employment contract, confidentiality, disclosure or proprietary information
agreement or non-competition agreement, or any other contract or agreement
or
any restrictive covenant, and the continued employment of each such executive
officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries
are in compliance with all U.S. federal, state, local and foreign laws and
regulations relating to employment and employment practices, terms and
conditions of employment and wages and hours, except where the failure to be
in
compliance could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(J) Labor
Relations. No material labor dispute exists or, to the knowledge of the
Company, is imminent with respect to any of the employees of the Company which
could reasonably be expected to result in a Material Adverse
Effect.
(K) Compliance.
Neither the Company nor any Subsidiary (i) is in default under or in violation
of (and no event has occurred that has not been waived that, with notice or
lapse of time or both, would result in a default by the Company or any
Subsidiary under), nor has the Company or any Subsidiary received notice of
a
claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is
a
party or by which it or any of its properties is bound (whether or not such
default or violation has been waived), (ii) is in violation of any order of
any
court, arbitrator or governmental body, or (iii) is or has been in violation
of
any statute, rule or regulation of any governmental authority, including without
limitation all foreign, federal, state and local laws applicable to its business
and all such laws that affect the environment, except in each case as could
not
have a Material Adverse Effect.
(L) Regulatory
Permits. The Company and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state, local
or
foreign regulatory authorities necessary to conduct their respective businesses
as described in the SEC Reports, except where the failure to possess such
permits could not have or reasonably be expected to result in a Material Adverse
Effect (“Material Permits”), and neither the Company nor any Subsidiary has
received any notice of proceedings relating to the revocation or modification
of
any Material Permit.
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
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(M) Title
to Assets. Other than certain laboratory equipment financed through GE
Capital as further disclosed in the SEC Reports, the Company and the
Subsidiaries have good and marketable title in fee simple to all real property
owned by them that is material to the business of the Company and the
Subsidiaries and good and marketable title in all personal property owned by
them that is material to the business of the Company and the Subsidiaries,
in
each case free and clear of all Liens, except for Liens as do not materially
affect the value of such property and do not materially interfere with the
use
made and proposed to be made of such property by the Company and the
Subsidiaries and Liens for the payment of federal, state or other taxes, the
payment of which is neither delinquent nor subject to penalties. Any real
property and facilities held under lease by the Company and the Subsidiaries
are
held by them under valid, subsisting and enforceable leases of which the Company
and the Subsidiaries are in compliance.
(N) Patents
and Trademarks. The Company and the Subsidiaries have, or have rights to
use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights, licenses
and
other similar intellectual property rights necessary or material for use in
connection with their respective businesses as described in the SEC Reports
and
which the failure to so have could have a Material Adverse Effect (collectively,
the “Intellectual Property Rights”). Neither the Company nor any
Subsidiary has received a notice (written or otherwise) that the Intellectual
Property Rights used by the Company or any Subsidiary violates or infringes
upon
the rights of any Person. To the knowledge of the Company, all such Intellectual
Property Rights are enforceable and, to the Company’s knowledge, there is no
existing infringement by another Person of any of the Intellectual Property
Rights of others. The Company and its Subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality and value of all
of
their intellectual properties, except where failure to do so could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(O) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which the Company and the Subsidiaries are
engaged, including, but not limited to, directors and officers insurance
coverage at least equal to the aggregate subscription amount under the
Transaction Documents. To the best knowledge of the Company, such insurance
contracts and policies are accurate and complete. Neither the Company nor any
Subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business without a significant increase in cost.
(P) Transactions
With Affiliates and Employees. Except as set forth in the SEC Reports, to
the Company’s knowledge, none of the officers, directors or employees of the
Company is presently a party to any transaction with the Company or any
Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest
or
is an officer, director, trustee or partner, other than (i) for payment of
salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company and (iii) for other employee benefits,
including stock option agreements under any stock option plan of the
Company.
(Q) Xxxxxxxx-Xxxxx.
The Company is in material compliance with all material provisions of the
Xxxxxxxx-Xxxxx Act of 2002 which are applicable to it as of the date hereof
and
of the closing date of the Placement.
(R) Certain
Fees. Except as otherwise provided in this Agreement, no brokerage or
finder’s fees or commissions are or will be payable by the Company to any
broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated
by
the Transaction Documents. The Purchasers shall have no obligation with respect
to any fees or with respect to any claims made by or on behalf of other Persons
for fees of a type contemplated in this Section that may be due in connection
with the transactions contemplated by the Transaction Documents.
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
Page
9
(S) Trading
Market Rules. The issuance and sale of the Securities hereunder does not
contravene the rules and regulations of the Trading Market.
(T) Investment
Company. The Company is not, and is not an Affiliate of, and immediately
after receipt of payment for the Securities, will not be or be an Affiliate
of,
an “investment company” within the meaning of the Investment Company Act of
1940, as amended. The Company shall conduct its business in a manner so that
it
will not become subject to the Investment Company Act.
(U) Registration
Rights. No Person has any right to cause the Company to effect the
registration under the Securities Act of any securities of the
Company.
(V) Listing
and Maintenance Requirements. The Company’s Common Stock is registered
pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has
taken no action designed to, or which to its knowledge is likely to have the
effect of, terminating the registration of the Common Stock under the Exchange
Act nor has the Company received any notification that the Commission is
contemplating terminating such registration. The Company has not, in the 12
months preceding the date hereof, received notice from any Trading Market on
which the Common Stock is or has been listed or quoted to the effect that the
Company is not in compliance with the listing or maintenance requirements of
such Trading Market. Other than the minimum bid price requirement by Nasdaq,
the
Company is, and has no reason to believe that it will not in the foreseeable
future continue to be, in compliance with all other such listing and maintenance
requirements.
(W) Application
of Takeover Protections. The Company and its Board of Directors have taken
all necessary action, if any, in order to render inapplicable any control share
acquisition, business combination, poison pill (including any distribution
under
a rights agreement) or other similar anti-takeover provision under the Company’s
Certificate of Incorporation (or similar charter documents) or the laws of
its
state of incorporation that is or could become applicable to the Purchasers
as a
result of the Purchasers and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including without
limitation as a result of the Company’s issuance of the Securities and the
Purchasers’ ownership of the Securities.
(X) Solvency.
Based on the financial condition of the Company as of the Closing Date after
giving effect to the receipt by the Company of the proceeds from the sale of
the
Securities hereunder, (i) the Company’s fair saleable value of its assets
exceeds the amount that will be required to be paid on or in respect of the
Company’s existing debts and other liabilities (including known contingent
liabilities) as they mature; (ii) the Company’s assets do not constitute
unreasonably small capital to carry on its business for the current fiscal
year
as now conducted and as proposed to be conducted including its capital needs
taking into account the particular capital requirements of the business
conducted by the Company, and projected capital requirements and capital
availability thereof; and (iii) the current cash flow of the Company, together
with the proceeds the Company would receive, were it to liquidate all of its
assets, after taking into account all anticipated uses of the cash, would be
sufficient to pay all amounts on or in respect of its debt when such amounts
are
required to be paid. The Company does not intend to incur debts beyond its
ability to pay such debts as they mature (taking into account the timing and
amounts of cash to be payable on or in respect of its debt). The Company has
no
knowledge of any facts or circumstances which lead it to believe that it will
file for reorganization or liquidation under the bankruptcy or reorganization
laws of any jurisdiction within one year from the Closing Date. The SEC Reports
set forth as of the dates thereof all outstanding secured and unsecured
Indebtedness of the Company or any Subsidiary, or for which the Company or
any
Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness”
shall mean (a) any liabilities for borrowed money or amounts owed in excess
of
$50,000 (other than trade accounts payable incurred in the ordinary course
of
business), (b) all guaranties, endorsements and other contingent obligations
in
respect of Indebtedness of others, whether or not the same are or should be
reflected in the Company’s balance sheet (or the notes thereto), except
guaranties by endorsement of negotiable instruments for deposit or collection
or
similar transactions in the ordinary course of business; and (c) the present
value of any lease payments
in excess of $50,000 due under leases required to be capitalized in accordance
with GAAP. Neither
the Company nor any Subsidiary is in default with respect to any
Indebtedness.
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
Page
10
(Y) Tax
Status. Except for matters that would not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse Effect, the
Company and each Subsidiary has filed all necessary federal, state and foreign
income and franchise tax returns and has paid or accrued all taxes shown as
due
thereon, and the Company has no knowledge of a tax deficiency which has been
asserted or threatened against the Company or any Subsidiary.
(Z) Foreign
Corrupt Practices. Neither the Company, nor to the knowledge of the Company,
any agent or other person acting on behalf of the Company, has (i) directly
or
indirectly, used any funds for unlawful contributions, gifts, entertainment
or
other unlawful expenses related to foreign or domestic political activity,
(ii)
made any unlawful payment to foreign or domestic government officials or
employees or to any foreign or domestic political parties or campaigns from
corporate funds, (iii) failed to disclose fully any contribution made by the
Company (or made by any person acting on its behalf of which the Company is
aware) which is in violation of law, or (iv) violated in any material respect
any provision of the Foreign Corrupt Practices Act of 1977, as
amended.
(AA) Accountants.
The Company’s accountants are set forth on Schedule 3(AA) of the Disclosure
Schedule. To the knowledge of the Company, such accountants, who the Company
expects will express their opinion with respect to the financial statements
to
be included in the Company’s next Annual Report on Form 10-K, are a registered
public accounting firm as required by the Securities Act.
(BB)
Regulation
M Compliance. The Company has not, and to its knowledge no one acting
on its behalf has, (i) taken, directly or indirectly, any action designed to
cause or to result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Securities (other than for the placement
agent’s placement of the Securities), or (iii) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(CC)
Approvals.
The issuance and listing on the Nasdaq Capital Market of the Shares requires
no
further approvals, including but not limited to, the approval of shareholders.
(DD)
NASD
Affiliations.
There
are no affiliations with any NASD member firm among the Company’s officers,
directors or, to the knowledge of the Company, any five percent (5%) or greater
stockholder of the Company, except as set forth in the Base
Prospectus.
SECTION
4. INDEMNIFICATION. The
Company agrees to the indemnification and other agreements set forth in the
Indemnification Provisions (the “Indemnification”)
attached hereto as Addendum A, the provisions of which are incorporated herein
by reference and shall survive the termination or expiration of this
Agreement.
SECTION
5. ENGAGEMENT
TERM.
R&R’s engagement hereunder will be for the period of 15 calendar days. The
engagement may be terminated by either the Company or R&R at any time upon
10 days’ written notice. Notwithstanding anything to the contrary contained
herein, the provisions concerning confidentiality, indemnification, contribution
and the Company’s obligations to pay fees and reimburse expenses contained
herein and the Company’s obligations contained in the Indemnification Provisions
will survive any expiration or termination of this Agreement. R&R agrees not
to use any confidential information concerning the Company provided to them
by
the Company for any purposes other than those contemplated under this
Agreement.
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
Page
11
SECTION
6. R&R
INFORMATION.
The
Company agrees that any information or advice rendered by R&R in connection
with this engagement is for the confidential use of the Company only in their
evaluation of the Placement and, except as otherwise required by law, the
Company will not disclose or otherwise refer to the advice or information in
any
manner without R&R’s prior written consent.
SECTION
7. NO
FIDUCIARY RELATIONSHIP.
This
Agreement does not create, and shall not be construed as creating rights
enforceable by any person or entity not a party hereto, except those entitled
hereto by virtue of the Indemnification Provisions hereof. The Company
acknowledges and agrees that R&R is not and shall not be construed as a
fiduciary of the Company and shall have no duties or liabilities to the equity
holders or the creditors of the Company or any other person by virtue of this
Agreement or the retention of R&R hereunder, all of which are hereby
expressly waived.
SECTION
8. CLOSING.
The
obligations of the Placement Agent and the Purchasers, and the closing of the
sale of the Securities hereunder are subject to the accuracy, when made and
on
the Closing Date, of the representations and warranties on the part of the
Company and its Subsidiaries contained herein, to the accuracy of the statements
of the Company and its Subsidiaries made in any certificates pursuant to the
provisions hereof, to the performance by the Company and its Subsidiaries of
their obligations hereunder, and to each of the following additional terms
and
conditions:
(A) No
stop
order suspending the effectiveness of the Registration Statement shall have
been
issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission, and any request for additional information on
the
part of the Commission (to be included in the Registration Statement, the Base
Prospectus or the Prospectus Supplement or otherwise) shall have been complied
with to the reasonable satisfaction of the Placement Agent. Any filings required
to be made by the Company in shall have been timely filed with the
Commission.
(B) The
Placement Agent shall not have discovered and disclosed to the Company on or
prior to the Closing Date that the Registration Statement, the Base Prospectus
or the Prospectus Supplement or any amendment or supplement thereto contains
an
untrue statement of a fact which, in the opinion of counsel for the Placement
Agent, is material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(C) All
corporate proceedings and other legal matters incident to the authorization,
form, execution, delivery and validity of each of this Agreement, the
Securities, the Registration Statement, the Base Prospectus and the Prospectus
Supplement and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Placement Agent, and the Company shall
have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(D) The
Placement Agent shall have received from outside counsel to the Company such
counsel’s written opinion, addressed to the Placement Agent and the Purchasers
dated as of the Closing Date, in form and substance reasonably satisfactory
to
the Placement Agent, which opinion shall include a “10b-5” representation from
such counsel.
(E) Neither
the Company nor any of its Subsidiaries shall have sustained since the date
of
the latest audited financial statements included or incorporated by reference
in
the Base Prospectus, any loss or interference with its business from fire,
explosion, flood, terrorist act or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or
decree, otherwise than as set forth in or contemplated by the Base Prospectus
and (ii) since such date there shall not have been any change in the capital
stock or long-term debt of the Company or any of its Subsidiaries or any change,
or any development involving a prospective change, in or affecting the business,
general affairs, management, financial position, stockholders’ equity, results
of operations or prospects of the Company and its Subsidiaries, otherwise than
as set forth in or contemplated by the Base Prospectus, the effect of which,
in
any such case described in clause (i) or (ii), is, in the reasonable judgment
of
the Placement Agent, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Securities on the terms
and in the manner contemplated by the Base Prospectus, the Time of Sale
Prospectus, if any, and the Prospectus Supplement.
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
Page
12
(F) The
Common Stock is registered under the Exchange Act and, as of the Closing Date,
the Shares shall be listed and admitted and authorized for trading on the Nasdaq
Capital Market, and satisfactory evidence of such actions shall have been
provided to the Placement Agent. The Company shall have taken no action designed
to, or likely to have the effect of terminating the registration of the Common
Stock under the Exchange Act or delisting or suspending from trading the Common
Stock from the Nasdaq Capital Market, nor has the Company received any
information suggesting that the Commission or the Nasdaq Capital Market is
contemplating terminating such registration or listing.
(G) Subsequent
to the execution and delivery of this Agreement, there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock
Exchange, the Nasdaq National Market or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
or maximum prices or maximum ranges for prices shall have been established
on
any such exchange or such market by the Commission, by such exchange or by
any
other regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by federal or state authorities
or a
material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States, (iii) the United States shall have
become engaged in hostilities in which it is not currently engaged, the subject
of an act of terrorism, there shall have been an escalation in hostilities
involving the United States, or there shall have been a declaration of a
national emergency or war by the United States, or (iv) there shall have
occurred any other calamity or crisis or any change in general economic,
political or financial conditions in the United States or elsewhere, if the
effect of any such event in clause (iii) or (iv) makes it, in the sole judgment
of the Placement Agent, impracticable or inadvisable to proceed with the sale
or
delivery of the Securities on the terms and in the manner contemplated by the
Base Prospectus and the Prospectus Supplement.
(H) No
action
shall have been taken and no statute, rule, regulation or order shall have
been
enacted, adopted or issued by any governmental agency or body which would,
as of
the Closing Date, prevent the issuance or sale of the Securities or materially
and adversely affect or potentially and adversely affect the business or
operations of the Company; and no injunction, restraining order or order of
any
other nature by any federal or state court of competent jurisdiction shall
have
been issued as of the Closing Date which would prevent the issuance or sale
of
the Securities or materially and adversely affect or potentially and adversely
affect the business or operations of the Company.
(I) The
Company shall have prepared and filed with the Commission a Current Report
on
Form 8-K with respect to the Placement, including as an exhibit thereto this
Agreement.
(J) The
Company shall have entered into subscription agreements with each of the
Purchasers and such agreements shall be in full force and effect and shall
contain representations and warranties of the Company as agreed between the
Company and the Purchasers.
(K) The
NASD
shall have raised no objection to the fairness and reasonableness of the terms
and arrangements of this Agreement. In addition, the Company shall, if requested
by the Placement Agent, make or authorize Placement Agent’s counsel to make on
the Company’s behalf, at no cost to Company, an Issuer Filing with the NASDR,
Inc. Corporate Financing Department pursuant to NASD Rule 2710 with respect
to
the Registration Statement and pay all filing fees required in connection
therewith.
(L) Prior
to
the Closing Date, the Company shall have furnished to the Placement Agent such
further information, certificates and documents as the Placement Agent may
reasonably request.
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
Page
13
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Placement Agent.
SECTION
9. Governing
Law.
This
Agreement will be governed by, and construed in accordance with, the laws of
the
State of New York applicable to agreements made and to be performed entirely
in
such State. This Agreement may not be assigned by either party without the
prior
written consent of the other party. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective successors
and
permitted assigns. Any right to trial by jury with respect to any dispute
arising under this Agreement or any transaction or conduct in connection
herewith is waived. Any dispute arising under this Agreement may be brought
into
the courts of the State of New York or into the Federal Court located in New
York, New York and, by execution and delivery of this Agreement, the Company
hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of aforesaid courts. Each party hereto hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by delivering a copy thereof
via
overnight delivery (with evidence of delivery) to such party at the address
in
effect for notices to it under this Agreement and agrees that such service
shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. If either party shall commence an action or
proceeding to enforce any provisions of a Transaction Document, then the
prevailing party in such action or proceeding shall be reimbursed by the other
party for its attorneys fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or
proceeding.
SECTION
10. Entire
Agreement/Misc.
This
Agreement (including the attached Indemnification Provisions) embodies the
entire agreement and understanding between the parties hereto and supersedes
all
prior agreements and understandings relating 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 or any other provision of this Agreement, which will remain in full
force and effect. This Agreement may not be amended or otherwise modified or
waived except by an instrument in writing signed by both R&R and the
Company. The representations, warranties, agreements and covenants contained
herein shall survive the closing of the Placement and delivery and/or exercise
of the Securities, as applicable. This Agreement may be executed in two or
more
counterparts, all of which when taken together shall be considered one and
the
same agreement and shall become effective when counterparts have been signed
by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature
is
delivered by facsimile transmission or a .pdf format file, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such facsimile
signature page were an original thereof.
SECTION
11. Notices. Any
and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number specified on the signature
pages attached hereto prior to 6:30 p.m. (New York City time) on a business
day,
(b) the next business day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number on the
signature pages attached hereto on a day that is not a business day or later
than 6:30 p.m. (New York City time) on any business day, (c) the business day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice
is
required to be given. The address for such notices and communications shall
be
as set forth on the signature pages hereto.
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
Page
14
Please
confirm that the foregoing correctly sets forth our agreement by signing and
returning to R&R the enclosed copy of this Agreement.
|
Very
truly yours,
XXXXXX & XXXXXXX,
LLC
|
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: President | ||
|
Address
for notice:
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX, 00000
|
|
Accepted
and Agreed to as of
the
date first written above:
PEREGRINE
PHARMACEUTICALS, INC.
By:
/s/
Xxxx
Xxxxx
|
|
|
Name: Xxxx Xxxxx
Title: CFO
|
|
| Address for notice: |
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
Indemnification
Provisions
ADDENDUM
A
INDEMNIFICATION
PROVISIONS
In
connection with the engagement of Xxxxxx & Xxxxxxx, LLC (“R&R”)
by
Peregrine Pharmaceuticals, Inc. (the “Company”)
pursuant to a letter agreement dated June 22, 2007, between the Company and
R&R, as it may be amended from time to time in writing (the “Agreement”),
the
Company hereby agrees as follows:
| 1. |
To
the extent permitted by law, the Company will indemnify R&R and its
affiliates, stockholders, directors, officers, employees and controlling
persons (within the meaning of Section 15 of the Securities Act of
1933,
as amended, or Section 20 of the Securities Exchange Act of 1934)
against
all losses, claims, damages, expenses and liabilities, as the same
are
incurred (including the reasonable fees and expenses of counsel),
relating
to or arising out of its activities hereunder or pursuant to the
Agreement, except to the extent that any losses, claims, damages,
expenses
or liabilities (or actions in respect thereof) are found in a final
judgment (not subject to appeal) by a court of law to have resulted
primarily and directly from R&R’s willful misconduct or gross
negligence in performing the services described
herein.
|
| 2. |
Promptly
after receipt by R&R of notice of any claim or the commencement of any
action or proceeding with respect to which R&R is entitled to
indemnity hereunder, R&R will notify the Company in writing of such
claim or of the commencement of such action or proceeding, and the
Company
will assume the defense of such action or proceeding and will employ
counsel reasonably satisfactory to R&R and will pay the fees and
expenses of such counsel. Notwithstanding the preceding sentence,
R&R
will be entitled to employ counsel separate from counsel for the
Company
and from any other party in such action if counsel for R&R reasonably
determines that it would be inappropriate under the applicable rules
of
professional responsibility for the same counsel to represent both
the
Company and R&R. In such event, the reasonable fees and disbursements
of no more than one such separate counsel will be paid by the Company.
The
Company will have the exclusive right to settle the claim or proceeding
provided that the Company will not settle any such claim, action
or
proceeding without the prior written consent of R&R, which will not be
unreasonably withheld.
|
| 3. |
The
Company agrees to notify R&R promptly of the assertion against it or
any other person of any claim or the commencement of any action or
proceeding relating to a transaction contemplated by the
Agreement.
|
| 4. |
If
for any reason the foregoing indemnity is unavailable to R&R or
insufficient to hold R&R harmless, then the Company shall contribute
to the amount paid or payable by R&R as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate
to
reflect the relative fault of the Company on the one hand and R&R on
the other that resulted in such losses, claims, damages or liabilities,
as
well as any relevant equitable considerations. The amounts paid or
payable
by a party in respect of losses, claims, damages and liabilities
referred
to above shall be deemed to include any legal or other fees and expenses
incurred in defending any litigation, proceeding or other action
or claim.
|
| 5. |
These
Indemnification Provisions shall remain in full force and effect
whether
or not the transaction contemplated by the Agreement is completed
and
shall survive the termination of the Agreement, and shall be in addition
to any liability that the Company might otherwise have to any indemnified
party under the Agreement or
otherwise.
|
Peregrine
Pharmaceuticals, Inc.
June
27,
2007
Indemnification
Provisions
|
XXXXXX & XXXXXXX,
LLC
|
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: President | ||
|
Accepted
and Agreed to as of
the
date first written above:
PEREGRINE
PHARMACEUTICALS, INC.
By:
/s/
Xxxx
Xxxxx
|
|
|
Name: Xxxx Xxxxx
Title: CFO
|
