Akoustis Technologies, Inc.
Exhibit 10.33.2
Highly Confidential
December 8, 2017
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx X
Xxxxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxx
President and Chief Executive Officer
FIRST AMENDMENT TO ENGAGEMENT AGREEMENT PROVIDING FOR INVESTMENT BANKING SERVICES
Dear Xx. Xxxxxx:
This letter (“First Amendment”) hereby amends the Engagement Agreement Providing for Investment Banking Services (the “Engagement”) dated November 13, 2017 between Akoustis Technologies, Inc. and Xxxxxx Xxxxxx & Co., LLC. As between the parties this amendment letter shall be effective as of December 7, 2017.
This First Amendment hereby amends and restates the third paragraph of Section 4 as follows:
The Company represents and warrants to Xxxxxx Xxxxxx that all Information relating to the Company or which the Company provides in writing (collectively, the “Materials”) will be materially complete and correct. Xxxxxx Xxxxxx agrees that it will not and will cause its affiliates not to disclose the Materials, this Agreement, the contents thereof or the activities of the Company pursuant hereto, directly or indirectly, to any person without the prior written approval of the Company, except that Xxxxxx Xxxxxx may disclose the Materials (i) to any prospective investor that has entered into a customary form of confidentiality agreement (including a “click-through” on a secure website) by or on behalf of the Company and (ii) as required by applicable law or regulation or compulsory legal, judicial, administrative or regulatory process (in which case Xxxxxx Xxxxxx will inform any such persons of the confidentiality obligations contained herein). The obligations of Xxxxxx Xxxxxx pursuant to this paragraph shall survive any expiration or termination of this agreement or Xxxxxx Xxxxxx’x engagement hereunder. The Company represents and warrants that any projections provided by it to Xxxxxx Xxxxxx will have been prepared in good faith and will be based upon assumptions, which, in light of the circumstances under which they are made, are reasonable. The Company recognizes and confirms that Xxxxxx Xxxxxx (i) will use and rely primarily on the Materials and on information available from generally recognized public sources in performing the services contemplated by this Agreement without having independently verified the same; (ii) is authorized to transmit to any prospective investor the Materials and other legal documentation supplied to Xxxxxx Xxxxxx for transmission to parties that have entered into a customary form of confidentiality agreement (including a “click-through” on a secure website) by or on behalf of the Company; (iii) does not assume responsibility for the accuracy or completeness of the Materials and such other information; (iv) will not make an appraisal of the Company; and (v) retains the right to continue to perform due diligence during the course of its engagement hereunder to the extent that it is reasonably necessary for it to perform the services contemplated hereby (it being understood that Xxxxxx Xxxxxx will not be authorized to act as an initial purchaser or underwriter but will merely be acting as a placement agent without underwriter liability under the Securities Act of 1933).
| 1 |
Highly Confidential
All other provisions of the Engagement shall remain unchanged.
(intentionally blank, signature page to follow)
| 2 |
Highly Confidential
IN WITNESS WHEREOF, this First Amendment has been executed on the date first above written.
| Very truly yours, | ||
| XXXXXX XXXXXX & CO., LLC | ||
| By: | /s/ Xxxx Xxxx | |
| Name: Xxxx Xxxx | ||
| Title: Head of Investment Banking/Underwritings | ||
Accepted and agreed to as of the date first written above:
| AKOUSTIS TECHNOLOGIES, INC. | ||
| By: | /s/ Xxxx X. Xxxxxxxxx | |
| Name: Xxxx X. Xxxxxxxxx | ||
| Title: Chief Financial Officer | ||
3
