December 11, 2009
Exhibit 1.1
| December 11, 2009 |
STRICTLY
CONFIDENTIAL
Xxxx
Xxxxxxx
President
China
North East Petroleum Holdings Limited
000 Xxxx
Xxxxxx
New York,
NY 10022
Dear Xx.
Xxxx Xxxxxxx:
This
letter (the “Agreement”) constitutes the agreement between China North East
Petroleum Holdings Limited (the “Company”) and Xxxxxx & Xxxxxxx, LLC
(“Xxxxxx” or the “Placement Agent”) that Xxxxxx shall serve as the exclusive
placement agent (the “Services”) for the Company, on a “best efforts” basis, in
connection with the proposed offer and placement (the “Offering”) by the Company
of securities of the Company (the “Securities”). The terms of the Offering and
the Securities shall be mutually agreed upon by the Company and the investors
and nothing herein implies that Xxxxxx would have the power or authority to bind
the Company or an obligation for the Company to issue any Securities or complete
the Offering. 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 with respect to
securing any other financing on behalf of the Company. If Xxxxxx and
the Company choose to have the Offering consist of registered securities, then
the provisions of Annex A will apply in addition to the provisions set forth
herein.
A.
Fees
and Expenses. In connection with the Services described above,
the Company shall pay to Xxxxxx the following compensation:
1. Placement Agent’s
Fee. The Company shall pay to Rodman a cash placement fee (the
“Placement Agent’s Fee”) equal to 6% of the aggregate purchase price paid by
each purchaser of Securities that are placed in the Offering The Placement
Agent’s Fee shall be paid at the closing of the Offering (the “Closing”) from
the gross proceeds of the Securities sold.
2. Warrants. As
additional compensation for the Services, the Company shall issue to Xxxxxx or
its designees at the Closing, warrants (the “Xxxxxx Warrants”) to purchase that
number of shares of common stock of the Company (“Shares”) equal to 3% of the
aggregate number of Shares placed in the Offering, plus any Shares underlying
any convertible Securities sold in the Offering. The Xxxxxx Warrants
shall have the same terms, including exercise price and registration rights, as
the warrants issued to investors (“Investors”) in the Offering, except that they
shall have an exercise period of five years from the date of the shelf
registration statement referred to in Section 2.A of Annex A, attached
hereto. If no warrants are issued to Investors, the Xxxxxx Warrants
shall have an exercise price equal to 125% of the price at which Shares are
issued to Investors, or, if no Shares are issued, 125% of the current market
price of the Shares at Closing, an exercise period of five years from the date
of the shelf registration statement referred to in Section 2.A of Annex A,
attached hereto, and registration rights for the Shares underlying the Xxxxxx
Warrants equivalent to those granted with respect to the
Securities.
Xxxxxx & Xxxxxxx, LLC 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000
Tel: 000 000 0000 Fax: 000 000 0000 xxx.xxxx.xxx Member: FINRA, SIPC
3. Expenses. In
addition to any fees payable to Xxxxxx hereunder, but only if an Offering is
consummated, the Company hereby agrees to reimburse Xxxxxx for all reasonable
travel and other out-of-pocket expenses incurred in connection with Xxxxxx’x
engagement, including the reasonable fees and expenses of Xxxxxx’x
counsel. Such reimbursement shall be limited to a maximum of
0.8% of the aggregate gross proceeds raised in the Offering, but in no event
more than $25,000 and shall be paid at the Closing from the gross proceeds of
the Securities sold.
X.
Xxxx and Termination of
Engagement. The term (the “Term”) of Xxxxxx’x engagement will
begin on the date hereof and end on the earlier of the consummation of the
Offering or 15 days after the receipt by either party hereto of written notice
of termination; provided that no such notice may be given by the Company for a
period of 30 days after the date hereof. Notwithstanding anything to the
contrary contained herein, the provisions concerning confidentiality,
indemnification, contribution and the Company’s obligations to pay fees actually
earned and payable and to reimburse expenses actually incurred and reimbursable
pursuant to Section A hereof, will survive any expiration or termination of this
Agreement.
D.
Use of
Information. The Company will furnish Rodman such written
information as Xxxxxx reasonably requests in connection with the performance of
its services hereunder. The Company understands, acknowledges and
agrees that, in performing its services hereunder, Xxxxxx will use and rely
entirely upon such information as well as publicly available information
regarding the Company and other potential parties to an Offering and that Xxxxxx
does not assume responsibility for independent verification of the accuracy or
completeness of any information, whether publicly available or otherwise
furnished to it, concerning the Company or otherwise relevant to an Offering,
including, without limitation, any financial information, forecasts or
projections considered by Xxxxxx in connection with the provision of its
services.
E.
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.
F.
Securities
Matters. The Company shall be responsible for any and all
compliance with the securities laws applicable to it, including Regulation D and
the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506
promulgated thereunder, and unless otherwise agreed in writing, all state
securities (“blue sky”) laws. Xxxxxx agrees to cooperate with counsel to the
Company in that regard.
G.
Company
Acknowledgement. The Company acknowledges that the Offering of
convertible Securities may create significant risks, including the risk that the
Company may have insufficient cash resources and/or registered shares to timely
meet its payment and conversion obligations. The Company further
acknowledges that, depending on the number and price of new shares issued, such
transaction may result in substantial dilution which could adversely affect the
market price of the Company’s shares.
X.
Xxxxxxxxx.
2
1. In
connection with the Company’s engagement of Xxxxxx as placement agent, the
Company hereby agrees to indemnify and hold harmless Xxxxxx and its affiliates,
and the respective controlling persons, directors, officers, shareholders,
agents and employees of any of the foregoing (collectively the “Indemnified
Persons”), from and against any and all claims, actions, suits, proceedings
(including those of shareholders), damages, liabilities and expenses incurred by
any of them (including the reasonable fees and expenses of counsel), as
incurred, (collectively a “Claim”), that are (A) related to or arise out of (i)
any actions taken or omitted to be taken (including any untrue statements made
or any statements omitted to be made) by the Company, or (ii) any actions taken
or omitted to be taken by any Indemnified Person in connection with the
Company’s engagement of Xxxxxx, or (B) otherwise relate to or arise out of
Xxxxxx’x activities on the Company’s behalf under Xxxxxx’x engagement, and the
Company shall reimburse any Indemnified Person for all expenses (including the
reasonable fees and expenses of counsel) as incurred by such Indemnified Person
in connection with investigating, preparing or defending any such claim, action,
suit or proceeding, whether or not in connection with pending or threatened
litigation in which any Indemnified Person is a party. The Company
will not, however, be responsible for any Claim that is finally judicially
determined to have resulted from the gross negligence or willful misconduct of
any person seeking indemnification for such Claim. The Company
further agrees that no Indemnified Person shall have any liability to the
Company for or in connection with the Company’s engagement of Xxxxxx except for
any Claim incurred by the Company as a result of such Indemnified Person’s gross
negligence or willful misconduct.
2. The
Company further agrees that it will not, without the prior written consent of
Xxxxxx, settle, compromise or consent to the entry of any judgment in any
pending or threatened Claim in respect of which indemnification may be sought
hereunder (whether or not any Indemnified Person is an actual or potential party
to such Claim), unless such settlement, compromise or consent includes an
unconditional, irrevocable release of each Indemnified Person from any and all
liability arising out of such Claim.
3. Promptly
upon receipt by an Indemnified Person of notice of any complaint or the
assertion or institution of any Claim with respect to which indemnification is
being sought hereunder, such Indemnified Person shall notify the Company in
writing of such complaint or of such assertion or institution but failure to so
notify the Company shall not relieve the Company from any obligation it may have
hereunder, except and only to the extent such failure results in the forfeiture
by the Company of substantial rights and defenses. If the Company so
elects or is requested by such Indemnified Person, the Company will assume the
defense of such Claim, including the employment of counsel reasonably
satisfactory to such Indemnified Person and the payment of the fees and expenses
of such counsel. In the event, however, that legal counsel to such Indemnified
Person reasonably determines that having common counsel would present such
counsel with a conflict of interest or if the defendant in, or target of, any
such Claim, includes an Indemnified Person and the Company, and legal counsel to
such Indemnified Person reasonably concludes that there may be legal defenses
available to it or other Indemnified Persons different from or in addition to
those available to the Company, then such Indemnified Person may employ its own
separate counsel to represent or defend him, her or it in any such Claim and the
Company shall pay the reasonable fees and expenses of such
counsel. Notwithstanding anything herein to the contrary, if the
Company fails timely or diligently to defend, contest, or otherwise protect
against any Claim, the relevant Indemnified Party shall have the right, but not
the obligation, to defend, contest, compromise, settle, assert crossclaims, or
counterclaims or otherwise protect against the same, and shall be fully
indemnified by the Company therefor, including without limitation, for the
reasonable fees and expenses of its counsel and all amounts paid as a result of
such Claim or the compromise or settlement thereof. In addition, with
respect to any Claim in which the Company assumes the defense, the Indemnified
Person shall have the right to participate in such Claim and to retain his, her
or its own counsel therefor at his, her or its own expense.
3
4. The
Company agrees that if any indemnity sought by an Indemnified Person hereunder
is held by a court to be unavailable for any reason then (whether or not Xxxxxx
is the Indemnified Person), the Company and Xxxxxx shall contribute to the Claim
for which such indemnity is held unavailable in such proportion as is
appropriate to reflect the relative benefits to the Company, on the one hand,
and Xxxxxx on the other, in connection with Xxxxxx’x engagement referred to
above, subject to the limitation that in no event shall the amount of Xxxxxx’x
contribution to such Claim exceed the amount of fees actually received by Xxxxxx
from the Company pursuant to Xxxxxx’x engagement. The Company hereby
agrees that the relative benefits to the Company, on the one hand, and Xxxxxx on
the other, with respect to Xxxxxx’x engagement shall be deemed to be in the same
proportion as (a) the total value paid or proposed to be paid or received by the
Company or its stockholders as the case may be, pursuant to the Offering
(whether or not consummated) for which Xxxxxx is engaged to render services
bears to (b) the fee paid or proposed to be paid to Xxxxxx in connection with
such engagement.
5. The
Company’s indemnity, reimbursement and contribution obligations under this
Agreement (a) shall be in addition to, and shall in no way limit or otherwise
adversely affect any rights that any Indemnified Party may have at law or at
equity and (b) shall be effective whether or not the Company is at fault in any
way.
I.
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 Securities Exchange Act of 1934, as amended (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 this Agreement or any
other statements or conduct of Xxxxxx, and no one other than the Company is
intended to be a beneficiary of 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 the purchase agreement and
related transaction documents between the Company and the investors in the
Offering, and that Xxxxxx will be entitled to rely on the representations,
warranties, agreements and covenants of the Company contained in such purchase
agreement and related transaction documents as if such representations,
warranties, agreements and covenants were made directly to Xxxxxx by the
Company.
J.
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 its 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, 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.
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K.
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. In the event of the bringing of any action, or suit by a
party hereto against the other party hereto, arising out of or relating to this
Agreement, the party in whose favor the final judgment or award shall be entered
shall be entitled to have and recover from the other party the costs and
expenses incurred in connection therewith, including its reasonable attorneys’
fees. Any rights to trial by jury with respect to any such action,
proceeding or suit are hereby waived by Xxxxxx and the Company.
L.
Notices. All
notices hereunder will be in writing and sent by certified mail, hand delivery,
overnight delivery or fax, if sent to Xxxxxx, to Xxxxxx & Xxxxxxx, LLC, at
the address set forth on the first page hereof, fax number (000) 000-0000,
Attention: General Counsel, and if sent to the Company, to the address set forth
on the first page hereof, fax number (000) 000-0000, Attention: Xxxx
Xxxxx. Notices sent by certified mail shall be deemed received five
days thereafter, notices sent by hand delivery or overnight delivery shall be
deemed received on the date of the relevant written record of receipt, and
notices delivered by fax shall be deemed received as of the date and time
printed thereon by the fax machine.
M. Miscellaneous. This
Agreement shall not be modified or amended except in writing signed by Xxxxxx
and the Company. This Agreement shall be binding upon and inure to
the benefit of both Xxxxxx and the Company and their respective assigns,
successors, and legal representatives. 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 the Agreement shall remain in full force and
effect. This Agreement may be executed in counterparts (including
facsimile 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, please sign in the space provided below, whereupon
this letter shall constitute a binding Agreement as of the date indicated
above.
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Very
truly yours,
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XXXXXX
& XXXXXXX, LLC
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By
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/s/
Xxxxx
Xxxxx
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Name:
Xxxxx Xxxxx
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Title:
CFO
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Accepted
and Agreed:
CHINA
NORTH EAST PETROLEUM HOLDINGS LIMITED
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By
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/s/
Xxxx
Xxxxxxx
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Name:
Xxxx Xxxxxxx
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Title:
Chairman and President
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6
Annex A
Additional Provisions With
Respect to a Registered Offering
SECTION
1. WARRANTS The
Xxxxxx Warrants described in Section A.2 shall not be transferable except as
permitted by FINRA Rule 5110, and further, the number of Shares underlying the
Xxxxxx Warrants shall be reduced if necessary to comply with FINRA rules or
regulations.
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. 333-160299) under the
Securities Act of 1933, as amended (the “Securities Act”), which became
effective on September 9, 2009, 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 has advised 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 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 Offering, including any documents incorporated by reference
therein.
7
(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
Offering 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 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.
(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.
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SECTION
3.
REPRESENTATIONS AND
WARRANTIES. The Placement Agent shall be entitled
to rely upon any and all representations and warranties of the Company and its
Subsidiaries included in the purchase agreements entered into by the Company and
the Investors in connection with the Offering, subject to the qualifications and
limitations therein.
SECTION
4.
CLOSING.
The obligations of the Placement Agent and the Investors, 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 made to the Investors contained in the transaction
documents in connection with the Offering, to the accuracy of the statements of
the Company and its Subsidiaries made in any certificates pursuant to the
provisions thereof, to the performance by the Company and its Subsidiaries of
their obligations thereunder, 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.
(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 Investors
dated as of the Closing Date, in form and substance reasonably satisfactory to
the Placement Agent.
(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 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.
9
(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 [name of
Trading 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 [name of Trading Market], nor has the Company
received any information suggesting that the Commission or [name of Trading
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 NYSE Alternext US 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 Offering, including as an exhibit thereto this
Agreement.
(J) The
Company shall have entered into subscription agreements with each of the
Investors 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 Investors.
(K) FINRA
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, an Issuer Filing with FINRA pursuant to FINRA
Rule 5110 with respect to the Registration Statement and pay all filing fees
required in connection therewith.
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(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.
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.
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