THERMOGENESIS CORP.
PLACEMENT AGENCY AGREEMENT
as of October ___, 1996
Xxxxx & Company Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
THERMOGENESIS CORP. (the "Company"), a Delaware corporation,
hereby confirms its agreement with you as follows:
1. THE OFFERING. The Company is offering to persons who
qualify as "accredited investors", as that term is defined in Regulation D
under the Securities Act of 1933 as amended (the "Act"), Units (the
"Units"), each Unit consisting of two (2) shares of the Company's Common
Stock (the "Common Stock") and a Common Stock Purchase Warrant
(collectively, the "Warrants") to purchase one (1) share of the Company's
Common Stock at a price per Unit to be agreed upon by you and the Company
prior to the consummation of the sale of the Units. The foregoing offer
and sale of the Units is hereinafter referred to as the "Offering". The
Offering will consist of the sale of a minimum of 650,000 Units on a "best
efforts", all or none basis, and up to an additional 650,000 Units on a
"best efforts" basis for an aggregate of 1,300,000 Units. The Company may,
in its discretion, however, accept subscriptions for more than 1,300,000
Units.
1. APPOINTMENT OF PLACEMENT AGENT. You are hereby appointed as
a placement agent of the Company (the "Placement Agent") during the
Offering Period (as defined herein) for the purpose of assisting the
Company in identifying qualified Purchasers as described in the Offering
Materials (the "Purchasers"). The "Offering Period" shall commence on the
date the Offering Materials are first made available to you by the Company
for delivery in connection with the Offering and shall terminate on
November 30, 1996 unless extended by agreement between you and the Company
to a date no later than December 18, 1996. You hereby accept such agency
and agree to assist the Company in identifying qualified Purchasers on a
"best efforts" basis. Your agency hereunder may not be terminated by the
Company, except upon termination of the Offering. It is understood that
the offering and sale of the Units is intended by all parties to be exempt
from the registration requirements of the Act pursuant to Section 4(2)
thereof and the rules and regulations (including Regulation D) of the
Securities and Exchange Commission thereunder (the "Rules and
Regulations").
1. OFFERING MATERIALS. The Company has prepared and delivered
to the Placement Agent a reasonable number of copies of a Private Placement
Memorandum dated October __, 1996 (the "Memorandum") and the supplemental
documents referred to therein relating to, among other things, the Company
and the Offering. The memorandum, including all documents delivered in
connection therewith, is referred to herein as the "Offering Materials,"
except that if the Offering Materials shall be supplemented or amended, the
term "Offering Materials" shall refer to the Offering Materials as so
supplemented or amended from and after the time of delivery to you of such
supplement or amendment.
1. CLOSING; DELIVERY; PLACEMENT FEES.
(a) It is anticipated that the closing of the purchase and
sale of the minimum Units (the "Closing") shall take place on
_____________, 1996 or, such other date no later than December 18, 1996 as
shall be determined by the Company after consultation with the Placement
Agent (the "Closing Date").
(a) On or prior to the Closing Date the Company shall have
received on behalf of each Purchaser (i) two executed copies of the
Purchase Agreement to be entered into by the Company and each of the
Purchasers identified and introduced by the Placement Agent purchasing
Units in the form delivered to the Placement Agent (the "Purchase
Agreement"), (ii) the full purchase price of the Units which such Purchaser
is to purchase, and (iii) such other documents as the Company shall
reasonably request from each Purchaser. As soon as practicable after the
Closing Date, the Company will deliver or cause to deliver to the
Purchasers certificates representing the Units purchased by them and other
documents as set forth in the Purchase Agreements.
(a) (i) On or prior to the Closing Date, the Company shall
pay or cause to be paid to the Placement Agent a placement fee equal to
eight percent (8%) of the gross proceeds of all Units sold to Purchasers
identified and introduced to the Company by the Placement Agent in the
Offering.
(ii) In addition to the placement fee provided for in
section (c)(i) above, on or prior to the Closing Date, the Placement Agent
shall be entitled to a management fee consisting of (A) a fee equal to two
percent (1%) of the gross proceeds of all Units sold in the Offering,
irrespective of whether the Purchasers have been identified and introduced
by the Placement Agent to the Company and (B) warrants to purchase 100,000
shares of Common Stock containing the same terms and conditions as the
Warrants and represented by the Warrant Certificate substantially in the
form attached hereto as Exhibit A.
(iii) The Company shall reimburse the Placement Agent
for its out of pocket expenses as provided in Section 6(c) hereof, against
the presentation of bills therefor.
(a) The Placement Agent shall deliver to the Company at
Closing a certificate of an officer confirming that the following
representations are true and correct as of the Closing Date and as of the
date of acceptance of each subscription by the Company:
(i) The Placement Agent is a member of the NASD and a
broker-dealer registered as such under the Securities Act of 1934 (the
"1934 Act") and under the securities laws of each state in which the
Placement Agent offers Units which requires the registration of the
Placement Agent as a broker dealer;
(ii) The Placement Agent has offered the Units in
accordance with the applicable provisions of the 1933 Act in a manner so as
to preserve the exemption from registration as provided in Section 4(2) of
the Act and Regulation D thereunder, and has not knowingly taken, or
omitted to take, an action in connection with such offering of Units which
would cause the offering not to be made in compliance with Section 4(2) of
the Act and Regulation D thereunder; and
(iii) The Placement Agent has not offered the Units in
any jurisdiction until the Company or the Placement Agent's counsel has
advised it that such offers of Units would be exempt from the registration
or qualification requirements of such jurisdiction or that the necessary
action has been taken to register or qualify the Units for sale in such
jurisdiction.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby confirms for the benefit of the Placement Agent the representations
and warranties made in the Purchase Agreement(s) by it to the Purchasers of
Units, and hereby further represents and warrants that this Agreement has
been duly authorized, executed and delivered on behalf of the Company, and
constitutes a valid and binding agreement of the Company, enforceable in
accordance with its terms, except as rights to indemnity or contribution
hereunder may be limited by Federal or state securities laws.
1. COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Placement Agent that:
(a) The Company will notify you of any event of which it is
aware and as a result of which the Offering Materials would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading; and it will not
use any amendment or supplement to the Offering Materials until you have
given your consent to such amendment or supplement. The Company will
conduct the Offering in compliance with Section 4(2) of the Act and the
Rules and Regulations and all applicable state securities laws and
regulations.
(a) The Company will use its best efforts to qualify the
Units for offer and sale under the Blue Sky or securities laws of such
jurisdictions as you may designate and to continue such qualifications in
effect for so long as may be required for purposes of the private placement
of the Units, except that the Company shall not be required in connection
therewith or as a condition thereof to qualify as a foreign corporation or
to execute a general consent to service of process in any State.
(a) The Company covenants and agrees with you that the
Company will pay all expenses, fees and taxes in connection with (i) the
preparation of the Offering Materials and all other documents delivered to
prospective investors, (ii) the furnishing of the opinions of counsel for
the Company and other closing documents and (iii) the qualification of the
Units for offer or sale under the securities laws of such jurisdictions as
you may reasonably designate. The Company also agrees that it will
reimburse you for your out-of-pocket expenses in connection with the
Offering, including the reasonable fees and expenses of Xxxxxx &
Carnelutti, counsel to the Placement Agent, PROVIDED that such reimbursable
out-of-pocket expenses shall not exceed $50,000 without the Company's prior
written consent.
(a) The Company agrees to cooperate with the Placement
Agent and counsel to the Placement Agent with respect to their due
diligence investigation.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLACEMENT
AGENT. The Placement Agent represents, warrants and covenants as follows:
(a) This Agreement has been duly executed and delivered by
the Placement Agent and constitutes a valid and binding obligation of the
Placement Agent, enforceable against it in accordance with its terms,
except as rights to indemnity or contribution hereunder may be limited by
federal or state securities laws.
(a) The Placement Agent will not make an offer of Units by
any form of general solicitation or general advertising in violation of
Rule 502(c) of Regulation D. The Placement Agent will use best efforts to
ensure that the Units are offered only to "accredited investors" as that
term is defined in Rule 501(a) promulgated under the Act.
(a) The Placement Agent shall deliver copies of the
Offering Materials, together with any amendments or supplements, to each
Purchaser prior to investment. The Placement Agent shall not deliver to
any offeree without the consent of the Company any information concerning
the Offering other than the documents contemplated to be delivered hereby.
(a) The Placement Agent will not offer Units in any
jurisdiction until the Company or the Placement Agent's counsel has advised
it that such offers of Units would be exempt from the registration or
qualification requirements of such jurisdiction or that the necessary
action has been taken to register or qualify the Units for sale in such
jurisdiction.
1. CONDITIONS OF PLACEMENT AGENT'S PERFORMANCE. The purchase
and sale of the Units and the obligations of the Placement Agent as
provided herein shall be subject to the accuracy in all material respects,
as of the date hereof and the Closing Date (as if made on and as of such
Closing Date), of the representations and warranties of the Company herein,
to the performance in all material respects by the Company of its
obligations hereunder, and to the following additional conditions:
(a) You shall have received the opinion of Weintrab
Genshlea & Xxxxxx, counsel for the Company in form and substance acceptable
to counsel to the Placement Agent.
(a) You shall have received a certificate, dated as of the
Closing Date, of the Chief Executive Officer of the Company to the effect
that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects as if made on
and as of such Closing Date; and the Company has complied with all the
agreements and satisfied all the conditions in all material respects
on its part to be performed or satisfied at or prior to such Closing
Date; and
(ii) Except as set forth in the Offering Materials or in the
Purchase Agreement and subsequent to the date of the most recent
financial statements included with the Offering Materials, there has
not been any material adverse change in the condition (financial or
otherwise), business or results of operations of the Company and its
subsidiaries taken as a whole.
(a) The Company shall have furnished to you such
certificates, in addition to those specifically mentioned herein, as you or
your counsel may have reasonably requested, as to the accuracy and
completeness at such Closing Date (and as of the date of any accepted
subscriptions subsequent to the Closing Date) of any statement in the
Offering Materials, as to the accuracy at such Closing Date of the
representations and warranties of the Company herein, as to the performance
by the Company of its obligations hereunder, and as to the fulfillment of
the conditions concurrent and precedent to the obligations of the Placement
Agent hereunder.
1. INDEMNIFICATION. (a) The Company will indemnify and hold
harmless the Placement Agent, the directors and officers of the Placement
Agent and each person, if any, who controls the Placement Agent within the
meaning of the Act against any losses, claims, damages or liabilities,
joint or several, to which the Placement Agent or any such directors,
officers or controlling persons may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Offering Materials, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii)
the Company's engagement of Xxxxx & Company Incorporated as Placement Agent
or any service the Placement Agent performs for the Company or on its
behalf pursuant to this Agreement, except to the extent that any such loss,
claim, damage or liability is found by a court of competent jurisdiction in
a judgment that has become final (in that it is no longer subject to appeal
or review) to have resulted directly and primarily from such Indemnified
Person's gross negligence or willful misconduct. Subject to subsection (c)
below, the Company will reimburse the Placement Agent or any such
directors, officers or controlling persons for any legal or other expenses
reasonably incurred by the Placement Agent or any such directors, officers
or controlling persons in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in the Offering Materials in reliance upon and in conformity with written
information furnished by and with respect to the Placement Agent
specifically for use in the preparation thereof. The Company shall not be
required to indemnify the Placement Agent or any such directors, officers
or controlling persons for any payment made to any claimant in settlement
of any suit or claim unless such payment is approved by the Company, which
approval shall not be unreasonably withheld or delayed. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have, but in no event shall an indemnified party receive more
than the amount of his claim.
(a) The Placement Agent will indemnify and hold harmless
the Company, its officers and directors and each person, if any, who
controls the Company within the meaning of the Act against any losses,
claims, damages or liabilities, joint or several, to which the Company, or
any such directors, officers or controlling persons may be or become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Offering Materials or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in the Offering Materials in reliance upon and in
conformity with written information furnished by and with respect to the
Placement Agent specifically for use in the preparation thereof; and
(subject to subsection (c) below) will reimburse the Company or any such
directors, officers or controlling persons for any legal or other expenses
reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending any such
loss, claim, damage, liability or actions. The Placement Agent shall not
be required to indemnify the Company or any such directors, officers or
controlling persons for any payment made to any claimant in settlement of
any suit or claim unless payment is approved by the Placement Agent, which
approval shall not be unreasonably withheld or delayed. This indemnity
agreement will be in addition to any liability the Placement Agent may
otherwise have, but in no event shall an indemnified party receive more
than the amount of his claim.
(a) Promptly after receipt by an indemnified party under
subparagraphs 9(a) or (b) of notice of the commencement of any action or
other proceeding (including governmental investigations) in respect of
which indemnity may be sought, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under such
subparagraphs, promptly notify the indemnifying party in writing of the
commencement thereof; but the omission to so notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under such subparagraph. In case any such action
shall be brought against any indemnified party, and it shall promptly
notify the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in, and, to the extent that it may
wish, assume and control the defense thereof with counsel chosen by it and
after notice from the indemnifying party to such indemnified party of its
election so to assume and control such defense with counsel chosen by it,
it shall bear all expenses of such defense. Any such indemnified party
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless:
(i) the indemnifying party has agreed to pay such fees and
expenses; or
(ii) the indemnifying party shall have failed to assume the
defense of such action or proceeding and employ counsel reasonably
satisfactory to such indemnified party in any such action or
proceeding; or
(iii) the named parties to any such action or proceeding (including
any impleaded parties) include both such indemnified party and the
indemnifying party, and such indemnified party shall have been advised
by counsel that there may be one or more legal defenses available to
such party which are different from or additional to those available
to the indemnifying party (in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of
such action or proceeding on behalf of such indemnified party).
The indemnifying party shall not, in connection with any one such
action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
indemnified party, which firm shall be designated in writing by the
indemnified party.
1. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 9(a) or
9(b) hereof is for any reason held to be unavailable to any party entitled
to such indemnification, each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of losses,
claims, damages and liabilities of the nature contemplated by such
indemnification provisions (including any investigation, legal and other
expenses incurred in connection with, and amounts paid in settlement of,
any action, suit or proceeding or any claims asserted) to which the Company
and the Placement Agent may be subject, in such proportions so that the
Placement Agent is responsible for that portion in each case represented by
the percentage that the respective placement fee appearing in Section 4(c)
of this Agreement bears to the offering price of the Units, and the Company
is responsible for the remaining portion; provided, however, that no person
guilty of fraudulent misrepresentation shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purpose of this Section 10, each person, if any, who controls the
Placement Agent within the meaning of Section 15 of the Act shall have the
same rights to contribution as the Placement Agent, and each person, if
any, who controls the Company within the meaning of Section 15 of the Act,
each officer of the Company and each director of the Company shall have the
same right to contribution as the Company, subject in each case to the
prior sentence. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against
such party in respect of which claim for contribution may be sought,
promptly notify the other party or parties in writing of the commencement
thereof, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than under this
Section 10. No party shall be liable for contribution with respect to any
action or claim settled without its consent.
11. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties or agreements of the Company or of the
Placement Agent herein or in certificates delivered pursuant hereto shall
remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Placement Agent or any
controlling person, the Company, or any of its officers, directors or
controlling persons, and shall survive delivery of the Units.
12. PUBLICITY AND DISCLOSURE. Except as may be required by
federal securities laws, no press release or public disclosure, either
written or oral, relating to the Offering or any matter related to the
Offering shall be made without the prior approval of the Placement Agent.
14. TERMINATION. The Placement Agent's obligation to proceed
hereunder is conditioned upon its continuing judgment that market
conditions in general, and as they relate to the Company's securities in
particular, are such as to continue to make appropriate the offering and
sale of the Units in the manner provided for herein. Notwithstanding the
foregoing, this Agreement shall terminate if the Closing of the sale of the
Units does not take place on or before November 30, 1996, unless extended
by the Company and the Placement Agent as provided herein. Upon any such
termination, (i) the Company shall reimburse the Placement Agent for its
out-of-pocket expenses, and pay the reasonable fees and expenses of counsel
to the Placement Agents, in each case as provided in Section 6(c) hereof,
and (ii) the obligations of the parties set forth in Sections 9 and 10
shall survive termination of this Agreement.
15. NOTICE. All notices or communications hereunder, except as
herein otherwise specifically provided, shall be in writing and if sent to
you shall be mailed, delivered or telegraphed and confirmed to you c/o
Allen & Company Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn: Xx. Xxxxxx X. Xxxxxx, with a copy to Xxxxxx & Carnelutti, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxx X. Xxxxxx, Esq., or, if sent
to the Company, at 00000 Xxxxxxx Xxxx Xxxxxx, Xxxxx X, Xxxxxx Xxxxxxx,
Xxxxxxxxxx 00000, Attn: Chief Executive Officer with a copy to Weintrab
Genshlea & Xxxxxx, 000 Xxxxxxx Xxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxx
00000, Attn: Xxxxx X. Xxxxx, Esq.
16. BENEFITS OF THE AGREEMENT. This Agreement shall inure to
the benefit of and be binding upon the Company and the Placement Agent and
their respective successors and assigns.
17. APPLICABLE LAW. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of New York
without regard to the conflicts of law provisions thereof.
18. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument.
Xxxxx & Company Incorporated
as of October __, 1996
Page 2
If you are in agreement with the foregoing please execute where
indicated below and return a copy to us for files.
Very truly yours,
THERMOGENESIS CORP.
By:________________________________
Xxxxxx X. Xxxxxx
Chief Executive Officer
XXXXX & COMPANY INCORPORATED
By:___________________________
Name:
Title:
82153
