TG THERAPEUTICS, INC. 4,100,000 Shares of Common Stock (par value $0.001 per share) Underwriting Agreement
Execution Version
4,100,000 Shares of Common Stock
(par value $0.001 per share)
Underwriting
Xxxxxxxxx
Xxxxx
0, 0000
Xxxxxx
Xxxxxxxxxx & Co.
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Ladies
and Gentlemen:
TG
Therapeutics, Inc., a Delaware corporation (the “Company”), proposes to issue and
sell to Cantor Xxxxxxxxxx & Co. (“Cantor” or the “Underwriter”) an aggregate of
4,100,000 shares of its common stock, par value $0.001 per share
(the “Shares”).
The 4,100,000 Shares to be sold by the Company are called the
“Firm Shares.”
In addition, the Company has granted to Cantor an option to
purchase up to an additional 615,000 Shares pursuant to such option
are collectively called the “Option Shares.” The Firm Shares
and, if and to the extent such option is exercised, the Option
Shares, are collectively called the “Offered Shares.”
The
Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) a shelf registration
statement on Form S-3, File No. 333-218293, including a
base prospectus (the “Base
Prospectus”) to be used in connection with the public
offering and sale of the Offered Shares. Such registration
statement, as amended, including the financial statements, exhibits
and schedules thereto, in the form in which it became effective
under the Securities Act of 1933, and the rules and regulations
promulgated thereunder (collectively, the “Securities Act”), including all
documents incorporated or deemed to be incorporated by reference
therein and any information deemed to be a part thereof at the time
of effectiveness pursuant to Rule 430A or 430B under the
Securities Act, is called the “Registration Statement.” Any
registration statement filed by the Company pursuant to Rule 462(b)
under the Securities Act in connection with the offer and sale of
the Offered Shares is called the “Rule 462(b) Registration
Statement,” and from and after the date and time of
filing of any such Rule 462(b) Registration Statement the term
“Registration Statement” shall include the Rule 462(b)
Registration Statement. The preliminary prospectus supplement dated
February 28, 2019 describing the Offered Shares and the offering
thereof (the “Preliminary
Prospectus Supplement”), together with the Base
Prospectus, is called the “Preliminary Prospectus,” and the
Preliminary Prospectus and any other prospectus supplement to the
Base Prospectus in preliminary form that describes the Offered
Shares and the offering thereof and is used prior to the filing of
the Prospectus (as defined below), together with the Base
Prospectus, is called a “preliminary prospectus.” As used
herein, the term “Prospectus” shall mean the final
prospectus supplement to the Base Prospectus that describes the
Offered Shares and the offering thereof (the “Final Prospectus Supplement”),
together with the Base Prospectus, in the form first used by the
Underwriter to confirm sales of the Offered Shares or in the form first made
available to the Underwriter by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities
Act.
As used
herein, “Applicable
Time” is 8:30 a.m. (New York time) on March 1, 2019.
As used herein, “free writing
prospectus” has the meaning set forth in Rule 405
under the Securities Act, and “Time of Sale Prospectus” means the
Preliminary Prospectus, as amended or supplemented immediately
prior to the Applicable Time, together with the free writing
prospectuses, if any, identified on Schedule A hereto and the
pricing information set forth on Schedule B hereto. As used
herein, “Road
Show” means a “road show” (as defined in
Rule 433 under the Securities Act) relating to the offering of the
Offered Shares contemplated hereby that is a “written
communication” (as defined in Rule 405 under the Securities
Act). As used herein, “Section 5(d) Written
Communication” means each written communication
(within the meaning of Rule 405 under the Securities Act) that is
made in reliance on Section 5(d) of the Securities Act by the
Company or any person authorized to act on behalf of the Company to
one or more potential investors that are qualified institutional
buyers (“QIBs”)
and/or institutions that are accredited investors
(“IAIs”), as
such terms are respectively defined in Rule 144A and Rule 501(a)
under the Securities Act, to determine whether such investors might
have an interest in the offering of the Offered Shares;
“Section 5(d) Oral
Communication” means each oral communication, if any,
made in reliance on Section 5(d) of the Securities Act by the
Company or any person authorized to act on behalf of the Company
made to one or more QIBs and/or one or more IAIs to determine
whether such investors might have an interest in the offering of
the Offered Shares; “Marketing Materials” means any
materials or information provided to investors by, or with the
approval of, the Company in connection with the marketing of the
offering of the Offered Shares, including any Road Show or investor
presentations made to investors by the Company (whether in person
or electronically); and “Permitted Section 5(d)
Communication” means the Section 5(d) Written
Communication(s) and Marketing Materials listed on Schedule C attached
hereto.
All
references in this Agreement to financial statements and schedules
and other information which are “contained,”
“included” or “stated” in, or “part
of” the Registration Statement, the Rule 462(b) Registration
Statement, the Preliminary Prospectus, any preliminary prospectus,
the Base Prospectus, the Time of Sale Prospectus or the Prospectus,
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 Rule 462(b) Registration
Statement, the Preliminary Prospectus, any preliminary prospectus,
the Base Prospectus, the Time of Sale Prospectus or the Prospectus,
as the case may be.
All
references in this Agreement to amendments or supplements to the
Registration Statement, the Preliminary Prospectus, any preliminary
prospectus, the Base Prospectus, the Time of Sale Prospectus or the
Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, and the rules
and regulations promulgated thereunder (collectively, the
“Exchange Act”)
that is or is deemed to be incorporated by reference in the
Registration Statement, the Preliminary Prospectus, any preliminary
prospectus, the Base Prospectus, or the Prospectus, as the case may
be.
All
references in this Agreement to (i) the Registration
Statement, the Preliminary Prospectus, any preliminary prospectus,
the Base Prospectus or the Prospectus, any amendments or
supplements to any of the foregoing, or any free writing
prospectus, shall include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System (“XXXXX”) and (ii) the
Prospectus shall be deemed to include any “electronic
Prospectus” provided for use in connection with the offering
of the Offered Shares as contemplated by Section 3(n).
In the
event that the Company has only one subsidiary, then all references
herein to “subsidiaries” of the Company shall be deemed
to refer to such single subsidiary, mutatis mutandis.
The
Company hereby confirms its agreements with the Underwriter as
follows:
1. Representations
and Warranties of the Company. The Company represents and
warrants to the Underwriter as of the date of this Agreement, the
Applicable Time, the First Closing Date (as hereinafter defined)
and each Option Closing Date (as hereinafter defined), if any, as
follows:
(a) Compliance with Registration
Requirements. The Registration Statement has become
effective under the Securities Act. The Company has complied, to
the Commission’s satisfaction, with all requests of the
Commission for additional or supplemental information, if any. No
stop order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for such purpose have
been instituted or are pending or, to the best knowledge of the
Company, are contemplated or threatened by the Commission. At the
time the Company’s Annual Report on Form 10-K for the year
ended December 31, 2017 (the “Annual Report”) was filed with the
Commission, or, if later, at the time the Registration Statement
was originally filed with the Commission, the Company met the
then-applicable requirements for use of Form S-3 under the
Securities Act. The Company meets the requirements for use of Form
S-3 under the Securities Act specified in FINRA Conduct Rule
5110(B)(7)(C)(i). The documents incorporated or deemed to be
incorporated by reference in the Registration Statement, the Time
of Sale Prospectus and the Prospectus, at the time they were or
hereafter are filed with the Commission, or became effective under
the Exchange Act, as the case may be, complied and will comply in
all material respects with the requirements of the Exchange
Act.
(b) Disclosure.
Each preliminary prospectus and the Prospectus when filed complied
in all material respects with the Securities Act and, if filed by
electronic transmission pursuant to XXXXX, was identical (except as
may be permitted by Regulation S-T under the Securities Act)
to the copy thereof delivered to the Underwriter for use in
connection with the offer and sale of the Offered Shares. Each of
the Registration Statement and any post-effective amendment
thereto, at the time it became or becomes effective and at all
subsequent times, complied and will comply in all material respects
with the Securities Act and did not and 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. As of the Applicable Time, the Time of Sale
Prospectus did not, and at the time of each sale of the Offered
Shares and at the First Closing Date (as defined in Section 2), the
Time of Sale Prospectus, as then amended or supplemented by the
Company, if applicable, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. The Prospectus, as of its
date and (as then amended or supplemented) at all subsequent times,
did not and will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and
warranties set forth in the three immediately preceding sentences
do not apply to statements in or omissions from the Registration
Statement or any post-effective amendment thereto, or the
Prospectus or the Time of Sale Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with
written information relating to the Underwriter furnished to the
Company in writing by the Underwriter expressly for use therein, it
being understood and agreed that the only such information consists
of the information described in Section 9(b). There are no
contracts or other documents required to be described in the Time
of Sale Prospectus or the Prospectus or to be filed as an exhibit
to the Registration Statement which have not been described or
filed as required.
(c) Free
Writing Prospectuses; Road Show. As of the determination
date referenced in Rule 164(h) under the Securities Act, the
Company was not, is not or will not be (as applicable) an
“ineligible issuer” in connection with the offering of
the Offered Shares pursuant to Rules 164, 405 and 433 under the
Securities Act. Each 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. 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 or referred to by the Company
complies or will comply in all material respects with the
requirements of Rule 433 under the Securities Act, including timely
filing with the Commission or retention where required and
legending, and each such free writing prospectus, as of its issue
date and at all subsequent times through the completion of the
public offer and sale of the Offered Shares did not, does not and
will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration
Statement, the Prospectus or any preliminary prospectus and not
superseded or modified. Except for the free writing prospectuses,
if any, identified in Schedule A, and electronic road
shows, if any, furnished to the Underwriter before first use, the
Company has not prepared, used or referred to, and will not,
without the Underwriter’s prior written consent, prepare, use
or refer to, any free writing prospectus. Each Road Show, when
considered together with the Time of Sale Prospectus, does not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(d) Testing-the-Waters
Materials. The Company (i) has not alone engaged in any
Section 5(d) Written Communication or Section 5(d) Oral
Communication and (ii) has not authorized anyone other than the
Underwriter to engage in such Permitted Section 5(d)
Communications. The Company reconfirms that the Underwriter has
been authorized to act on its behalf in undertaking Marketing
Materials, Section 5(d) Oral Communications and Section 5(d)
Written Communications. The Company has not distributed or approved
for distribution any Section 5(d) Written Communications other than
those listed on Schedule
C hereto. Any individual Permitted Section 5(d)
Communication does not conflict with the information contained in
the Registration Statement or the Time of Sale Prospectus, complied
in all material respects with the Securities Act, and when taken
together with the Time of Sale Prospectus as of the Applicable
Time, did not, and as of the First Closing Date and as of each
Option Closing Date, as the case may be, will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(e) Distribution
of Offering Material By the Company. Prior to the later of
(i) the expiration or termination of the option granted to the
Underwriter in Section 2 and (ii) the completion of the
Underwriter’s distribution of the Offered Shares, the Company
has not distributed and will not distribute any offering material
in connection with the offering and sale of the Offered Shares
other than the Registration Statement, the Time of Sale Prospectus,
the Prospectus or any free writing prospectus reviewed and
consented to by the Underwriter, and the free writing prospectuses,
if any, identified on Schedule A hereto and any
Permitted Section 5(d) Communications.
(f) Financial
Information. The consolidated financial statements of the
Company included or incorporated by reference in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, together
with the related notes and schedules, present fairly, in all
material respects, the consolidated financial position of the
Company and the Subsidiaries (as defined below) as of the dates
indicated and the consolidated results of operations, cash flows
and changes in stockholders’ equity of the Company for the
periods specified and have been prepared in compliance with the
requirements of the Securities Act and Exchange Act, as applicable,
and in conformity with generally accepted accounting principles in
the United States (“GAAP”) applied on a consistent
basis (except for such adjustments to accounting standards and
practices as are noted therein) during the periods involved; the
other financial and statistical data with respect to the Company
and the Subsidiaries contained or incorporated by reference in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, are accurately and fairly presented and prepared on a
basis consistent with the financial statements and books and
records of the Company; there are no financial statements
(historical or pro forma) that are required to be included or
incorporated by reference in the Registration Statement, the Time
of Sale Prospectus or the Prospectus that are not included or
incorporated by reference as required; the Company and the
Subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off balance sheet obligations),
not described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus which are required to be described in
the Registration Statement, the Time of Sale Prospectus and the
Prospectus; and all disclosures contained or incorporated by
reference in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, if any, regarding “non-GAAP
financial measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G of the
Exchange Act and Item 10 of Regulation S-K under the Securities
Act, to the extent applicable. The financial data set forth in each
of the Registration Statement, the Time of Sale Prospectus and the
Prospectus under the captions “Prospectus Supplement Summary
– Recent Developments” and “Prospectus Supplement
Summary – Additional Business Updates” fairly present
the information set forth therein on a basis consistent with that
of the audited financial statements contained in the Registration
Statement, the Time of Sale Prospectus and the Prospectus. The
interactive data in eXtensible Business Reporting Language included
or incorporated by reference in the Registration Statement and the
Prospectus fairly presents the information called for in all
material respects and has been prepared in accordance with the
Commission’s rules and guidelines applicable
thereto.
(g) Conformity
with XXXXX Filing. The Preliminary Prospectus and Final
Prospectus delivered to the Underwriter for use in connection with
the sale of the Offered Shares pursuant to this Agreement will be
identical to the versions of the Preliminary Prospectus and Final
Prospectus created to be transmitted to the Commission for filing
via XXXXX, except to the extent permitted by Regulation
S-T.
(h) Organization.
The Company and any subsidiary that is a significant subsidiary (as
such term is defined in Rule 1-02 of Regulation S-X promulgated by
the Commission) (each, a “Subsidiary”, collectively, the
“Subsidiaries”),
are, and will be, duly organized, validly existing as a corporation
and in good standing under the Laws of their respective
jurisdictions of organization. The Company and the Subsidiaries
are, and will be, duly licensed or qualified as a foreign
corporation for transaction of business and in good standing under
the Laws of each other jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such license or qualification, and have all
corporate power and authority necessary to own or hold their
respective properties and to conduct their respective businesses as
described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, except where the failure to be so
qualified or in good standing or have such power or authority would
not, individually or in the aggregate, have a material adverse
effect or would reasonably be expected to have a material adverse
effect on the assets, business, operations, earnings, properties,
condition (financial or otherwise), prospects, stockholders’
equity or results of operations of the Company and the Subsidiaries
taken as a whole, or prevent the consummation of the transactions
contemplated hereby (a “Material Adverse
Effect”).
(i) Subsidiaries.
As of the date hereof, the Company’s only Subsidiaries are
set forth on Schedule 6(g). The Company owns directly or
indirectly, all of the equity interests of the Subsidiaries free
and clear of any lien, charge, security interest, encumbrance,
right of first refusal or other restriction, and all the equity
interests of the Subsidiaries are validly issued and are fully
paid, nonassessable and free of preemptive and similar
rights.
(j) No
Violation or Default. Neither the Company nor any Subsidiary
is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has
occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary is bound or to which any of the
property or assets of the Company or any Subsidiary is subject; or
(iii) in violation of any Law of any Governmental Authority,
except, in the case of each of clauses (ii) and (iii) above, for
any such violation or default that would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect. To the Company’s knowledge, no other party under any
material contract or other agreement to which it or any Subsidiary
is a party is in default in any respect thereunder where such
default would reasonably be expected to have a Material Adverse
Effect.
(k) No
Material Adverse Effect. Subsequent to the respective dates
as of which information is given in the Registration Statement, the
Time of Sale Prospectus, the Prospectus and the Free Writing
Prospectuses, if any (including any document deemed incorporated by
reference therein), there has not been (i) any Material Adverse
Effect, or any development involving a prospective Material Adverse
Effect, in or affecting the business, properties, management,
condition (financial or otherwise), results of operations, or
prospects of the Company and the Subsidiaries taken as a whole,
(ii) any transaction which is material to the Company and the
Subsidiaries taken as a whole, (iii) any obligation or liability,
direct or contingent (including any off-balance sheet obligations),
incurred by the Company or the Subsidiaries, which is material to
the Company and the Subsidiaries taken as a whole, (iv) any
material change in the capital stock (other than (A) the grant of
additional options under the Company’s existing stock option
plans, (B) changes in the number of shares of outstanding Common
Stock of the Company due to the issuance of shares upon the
exercise or conversion of securities exercisable for, or
convertible into, Common Stock outstanding on the date hereof, (C)
as a result of the issuance of Offered Shares, or (D) any
repurchases of capital stock of the Company) or outstanding
long-term indebtedness of the Company or the Subsidiaries or (v)
any dividend or distribution of any kind declared, paid or made on
the capital stock of the Company or any Subsidiary, other than in
each case above in the ordinary course of business or as otherwise
disclosed in the Registration Statement or Prospectus (including
any document deemed incorporated by reference
therein).
(l) Capitalization.
The issued and outstanding shares of capital stock of the Company
have been validly issued, are fully paid and nonassessable and,
other than as disclosed in the Registration Statement, the Time of
Sale Prospectus or the Prospectus, are not subject to any
preemptive rights, rights of first refusal or similar rights. The
Company has an authorized, issued and outstanding capitalization as
set forth in the Registration Statement and the Prospectus as of
the dates referred to therein (other than (i) the grant of
additional options under the Company’s existing stock option
plans, (ii) changes in the number of shares of outstanding Common
Stock of the Company due to the issuance of shares upon the
exercise or conversion of securities exercisable for, or
convertible into, Common Stock outstanding on the date hereof,
(iii) as a result of the issuance of Offered Shares, or (iv) any
repurchases of capital stock of the Company) and such authorized
capital stock conforms to the description thereof set forth in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus. The description of the Common Stock in the Registration
Statement, the Time of Sale Prospectus or the Prospectus is
complete and accurate in all material respects. As of the date
referred to therein, the Company did not have outstanding any
options to purchase, or any rights or warrants to subscribe for, or
any securities or obligations convertible into, or exchangeable
for, or any contracts or commitments to issue or sell, any shares
of capital stock or other securities.
(m) S-3
Eligibility. (i) At the time of filing the Registration
Statement and (ii) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or
15(d) of the Exchange Act or form of prospectus), the Company met
the then applicable requirements for use of Form S-3 under the
Securities Act, including compliance with General Instruction I.B.1
of Form S-3.
(n) Authorization;
Enforceability. The Company has full legal right, power and
authority to enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized,
executed and delivered by the Company and is a legal, valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent that (i)
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Laws affecting
creditors’ rights generally and by general equitable
principles and (ii) the indemnification and contribution provisions
of Section 11 hereof may be limited by federal or state securities
Laws and public policy considerations in respect
thereof.
(o) Authorization
of Offered Shares. The Offered Shares have been duly
authorized for issuance and sale pursuant to this Agreement and,
when issued and delivered by the Company against payment therefor
pursuant to this Agreement, will be duly and validly issued, fully
paid and nonassessable, free and clear of any pledge, lien,
encumbrance, security interest or other claim (other than any
pledge, lien, encumbrance, security interest or other claim arising
from an act or omission of an Agent or a purchaser), including any
statutory or contractual preemptive rights, resale rights, rights
of first refusal or other similar rights, and will be registered
pursuant to Section 12 of the Exchange Act. The Offered Shares,
when issued, will conform in all material respects to the
description thereof set forth in or incorporated into the
Registration Statement, the Time of Sale Prospectus and the
Prospectus.
(p) No
Consents Required. No consent, approval, authorization,
order, registration or qualification of or with any Governmental
Authority is required for the execution, delivery and performance
by the Company of this Agreement, and the issuance and sale by the
Company of the Offered Shares as contemplated hereby, except for
such consents, approvals, authorizations, orders and registrations
or qualifications as may be required under applicable state
securities Laws or Laws of the Financial Industry Regulatory
Authority (“FINRA”) or the NASDAQ, including
any notices that may be required by Exchange, in connection with
the sale of the Offered Shares.
(q) No
Preferential Rights. Except as set forth in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, (i) no
person, as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the Securities Act (each, a “Person”), has the right,
contractual or otherwise, to cause the Company to issue or sell to
such Person any Common Stock or shares of any other capital stock
or other securities of the Company (other than upon the exercise of
options or warrants to purchase Common Stock or upon the exercise
of options that have been granted under the Company’s stock
option plans), (ii) no Person has any preemptive rights, rights of
first refusal, or any other rights (whether pursuant to a
“poison pill” provision or otherwise) to purchase any
Common Stock or shares of any other capital stock or other
securities of the Company from the Company which have not been duly
waived with respect to the offering contemplated hereby, (iii) no
Person has the right to act as an underwriter or as a financial
advisor to the Company in connection with the offer and sale of the
Common Stock, and (iv) no Person has the right, contractual or
otherwise, to require the Company to register under the Securities
Act any Common Stock or shares of any other capital stock or other
securities of the Company, or to include any such shares or other
securities in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the
Offered Shares as contemplated thereby or otherwise.
(r) Independent
Registered Public Accounting Firm. CohnReznick LLP (the
“Accountant”),
whose reports on the audits of the consolidated financial
statements and internal control over financial reporting of the
Company are filed with or incorporated into the Commission as part
of the Company’s most recent Annual Report on Form 10-K filed
with the Commission and incorporated into the Registration
Statement and the Prospectus, is and, during the periods covered by
their report, was an independent registered public accounting firm
within the meaning of the Securities Act and the Public Company
Accounting Oversight Board (United States). To the Company’s
knowledge, with due inquiry, the Accountant is not in violation of
the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of
2002 (the “Xxxxxxxx-Xxxxx
Act”) with respect to the Company.
(s) Enforceability
of Agreements. All agreements between the Company and third
parties expressly referenced in the Prospectus, other than such
agreements that have expired by their terms or whose termination is
disclosed in documents filed by the Company on XXXXX, are legal,
valid and binding obligations of the Company enforceable in
accordance with their respective terms, except to the extent that
(i) enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Laws affecting
creditors’ rights generally and by general equitable
principles and (ii) the indemnification provisions of certain
agreements may be limited by federal or state securities Laws or
public policy considerations in respect thereof, and except for any
unenforceability that, individually or in the aggregate, would not
unreasonably be expected to have a Material Adverse
Effect.
(t) No
Litigation. Except as set forth in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, there
are no legal, governmental or regulatory actions, suits or
proceedings by or before any Governmental Authority pending, nor,
to the Company’s knowledge, any legal, governmental or
regulatory investigations by or before any Governmental Authority,
to which the Company or a Subsidiary is a party or to which any
property of the Company or any Subsidiary is the subject that,
individually or in the aggregate, if determined adversely to the
Company or any Subsidiary, would reasonably be expected to have a
Material Adverse Effect or materially and adversely affect the
ability of the Company to perform its obligations under this
Agreement; to the Company’s knowledge, no such actions, suits
or proceedings are threatened or contemplated by any Governmental
Authority or threatened by others that, individually or in the
aggregate, if determined adversely to the Company or any
Subsidiary, would reasonably be expected to have a Material Adverse
Effect; and (i) there are no current or pending legal, governmental
or regulatory investigations, actions, suits or proceedings by or
before any Governmental Authority that are required under the
Securities Act to be described in the Time of Sale Prospectus or
the Prospectus that are not described in the Time of Sale
Prospectus or the Prospectus including any Incorporated Document;
and (ii) there are no contracts or other documents that are
required under the Securities Act to be filed as exhibits to the
Registration Statement that are not so filed.
(u) Licenses
and Permits. Except as set forth in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, the
Company and the Subsidiaries possess or have obtained, all
licenses, certificates, consents, orders, approvals, permits and
other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign
Governmental Authority that are necessary for the ownership or
lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus (the
“Permits”),
except where the failure to possess, obtain or make the same would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. Neither the Company nor any
Subsidiary have received written notice of any proceeding relating
to revocation or modification of any such Permit or has any reason
to believe that such Permit will not be renewed in the ordinary
course, except where the failure to obtain any such renewal would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(v) No
Material Defaults. Neither the Company nor any Subsidiary
has defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults,
individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect. The Company has not filed a report
pursuant to Section 13(a) or 15(d) of the Exchange Act since the
filing of its last Annual Report on Form 10-K, indicating that it
(i) has failed to pay any dividend or sinking fund installment on
preferred stock or (ii) has defaulted on any installment on
indebtedness for borrowed money or on any rental on one or more
long-term leases, which defaults, individually or in the aggregate,
would reasonably be expected to have a Material Adverse
Effect.
(w) Certain
Market Activities. Neither the Company, nor any Subsidiary,
nor any of their respective directors, officers or controlling
persons has taken, directly or indirectly, any action designed, or
that has constituted or would reasonably be expected to cause or
result in, under the Exchange Act or otherwise, the stabilization
or manipulation of the price of the Shares or of any
“reference security” (as defined in Rule 100 of
Regulation M under the Exchange Act (“Regulation M”))
with respect to the Shares, whether to facilitate the sale or
resale of the Offered Shares or otherwise, and has taken no action
which would directly or indirectly violate Regulation
M.
(x) Broker/Dealer
Relationships. Neither the Company nor any Subsidiary or any
related entities (i) is required to register as a
“broker” or “dealer” in accordance with the
provisions of the Exchange Act or (ii) directly or indirectly
through one or more intermediaries, controls or is a “person
associated with a member” or “associated person of a
member” (within the meaning set forth in the FINRA
Manual).
(y) No
Reliance. The Company has not relied upon the Underwriter or
legal counsel for the Underwriter for any legal, tax or accounting
advice in connection with the offering and sale of the Offered
Shares.
(z) Taxes.
The Company and the Subsidiaries have filed all federal, state,
local and foreign tax returns which have been required to be filed
and paid all taxes shown thereon through the date hereof, to the
extent that such taxes have become due and are not being contested
in good faith, except where the failure to do so would not
reasonably be expected to have a Material Adverse Effect. Except as
otherwise disclosed in or contemplated by the Registration
Statement, the Time of Sale Prospectus or the Prospectus, no tax
deficiency has been determined adversely to the Company or any
Subsidiary which has had, or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. The
Company has no knowledge of any federal, state or other
governmental tax deficiency, penalty or assessment which has been
or might be asserted or threatened against it which could have a
Material Adverse Effect.
(aa) Title
to Real and Personal Property. Except as set forth in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, the Company and the Subsidiaries have good and valid
title in fee simple to all items of real property and good and
valid title to all personal property described in the Registration
Statement, the Time of Sale Prospectus or the Prospectus as being
owned by them that are material to the businesses of the Company or
such Subsidiary, in each case free and clear of all liens,
encumbrances and claims, except those that (i) do not materially
interfere with the use made and proposed to be made of such
property by the Company and the Subsidiaries or (ii) would not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect. Any real property described in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus as being leased by the Company and the Subsidiaries is
held by them under valid, existing and enforceable leases, except
those that (A) do not materially interfere with the use made or
proposed to be made of such property by the Company or the
Subsidiaries or (B) would not be reasonably expected, individually
or in the aggregate, to have a Material Adverse
Effect.
(bb) Intellectual
Property. Except as set forth in the Registration Statement,
the Time of Sale Prospectus and the Prospectus, the Company and the
Subsidiaries own or possess adequate enforceable rights to use all
patents, patent applications, trademarks (both registered and
unregistered), service marks, trade names, trademark registrations,
service xxxx registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
(collectively, the “Intellectual Property”), necessary
for the conduct of their respective businesses as conducted as of
the date hereof, except to the extent that the failure to own or
possess adequate rights to use such Intellectual Property would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; the Company and the Subsidiaries
have not received any written notice of any claim of infringement
or conflict which asserted Intellectual Property rights of others,
which infringement or conflict, if the subject of an unfavorable
decision, would result in a Material Adverse Effect; there are no
pending, or to the Company’s knowledge, threatened judicial
proceedings or interference proceedings against the Company or its
Subsidiaries challenging the Company’s or any of its
Subsidiary’s rights in or to or the validity of the scope of
any of the Company’s or any Subsidiary’s patents,
patent applications or proprietary information; no other entity or
individual has any right or claim in any of the Company’s or
any of its Subsidiary’s patents, patent applications or any
patent to be issued therefrom by virtue of any contract, license or
other agreement entered into between such entity or individual and
the Company or any Subsidiary or by any non-contractual obligation,
other than by written licenses granted by the Company or any
Subsidiary; the Company and the Subsidiaries have not received any
written notice of any claim challenging the rights of the Company
or its Subsidiaries in or to any Intellectual Property owned,
licensed or optioned by the Company or any Subsidiary which claim,
if the subject of an unfavorable decision would result in a
Material Adverse Effect.
(cc) Environmental
Laws. Except as set forth in the Registration Statement, the
Time of Sale Prospectus and the Prospectus, the Company and the
Subsidiaries (i) are in compliance with any and all applicable
federal, state, local and foreign Laws, rules, regulations,
decisions and orders relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, “Environmental Laws”); (ii) have
received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses as described in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except, in the case of any of clauses
(i), (ii) or (iii) above, for any such failure to comply or failure
to receive required permits, licenses, other approvals or liability
as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(dd) Disclosure
Controls. The Company maintains systems of internal
accounting controls designed to provide reasonable assurance that
(i) transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences. The Company is not aware of any
material weaknesses in its internal control over financial
reporting (other than as set forth in the Registration Statement,
the Time of Sale Prospectus or the Prospectus). Since the date of
the latest audited financial statements of the Company included in
the Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting (other
than as set forth in the Registration Statement, the Time of Sale
Prospectus or the Prospectus). The Company has established
disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15 and 15d-15) for the Company and designed such
disclosure controls and procedures to ensure that material
information relating to the Company and the Subsidiaries is made
known to the certifying officers by others within those entities,
particularly during the period in which the Company’s Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case
may be, is being prepared. The Company’s certifying officers
have evaluated the effectiveness of the Company’s controls
and procedures as of a date within 90 days prior to the filing date
of the Form 10-K for the fiscal year most recently ended (such
date, the “Evaluation
Date”). The Company presented in its Form 10-K for the
fiscal year most recently ended the conclusions of the certifying
officers about the effectiveness of the disclosure controls and
procedures based on their evaluations as of the most recent
Evaluation Date. Since the most recent Evaluation Date, there have
been no significant changes in the Company’s internal
controls (as such term is defined in Item 307(b) of Regulation S-K
under the Securities Act) or, to the Company’s knowledge, in
other factors that could significantly affect the Company’s
internal controls. To the knowledge of the Company, the
Company’s “internal controls over financial
reporting” and “disclosure controls and
procedures” are effective.
(ee) Xxxxxxxx-Xxxxx
Act. There is and has been no failure on the part of the
Company or, to the knowledge of the Company, any of the
Company’s directors or officers, in their capacities as such,
to comply with any applicable provisions of the Xxxxxxxx-Xxxxx Act
and the rules and regulations promulgated thereunder. Each of the
principal executive officer and the principal financial officer of
the Company (or each former principal executive officer of the
Company and each former principal financial officer of the Company
as applicable) has made all certifications required by Sections 302
and 906 of the Xxxxxxxx-Xxxxx Act with respect to all reports,
schedules, forms, statements and other documents required to be
filed by it or furnished by it to the Commission during the past 12
months. For purposes of the preceding sentence, “principal
executive officer” and “principal financial
officer” shall have the meanings given to such terms in the
Exchange Act Rules 13a-15 and 15d-15.
(ff) Finder’s
Fees. Neither the Company nor any Subsidiary has incurred
any liability for any finder’s fees, brokerage commissions or
similar payments in connection with the transactions herein
contemplated, except as may otherwise exist with respect to the
Underwriter pursuant to this Agreement.
(gg) Labor
Disputes. No labor disturbance by or dispute with employees
of the Company or any Subsidiary exists or, to the knowledge of the
Company, is threatened which would reasonably be expected to result
in a Material Adverse Effect.
(hh) Investment
Company Act. Neither the Company nor any Subsidiary is or,
after giving effect to the offering and sale of the Offered Shares,
will be an “investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment
Company Act”).
(ii) Operations.
The operations of the Company and the Subsidiaries are and have
been conducted at all times in compliance with applicable financial
record keeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering Laws of all jurisdictions to which the Company or the
Subsidiaries are subject, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued,
administered or enforced by any Governmental Authority
(collectively, the “Money Laundering Laws”),
except as would not reasonably be expected to result in a Material
Adverse Effect; and no action, suit or proceeding by or before any
Governmental Authority involving the Company or any Subsidiary with
respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(jj) Off-Balance
Sheet Arrangements. There are no transactions, arrangements
and other relationships between and/or among the Company, and/or,
to the knowledge of the Company, any of its affiliates and any
unconsolidated entity, including, but not limited to, any
structured finance, special purpose or limited purpose entity
(each, an “Off Balance Sheet
Transaction”) that could reasonably be expected to
affect materially the Company’s liquidity or the availability
of or requirements for its capital resources, including those Off
Balance Sheet Transactions described in the Commission’s
Statement about Management’s Discussion and Analysis of
Financial Conditions and Results of Operations (Release Nos.
33-8056; 34-45321; FR-61), required to be described in the
Registration Statement or the Prospectus which have not been
described as required.
(kk) ERISA.
To the knowledge of the Company, each material employee benefit
plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is maintained,
administered or contributed to by the Company or any of its
affiliates for employees or former employees of the Company and the
Subsidiaries has been maintained in material compliance with its
terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “Code”); no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred which would result in a material liability to
the Company with respect to any such plan excluding transactions
effected pursuant to a statutory or administrative exemption; and
for each such plan that is subject to the funding rules of Section
412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has
been incurred, whether or not waived, and the fair market value of
the assets of each such plan (excluding for these purposes accrued
but unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial
assumptions.
(ll) Forward-Looking
Statements. No forward-looking statement (within the meaning
of Section 27A of the Securities Act and Section 21E of the
Exchange Act) (a “Forward-Looking Statement”) contained
in the Registration Statement, the Time of Sale Prospectus or the
Prospectus has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith. The Forward-Looking
Statements incorporated by reference in the Registration Statement
and the Prospectus from the Company’s Annual Report on Form
10-K for the fiscal year most recently ended (i) except for any
Forward-Looking Statement included in any financial statements and
notes thereto, are within the coverage of the safe harbor for
forward looking statements set forth in Section 27A of the
Securities Act, Rule 175(b) under the Securities Act or Rule 3b-6
under the Exchange Act, as applicable, (ii) were made by the
Company with a reasonable basis and in good faith and reflect the
Company’s good faith commercially reasonable best estimate of
the matters described therein as of the respective dates on which
such statements were made, and (iii) have been prepared in
accordance with Item 10 of Regulation S-K under the Securities
Act.
(mm) Margin
Rules. Neither the issuance, sale and delivery of the
Offered Shares nor the application of the proceeds thereof by the
Company as described in the Registration Statement, the Time of
Sale Prospectus or the Prospectus will violate Regulation T, U or X
of the Board of Governors of the Federal Reserve System or any
other regulation of such Board of Governors.
(nn) Insurance.
The Company and the Subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as the Company
and the Subsidiaries reasonably believe are adequate for the
conduct of their business and as is customary for companies of
similar size engaged in similar businesses in similar
industries.
(oo) No
Improper Practices. (i) Neither the Company nor, to the
Company’s knowledge, any Subsidiary, nor to the
Company’s knowledge, any of their respective executive
officers has, in the past five years, made any unlawful
contributions to any candidate for any political office (or failed
fully to disclose any contribution in violation of law) or made any
contribution or other payment to any official of, or candidate for,
any federal, state, municipal, or foreign office or other person
charged with similar public or quasi-public duty in violation of
any Law or of the character required to be disclosed in the
Prospectus; (ii) no relationship, direct or indirect, exists
between or among the Company or, to the Company’s knowledge,
any Subsidiary or any affiliate of any of them, on the one hand,
and the directors, officers and stockholders of the Company or, to
the Company’s knowledge, any Subsidiary, on the other hand,
that is required by the Securities Act to be described in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus that is not so described; (iii) no relationship, direct
or indirect, exists between or among the Company or any Subsidiary
or any affiliate of them, on the one hand, and the directors,
officers, stockholders or directors of the Company or, to the
Company’s knowledge, any Subsidiary, on the other hand, that
is required by the rules of FINRA to be described in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus that is not so described; (iv) there are no material
outstanding loans or advances or material guarantees of
indebtedness by the Company or, to the Company’s knowledge,
any Subsidiary to or for the benefit of any of their respective
officers or directors or any of the members of the families of any
of them; and (v) the Company has not offered, or caused any
placement agent to offer, Common Stock to any person with the
intent to influence unlawfully (A) a customer or supplier of the
Company or any Subsidiary to alter the customer’s or
supplier’s level or type of business with the Company or any
Subsidiary or (B) a trade journalist or publication to write or
publish favorable information about the Company or any Subsidiary
or any of their respective products or services, and, (vi) neither
the Company nor any Subsidiary nor, to the Company’s
knowledge, any employee or agent of the Company or any Subsidiary
has made any payment of funds of the Company or any Subsidiary or
received or retained any funds in violation of any Law, rule or
regulation (including, without limitation, the Foreign Corrupt
Practices Act of 1977), which payment, receipt or retention of
funds is of a character required to be disclosed in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus.
(pp) No
Conflicts. Neither the execution of this Agreement, nor the
issuance, offering or sale of the Offered Shares, nor the
consummation of any of the transactions contemplated herein and
therein, nor the compliance by the Company with the terms and
provisions hereof and thereof will conflict with, or will result in
a breach of, any of the terms and provisions of, or has constituted
or will constitute a default under, or has resulted in or will
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to
the terms of any contract or other agreement to which the Company
may be bound or to which any of the property or assets of the
Company is subject, except (i) such conflicts, breaches or defaults
as may have been waived and (ii) such conflicts, breaches and
defaults that would not reasonably be expected to have a Material
Adverse Effect; nor will such action result (x) in any violation of
the provisions of the organizational or governing documents of the
Company, or (y) in any material violation of the provisions of any
statute or any order, rule or regulation applicable to the Company
or of any Governmental Authority having jurisdiction over the
Company, except where such violation would not reasonably be
expected to have a Material Adverse Effect.
(qq) OFAC.
(i) The
Company represents that, neither the Company nor any Subsidiary
(collectively, the “Entity”) or any director, officer,
employee, agent, affiliate or representative of the Entity, is a
government, individual, or entity (in this paragraph (vv),
“Person”) that
is, or is owned or controlled by a Person that is:
(a) the
subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control
(“OFAC”), the
United Nations Security Council (“UNSC”), the European Union
(“EU”), Her
Majesty’s Treasury (“HMT”), or other relevant sanctions
authority (collectively, “Sanctions”), nor
(b) located,
organized or resident in a country or territory that is the subject
of Sanctions.
(ii) The
Entity represents and covenants that it will not, directly or
indirectly, knowingly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other Person:
(a) to
fund or facilitate any activities or business of or with any Person
or in any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions; or
(b) in
any other manner that will result in a violation of Sanctions by
any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or
otherwise).
(iii) The
Entity represents and covenants that, except as detailed in the
Prospectus, for the past 5 years, it has not knowingly engaged in,
is not now knowingly engaged in, and will not engage in, any
dealings or transactions with any Person, or in any country or
territory, that at the time of the dealing or transaction is or was
the subject of Sanctions.
(rr) Compliance
with Applicable Laws. The Company and the Subsidiaries: (A)
are and at all times have been in material compliance with all
statutes, rules and regulations applicable to the ownership,
testing, development, manufacture, packaging, processing, use,
distribution, marketing, labeling, promotion, sale, offer for sale,
storage, import, export or disposal of any product under
development, manufactured or distributed by the Company or the
Subsidiaries (“Applicable
Laws”), (b) have not received any Form 483 from the
FDA, notice of adverse finding, warning letter, or other written
correspondence or notice from the FDA or any other Governmental
Authority, the European Medicines Agency (the “EMA”), or any other federal,
state, local or foreign governmental or regulatory authority
alleging or asserting material noncompliance with any Applicable
Laws or any licenses, certificates, approvals, clearances,
authorizations, permits and supplements or amendments thereto
required by any such Applicable Laws (“Authorizations”), which would,
individually or in the aggregate, result in a Material Adverse
Effect; (C) possess all material Authorizations and such
Authorizations are valid and in full force and effect and neither
the Company nor the Subsidiaries is in material violation of any
term of any such Authorizations; (D) have not received written
notice of any claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action from any
Governmental Authority or third party alleging that any Company
product, operation or activity is in material violation of any
Applicable Laws or Authorizations and has no knowledge that any
such Governmental Authority or third party is considering any such
claim, litigation, arbitration, action, suit, investigation or
proceeding against the Company; (E) have not received notice that
any Governmental Authority has taken, is taking or intends to take
action to limit, suspend, modify or revoke any material
Authorizations and has no knowledge that any Governmental Authority
is considering such action; and (F) have filed, obtained,
maintained or submitted all reports, documents, forms, notices,
applications, records, claims, submissions and supplements or
amendments as required by any Applicable Laws or Authorizations
except where the failure to file such reports, documents, forms,
notices, applications, records, claims, submissions and supplements
or amendments would not result in a Material Adverse Effect, and
that all such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments were
materially complete and correct on the date filed (or were
corrected or supplemented by a subsequent submission).
(ss) Statistical
and Market-Related Data. All statistical, demographic and
market-related data included in the Registration Statement, the
Time of Sale Prospectus or the Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate
or represent the Company’s good faith estimates that are made
on the basis of data derived from such sources.
(tt) Clinical
Studies. All animal and other preclinical studies and
clinical trials conducted by the Company or on behalf of the
Company were, and, if still pending are, to the Company’s
knowledge, being conducted in all material respects in compliance
with all Applicable Laws and in accordance with experimental
protocols, procedures and controls generally used by qualified
experts in the preclinical study and clinical trials of new drugs
and biologics as applied to comparable products to those being
developed by the Company; the descriptions of the results of such
preclinical studies and clinical trials contained in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus are accurate in all material respects, and, except as
set forth in the Registration Statement, the Time of Sale
Prospectus or the Prospectus, the Company has no knowledge of any
other clinical trials or preclinical studies, the results of which
reasonably call into question the clinical trial or preclinical
study results described or referred to in the Registration
Statement, the Time of Sale Prospectus or the Prospectus when
viewed in the context in which such results are described; and the
Company has not received any written notices or correspondence from
the FDA, the EMA, or any other domestic or foreign governmental
agency requiring the termination or suspension of any preclinical
studies or clinical trials conducted by or on behalf of the Company
that are described in the Registration Statement, the Time of Sale
Prospectus or the Prospectus or the results of which are referred
to in the Registration Statement, the Time of Sale Prospectus or
the Prospectus.
(uu) Compliance
Program. The Company has established and administers a
compliance program applicable to the Company, to assist the Company
and the directors, officers and employees of the Company in
complying with applicable regulatory guidelines (including, without
limitation, those administered by the FDA, the EMA, and any other
foreign, federal, state or local governmental or regulatory
authority performing functions similar to those performed by the
FDA or EMA); except where such noncompliance would not reasonably
be expected to have a Material Adverse Effect.
(vv) Stock
Transfer Taxes. On each Settlement Date, all stock transfer
or other taxes (other than income taxes) which are required to be
paid in connection with the sale and transfer of the Offered Shares
to be sold hereunder will be, or will have been, fully paid or
provided for by the Company and all Laws imposing such taxes will
be or will have been fully complied with by the
Company.
(ww) FINRA
Exemption. To enable the Underwriter to rely on Rule
5110(b)(7)(C)(i) of FINRA, the Company represents that the Company
(i) has a non-affiliate, public common equity float of at least
$150 million or a non-affiliate, public common equity float of at
least $100 million and annual trading volume of at least three
million shares and (ii) has been subject to the Exchange Act
reporting requirements for a period of at least 36
months.
(xx) Stock
Exchange Listing. The Shares are registered pursuant to
Section 12(b) or 12(g) of the Exchange Act and are quoted on the
The NASDAQ Capital Market (the “NASDAQ”), and the Company has
taken no action designed to, or likely to have the effect of,
terminating the registration of the Shares under the Exchange Act
or delisting the Shares from the NASDAQ, nor has the Company
received any notification that the Commission or the NASDAQ is
contemplating terminating such registration or listing. To the
Company’s knowledge, it is in compliance with all applicable
listing requirements of NASDAQ.
(yy) Related-Party
Transactions. There are no business relationships or
related-party transactions involving the Company or any of its
subsidiaries or any other person required to be described in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus that have not been described as required.
(zz) Parties
to Lock-Up Agreements. The Company has furnished to the
Underwriter a letter agreement in the form attached hereto as
Exhibit A (the
“Lock-up
Agreement”) from each of the persons listed on
Exhibit B.
Such Exhibit B
lists under an appropriate caption the directors and executive
officers of the Company. If any
additional persons shall become directors or executive
officers of the Company prior to the
end of the Company Lock-up Period (as defined below), the Company
shall cause each such person, prior to or contemporaneously
with their appointment or election as a director or executive
officer of the Company, to execute and
deliver to the Underwriter a Lock-up Agreement.
(aa) No
Rights to Purchase Preferred Stock. The issuance and sale of
the Shares as contemplated hereby will not cause any holder of any
shares of capital stock, securities convertible into or
exchangeable or exercisable for capital stock or options, warrants
or other rights to purchase capital stock or any other securities
of the Company to have any right to acquire any shares of preferred
stock of the Company.
(bb) No
Contract Terminations. Neither the Company nor any of its
subsidiaries has sent or received any communication regarding
termination of, or intent not to renew, any of the contracts or
agreements referred to or described in the Registration Statement,
the Time of Sale Prospectus or the Prospectus, and no such
termination or non-renewal has been threatened by the Company or
any of its subsidiaries or, to the Company’s knowledge, any
other party to any such contract or agreement, which threat of
termination or non-renewal has not been rescinded as of the date
hereof.
(cc) Dividend
Restrictions. No subsidiary of the Company is prohibited or
restricted, directly or indirectly, from paying dividends to the
Company, or from making any other distribution with respect to such
subsidiary’s equity securities or from repaying to the
Company or any other subsidiary of the Company any amounts that may
from time to time become due under any loans or advances to such
subsidiary from the Company or from transferring any property or
assets to the Company or to any other subsidiary.
Any
certificate signed by any officer of the Company or any of its
subsidiaries and delivered to the Underwriter or to counsel for the
Underwriter in connection with the offering, or the purchase and
sale, of the Offered Shares shall be deemed a representation and
warranty by the Company to the Underwriter as to the matters
covered thereby.
The
Company has a reasonable basis for making each of the
representations set forth in this Section 1. The Company
acknowledges that the Underwriter and, for purposes of the opinions
to be delivered pursuant to Sections 6(d), (e) and (f), counsel to
the Company and counsel to the Underwriter, will rely upon the
accuracy and truthfulness of the foregoing representations and
hereby consents to such reliance.
2. Purchase,
Sale and Delivery of the Offered Shares.
(a) The
Firm Shares. Upon the terms herein set forth, the Company
agrees to issue and sell to the Underwriter an aggregate of
4,100,000 Firm Shares. On the basis of the representations,
warranties and agreements herein contained, and upon the terms but
subject to the conditions herein set forth, the Underwriter agrees
to purchase from the Company the Firm Shares. The purchase price
per Firm Share to be paid by the Underwriter to the Company shall
be $5.87 per share.
(b) The
First Closing Date. Delivery of certificates for the Firm
Shares to be purchased by the Underwriter and payment therefor
shall be be made through the facilities of The Depository Trust
Company, New York, New York (or such other place as may be agreed
to by the Company and the Underwriter) at 10:00 a.m. Eastern time,
on March 5, 2019, or such other time and date not later than 4:00
p.m. Eastern time, on March 15, 2019, as the Underwriter shall
designate by notice to the Company (the time and date of such
closing are called the “First
Closing Date”). The Company hereby acknowledges that
circumstances under which the Underwriter may provide notice to
postpone the First Closing Date as originally scheduled include,
but are not limited to, any determination by the Company or the
Underwriter to recirculate to the public copies of an amended or
supplemented Prospectus or a delay as contemplated by the
provisions of Section 11.
(c) The
Option Shares; Option Closing Date. In addition, on the
basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein
set forth, the Company hereby grants an option to the Underwriter
to purchase up to an aggregate of 615,000 Option Shares from the
Company at the purchase price per share to be paid by the
Underwriter for the Firm Shares. The option granted hereunder may
be exercised at any time and from time to time in whole or in part
upon notice by the Underwriter to the Company, which notice may be
given at any time within 30 days from the date of this Agreement.
Such notice shall set forth (i) the aggregate number of Option
Shares as to which the Underwriter is exercising the option and
(ii) the time, date and place at which certificates for the Option
Shares will be delivered (which time and date may be simultaneous
with, but not earlier than, the First Closing Date; and in the
event that such time and date are simultaneous with the First
Closing Date, the term “First
Closing Date” shall refer to the time and date of
delivery of certificates for the Firm Shares and such Option
Shares). Any such time and date of delivery, if subsequent to the
First Closing Date, is called an “Option Closing Date,” shall be
determined by the Underwriter and shall not be earlier than three
or later than five full Business Days after delivery of such notice
of exercise. If any Option Shares are to be purchased, (a) the
Underwriter agrees to purchase the number of Option Shares (subject
to such adjustments to eliminate fractional shares as the
Underwriter may determine) that bears the same proportion to the
total number of Option Shares to be purchased as the number of Firm
Shares set forth on Schedule A opposite the name of
such Underwriter bears to the total number of Firm Shares and (b)
the Company agrees to sell the number of Option Shares set forth in
the paragraph “Introductory” of this Agreement (subject
to such adjustments to eliminate fractional shares as the
Underwriter may determine). The Underwriter may cancel the option
at any time prior to its expiration by giving written notice of
such cancellation to the Company.
(d) Public
Offering of the Offered Shares. The Underwriter hereby
advises the Company that the Underwriter intends to offer for sale
to the public, initially on the terms set forth in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, the
Offered Shares as soon after this Agreement has been executed as
the Underwriter, in its sole judgment, has determined is advisable
and practicable.
(e) Payment
for the Offered Shares. (i) Payment for the Offered Shares
shall be made at the First Closing Date (and, if applicable, at
each Option Closing Date) by wire transfer of immediately available
funds to the order of the Company, and (ii) it is understood that
the Underwriter has been authorized, for its own account, to accept
delivery of and receipt for, and make payment of the purchase price
for, the Firm Shares and any Option Shares the Underwriter has
agreed to purchase.
(f) Delivery
of the Offered Shares. The Company shall deliver, or cause
to be delivered to the Underwriter certificates for the Firm Shares
at the First Closing Date, against the irrevocable release of a
wire transfer of immediately available funds for the amount of the
purchase price therefor. The Company shall also deliver, or cause
to be delivered through the facilities of DTC unless the
Underwriter shall otherwise instruct, to the Underwriter
certificates for the Option Shares the Underwriter has agreed to
purchase at the First Closing Date or the applicable Option Closing
Date, as the case may be, against the release of a wire transfer of
immediately available funds for the amount of the purchase price
therefor. If the Underwriter so elects, delivery of the Offered
Shares may be made by credit to the accounts designated by the
Underwriter through The Depository Trust Company’s full fast
transfer or DWAC programs. The certificates for the Offered Shares
shall be registered in such names and denominations as the
Underwriter shall have requested at least two full Business Days
prior to the First Closing Date (or the applicable Option Closing
Date, as the case may be) and shall be made available for
inspection on the Business Day preceding the First Closing Date (or
the applicable Option Closing Date, as the case may be) at a
location in New York City as the Underwriter may designate. Time
shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the
obligations of the Underwriter.
3. Additional
Covenants of the
Company.
The
Company further covenants and agrees with the Underwriter as
follows:
(a) Delivery
of Registration Statement, Time of Sale Prospectus and
Prospectus.
The Company shall furnish to the Underwriter in New York City,
without charge, prior to 10:00 a.m. New York City time on the
Business Day next succeeding the date of this Agreement and during
the period when a prospectus relating to the Offered Shares is
required by the Securities Act to be delivered (whether physically
or through compliance with Rule 172 under the Securities Act or any
similar rule) in connection with sales of the Offered Shares, as
many copies of the Time of Sale Prospectus, the Prospectus and any
supplements and amendments thereto or to the Registration Statement
as the Underwriter may reasonably request.
(b) Underwriter’s
Review of Proposed Amendments and Supplements. During the
period when a prospectus relating to the Offered Shares is required
by the Securities Act to be delivered (whether physically or
through compliance with Rule 172 under the Securities Act or any
similar rule), the Company (i) will furnish to the Underwriter for
review, a reasonable period of time prior to the proposed time of
filing of any proposed amendment or supplement to the Registration
Statement, a copy of each such amendment or supplement and (ii)
will not amend or supplement the Registration Statement (including
any amendment or supplement through incorporation of any report
filed under the Exchange Act) without the Underwriter’s prior
written consent. Prior to amending or supplementing any preliminary
prospectus, the Time of Sale Prospectus or the Prospectus
(including any amendment or supplement through incorporation of any
report filed under the Exchange Act), the Company shall furnish to
the Underwriter for review, a reasonable amount of time prior to
the time of filing or use of the proposed amendment or supplement,
a copy of each such proposed amendment or supplement. The Company
shall not file or use any such proposed amendment or supplement
without the Underwriter’s prior written consent. The Company
shall file with the Commission within the applicable period
specified in Rule 424(b) under the Securities Act any prospectus
required to be filed pursuant to such Rule.
(c) Free
Writing Prospectuses. The Company shall furnish to the
Underwriter for review, a reasonable amount of time prior to the
proposed time of filing or use thereof, a copy of each proposed
free writing prospectus or any amendment or supplement thereto
prepared by or on behalf of, used by, or referred to by the
Company, and the Company shall not file, use or refer to any
proposed free writing prospectus or any amendment or supplement
thereto without the Underwriter’s prior written consent. The
Company shall furnish to the Underwriter, without charge, as many
copies of any free writing prospectus prepared by or on behalf of,
used by or referred to by the Company as the Underwriter may
reasonably request. If at any time when a prospectus is required by
the Securities Act to be delivered (whether physically or through
compliance with Rule 172 under the Securities Act or any similar
rule) in connection with sales of the Offered Shares (but in any
event if at any time through and including the First Closing Date)
there occurred or occurs an event or development as a result of
which any free writing prospectus prepared by or on behalf of, used
by, or referred to by the Company conflicted or would conflict with
the information contained in the Registration Statement or included
or would include an untrue statement of a material fact or omitted
or would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
prevailing at such time, not misleading, the Company shall promptly
amend or supplement such free writing prospectus to eliminate or
correct such conflict so that the statements in such free writing
prospectus as so amended or supplemented will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances prevailing at such time, not misleading, as the
case may be; provided, however, that prior to amending
or supplementing any such free writing prospectus, the Company
shall furnish to the Underwriter for review, a reasonable amount of
time prior to the proposed time of filing or use thereof, a copy of
such proposed amended or supplemented free writing prospectus, and
the Company shall not file, use or refer to any such amended or
supplemented free writing prospectus without the
Underwriter’s prior written consent.
(d) Filing
of Underwriter Free Writing Prospectuses. The Company shall not take any
action that would result in the Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under
the Securities Act a free writing prospectus prepared by or on
behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) Amendments
and Supplements to Time of Sale Prospectus. If the Time of Sale Prospectus
is being used to solicit offers to buy the Offered Shares at a time
when the Prospectus is not yet available to prospective purchasers,
and any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Time of Sale Prospectus
so that the Time of Sale Prospectus does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances when delivered to a prospective purchaser, not
misleading, or if any event shall occur or condition exist as a
result of which the Time of Sale Prospectus conflicts with the
information contained in the Registration Statement, or if, in the
opinion of counsel for the Underwriter, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable
Law, the Company shall (subject to Section 3(b) and Section 3(c))
promptly prepare, file with the Commission and furnish, at its own
expense, to the Underwriter and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that
the statements in the Time of Sale Prospectus as so amended or
supplemented will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances when
delivered to a prospective purchaser, not misleading or so that the
Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the information contained in the Registration
Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable Law.
(f) Certain
Notifications and Required Actions. After the date of this
Agreement, the Company shall promptly advise the Underwriter in
writing of: (i) the receipt of any comments of, or requests for
additional or supplemental information from, the Commission;
(ii) the time and date of any filing of any post-effective
amendment to the Registration Statement or any amendment or
supplement to any preliminary prospectus, the Time of Sale
Prospectus, any free writing prospectus or the Prospectus; (iii)
the time and date that any post-effective amendment to the
Registration Statement becomes effective; and (iv) the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto
or any amendment or supplement to any preliminary prospectus, the
Time of Sale Prospectus or the Prospectus or of any order
preventing or suspending the use of any preliminary prospectus, the
Time of Sale Prospectus, any free writing prospectus or the
Prospectus, or of any proceedings to remove, suspend or terminate
from listing or quotation the Shares from any securities exchange
upon which they are listed for trading or included or designated
for quotation, or of the threatening or initiation of any
proceedings for any of such purposes. If the Commission shall enter
any such stop order at any time, the Company will use its best
efforts to obtain the lifting of such order at the earliest
possible moment. Additionally, the Company agrees that it shall
comply with all applicable provisions of Rule 424(b), Rule 433
and Rule 430B under the Securities Act and will use its reasonable
efforts to confirm that any filings made by the Company under Rule
424(b) or Rule 433 were received in a timely manner by the
Commission.
(g) Amendments
and Supplements to the Prospectus and Other Securities Act
Matters. If any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the
Prospectus so that the Prospectus does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered (whether
physically or through compliance with Rule 172 under the Securities
Act or any similar rule) to a purchaser, not misleading, or if in
the opinion of the Underwriter or counsel for the Underwriter it is
otherwise necessary to amend or supplement the Prospectus to comply
with applicable Law, the Company agrees (subject to Section 3(b)
and Section 3(c)) to promptly prepare, file with the Commission and
furnish, at its own expense, to the Underwriter and to any dealer
upon request, amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or supplemented will
not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered
(whether physically or through compliance with Rule 172 under the
Securities Act or any similar rule) to a purchaser, not misleading
or so that the Prospectus, as amended or supplemented, will comply
with applicable Law. Neither the Underwriter’s consent to,
nor delivery of, any such amendment or supplement shall constitute
a waiver of any of the Company’s obligations under Section
3(b) and Section 3(c).
(h) Blue
Sky Compliance. The Company shall cooperate with the
Underwriter and counsel for the Underwriter to qualify or register
the Offered Shares for sale under (or obtain exemptions from the
application of) the state securities or blue sky Laws or Canadian
provincial securities Laws of those jurisdictions designated by the
Underwriter, shall comply with such Laws and shall continue such
qualifications, registrations and exemptions in effect so long as
required for the distribution of the Offered Shares. The Company
shall not be required to qualify as a foreign corporation or to
take any action that would subject it to general service of process
in any such jurisdiction where it is not presently qualified. The
Company will advise the Underwriter promptly of the suspension of
the qualification or registration of (or any such exemption
relating to) the Offered Shares for offering, sale or trading in
any jurisdiction or any initiation or threat of any proceeding for
any such purpose, and in the event of the issuance of any order
suspending such qualification, registration or exemption, the
Company shall use its best efforts to obtain the withdrawal thereof
at the earliest possible moment.
(i) Use
of Proceeds. The Company shall apply the net proceeds from
the sale of the Offered Shares sold by it in the manner described
under the caption “Use of Proceeds” in the Registration
Statement, the Time of Sale Prospectus and the
Prospectus.
(j) Transfer
Agent. The Company shall engage and maintain, at its
expense, a registrar and transfer agent for the
Shares.
(k) Earnings
Statement. The Company will make generally available to its
security holders and to the Underwriter as soon as practicable an
earnings statement (which need not be audited) covering a period of
at least twelve months beginning with the first fiscal quarter of
the Company commencing after the date of this Agreement that will
satisfy the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission
thereunder.
(l) Continued
Compliance with Securities Laws. The Company will comply
with the Securities Act and the Exchange Act so as to permit the
completion of the distribution of the Offered Shares as
contemplated by this Agreement, the Registration Statement, the Time
of Sale Prospectus and the Prospectus. Without limiting the
generality of the foregoing, the Company will, during the period
when a prospectus relating to the Offered Shares is required by the
Securities Act to be delivered (whether physically or through
compliance with Rule 172 under the Securities Act or any similar
rule), file on a timely basis with the Commission and the NASDAQ
all reports and documents required to be filed under the Exchange
Act.
(m) Listing.
The Company will use its best efforts to list, subject to notice of
issuance, the Offered Shares on the NASDAQ.
(n) Company
to Provide Copy of the Prospectus in Form That May be Downloaded
from the Internet. If requested by the Underwriter, the
Company shall cause to be prepared and delivered, at its expense,
within one Business Day from the effective date of this Agreement,
to the Underwriter, an “electronic Prospectus” to be used
by the Underwriter in connection with the offering and sale of the
Offered Shares. As used herein, the term “electronic Prospectus” means a
form of Time of Sale Prospectus, and any amendment or supplement
thereto, that meets each of the following conditions: (i) it shall
be encoded in an electronic format, satisfactory to the
Underwriter, that may be transmitted electronically by the
Underwriter to offerees and purchasers of the Offered Shares;
(ii) it shall disclose the same information as the paper Time
of Sale Prospectus, except to the extent that graphic and image
material cannot be disseminated electronically, in which case such
graphic and image material shall be replaced in the electronic
Prospectus with a fair and accurate narrative description or
tabular representation of such material, as appropriate; and
(iii) it shall be in or convertible into a paper format or an
electronic format, satisfactory to the Underwriter, that will allow
investors to store and have continuously ready access to the Time
of Sale Prospectus at any future time, without charge to investors
(other than any fee charged for subscription to the Internet as a
whole and for on-line time). The Company hereby confirms that it
has included or will include in the Prospectus filed pursuant to
XXXXX or otherwise with the Commission and in the Registration
Statement at the time it was declared effective an undertaking
that, upon receipt of a request by an investor or his or her
representative, the Company shall transmit or cause to be
transmitted promptly, without charge, a paper copy of the Time of
Sale Prospectus.
(o) Agreement
Not to Offer or Sell Additional Shares. During the period
commencing on and including the date hereof and continuing through
and including the 90th day following the date of the Prospectus
(such period, as extended as described below, being referred to
herein as the “Lock-up
Period”), the Company will not, without the prior
written consent of CF&CO (which consent may be withheld in its
sole discretion), directly or indirectly: (i) sell, offer to sell,
contract to sell or lend any Shares or Related Securities (as
defined below); (ii) effect any short sale, or establish or
increase any “put equivalent position” (as defined in
Rule 16a-1(h) under the Exchange Act) or liquidate or decrease any
“call equivalent position “ (as defined in
Rule 16a-1(b) under the Exchange Act) of any Shares or Related
Securities; (iii) pledge, hypothecate or grant any security
interest in; (iv) in any other way transfer or dispose of any
Shares or Related Securities; (v) enter into any swap, hedge
or similar arrangement or agreement that transfers, in whole or in
part, the economic risk of ownership of any Shares or Related
Securities, regardless of whether any such transaction is to be
settled in securities, in cash or otherwise; (vi) announce the
offering of any Shares or Related Securities; (vii) file any
registration statement under the Securities Act in respect of any
Shares or Related Securities (other than as contemplated by this
Agreement with respect to the Offered Shares); or (viii) publicly
announce the intention to do any of the foregoing; provided, however, that the Company may
(A) effect the transactions contemplated hereby; (B) issue Shares
or options to purchase Shares, or issue Shares upon exercise of
options, pursuant to any stock option, stock bonus or other stock
plan or arrangement described in the Registration Statement, the
Time of Sale Prospectus and the Prospectus, but only if the holders
of such Shares or options agree in writing with the Underwriter not
to sell, offer, dispose of or otherwise transfer any such Shares or
options during such Lock-up Period without the prior written
consent of the Underwriter (which consent may be withheld in its
sole discretion); and (C) issue and sell Common Shares
pursuant to the At Market Issuance Sales Agreement among the
Company and Cantor, Xxxxxxxxx LLC, X. Xxxxx FBR, Inc., SunTrust
Xxxxxxxx Xxxxxxxx, Inc., Xxxxxxx Xxxxx & Associates, Inc.,
Ladenburg Xxxxxxxx & Co. Inc. and X.X. Xxxxxxxxxx & Co.,
LLC dated May 26, 2017 and the related prospectus supplement,
provided that no such Common Shares may be sold during the period
commencing on and including the date hereof and continuing through
and including the 45th day following
the date of the Prospectus. For purposes of the foregoing,
“Related
Securities” shall mean any options or warrants or
other rights to acquire Shares or any securities exchangeable or
exercisable for or convertible into Shares, or to acquire other
securities or rights ultimately exchangeable or exercisable for, or
convertible into, Shares.
(p) Future
Reports to the Underwriter. During the period of five years
hereafter, the Company will furnish to Cantor Xxxxxxxxxx & Co.,
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Capital Markets, with copies to Cantor Xxxxxxxxxx & Co., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel:
(i) as soon as practicable after the end of each fiscal year,
copies of the Annual Report of the Company containing the balance
sheet of the Company as of the close of such fiscal year and
statements of income, stockholders’ equity and cash flows for the
year then ended and the opinion thereon of the Company’s
independent public or certified public accountants; (ii) as soon as
practicable after the filing thereof, copies of each proxy
statement, Annual Report on Form 10-K, Quarterly Report on Form
10-Q, Current Report on Form 8-K or other report filed by the
Company with the Commission, FINRA or any securities exchange; and
(iii) as soon as available, copies of any report or communication
of the Company furnished or made available generally to holders of
its capital stock; provided, however, that the requirements
of this Section 3(p) shall be satisfied to the extent that such
reports, statement, communications, financial statements or other
documents are available on XXXXX.
(q) Investment
Limitation. The Company shall not invest or otherwise use
the proceeds received by the Company from its sale of the Offered
Shares in such a manner as would require the Company or any of its
subsidiaries to register as an investment company under the
Investment Company Act.
(r) No
Stabilization or Manipulation; Compliance with Regulation M.
The Company will not take, and will ensure that no affiliate of the
Company will take, directly or indirectly, without giving effect to
activities by the Underwriter, any action designed to or that might
cause or result in stabilization or manipulation of the price of
the Shares or any reference security with respect to the Shares,
whether to facilitate the sale or resale of the Offered Shares or
otherwise, and the Company will, and shall cause each of its
affiliates to, comply with all applicable provisions of Regulation
M.
(s) Enforce
Lock-Up Agreements. During the Lock-up Period, the Company
will enforce all agreements between the Company and any of its
security holders that restrict or prohibit, expressly or in
operation, the offer, sale or transfer of Shares or Related
Securities or any of the other actions restricted or prohibited
under the terms of the form of Lock-up Agreement. In addition, the
Company will direct the transfer agent to place stop transfer
restrictions upon any such securities of the Company that are bound
by such “lock-up” agreements for the duration of the
periods contemplated in such agreements, including
“lock-up” agreements entered into by the
Company’s officers and directors and affiliates pursuant to
Section 1(a) hereof.
(t) Company
to Provide Interim Financial Statements. Prior to the First
Closing Date and each applicable Option Closing Date, the Company
will furnish the Underwriter, as soon as they have been prepared by
or are available to the Company, a copy of any unaudited interim
financial statements of the Company for any period subsequent to
the period covered by the most recent financial statements
appearing in the Registration Statement and the
Prospectus.
(u) Amendments
and Supplements to Permitted Section 5(d) Communications. If
at any time following the distribution of any Permitted Section
5(d) Communication, there occurred or occurs an event or
development as a result of which such Permitted Section 5(d)
Communication included or would include an untrue statement of a
material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances existing at that subsequent time, not misleading,
the Company will promptly notify the Underwriter and will promptly
amend or supplement, at its own expense, such Permitted Section
5(d) Communication to eliminate or correct such untrue statement or
omission.
The
Underwriter may, in its sole discretion, waive in writing the
performance by the Company of any one or more of the foregoing
covenants or extend the time for their performance.
4. Payment
of Expenses. The Company agrees to pay all costs, fees and
expenses incurred in connection with the performance of its
obligations hereunder and in connection with the transactions
contemplated hereby, including (i) all expenses incident to the
issuance and delivery of the Offered Shares (including all printing
and engraving costs), (ii) all fees and expenses of the registrar
and transfer agent of the Shares, (iii) all necessary issue,
transfer and other stamp taxes in connection with the issuance and
sale of the Offered Shares to the Underwriter, (iv) all fees and
expenses of the Company’s counsel, independent public or
certified public accountants and other advisors, (v) all costs and
expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement
(including financial statements, exhibits, schedules, consents and
certificates of experts), the Time of Sale Prospectus, the
Prospectus, each free writing prospectus prepared by or on behalf
of, used by, or referred to by the Company, and each preliminary
prospectus, each Permitted Section 5(d) Communication, and all
amendments and supplements thereto, and this Agreement, (vi) all
filing fees, attorneys’ fees and expenses incurred by the
Company or the Underwriter in connection with qualifying or
registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Offered Shares for offer
and sale under the state securities or blue sky Laws or the
provincial securities Laws of Canada, and, if requested by the
Underwriter, preparing and printing a “Blue Sky Survey”
or memorandum and a “Canadian wrapper”, and any
supplements thereto, advising the Underwriter of such
qualifications, registrations and exemptions, in an amount not to
exceed $7,500, (vii) the costs, fees and expenses incurred by the
Underwriters in connection with determining their compliance with
the rules and regulations of FINRA related to the
Underwriters’ participation in the offering and distribution
of the Offered Shares, including any related filing fees and the
legal fees of, and disbursements by, counsel to the Underwriters,
(viii) the costs and expenses of the Company relating to investor
presentations on any “road show”, any Permitted Section
5(d) Communication or any Section 5(d) Oral Communication
undertaken in connection with the offering of the Shares, including
expenses associated with the preparation or dissemination of any
electronic road show, expenses associated with the production of
road show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
Underwriter, employees and officers of the Company and any such
consultants, (ix) the fees and expenses associated with listing the
Offered Shares on the NASDAQ, and (x) all other fees, costs and
expenses of the nature referred to in Item 13 of Part II of the
Registration Statement. Any such amount payable to the Underwriter
may be deducted from the purchase price for the Offered Shares.
Except as provided in this Section 4 or in Section 7, Section 9 or
Section 10, the Underwriter shall pay its own expenses, including
the fees and disbursements of its counsel.
5. Covenant
of the Underwriter. The Underwriter covenants with the
Company not to take any action that would result in the Company
being required to file with the Commission pursuant to Rule 433(d)
under the Securities Act a free writing prospectus prepared by or
on behalf of the Underwriter that otherwise would not, but for such
actions, be required to be filed by the Company under Rule
433(d).
6. Conditions
of the Obligations of the Underwriter. The obligations of
the Underwriter hereunder to purchase and pay for the Offered
Shares as provided herein on the First Closing Date and, with
respect to the Option Shares, each Option Closing Date, shall be
subject to the accuracy of the representations and warranties on
the part of the Company set forth in Section 1 as of the date
hereof and as of the First Closing Date as though then made and,
with respect to the Option Shares, as of each Option Closing Date
as though then made, to the timely performance by the Company of
its covenants and other obligations hereunder, and to each of the
following additional conditions:
(a) Comfort
Letter. On the date hereof, the Underwriter shall have
received from CohnReznick LLP, an independent registered public
accounting firm for the Company, a letter dated the date hereof
addressed to the Underwriter, in form and substance satisfactory to
the Underwriter, containing statements and information of the type
ordinarily included in accountant’s “comfort
letters” to underwriters, delivered according to Statement of
Auditing Standards No. 72 (or any successor bulletin), with respect
to the audited and unaudited financial statements and certain
financial information contained in the Registration Statement, the
Time of Sale Prospectus, and each free writing prospectus, if
any.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from
FINRA. For a period from and after the date of this
Agreement and through and including the First Closing Date and,
with respect to any Option Shares purchased after the First Closing
Date, each Option Closing Date:
(i) The
Company shall have filed the Prospectus with the Commission
(including the information required by Rule 430A under the
Securities Act) in the manner and within the time period required
by Rule 424(b) under the Securities Act; or the Company shall have
filed a post-effective amendment to the Registration Statement
containing the information required by such Rule 430A, and such
post-effective amendment shall have become effective.
(ii) No
stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment to the Registration
Statement shall be in effect, and no proceedings for such purpose
shall have been instituted or threatened by the
Commission.
(iii) FINRA
shall have raised no objection to the fairness and reasonableness
of the underwriting terms and arrangements.
(c) No
Material Adverse Effect or Ratings Agency Change. For the
period from and after the date of this Agreement and through and
including the First Closing Date and, with respect to any Option
Shares purchased after the First Closing Date, each Option Closing
Date, in the judgment of the Underwriter there shall not have
occurred any material adverse change in the authorized capital
stock of the Company or any Material Adverse Effect or any
development that would cause a Material Adverse Effect, or a
downgrading in or withdrawal of the rating assigned to any of the
Company’s securities (other than asset backed securities) by
any rating organization or a public announcement by any rating
organization that it has under surveillance or review its rating of
any of the Company’s securities (other than asset backed
securities), the effect of which, in the case of any such action by
a rating organization described above.
(d) Opinion
of Counsel for the Company. On each of the First Closing
Date and each Option Closing Date the Underwriter shall have
received the opinion and negative assurance letter of Xxxxxx &
Bird LLP, counsel for the Company, dated as of such date, in form
and substance satisfactory to the Underwriter.
(e) Opinion
of Intellectual Property Counsel. On each of the First
Closing Date and each Option Closing Date, the Underwriter shall
have received the opinion of Xxxxxx & Bird LLP, counsel for the
Company with respect to intellectual property matters, dated as of
such date, in form and substance satisfactory to the
Underwriter.
(f) Opinion
of Counsel for the Underwriter. On each of the First Closing
Date and each Option Closing Date the Underwriter shall have
received the opinion and negative assurance letter of Xxxxx Xxxxxx
LLP, counsel for the Underwriter in connection with the offer and
sale of the Offered Shares, in form and substance satisfactory to
the Underwriter, dated as of such date.
(g) Officers’
Certificate. On each of the First Closing Date and each
Option Closing Date, the Underwriter shall have received a
certificate executed by the Chief Executive Officer or President of
the Company and the Chief Financial Officer of the Company, dated
as of such date, to the effect set forth in Section 6(b)(ii) and
further to the effect that:
(i) for
the period from and including the date of this Agreement through
and including such date, there has not occurred any Material
Adverse Effect;
(ii) the
representations, warranties and covenants of the Company set forth
in Section 1 are true and correct with the same force and
effect as though expressly made on and as of such date;
and
(iii) the
Company has complied with all the agreements hereunder and
satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to such date.
(h) Chief
Financial Officer’s Certificate. On each of the
First Closing Date and each Option Closing Date, the Underwriter
shall have received a certificate executed by the Chief Financial
Officer of the Company, dated as of such date, in form and
substance satisfactory to the Underwriter.
(i) Bring-down
Comfort Letter. On each of the First Closing Date and each
Option Closing Date the Underwriter shall have received from
CohnReznick LLP, an independent registered public accounting firm
for the Company, a letter dated such date, in form and substance
satisfactory to the Underwriter, which letter shall: (i) reaffirm
the statements made in the letter furnished by them pursuant to
Section 6(a), except that the specified date referred to therein
for the carrying out of procedures shall be no more than three
Business Days prior to the First Closing Date or the applicable
Option Closing Date, as the case may be; and (ii) cover certain
financial information contained in the Prospectus.
(j) Lock-Up
Agreements. On or prior to the date hereof, the Company
shall have furnished to the Underwriter an agreement in the form of
Exhibit A hereto
from the directors and officers (as defined in Rule 16a-1(f) under
the Exchange Act), and each such agreement shall be in full force
and effect on each of the First Closing Date and each Option
Closing Date.
(k) Rule
462(b) Registration Statement. In the event that a Rule
462(b) Registration Statement is filed in connection with the
offering contemplated by this Agreement, such Rule 462(b)
Registration Statement shall have been filed with the Commission on
the date of this Agreement and shall have become effective
automatically upon such filing.
(l) NASDAQ.
The Company shall have submitted a listing of additional shares
notification form to NASDAQ with respect to the Offered Shares and
shall have received no objection thereto from NASDAQ.
(m) Additional
Documents. On or before each of the First Closing Date and
each Option Closing Date, the Underwriter and counsel for the
Underwriter shall have received such information, documents and
opinions as they may reasonably request for the purposes of
enabling them to pass upon the issuance and sale of the Offered
Shares as contemplated herein, or in order to evidence the accuracy
of any of the representations and warranties, or the satisfaction
of any of the conditions or agreements, herein contained; and all
proceedings taken by the Company in connection with the issuance
and sale of the Offered Shares as contemplated herein and in
connection with the other transactions contemplated by this
Agreement shall be satisfactory in form and substance to the
Underwriter and counsel for the Underwriter.
If any
condition specified in this Section 6 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the
Underwriter by notice from the Underwriter to the Company at any
time on or prior to the First Closing Date and, with respect to the
Option Shares, at any time on or prior to the applicable Option
Closing Date, which termination shall be without liability on the
part of any party to any other party, except that Section 4,
Section 7, Section 9 and Section 10 shall at all times be effective
and shall survive such termination.
7. Reimbursement
of Underwriter’s Expenses. If this Agreement is
terminated by the Underwriter pursuant to Section 6, Section 11 or
Section 12, or if the sale to the Underwriter of the Offered Shares
on the First Closing Date is not consummated because of any
refusal, inability or failure on the part of the Company to perform
any agreement herein or to comply with any provision hereof, the
Company agrees to reimburse the Underwriter upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by
the Underwriter in connection with the proposed purchase and the
offering and sale of the Offered Shares, including fees and
disbursements of counsel, printing expenses, travel expenses,
postage, facsimile and telephone charges.
8. Effectiveness
of this Agreement. This Agreement shall become effective
upon the execution and delivery hereof by the parties
hereto.
9. Indemnification.
(a) Indemnification
of the Underwriter. The Company agrees to indemnify and hold
harmless the Underwriter, its affiliates and their respective
partners, members, directors, officers, employees and agents, and
each person, if any, who controls the Underwriter or any affiliate
within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever,
as incurred, joint or several, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact included in any
preliminary prospectus, Time of Sale Prospectus, any free writing
prospectus, any Marketing Material, any Section 5(d) Written
Communication or the Prospectus (or any amendment or supplement to
the foregoing), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever,
as incurred, joint or several, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any Governmental Authority, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided
that (subject to Section 9(d)) any such settlement is effected
with the written consent of the Company, which consent shall not
unreasonably be delayed, conditioned or withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation
or proceeding by any Governmental Authority, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission (whether or not a party), to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made solely in
reliance upon and in conformity with the Underwriter Information
(as defined below).
(b) Indemnification
of the Company, its Directors and Officers. The Underwriter
agrees to indemnify and hold harmless the Company, and its
directors, each officer of the Company who signed the Registration
Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section
9(a), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement, any preliminary prospectus, the Time of
Sale Prospectus, any free writing prospectus, any Section 5(d)
Written Communication or the Prospectus (or any amendment or
supplement to the foregoing), in reliance upon and in conformity
with information relating to such Underwriter and furnished to the
Company in writing by the Underwriter expressly for use therein.
The Company hereby acknowledges that the only information that the
Underwriter has furnished to the Company expressly for use in the
Registration Statement, any preliminary prospectus, the Time of
Sale Prospectus, any free writing prospectus, any Section 5(d)
Written Communication or the Prospectus (or any amendment or
supplement to the foregoing) are the statements set forth in the
first paragraph under the caption “Commissions and
Expenses” and the first sentence of the second paragraph
under the caption “Market Making, Stabilization and Other
Transactions” in the Preliminary Prospectus and Prospectus
(the “Underwriter
Information”).
(c) Notifications
and Other Indemnification Procedures. Any party that
proposes to assert the right to be indemnified under this Section 9
will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section 9,
notify each such indemnifying party of the commencement of such
action, enclosing a copy of all papers served, but the omission so
to notify such indemnifying party will not relieve the indemnifying
party from (i) any liability that it might have to any
indemnified party otherwise than under this Section 9 and
(ii) any liability that it may have to any indemnified party
under the foregoing provision of this Section 9 unless, and only to
the extent that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party. If any
such action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the
extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with
any other indemnifying party similarly notified, to assume the
defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to
the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for
any other legal expenses except as provided below and except for
the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense.
The indemnified
party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has
been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or
potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of
the indemnified party) or (4) the indemnifying party has not
in fact employed counsel to assume the defense of such action or
counsel reasonably satisfactory to the indemnified party, in each
case, within a reasonable time after receiving notice of the
commencement of the action; in each of which cases the reasonable
fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that
the indemnifying party or parties shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of
more than one separate firm admitted to practice in such
jurisdiction (plus local counsel) at any one time for all such
indemnified party or parties. All such fees, disbursements and
other charges will be reimbursed by the indemnifying party promptly
as they are incurred. An indemnifying party will not, in any event,
be liable for any settlement of any action or claim effected
without its written consent. No indemnifying party shall, without
the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding relating to the matters
contemplated by this Section 9 (whether or not any indemnified
party is a party thereto), unless such settlement, compromise or
consent (1) includes an express and unconditional release of
each indemnified party, in form and substance reasonably
satisfactory to such indemnified party, from all liability arising
out of such litigation, investigation, proceeding or claim and
(2) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement
Without Consent if Failure to Reimburse. If an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 9(a)(ii)
effected without its written consent if (1) such settlement is
entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (2) such indemnifying party
shall have received notice of the terms of such settlement at least
30 days prior to such settlement being entered into and
(3) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date
of such settlement.
10. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the
foregoing paragraphs of Section 9 is applicable in accordance with
its terms but for any reason is held to be unavailable or
insufficient from the Company or the Underwriter, the Company and
the Underwriter will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative,
legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted) to which any indemnified party
may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other hand. The relative benefits
received by the Company on the one hand and the Underwriter on the
other hand shall be deemed to be in the same proportion as the
total net proceeds from the sale of the Offered Shares (before
deducting expenses) received by the Company bear to the total
compensation received by the Underwriter (before deducting
expenses) from the sale of Offered Shares on behalf of the Company.
If, but only if, the allocation provided by the foregoing sentence
is not permitted by applicable Law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence
but also the relative fault of the Company, on the one hand, and
the Underwriter, on the other hand, with respect to the statements
or omission that resulted in such loss, claim, liability, expense
or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering.
Such relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the
Underwriter, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriter
agree that it would not be just and equitable if contributions
pursuant to this Section 10 were to be determined by pro rata
allocation or by any other method of allocation that does not take
into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the
loss, claim, liability, expense, or damage, or action in respect
thereof, referred to above in this Section 10 shall be deemed to
include, for the purpose of this Section 10, any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim
to the extent consistent with Section 9(c). Notwithstanding the
foregoing provisions of Section 9 and this Section 10, the
Underwriter shall not be required to contribute any amount in
excess of the commissions actually received by it under this
Agreement and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 10, any person who controls a party to
this Agreement within the meaning of the Securities Act, any
affiliates of the respective Underwriter and any officers,
directors, partners, employees or agents of the Underwriter or its
affiliates, will have the same rights to contribution as that
party, and each director of the Company and each officer of the
Company who signed the Registration Statement will have the same
rights to contribution as the Company, subject in each case to the
provisions hereof. Any party entitled to contribution, promptly
after receipt of notice of commencement of any action against such
party in respect of which a claim for contribution may be made
under this Section 10, will notify any such party or parties from
whom contribution may be sought, but the omission to so notify will
not relieve that party or parties from whom contribution may be
sought from any other obligation it or they may have under this
Section 10 except to the extent that the failure to so notify such
other party materially prejudiced the substantive rights or
defenses of the party from whom contribution is sought. Except for
a settlement entered into pursuant to the last sentence of Section
9(c), no party will be liable for contribution with respect to any
action or claim settled without its written consent if such consent
is required pursuant to Section 9(c).
11. Termination
of this Agreement. Prior to the purchase of the Firm Shares
by the Underwriter on the First Closing Date, this Agreement may be
terminated by the Underwriter by notice given to the Company if at
any time: (i) trading or quotation in any of the Company’s
securities shall have been suspended or limited by the Commission
or by the NASDAQ, or trading in securities generally on either the
NASDAQ or the NYSE shall have been suspended or limited, or minimum
or maximum prices shall have been generally established on any of
such stock exchanges; (ii) a general banking moratorium shall have
been declared by any of federal, New York, or Delaware authorities;
(iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity, or
any change in the United States or international financial markets,
or any substantial change or development involving a prospective
substantial change in United States’ or international
political, financial or economic conditions, as in the judgment of
the Underwriter is material and adverse and makes it impracticable
to market the Offered Shares in the manner and on the terms
described in the Time of Sale Prospectus or the Prospectus or to
enforce contracts for the sale of securities; (iv) in the judgment
of the Underwriter there shall have occurred any change, or any
development or event involving a prospective change, in the
condition, financial or otherwise, or in the business, properties,
earnings, results of operations or prospects of the Company and its
Subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business; or (v) the Company shall have
sustained a loss by strike, fire, flood, earthquake, accident or
other calamity of such character as in the judgment of the
Underwriter may interfere materially with the conduct of the
business and operations of the Company regardless of whether or not
such loss shall have been insured. Any termination pursuant to this
Section 12 shall be without liability on the part of (a) the
Company to the Underwriter, except that the Company shall be
obligated to reimburse the expenses of the Underwriter pursuant to
Section 4 or Section 7 hereof or (b) the Underwriter to the
Company; provided,
however, that the
provisions of Section 9 and Section 10 shall at all times be
effective and shall survive such termination.
12. No
Advisory or Fiduciary Relationship. The Company acknowledges
and agrees that (a) the purchase and sale of the Offered Shares
pursuant to this Agreement, including the determination of the
public offering price of the Offered Shares and any related
discounts and commissions, is an arm’s-length commercial
transaction between the Company, on the one hand, and the
Underwriter, on the other hand, (b) in connection with the offering
contemplated hereby and the process leading to such transaction,
the Underwriter is and has been acting solely as a principal and is
not the agent or fiduciary of the Company, or its stockholders, or
its creditors, employees or any other party, (c) the Underwriter
has not assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of
whether the Underwriter has advised or is currently advising the
Company on other matters) and Underwriter has no obligation to the
Company with respect to the offering contemplated hereby except the
obligations expressly set forth in this Agreement, (d) the
Underwriter and its affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the
Company, and (e) the Underwriter has not provided any legal,
accounting, regulatory or tax advice with respect to the offering
contemplated hereby and the Company has consulted its own legal,
accounting, regulatory and tax advisors to the extent it deemed
appropriate.
13. Representations
and Agreements to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other
statements of the Company, its officers and the Underwriter set
forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on
behalf of the Underwriter or the Company or any of its or their
partners, affiliates, officers, directors or employees or any
controlling person, as the case may be, and, anything herein to the
contrary notwithstanding, will survive delivery of and payment for
the Offered Shares sold hereunder and any termination of this
Agreement.
14. Notices.
All communications hereunder shall be in writing and shall be
mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to
the
Underwriter:
Cantor Xxxxxxxxxx & Co.
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Facsimile: (000)
000-0000
Attention: General
Counsel
with a
copy
to:
Xxxxx Xxxxxx LLP
0000
Xxxxxxxx
Xxx
Xxxx, XX 00000
Attention: Xxxxx X.
Xxxxx
Email:
xxxxxxx@xxxxxxxxxxx.xxx
If to
the
Company:
TG Therapeutics, Inc.
0
Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, XX 00000
Attention: Xxxx X.
Power
Telephone: (000)
000-0000
Email:
xx@xxxxxxx.xxx
with a
copy
to:
Xxxxxx & Bird LLP
00 Xxxx
Xxxxxx
Xxx
Xxxx, XX 00000
Attention: Xxxx X.
XxXxxxxxx, Esq.
Telephone: (000)
000-0000
Email:
xxxx.xxxxxxxxx@xxxxxx.xxx
Each
party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new
address for such purpose. Each such notice or other communication
shall be deemed given (i) when delivered personally or by
verifiable facsimile transmission (with an original to follow) on
or before 4:30 p.m., New York City time, on a Business Day or,
if such day is not a Business Day, on the next succeeding Business
Day, (ii) on the next Business Day after timely delivery to a
nationally-recognized overnight courier and (iii) on the
Business Day actually received if deposited in the U.S. mail
(certified or registered mail, return receipt requested, postage
prepaid).
15. Electronic
Notice. An electronic communication (“Electronic Notice”) shall be
deemed written notice for purposes of this Section 16 if sent to
the electronic mail address specified by the receiving party under
separate cover. Electronic Notice shall be deemed received at the
time the party sending Electronic Notice receives verification of
receipt by the receiving party. Any party receiving Electronic
Notice may request and shall be entitled to receive the notice on
paper, in a nonelectronic form (“Nonelectronic Notice”) which shall
be sent to the requesting party within ten (10) days of receipt of
the written request for Nonelectronic Notice.
16. Successors
and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Company and the Underwriter and its
successors and the parties referred to in Section 11. References to
any of the parties contained in this Agreement shall be deemed to
include the successors and permitted assigns of such party. Nothing
in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective
successors and permitted assigns any rights, remedies, obligations
or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement. Neither party may assign its
rights or obligations under this Agreement without the prior
written consent of the other party; provided, however, that the Underwriter
may assign its rights and obligations hereunder to an affiliate
thereof without obtaining the Company’s consent.
17. Partial
Unenforceability. The invalidity or unenforceability of any
section, paragraph or provision of this Agreement shall not affect
the validity or enforceability of any other section, paragraph or
provision hereof. If any section, paragraph or provision of this
Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes
(and only such minor changes) as are necessary to make it valid and
enforceable.
1. Entire
Agreement; Amendment; Severability; Waiver. This Agreement
(including all schedules and exhibits attached hereto issued
pursuant hereto) constitutes the entire agreement and supersedes
all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the
subject matter hereof. Neither this Agreement nor any term hereof
may be amended except pursuant to a written instrument executed by
the Company and the Underwriter. In the event that any one or more
of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable as
written by a court of competent jurisdiction, then such provision
shall be given full force and effect to the fullest possible extent
that it is valid, legal and enforceable, and the remainder of the
terms and provisions herein shall be construed as if such invalid,
illegal or unenforceable term or provision was not contained
herein, but only to the extent that giving effect to such provision
and the remainder of the terms and provisions hereof shall be in
accordance with the intent of the parties as reflected in this
Agreement. No implied waiver by a party shall arise in the absence
of a waiver in writing signed by such party. No failure or delay in
exercising any right, power, or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the
exercise of any right, power, or privilege hereunder.
2. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
3. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO
THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING
IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION
OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION
CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT
TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT
SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM
OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER.
EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS
AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED) 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.
4. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed
Agreement by one party to the other may be made by facsimile or
electronic transmission.
5. Construction.
(a) the
section and exhibit headings herein are for convenience only
and shall not affect the construction hereof;
(b) words
defined in the singular shall have a comparable meaning when used
in the plural, and vice versa;
(c) the
words “hereof,” “hereto,”
“herein” and “hereunder” and words of
similar import, when used in this Agreement, shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement;
(d) wherever
the word “include,” “includes” or
“including” is used in this Agreement, it shall be
deemed to be followed by the words “without
limitation”;
(e) references
herein to any gender shall include each other gender;
(f) references
herein to any law, statute, ordinance, code, regulation, rule or
other requirement of any Governmental Authority shall be deemed to
refer to such law, statute, ordinance, code, regulation, rule or
other requirement of any Governmental Authority as amended,
reenacted, supplemented or superseded in whole or in part and in
effect from time to time and also to all rules and regulations
promulgated thereunder;
(g) if
the last day for the giving of any notice or the performance of any
act required or permitted under this Agreement is a day that is not
a Business Day, then the time for the giving of such notice or the
performance of such action shall be extended to the next succeeding
Business Day;
(h) “knowledge”
means, as it pertains to the Company, the actual knowledge of the
officers and directors of the Company, together with the knowledge
which they would have had if they had conducted a reasonable
inquiry of the relevant persons into the relevant subject
matter;
(i) “Governmental
Authority” means (i) any federal, provincial,
state, local, municipal, national or international government or
governmental authority, regulatory or administrative agency,
governmental commission, department, board, bureau, agency or
instrumentality, court, tribunal, arbitrator or arbitral body
(public or private); (ii) any self-regulatory organization; or
(iii) any political subdivision of any of the
foregoing;
(j) “Law”
means any and all laws, including all federal, state, local,
municipal, national or foreign statutes, codes, ordinances,
guidelines, decrees, rules, regulations and by-laws and all
judicial, arbitral, administrative, ministerial, departmental or
regulatory judgments, orders, directives, decisions, rulings or
awards or other requirements of any Governmental Authority, binding
on or affecting the person referred to in the context in which the
term is used and rules, regulations and policies of any stock
exchange on which securities of the Company are listed for trading;
and
(k) “Business
Day” means any day on which NASDAQ and commercial
banks in the City of New York are open for business.
6. General
Provisions.
Each of
the parties hereto acknowledges that it is a sophisticated business
person who was adequately represented by counsel during
negotiations regarding the provisions hereof, including the
indemnification provisions of Section 9 and the contribution
provisions of Section 10, and is fully informed regarding said
provisions. Each of the parties hereto further acknowledges that
the provisions of Section 9 and Section 10 hereof fairly allocate
the risks in light of the ability of the parties to investigate the
Company, its affairs and its business in order to assure that
adequate disclosure has been made in the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, each free
writing prospectus and the Prospectus (and any amendments and
supplements to the foregoing), as contemplated by the Securities
Act and the Exchange Act.
[Signature
Page Follows]
If the
foregoing correctly sets forth the understanding between the
Company and the Underwriter, please so indicate in the space
provided below for that purpose, whereupon this letter shall
constitute a binding agreement between the Company and the
Underwriter.
|
|
|
|
|
|
|
By:
|
/s/
Xxxx X. Power
|
|
|
Name: Xxxx
Xxxxx
|
|
|
Title: Chief
Financial Officer
|
|
CANTOR
XXXXXXXXXX & CO.
|
|
|
|
|
|
By:
|
/s/
Xxxx Xxxxx
|
|
|
Name: Xxxx
Xxxxx
|
|
|
Title: Head
of Investment Banking
|
SCHEDULE 6(g)
______________________
Subsidiaries
_______________________
Ariston
Pharmaceuticals, Inc.
TG
Biologics, Inc.
SCHEDULE A
Free Writing Prospectuses Included in the Time of Sale
Prospectus
None.
SCHEDULE B
Pricing Information
Firm
Shares: 4,100,000
Option
Shares: 615,000
Price
to Public: The public offering price as to each investor shall be
the price paid by each investor.
Underwriter’s
Discount: The Underwriter’s discount shall be the difference
between the price at which the underwriter purchases shares from us
and the price at which the underwriter resells such
shares.
SCHEDULE C
Permitted Section 5(d) Communications
None.
Exhibit A
Form of Lock-up Agreement
Cantor
Xxxxxxxxxx & Co.
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Equity Capital Markets
Re: Proposed Registered Follow-On Offering by TG Therapeutics,
Inc.
Ladies
and Gentlemen:
The
undersigned, a securityholder and/or officer and/or a director of
TG Therapeutics, Inc., a Delaware corporation (the
“Company”), understands
that Cantor Xxxxxxxxxx & Co. (“CF&Co.”) proposes to
enter into an Underwriting Agreement (the “Underwriting Agreement”)
with the Company relating to the proposed registered follow-on
offering (the “Offering”) of shares of
the Company’s common stock, par value $0.001 per share (the
“Common
Stock”). The undersigned acknowledges that CF&Co.
is relying on the representations and agreements of the undersigned
contained in this lock-up agreement in conducting the Offering and,
at a subsequent date, in entering into the Underwriting Agreement
and other underwriting arrangements with the Company with respect
to the Offering.
In
recognition of the benefit that the Offering will confer upon the
undersigned as a securityholder and/or officer and/or a director of
the Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees that, during the period beginning on the date
hereof and ending on the date that is 90 days from the date of the
Underwriting Agreement (the “Lock-Up Period”), the
undersigned will not (and will cause any immediate family member
not to), without the prior written consent of CF&Co., which may
withhold its consent in its sole discretion, directly or
indirectly, (i) sell, offer to sell, contract to sell or lend,
effect any short sale or establish or increase a Put Equivalent
Position (as defined in Rule 16a-1(h) under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) or
liquidate or decrease any Call Equivalent Position (as defined in
Rule 16a-1(b) under the Exchange Act), pledge, hypothecate or grant
any security interest in, or in any other way transfer or dispose
of, any Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock, in each case whether
now owned or hereafter acquired by the undersigned or with respect
to which the undersigned has or hereafter acquires the power of
disposition (collectively, the “Lock-Up Securities”),
(ii) make any demand for, or exercise any right with respect to the
registration of any of the Lock-Up Securities, or the filing of any
registration statement, prospectus or prospectus supplement (or an
amendment or supplement thereto) in connection therewith, under the
Securities Act of 1933, as amended, (iii) enter into any swap,
hedge or any other agreement or any transaction that transfers, in
whole or in part, the economic consequence of ownership of the
Lock-Up Securities, whether any such swap or transaction is to be
settled by delivery of Common Stock or other securities, in cash or
otherwise, or (iv) publicly announce the intention to do any of the
foregoing.
Notwithstanding the
foregoing, and subject to the conditions below, the undersigned may
transfer the Lock-Up Securities pursuant to clauses
(i) through (v) below without the prior written consent
of CF&Co., provided that (1) prior to
any such transfer, CF&Co. receives a signed lock-up agreement,
substantially in the form of this lock-up agreement, for the
balance of the Lock-Up Period from each donee, trustee, distributee
or transferee, as the case may be, (2) any such transfer shall
not involve a disposition for value, (3) in the case of
clauses (i) through (iii) below, such transfers are not
required to be reported with the Securities and Exchange Commission
under the Exchange Act, and (4) the undersigned does not
otherwise voluntarily effect any public filing or report regarding
such transfers:
(i) as
a bona fide gift or gifts; or
(ii) to any trust
for the direct or indirect benefit of the undersigned or the
immediate family of the undersigned (for purposes of this lock-up
agreement, “immediate family” shall mean any
relationship by blood, marriage or adoption, not more remote than
first cousin); or
(iii) pursuant to a
qualified domestic order or in connection with a divorce
settlement; or
(iv) by will or
intestate succession to the legal representative, heir, beneficiary
or immediate family of the undersigned upon the death of the
undersigned; or
(v) any
exercise, conversion or exchange of any options, warrants, rights
or convertible securities outstanding on the date hereof, including
any exercise effected by the delivery or sale of the
undersigned’s securities to the company (including, without
limitation, to finance a “cashless exercise”);
provided that the transfer
restrictions shall apply to any of the undersigned’s
securities issued upon such exercise, conversion or exchange,
except to the extent such securities are withheld or sold by the
Company or its administrator to cover tax liabilities (including
due to the vesting of restricted stock).
The
undersigned further agrees that the foregoing provisions shall be
equally applicable to any Common Stock the undersigned may purchase
or otherwise receive in the Offering.
The
undersigned also agrees and consents to the entry of stop transfer
instructions with the Company’s transfer agent and registrar
against the transfer of the Lock-Up Securities except in compliance
with the foregoing restrictions.
With
respect to the Offering only, the undersigned waives any
registration rights relating to registration under the Securities
Act of the offer and sale of any shares of Common Stock and/or any
options or warrants or other rights to acquire Common Stock or any
securities exchangeable or exercisable for or convertible into
Common Stock, or to acquire other securities or rights ultimately
exchangeable or exercisable for or convertible into Common Stock,
owned either of record or beneficially by the undersigned,
including any rights to receive notice of the
Offering.
The
undersigned confirms that the undersigned has not, and has no
knowledge that any immediate family member has, directly or
indirectly, taken any action designed to or that might reasonably
be expected to cause or result in the stabilization or manipulation
of the price of any security of the Company to facilitate the sale
of the Common Stock The undersigned will not, and will cause any
immediate family member not to take, directly or indirectly, any
such action.
As used
herein, “immediate family” shall mean the spouse,
domestic partner, lineal descendant, father, mother, brother,
sister, or any other person with whom the undersigned has a
relationship by blood, marriage or adoption not more remote than
first cousin.
The
undersigned represents and warrants that the undersigned has full
power, capacity and authority to enter into this letter agreement.
This letter agreement is irrevocable and will be binding on the
undersigned and the successors, heirs, personal representatives and
assigns of the undersigned.
This
lock-up agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Whether
or not the Offering actually occurs depends on a number of factors,
including market conditions. Any Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are
subject to negotiation between the Company and
CF&CO.
This
lock-up agreement shall automatically terminate, and the
undersigned shall be released from its obligations hereunder, upon
the earliest to occur, if any, of (i) the Company advising
CF&Co. in writing, prior to the execution of the Underwriting
Agreement, that it has determined not to proceed with the Offering,
(ii) the executed Underwriting Agreement being terminated
prior to the closing of the Offering (other than the provisions
thereof that survive termination), and (iii) May 31, 2019, in the
event that the Underwriting Agreement has not been executed by such
date.
[Signature
Page Follows]
Very
truly yours,
___________________________________
Name of Securityholder/Director/Officer
(Print exact
name)
Signature
If
not signing in an individual capacity:
___________________________________
Name of Authorized Signatory (Print)
___________________________________
Title of Authorized Signatory (Print)
(indicate
capacity of person signing if signing as custodian, trustee or on
behalf of an entity)
Exhibit B
Parties to Lock-up Agreement
Xxxxxxx
X. Xxxxx
Xxxx X.
Power
Xxxxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxxx
Xxxx
Xxxxxxxxxxx
Xxxx
Xxxxxxxx
Xxxxxxx
Xxxxxxxx
Xxxxxx
Xxxx
Opus
Point Partners, LLC
