VistaGen Therapeutics, Inc. 10,000,000 Shares of Common Stock Warrants to Purchase up to 10,000,000 Shares of Common Stock UNDERWRITING AGREEMENT
Exhibit
1.1
10,000,000 Shares of Common
Stock
Warrants to Purchase up to 10,000,000 Shares of Common
Stock
December
11, 2017
Xxxxxxxxxxx &
Co. Inc.
As
Representative of the
Several
Underwriters named
in
Schedule I hereto
00
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Ladies
and Gentlemen:
VistaGen
Therapeutics, Inc., a Nevada corporation (the "Company") proposes,
subject to the terms and conditions contained herein, to sell to
you and the other underwriters named on Schedule I to this
Agreement (the "Underwriters"), for whom you are acting as
Representative (the “Representative”), an aggregate of
(i) 10,000,000 shares (the
"Shares") of the Company's common stock, $0.001 par value per share
(the "Common Stock"), and (ii) warrants (the
“Warrants”) to purchase up to an aggregate of
10,000,000 shares of Common
Stock (the “Warrant Shares”). Each Share is being sold
together with a Warrant to
purchase one Warrant Share. The Shares, the Warrants and the
Warrant Shares are collectively referred to as the
“Securities”. The Shares and the Warrants will be
issued separately, but will be purchased together in the offering.
The
respective amounts of the Securities to be purchased by each of the
several Underwriters are set forth opposite their names on Schedule
I hereto.
The
Company has prepared and filed in conformity with the requirements
of the Securities Act of 1933, as amended (the "Securities Act"),
and the published rules and regulations thereunder (the "Rules")
adopted by the Securities and Exchange Commission (the
"Commission") a Registration Statement (as hereinafter defined) on
Form S-1 (No. 333-221009), including a preliminary prospectus
relating to the Shares and the Warrants, and such amendments
thereof as may have been required to the date of this Agreement.
Copies of such Registration Statement (including all amendments
thereof) and of the related Preliminary Prospectus (as hereinafter
defined) have heretofore been delivered by the Company to you. The
term "Preliminary Prospectus" means any preliminary prospectus
included at any time as a part of the Registration Statement or
filed with the Commission by the Company pursuant to Rule 424(a) of
the Rules. The term "Registration Statement" as used in this
Agreement means the initial registration statement (including all
exhibits, financial schedules), as amended at the time and on the
date it becomes effective (the "Effective Date"), including the
information (if any) contained in the form of final prospectus
filed with the Commission pursuant to Rule 424(b) of the Rules and
deemed to be part thereof at the time of effectiveness pursuant to
Rule 430A of the Rules. If the Company has filed an abbreviated
registration statement to register additional Securities pursuant
to Rule 462(b) under the Rules (the "462(b) Registration
Statement"), then any reference herein to the Registration
Statement shall also be deemed to include such 462(b) Registration
Statement. The term "Prospectus" as used in this Agreement means
the prospectus in the form included in the Registration Statement
at the time of effectiveness or, if Rule 430A of the Rules is
relied on, the term Prospectus shall also include the final
prospectus filed with the Commission pursuant to and within the
time limits described in Rule 424(b) of the Rules.
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The
Company understands that the Underwriters propose to make a public
offering of the Shares and the Warrants, as set forth in and
pursuant to the Statutory Prospectus (as hereinafter defined) and
the Prospectus, as soon after the Effective Date and the date of
this Agreement as the Representative deems advisable. The Company
hereby confirms that the Underwriters and dealers have been
authorized to distribute or cause to be distributed each
Preliminary Prospectus, and each Issuer Free Writing Prospectus (as
hereinafter defined) and are authorized to distribute the
Prospectus (as from time to time amended or supplemented if the
Company furnishes amendments or supplements thereto to the
Underwriters).
1.
Sale, Purchase, Delivery and Payment
for the Shares and the Warrants. On the basis of the
representations, warranties and agreements contained in, and
subject to the terms and conditions of, this
Agreement:
(a)
The Company agrees to issue and sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $1.395 per Share
and related Warrant, (i) the number of Shares set forth opposite
the name of such Underwriter under the column "Number of Shares to
be Purchased from the Company" on Schedule I to this Agreement and
(ii) the number of Warrants set forth opposite the name of the
Underwriter under the column “Number of Warrants to be
Purchased from the Company” on Schedule I to this Agreement,
subject to adjustment in accordance with Section 8
hereof.
(b)
Payment of the purchase price for, and delivery of certificates
for, the Shares and the Warrants shall be made at the offices of
Xxxxxxxxxxx & Co. Inc., 00 Xxxxx
Xxxxxx, 00xx
Xxxxx Xxx Xxxx, Xxx Xxxx 00000,
at 10:00 a.m., New York City time, on the third business day
following the date of this Agreement or at such time on such other
date, not later than ten (10) business days after the date of this
Agreement, as shall be agreed upon by the Company and the
Representative (such time and date of delivery and payment are
called the "Closing Date").
(c)
Payment shall be made to the Company by wire transfer of
immediately available funds or by certified or official bank check
or checks payable in New York Clearing House (same day) funds drawn
to the order of the Company, against delivery of certificates
representing the Shares and the Warrants to the account of the
Representative for the respective accounts of the
Underwriters.
(d)
Certificates evidencing the Shares and the Warrants shall be
registered in such names and shall be in such denominations as the
Representative shall request at least two full business days before
the Closing Date and shall be delivered by or on behalf of the
Company (i) in the case of the Shares, as directed by the
Representative through the facilities of the Depository Trust
Company ("DTC") for the respective accounts of the Underwriters and
(ii) in the case of the Warrants, by physical delivery to be
received or directed by the Representative no later than one (1)
business day following the Closing Date. The Company will cause the
certificates representing the Shares and the Warrants to be made
available for checking and packaging, at such place as is
designated by the Representative, on the full business day before
the Closing Date.
2. Representations and Warranties of the
Company. The Company represents and warrants to each
Underwriter as of the date hereof and as of the Closing Date, as
follows:
(a)
On the Effective Date, the Registration Statement complied, and on
the date of the Prospectus, the date any post-effective amendment
to the Registration Statement becomes effective, the date any
supplement or amendment to the Prospectus is filed with the
Commission and each Closing Date, the Registration Statement, the
Prospectus (and any amendment thereof or supplement thereto) will
comply, in all material respects, with the requirements of the
Securities Act and the Rules and the Securities and Exchange Act of
1934, as amended (the “Exchange Act”) and the rules and
regulations of the Commission thereunder. The Registration
Statement did not, as of the Effective Date, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and on the Effective Date and
the other dates referred to above neither the Registration
Statement nor the Prospectus, nor any amendment thereof or
supplement thereto, will contain any untrue statement of a material
fact or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
the case of the Prospectus and any amendment thereof or supplement
thereto, in light of the circumstances under which they were made,
not misleading. When any Preliminary Prospectus was first filed
with the Commission (whether filed as part of the Registration
Statement or any amendment thereto or pursuant to Rule 424(a) of
the Rules) and when any amendment thereof or supplement thereto was
first filed with the Commission, such Preliminary Prospectus as
amended or
-2-
supplemented
complied in all material respects with the applicable provisions of
the Securities Act and the Rules and did not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading. If applicable, each Preliminary
Prospectus and the Prospectus delivered to the Underwriters for use
in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation
S-T. Notwithstanding the foregoing, none of the representations and
warranties in this paragraph 2(a) shall apply to statements in, or
omissions from, the Registration Statement, any Preliminary
Prospectus or the Prospectus made in reliance upon, and in
conformity with, information herein or otherwise furnished in
writing by the Representative on behalf of the several Underwriters
specifically for use in the Registration Statement, any Preliminary
Prospectus or the Prospectus, as the case may be. With respect to
the preceding sentence, the Company acknowledges that the only
information furnished in writing by the Representative on behalf of
the several Underwriters for use in the Registration Statement, any
Preliminary Prospectus or the Prospectus is the statements
contained in the 4th and 10th paragraphs under the caption
"Underwriting" in the Prospectus (collectively, the
“Underwriter Information”).
(b)
As of
the Applicable Time (as hereinafter defined), neither (i) (a) the
Statutory Prospectus (as hereinafter defined) nor (b) the
information set forth on Schedule III hereto which will be provided
orally to investors, all considered together (collectively, the
“General Disclosure Package”) nor (ii) any individual
Issuer Free Writing Prospectus when considered together with the
General Disclosure Package, included, includes or will include, nor
will it include any untrue statement of a material fact or omitted,
omits or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to statements in or omissions in the
General Disclosure Package made in reliance upon and in conformity
with the Underwriter Information.
Each
Issuer Free Writing Prospectus (as hereinafter defined), including
any electronic road show (including without limitation any
“bona fide electronic road show” as defined in Rule
433(h)(5) under the Securities Act) (each, a “Road
Show”) (i) is identified in Schedule IV hereto and (iii)
complied when issued, and complies, in all material respects with
the requirements of the Securities Act and the Rules and the
Exchange Act and the rules and regulations of the Commission
thereunder.
As used
in this Section and elsewhere in this Agreement:
“Applicable
Time” means 8:00 am (Eastern time) on the date of this
Underwriting Agreement.
“Statutory
Prospectus” as of any time means the Preliminary Prospectus
relating to the Securities that is included in the Registration
Statement immediately prior to the Applicable Time.
“Issuer Free
Writing Prospectus” means each “free writing
prospectus” (as defined in Rule 405 of the Rules) prepared by
or on behalf of the Company or used or referred to by the Company
in connection with the offering of the Securities, including ,
without limitation, each Road Show.
(c)
The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the
effectiveness of the Registration Statement or suspending or
preventing the use of any Preliminary Prospectus, the Prospectus or
any “free writing prospectus,” as defined in Rule 405
under the Rules, has been issued by the Commission and no
proceedings for that purpose have been instituted or are threatened
under the Securities Act. Any required filing of any Preliminary
Prospectus and/or the Prospectus and any supplement thereto
pursuant to Rule 424(b) of the Rules has been or will be made in
the manner and within the time period required by such Rule 424(b).
Any material required to be filed by the Company pursuant to Rule
443(d) or Rule 163(b)(2) of the Rules has been or will be made in
the manner and within the time period required by such
Rules.
(e)
Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of
the public offer and sale of the Securities or until any earlier
date that the Company notified or notifies the Representative as
described in the next sentence, 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 Statutory Prospectus or the
Prospectus.
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If at
any time following issuance of an Issuer Free Writing Prospectus
there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration
Statement, the Statutory Prospectus or the Prospectus or included
or would include an untrue statement of a material fact or omitted
or would omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
the light of the circumstances prevailing at the subsequent time,
not misleading, the Company has promptly notified or will promptly
notify the Representative and has promptly amended or will promptly
amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement
or omission.
(f)
The financial statements of the
Company (including all notes and schedules thereto) included in the
Registration Statement, the Statutory Prospectus and Prospectus
present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries for the periods specified; and
such financial statements and related schedules and notes thereto,
and the unaudited financial information filed with the Commission
as part of the Registration Statement, have been prepared in
conformity with generally accepted accounting principles,
consistently applied throughout the periods involved. The summary
and selected financial data, if any, included in the Statutory
Prospectus and Prospectus present fairly the information shown
therein as at the respective dates and for the respective periods
specified and have been presented on a basis consistent with the
consolidated financial statements set forth in the Prospectus and
other financial information.
(g)
OUM & Co. LLP (the
“Auditor”) whose reports are filed with the Commission
as a part of the Registration Statement, are and, during the
periods covered by their reports, were independent public
accountants as required by the Securities Act and the
Rules.
(h)
The Company and each of its subsidiaries, including each entity
(corporation, partnership, joint venture, association or other
business organization) controlled directly or indirectly by the
Company (each, a “subsidiary”), is duly organized,
validly existing and in good standing under the laws of their
respective jurisdictions of incorporation or organization and each
such entity has all requisite power and authority to carry on its
business as is currently being conducted as described in the
Statutory Prospectus and the Prospectus, and to own, lease and
operate its properties. All of the issued shares of capital stock
of, or other ownership interests in, each subsidiary have been duly
and validly authorized and issued and are fully paid and
non-assessable and are owned, directly or indirectly, by the
Company, free and clear of any lien, charge, mortgage, pledge,
security interest, claim, limitation on voting rights, equity,
trust or other encumbrance, preferential arrangement, defect or
restriction of any kind whatsoever. The Company and each of its
subsidiaries is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which the
nature of the business conducted by it or location of the assets or
properties owned, leased or licensed by it requires such
qualification, except for such jurisdictions where the failure to
so qualify individually or in the aggregate would not have a
material adverse effect on the assets, properties, condition,
financial or otherwise, or in the results of operations, business
affairs or business prospects of the Company and its subsidiaries
considered as a whole (a "Material Adverse Effect"); and to the
Company's knowledge, no proceeding has been instituted in any such
jurisdiction revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority or
qualification. The Company does not own, lease or license any asset
or property or conduct any business outside the United States of
America.
(j)
The Company and each of its
subsidiaries has all requisite corporate power and authority, and
all necessary authorizations, approvals, consents, orders,
licenses, certificates and permits of and from all governmental or
regulatory bodies or any other person or entity (collectively, the
"Permits"), to own, lease and license its assets and properties and
conduct its business, all of which are valid and in full force and
effect, except where the lack of such Permits, individually or in
the aggregate, would not have a Material Adverse Effect. The
Company and each of its subsidiaries has fulfilled and performed in
all material respects all of its obligations with respect to such
Permits and no event has occurred that allows, or after notice or
lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the
Company thereunder. Except as may be required under the Securities
Act and state and foreign Blue Sky laws, no other Permits are
required to enter into, deliver and perform this Agreement and to
issue and sell the Securities.
-4-
(k)
(i) At the time of filing the Registration Statement and (ii) at
the date hereof, the Company was
not and is not an “ineligible issuer,” as defined in
Rule 405 of the Rules, including (but not limited to) the
Company or any other subsidiary in the preceding three years not
having been convicted of a felony or misdemeanor or having been
made the subject of a judicial or administrative decree or order as
described in Rule 405 of the Rules.
(l)
The Company and each of its
subsidiaries owns or possesses legally enforceable rights to use
all patents, patent rights, inventions, trademarks, trademark
applications, trade names, service marks, copyrights, copyright
applications, licenses, know-how and other similar rights and
proprietary knowledge (collectively, "Intangibles") necessary for
the conduct of its business. Neither the Company nor any of its
subsidiaries has received any notice of, or is not aware of, any
infringement of or conflict with asserted rights of others with
respect to any Intangibles.
(m)
The Company and each of its subsidiaries has good and marketable
title in fee simple to all real property, and good and marketable
title to all other property owned by it, in each case free and
clear of all liens, encumbrances, claims, security interests and
defects, except such as do not materially affect the value of such
property and do not materially interfere with the use made or
proposed to be made of such property by the Company and its
subsidiaries. All property held under lease by the Company and its
subsidiaries is held by them under valid, existing and enforceable
leases, free and clear of all liens, encumbrances, claims, security
interests and defects, except such as are not material and do not
materially interfere with the use made or proposed to be made of
such property by the Company and its
subsidiaries.
(n)
Subsequent to the respective dates as
of which information is given in the Registration Statement, the
Statutory Prospectus and the Prospectus, (i) there has not been any
event which could have a Material Adverse Effect; (ii) neither the
Company nor any of its subsidiaries has sustained any loss or
interference with its assets, businesses or properties (whether
owned or leased) from fire, explosion, earthquake, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action,
order or decree which would have a Material Adverse Effect; and
(iii) since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, neither the Company nor
its subsidiaries has (A) issued any securities or incurred any
liability or obligation, direct or contingent, for borrowed money,
except such liabilities or obligations incurred in the ordinary
course of business, (B) entered into any transaction not in the
ordinary course of business or (C) except for regular dividends on
the Common Stock in amounts per share that are consistent with past
practice, declared or paid any dividend or made any distribution on
any shares of its stock or redeemed, purchased or otherwise
acquired or agreed to redeem, purchase or otherwise acquire any
shares of its capital stock.
(o)
There is no document, contract or other agreement required to be
described in the Registration Statement, the Statutory Prospectus
or the Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required by the
Securities Act or Rules. Each description of a contract, document
or other agreement in the Registration Statement, the Statutory
Prospectus or the Prospectus accurately reflects in all respects
the terms of the underlying contract, document or other agreement.
Each contract, document or other agreement described in the
Registration Statement, the Statutory Prospectus or the Prospectus
or listed in the Exhibits to the Registration Statement is in full
force and effect and is valid and enforceable by and against the
Company or its subsidiary, as the case may be, in accordance with
its terms. Neither the Company nor any of its subsidiaries, if a
subsidiary is a party, nor to the Company's knowledge, any other
party is in default in the observance or performance of any term or
obligation to be performed by it under any such agreement, and no
event has occurred which with notice or lapse of time or both would
constitute such a default, in any such case which default or event,
individually or in the aggregate, would have a Material Adverse
Effect. No default exists, and no event has occurred which with
notice or lapse of time or both would constitute a default, in the
due performance and observance of any term, covenant or condition,
by the Company or its subsidiary, if a subsidiary is a party
thereto, of any other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which Company or its
properties or business or a subsidiary or its properties or
business may be bound or affected which default or event,
individually or in the aggregate, would have a Material Adverse
Effect.
(p)
The statistical and market related
data included in the Registration Statement, the Statutory
Prospectus or the Prospectus are based on or derived from sources
that the Company believes to be reliable and
accurate.
-5-
(q)
Neither the Company nor any subsidiary (i) is in violation of its
certificate or articles of incorporation, by-laws, certificate of
formation, limited liability company agreement, partnership
agreement or other organizational documents, (ii) is in default
under, and no event has occurred which, with notice or lapse of
time, or both, would constitute a default under, or result in the
creation or imposition of any lien, charge, mortgage, pledge,
security interest, claim, limitation on voting rights, equity,
trust or other encumbrance, preferential arrangement, defect or
restriction of any kind whatsoever, upon, any property or assets of
the Company or any subsidiary pursuant to, any bond, debenture,
note, indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject or
(iii) is in violation of any statute, law, rule, regulation,
ordinance, directive, judgment, decree or order of any judicial,
regulatory or other legal or governmental agency or body, foreign
or domestic, except (in the case of clauses (ii) and (iii) above)
for violations or defaults that could not (individually or in the
aggregate) reasonably be expected to have a Material Adverse
Effect.
(r)
This Agreement has been duly authorized, executed and delivered by
the Company.
(s)
Neither the execution,
delivery and performance of this Agreement and the Warrants by the
Company nor the consummation of any of the transactions
contemplated hereby (including, without limitation, the issuance
and sale by the Company of the Shares and the Warrants) will give
rise to a right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the breach of any
term or provision of, or constitute a default (or an event which
with notice or lapse of time or both would constitute a default)
under, or require any consent or waiver under, or result in the
execution or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or its subsidiaries pursuant to
the terms of, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which either the Company or its
subsidiaries or any of their properties or businesses is bound, or
any franchise, license, permit, judgment, decree, order, statute,
rule or regulation applicable to the Company or any of its
subsidiaries or violate any provision of the charter or by-laws of
the Company or any of its subsidiaries, except for such consents or
waivers which have already been obtained and are in full force and
effect.
(t)
The Company has authorized and outstanding capital stock as set
forth under the caption "Description of Securities We Are Offering
and Capitalization" in the Statutory Prospectus and the Prospectus.
The certificates evidencing the Shares and the Warrants are in due
and proper legal form and have been duly authorized for issuance by
the Company. All of the issued and outstanding shares of Common
Stock have been duly and validly issued and are fully paid and
nonassessable. There are no statutory preemptive or other similar
rights to subscribe for or to purchase or acquire any shares of
Common Stock of the Company or any of its subsidiaries or any such
rights pursuant to its Certificate of Incorporation or by-laws or
any agreement or instrument to or by which the Company or any of
its subsidiaries is a party or bound. The Company has reserved and
kept available for the exercise of the Warrants such number of
authorized but unissued shares as are sufficient to permit the
exercise in full of the Warrants. The Shares, when issued and sold
pursuant to this Agreement, and the Warrant Shares, when issued and
sold pursuant to the Warrants, will be duly and validly issued,
fully paid and nonassessable and none of them will be issued in
violation of any preemptive or other similar right. Except as
disclosed in the Registration Statement, the Statutory Prospectus
and the Prospectus, there is no outstanding option, warrant or
other right calling for the issuance of, and there is no
commitment, plan or arrangement to issue, any share of stock of the
Company or any of its subsidiaries or any security convertible
into, or exercisable or exchangeable for, such stock. The exercise
price of each option to acquire Common Stock (each, a
“Company Stock Option”) is no less than the fair market
value of a share of Common Stock as determined on the date of grant
of such Company Stock Option. All grants of Company Stock Options
were validly issued and properly approved by the Board of Directors
of the Company or the Compensation Committee thereof in material
compliance with all applicable laws and the terms of the plans
under which such Company Stock Options were issued and were
recorded on the Company financial statements, including the
documents included in the Registration Statement, the Statutory
Prospectus and the Prospectus, in accordance with GAAP, and no such
grants involved any “back dating”, “forward
dating,” “spring loading” or similar practices
with respect to the effective date of grant. The Common Stock, the Shares and the
Warrants conform in all material respects to all statements in
relation thereto contained in the Registration Statement, the
Statutory Prospectus and the Prospectus. All outstanding shares of
capital stock of each of the Company's subsidiaries have been duly
authorized and validly issued, and are fully paid and nonassessable
and are owned directly by the Company or by another wholly-owned
subsidiary of the Company free and clear of any security interests,
liens, encumbrances, equities or claims, other than those described
in the Statutory Prospectus and the Prospectus.
-6-
(u)
No holder of any security of the
Company has any right, which has not been waived, to have any
security owned by such holder included in the Registration
Statement or to demand registration of any security owned by such
holder for a period of 180 days after the date of this Agreement.
Each director and executive officer of the Company and each
stockholder of the Company listed on Schedule II hereto has
delivered to the Representative his enforceable written lock-up
agreement in the form attached to this Agreement as Exhibit A
hereto ("Lock-Up Agreement").
(v)
There are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries could individually or in the
aggregate have a Material Adverse Effect; and, to the knowledge of
the Company, no such proceedings are threatened or contemplated by
governmental authorities or threatened by
others.
(w)
All necessary corporate action has
been duly and validly taken by the Company and to authorize the
execution, delivery and performance of this Agreement and the
Warrants, and the issuance and sale of the Shares, the Warrants and
the Warrant Shares by the Company. The Warrants have been duly and
validly authorized and, upon the execution and delivery thereof by
the Company on the Closing Date, will constitute legal, valid and
binding obligations of the Company enforceable against the Company
in accordance with their terms.
(w)
Neither the Company nor any of its
subsidiaries is involved in any labor dispute nor, to the knowledge
of the Company, is any such dispute threatened, which dispute would
have a Material Adverse Effect. The Company is not aware of any
existing or imminent labor disturbance by the employees of any of
its principal suppliers or contractors which would have a Material
Adverse Effect. The Company is not aware of any threatened or
pending litigation between the Company or its subsidiaries and any
of its executive officers which, if adversely determined, could
have a Material Adverse Effect and has no reason to believe that
such officers will not remain in the employment of the
Company.
(x)
No transaction has occurred between or
among the Company and any of its officers or directors,
shareholders or any affiliate or affiliates of any such officer or
director or shareholder that is required to be described in and is
not described in the Registration Statement, the Statutory
Prospectus and the Prospectus.
(y)
The Company has not taken, nor will it
take, directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in, or which has
constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of the Common Stock
or any security of the Company to facilitate the sale or resale of
any of the Securities.
(z)
The Company and each of its
subsidiaries has filed all Federal, state, local and foreign tax
returns which are required to be filed through the date hereof,
which returns are true and correct in all material respects or has
received timely extensions thereof, and has paid all taxes shown on
such returns and all assessments received by it to the extent that
the same are material and have become due. There are no tax audits
or investigations pending, which if adversely determined would have
a Material Adverse Effect; nor are there any material proposed
additional tax assessments against the Company or any of its
subsidiaries.
(aa)
The Common Stock is registered
pursuant to Section 12(b) of the Exchange Act and is listed on the
Nasdaq Capital Market. The Company has taken no action designed to,
or likely to have the effect of, terminating the registration of
the Common Stock under the Exchange Act or listing of the Common
Stock on the Nasdaq Capital Market. There is no action pending by
the Company or, to the Company’s knowledge, by the Nasdaq
Capital Market to delist the Common Stock from the Nasdaq Capital
Market, nor has the Company received any notification that the
Nasdaq Capital Market is contemplating terminating such listing.
The Company has submitted a Notification Form: Listing of
Additional Shares with the Nasdaq Capital Market with respect to
the Shares and the Warrant Shares and Nasdaq has raised no
objection with respect to the listing of the Shares and the Warrant
Shares which has not been resolved.
-7-
(bb)
The books, records and accounts of the
Company and its subsidiaries accurately and fairly reflect, the
transactions in, and dispositions of, the assets of, and the
results of operations of, the Company and its subsidiaries. The
Company and each of its subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurances
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
accordance with generally accepted accounting principles 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.
(cc)
The Company has established and
maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15 under the Exchange Act), which: (i) are
designed to ensure that material information relating to the
Company is made known to the Company’s principal executive
officer and its principal financial officer by others within the
Company, particularly during the periods in which the periodic
reports required under the Exchange Act are required to be
prepared; (ii) provide for the periodic evaluation of the
effectiveness of such disclosure controls and procedures at the end
of the periods in which the periodic reports are required to be
prepared; and (iii) are effective in all material respects to
perform the functions for which they were
established.
(dd)
Based on the evaluation of its
disclosure controls and procedures, except as disclosed in the
Statutory Prospectus and the Prospectus, the Company is not aware
of (i) any material weakness or significant deficiency in the
design or operation of internal controls which could adversely
affect the Company’s ability to record, process, summarize
and report financial data or any material weaknesses in internal
controls; or (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the
Company’s internal controls.
(ee)
Except as described in the Statutory
Prospectus and the Prospectus and as preapproved in accordance with
the requirements set forth in Section 10A of the Exchange Act, the
Auditor has not been engaged by the Company to perform any
“prohibited activities” (as defined in Section 10A of
the Exchange Act).
(ff)
Except as described in the Statutory
Prospectus and the Prospectus, there are no material off-balance
sheet arrangements (as defined in Item 303 of Regulation S-K) that
have or are reasonably likely to have a material current or future
effect on the Company’s financial condition, revenues or
expenses, changes in financial condition, results of operations,
liquidity, capital expenditures or capital
resources.
(gg)
The Company’s Board of Directors
has validly appointed an audit committee whose composition
satisfies the requirements of Rule 5605 of the NASDAQ Stock Market
and the Board of Directors and/or the audit committee has adopted a
charter that satisfies the requirements of Rule 5605 of the NASDAQ
Stock Market. The audit committee has reviewed the adequacy of its
charter within the past twelve months.
(hh)
There is and has been no failure on
the part of the Company or any of its directors or officers, in
their capacities as such, to comply with any provision of the
Xxxxxxxx-Xxxxx Act, including, without limitation, Section 402
related to loans and Sections 302 and 906 related to
certifications.
(ii)
The Company and its subsidiaries are
insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are customary in the
businesses in which they are engaged or propose to engage after
giving effect to the transactions described in the Statutory
Prospectus and the Prospectus; all policies of insurance and
fidelity or surety bonds insuring the Company or any of its
subsidiaries or the Company's or its subsidiaries' respective
businesses, assets, employees, officers and directors are in full
force and effect; the Company and each of its subsidiaries are in
compliance with the terms of such policies and instruments in all
material respects; and neither the Company nor any subsidiary of
the Company has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that is not
materially greater than the current cost. Neither the Company nor
any of its subsidiaries has been denied any insurance coverage
which it has sought or for which it has
applied.
-8-
(jj)
Each approval, consent, order,
authorization, designation, declaration or filing of, by or with
any regulatory, administrative or other governmental body necessary
in connection with the execution and delivery by the Company of
this Agreement and the consummation of the transactions herein
contemplated required to be obtained or performed by the Company
(except such additional steps as may be required by the Financial
Industry Regulatory Authority ("FINRA") or may be necessary to
qualify the Securities for public offering by the Underwriters
under the state securities or Blue Sky laws) has been obtained or
made and is in full force and effect.
(kk)
There are no affiliations with FINRA
among the Company's officers, directors or, to the best of the
knowledge of the Company, any five percent or greater stockholder
of the Company, except as set forth in the Registration Statement,
the Statutory Prospectus and the Prospectus or otherwise disclosed
in writing to the Representative.
(ll)
(i) Each of the Company and each of its subsidiaries is in
compliance in all material respects with all rules, laws and
regulation relating to the use, treatment, storage and disposal of
toxic substances and protection of health or the environment
("Environmental Law") which are applicable to its business; (ii)
neither the Company nor its subsidiaries has received any notice
from any governmental authority or third party of an asserted claim
under Environmental Laws; (iii) each of the Company and each of its
subsidiaries has received all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its
business and is in compliance with all terms and conditions of any
such permit, license or approval; (iv) to the Company's knowledge,
no facts currently exist that will require the Company or any of
its subsidiaries to make future material capital expenditures to
comply with Environmental Laws; and (v) no property which is or has
been owned, leased or occupied by the Company or its subsidiaries
has been designated as a Superfund site pursuant to the
Comprehensive Environmental Response, Compensation of Liability Act
of 1980, as amended (42 U.S.C. Section 9601, et. seq.) or otherwise
designated as a contaminated site under applicable state or local
law. Neither the Company nor any of its subsidiaries has been named
as a "potentially responsible party" under the CERCLA
1980.
(mm)
In the ordinary course of its
business, the Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of
the Company and its subsidiaries, in the course of which the
Company identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect.
(nn)
The Company is not and, after giving
effect to the offering and sale of the Shares and the Warrants and
the application of proceeds thereof (including any cash exercise of
the Warrants) as described in the Statutory Prospectus and the
Prospectus, will not be an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(pp)
The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending, or to the best knowledge of
the Company, threatened.
-9-
(qq)
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(rr)
Except as described in the Statutory Prospectus and the Prospectus,
the Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the Prospectus,
including any sales pursuant to Rule 144A under, or Regulations D
or S of, the Securities Act, other than shares issued pursuant to
employee benefit plans, qualified stock options plans or other
employee compensation plans or pursuant to outstanding options,
rights or warrants.
(ss)
The Company has fulfilled its obligations, if any, under the
minimum funding standards of Section 302 of the U.S. Employee
Retirement Income Security Act of 1974 ("ERISA") and the
regulations and published interpretations thereunder with respect
to each "plan" as defined in Section 3(3) of ERISA and such
regulations and published interpretations in which its employees
are eligible to participate and each such plan is in compliance in
all material respects with the presently applicable provisions of
ERISA and such regulations and published interpretations. No
"Reportable Event" (as defined in 12 ERISA) has occurred with
respect to any "Pension Plan" (as defined in ERISA) for which the
Company could have any liability.
(tt)
None of the
Company, its directors or its officers has distributed nor will
distribute prior to the later of (i) the Closing Date and (ii)
completion of the distribution of the Shares and the Warrants, any
offering material in connection with the offering and sale of the
Shares and the Warrants other than any Preliminary Prospectus, the
Prospectus, the Registration Statement and other materials, if any,
permitted by the Securities Act and consistent with Section 3(d)
below.
(uu)
Except as described in the Registration Statement, the General
Disclosure Package and the Prospectus, the Company and each of its
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 sold, under development, manufactured or distributed by the
Company or any subsidiary (“Applicable Regulatory
Laws”); (B) have not received any Form 483 from the United
States Food and Drug Administration (“FDA”), notice of
adverse finding, warning letter, or other correspondence or written
notice from the FDA, the Drug Enforcement Administration
(“DEA”) or any other federal, state, local, national or
foreign governmental or regulatory authority alleging or asserting
noncompliance with any Applicable Regulatory Laws or any licenses,
certificates, approvals, clearances, authorizations, permits and
supplements or amendments thereto required by any such Applicable
Regulatory Laws (“Authorizations”); (C) possess all
Authorizations, if any, and such Authorizations are valid and in
full force and effect and neither the Company nor any subsidiary is
in material violation of any term of any such Authorizations; (D)
have not received written notice of any proceeding, hearing,
enforcement, investigation, arbitration or other action from the
FDA, the DEA, or any other federal, state, local, national or
foreign governmental or regulatory authority or third party
alleging that any product, operation or activity is in violation of
any Applicable Regulatory Laws or Authorizations and has no
knowledge that the FDA, the DEA or any other federal, state, local,
national or foreign governmental or regulatory authority or third
party is considering any such proceeding; (E) have not received
written notice that the FDA, DEA or any other federal, state,
local, national or foreign governmental or regulatory authority has
taken, is taking or intends to take action to limit, suspend,
modify or revoke any Authorizations and has no knowledge that the
FDA, DEA or any other federal, state, local, national or foreign
governmental or regulatory authority is considering such action;
(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 Regulatory 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 on the
Company and its subsidiaries, taken as a whole, and that all such
reports, documents, forms, notices, applications, records, claims,
submissions and supplements or amendments were complete and correct
on the date filed (or were corrected or supplemented by a
subsequent submission); and (G) has, and, if still pending, is, to
the Company’s knowledge, conducting all clinical and
preclinical studies in all material respects in accordance with
experimental protocols, procedures and controls
-10-
generally used by
qualified experts in the clinical or preclinical study of new drugs
or diagnostics as applied to comparable products to those being
developed by the Company. The descriptions of the results of such
studies, trials and tests contained in the Registration Statement,
the Statutory Prospectus and the Prospectus are accurate and
complete in all material respects, and except as set forth in the
Registration Statement, the Statutory Prospectus and the
Prospectus, the Company has no knowledge of any other trials,
studies or tests, the results of which the Company believes
reasonably calls into question the clinical trials, results
described or referred to in the Registration Statement and the
Prospectus when viewed in the context in which such results are
described and the clinical state of development.
3.
Conditions of the Underwriters’
Obligations. The obligations of the Underwriters under this
Agreement are several and not joint. The respective obligations of
the Underwriters to purchase the Shares and the Warrants are
subject to each of the following terms and conditions:
(a)
The Prospectus shall have been timely
filed with the Commission in accordance with Section 4(a) of this
Agreement and any material required to be filed by the Company
pursuant to Rule 433(d) of the Rules shall have been timely filed
with the Commission in accordance with such
rule.
(b)
No order preventing or suspending the use of any Preliminary
Prospectus, the Prospectus or any “free writing
prospectus” (as defined in Rule 405 of the Rules) shall have
been or shall be in effect and no order suspending the
effectiveness of the Registration Statement shall be in effect and
no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional
information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) shall have
been complied with to the satisfaction of the Commission and the
Representative. If the Company has elected to rely upon Rule 430B,
Rule 430B information previously omitted from the effective
Registration Statement pursuant to Rule 430B shall have been
transmitted to the Commission for filing pursuant to Rule 424(b)
within the prescribed time period and the Company shall have
provided evidence satisfactory to the Representative of such timely
filing, or a post-effective amendment providing such information
shall have been promptly filed and declared effective in accordance
with the requirements of Rule 430B.
(c)
The representations and warranties of
the Company contained in this Agreement and in the certificate
delivered pursuant to Section 3(d) shall be true and correct when
made and on and as of the Closing Date as if made on such date. The
Company shall have performed all covenants and agreements and
satisfied all the conditions contained in this Agreement required
to be performed or satisfied by them at or before the Closing
Date.
(d)
The Representative shall have received
on the Closing Date a certificate, addressed to the Representative
and dated the Closing Date, of the chief executive or chief
operating officer and the chief financial officer or chief
accounting officer of the Company to the effect that: (i) the
representations, warranties and agreements of the Company in this
Agreement were true and correct when made and are true and correct
as of the Closing Date; (ii) the Company has performed all
covenants and agreements and satisfied all conditions contained
herein; (iii) they have carefully examined the Registration
Statement, the Prospectus, the General Disclosure Package and any
Issuer Free Writing Prospectus, and in their opinion (A) as of the
Effective Date the Registration Statement and Prospectus did not
include, and as of the Applicable Time, neither (i) the General
Disclosure Package, nor (ii) any individual Issuer Free Writing
Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact and did
not omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (B)
since the Effective Date no event has occurred which should have
been set forth in a supplement or otherwise required an amendment
to the Registration Statement, the Statutory Prospectus or the
Prospectus; (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and, to their knowledge, no
proceedings for that purpose have been instituted or are pending
under the Securities Act and (v) there has not occurred any
material adverse change in the assets, properties, condition,
financial or otherwise, or in the results of operations, business
affairs or business prospects of the Company and its subsidiaries
considered as a whole.
-11-
(e)
The Representative shall have
received: (i) simultaneously with the execution of this Agreement a
signed letter from the Auditor addressed to the Representative and
dated the date of this Agreement, in form and substance reasonably
satisfactory to the Representative , containing statements and
information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Disclosure Package, and (ii) on
the Closing Date, a signed letter from the Auditor addressed to the
Representative and dated the date of the Closing Date, in form and
substance reasonably satisfactory to the Representative containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus.
(f)
The Representative shall have received
on the Closing Date from Disclosure Law Group, a Professional
Corporation, counsel for the Company, an opinion and negative
assurance statement, addressed to the Representative and dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative.
(g)
The Representative shall have received
on the Closing Date from Xxxx Xxxxx, Esq., intellectual property
counsel for the Company, an opinion and negative assurance
statement, addressed to the Representative and dated the Closing
Date, in form and substance reasonably satisfactory to the
Representative.
(h)
The Representative shall have received on the Closing Date from
Xxxxxxxxxx Xxxxxxx LLP, counsel for the Representative, an opinion
and negative assurance statement, addressed to the Representative
and dated the Closing Date, in form and substance reasonably
satisfactory to the Representative.
(i)
All proceedings taken in connection with the sale of the Shares and
the Warrants as herein contemplated shall be reasonably
satisfactory in form and substance to the Representative and its
counsel.
(j)
On or prior to the execution and delivery of this Agreement, the
Representative shall have received copies of the Lock-up Agreements
executed by each entity or person listed on Schedule II
hereto.
(k)
The Company shall have submitted a Notification Form: Listing of
Additional Shares Application with the Nasdaq Capital Market with
respect to the Shares and Warrant Shares and the Nasdaq Capital
Market shall have raised no objection with respect to the listing
of the Shares and the Warrant Shares which has not been resolved to
the reasonable satisfaction of the Representative on or before the
Closing Date.
(l)
The Representative shall be reasonably satisfied that since the
respective dates as of which information is given in the
Registration Statement, the Statutory Prospectus, the General
Disclosure Package and the Prospectus, (i) there shall not have
been any material change in the capital stock of the Company or any
material change in the indebtedness (other than in the ordinary
course of business) of the Company, (ii) except as set forth or
contemplated by the Registration Statement, the Statutory
Prospectus, the General Disclosure Package or the Prospectus, no
material oral or written agreement or other transaction shall have
been entered into by the Company that is not in the ordinary course
of business or that could reasonably be expected to result in a
material reduction in the future earnings of the Company, (iii) no
loss or damage (whether or not insured) to the property of the
Company shall have been sustained that had or could reasonably be
expected to have a Material Adverse Effect, (iv) no legal or
governmental action, suit or proceeding affecting the Company or
any of its properties that is material to the Company or that
affects or could reasonably be expected to affect the transactions
contemplated by this Agreement shall have been instituted or
threatened and (v) there shall not have been any material change in
the assets, properties, condition (financial or otherwise), or in
the results of operations, business affairs or business prospects
of the Company or its subsidiaries considered as a whole that makes
it impractical or inadvisable in the Representative’s
judgment to proceed with the purchase or offering of the Shares and
the Warrants as contemplated hereby.
(m)
On or before the Closing Date, FINRA shall have confirmed that it
has not raised any objection with respect to the fairness and
reasonableness of the underwriting terms and agreements in
connection with the offering of the Shares and the
Warrants.
(n)
The Company shall have furnished or caused to be furnished to the
Representative such further certificates or documents as the
Representative shall have reasonably requested.
-12-
4.
Covenants and other Agreements of the
Company and the Underwriters.
(a)
The Company covenants and agrees as follows:
(i) The Company shall prepare the Prospectus in a form
approved by the Representative and file such Prospectus pursuant to
Rule 424(b) under the Securities Act not later than the
Commission's close of business on the second business day following
the execution and delivery of this Agreement, or, if applicable,
such earlier time as may be required by the Rules. The Company will
file with the Commission all Issuer Free Writing Prospectuses in
the time and manner required under Rules 433(d) or 163(b)(2) as the
case may be.
(ii)
The
Company shall promptly advise the Representative in writing (A)
when any post-effective amendment to the Registration Statement
shall have become effective or any supplement to the Prospectus
shall have been filed, (B) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for
any additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus or any “free writing
prospectus,” as defined in Rule 405 of the Rules, or the
institution or threatening of any proceeding for that purpose and
(D) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company shall not file any
amendment of the Registration Statement or supplement to the
Prospectus, or any Issuer Free Writing Prospectus unless the
Company has furnished the Representative a copy for its review
prior to filing and shall not file any such proposed amendment or
supplement to which the Representative reasonably objects. The
Company shall use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(iii)
If,
at any time when a prospectus relating to the Securities (or, in
lieu thereof, the notice referred to in Rule 173(a) of the Rules)
is required to be delivered under the Securities Act and any event
occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Securities Act or the
Rules, the Company promptly shall prepare and file with the
Commission, subject to the second sentence of paragraph (ii) of
this Section 4(a), an amendment or supplement which shall correct
such statement or omission or an amendment which shall effect such
compliance.
(iv)
If
at any time following issuance of an Issuer Free Writing Prospectus
there occurs an event or development as a result of which such
Issuer Free Writing Prospectus would conflict with the information
contained in the Registration Statement or would include an untrue
statement of a material fact or would omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances prevailing at
the subsequent time, not misleading, the Company will promptly
notify the Representative and will promptly amend or supplement, at
its own expense, such Issuer Free Writing Prospectus to eliminate
or correct such conflict, untrue statement or
omission.
-13-
(v)
The
Company shall make generally available to its security holders and
to the Representative as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of
the fiscal quarter of the Company during which the Effective Date
occurs (or 90 days if such 12-month period coincides with the
Company's fiscal year), an earning statement (which need not be
audited) of the Company, covering such 12-month period, which shall
satisfy the provisions of Section 11(a) of the Securities Act or
Rule 158 of the Rules.
(vi)
The Company shall furnish to the Representative
and its counsel, without charge, signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof)
and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and
all amendments thereof and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Securities Act or
the Rules, as many copies of any Preliminary Prospectus, any Issuer
Free Writing Prospectus and the Prospectus and any amendments
thereof and supplements thereto as the Representative may
reasonably request. If applicable, the copies of the Registration
Statement, preliminary prospectus, any Issuer Free Writing
Prospectus and Prospectus and each amendment and supplement thereto
furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(vii)
The
Company shall cooperate with the Representative and its counsel in
endeavoring to qualify the Securities for offer and sale in
connection with the offering under the laws of such jurisdictions
as the Representative may designate and shall maintain such
qualifications in effect so long as required for the distribution
of the Shares and the Warrants; provided, however, that the Company
shall not be required in connection therewith, as a condition
thereof, to qualify as a foreign corporation or to execute a
general consent to service of process in any jurisdiction or
subject itself to taxation as doing business in any
jurisdiction.
(viii)
The
Company, during the period when the Prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) of the Rules) is required to
be delivered under the Securities Act and the Rules or the Exchange
Act, will file all reports and other documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the
Exchange Act within the time periods required by the Exchange Act
and the regulations promulgated thereunder.
(ix)
Without the prior written consent of the
Representative, for a period of 90 days after the date of this
Agreement, the Company shall not issue, sell or register with the
Commission (other than on Form S-8 or on any successor form), or
otherwise dispose of, directly or indirectly, any equity securities
of the Company (or any securities convertible into, exercisable for
or exchangeable for equity securities of the Company), exceptfor
(i) the issuance of the Securities pursuant to the Registration
Statement; (ii) the issuance of shares pursuant to the Company's
existing stock option plan or bonus plan as described in the
Registration Statement and the Prospectus; and (iii) the issuance
of up to 500,000 shares (appropriately adjusted for any
stock split, reverse stock split, stock dividend or other
reclassification or combination of the Common Stock occurring after
the date hereof) of unregistered
Common Stock to consultants or other third parties in satisfaction
of accounts payable. In the event that during this period, (A) any
shares are issued pursuant to the Company's existing stock option
plan or bonus plan that are exercisable during such 90 day period
or (B) any registration is effected on Form S-8 or on any successor
form relating to shares that are exercisable during such 90 day
period, the Company shall obtain the written agreement of such
grantee or purchaser or holder of such registered securities that,
for a period of 90 days after the date of this Agreement, such
person will not, without the prior written consent of the
Representative, offer for sale, sell, distribute, grant any option
for the sale of, or otherwise dispose of, directly or indirectly,
or exercise any registration rights with respect to, any shares of
Common Stock (or any securities convertible into, exercisable for,
or exchangeable for any shares of Common Stock) owned by such
person. Notwithstanding the foregoing, the Company represents and
warrants that each such grantee or purchaser or holder of such
registered securities shall be subject to similar lockup
restrictions as set forth on Exhibit A attached hereto and the
Company shall enforce such rights and impose stop-transfer
restrictions on any such sale or other transfer or disposition of
such shares until the end of the applicable
period.
-14-
(x)
On
or before completion of this offering, the Company shall make all
filings required under applicable securities laws and by the Nasdaq
Capital Market.
(xi)
Prior
to the Closing Date, the Company will issue no press release or
other communications directly or indirectly and hold no press
conference with respect to the Company, the condition, financial or
otherwise, or the earnings, business affairs or business prospects
of any of them, or the offering of the Securities without the prior
written consent of the Representative unless in the judgment of the
Company and its counsel, and after notification to the
Representative, such press release or communication is required by
law.
(xii)
The
Company will apply the net proceeds from the offering of the Shares
and the Warrants in the manner set forth under "Use of Proceeds" in
the Prospectus.
(b)
The Company agrees to pay, or reimburse if paid by the
Representative, whether or not the transactions contemplated hereby
are consummated or this Agreement is terminated, all costs and
expenses incident to the public offering of the Securities and the
performance of the obligations of the Company under this Agreement
including those relating to: (i) the preparation, printing,
reproduction filing and distribution of the Registration Statement
including all exhibits thereto, each Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus, all amendments and
supplements thereto, and the printing, filing and distribution of
this Agreement; (ii) the preparation and delivery of certificates
for the Warrants to or as directed by the Underwriters (iii) the
registration or qualification of the Securities for offer and sale
under the securities or Blue Sky laws of the various jurisdictions
referred to inSection 4(a)(vii) of this Agreement, including the
reasonable fees and disbursements of counsel for the Representative
in connection with such registration and qualification and the
preparation, printing, distribution and shipment of preliminary and
supplementary Blue Sky memoranda; (iv) the furnishing (including
costs of shipping and mailing) to the Underwriters of copies of
each Preliminary Prospectus, the Prospectus and all amendments or
supplements to the Prospectus, any Issuer Free Writing Prospectus
and of the several documents required by this Section to be so
furnished, as may be reasonably requested for use in connection
with the offering and sale of the Shares and the Warrants by the
Underwriters or by dealers to whom Shares and Warrants may be sold;
(v) the filing fees of FINRA in connection with its review of the
terms of the public offering and reasonable fees and disbursements
of counsel for the Representative in connection with such review;
(vi) listing of the Shares and the Warrant Shares on the Nasdaq
Capital Market; and (vii) all transfer taxes, if any, with respect
to the sale and delivery of the Shares and the Warrants by the
Company to the Underwriters. The Company will reimburse the
Representative for its reasonable expenses, in an amount not to
exceed $20,000 without prior written approval by the Company, and
will reimburse the Representative for legal fees and disbursements,
in connection with the purchase and sale of the Shares and the
Warrants contemplated hereby in an amount not to
exceed100,000 (including
amounts payable pursuant to clauses (iii) and (v) above).
provided, however, in the event the gross proceeds from the
offering exceed $10.0 million, such amount shall not exceed
$125,000. Subject to the provisions of
Section 7, the Underwriters agree to pay, whether or not the
transactions contemplated hereby are consummated or this Agreement
is terminated, all costs and expenses incident to the performance
of the obligations of the Underwriters under this Agreement not
payable by the Company pursuant to this paragraph, including,
without limitation, the fees and disbursements of counsel for the
Underwriters in excess of the Company’s reimbursement
obligation as set forth above.
(c) The
Company acknowledges and agrees that each of the
Underwriters has acted and is acting solely in the capacity of a
principal in an arm’s length transaction between the Company,
on the one hand, and the Underwriters, on the other hand, with
respect to the offering of the Shares and the Warrants contemplated
hereby (including in connection with determining the terms of the
offering) and not as a financial advisor, agent or fiduciary to the
Company or any other person. Additionally, the Company acknowledges
and agrees that the Underwriters have not and will not advise the
Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
has consulted with its own advisors concerning such matters and
shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the
Company or any other person with respect thereto, whether arising
prior to or after the date hereof. Any review by the Underwriters
of the Company, the transactions contemplated hereby or other
matters relating to such transactions have been and will be
performed solely for the benefit of the Underwriters and shall not
be on behalf of the Company. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory
services of any nature or respect, or owes a fiduciary duty to the
Company or any other person in connection with any such transaction
or the process leading thereto
-15-
(d)
The Company represents and agrees
that, unless it obtains the prior consent of the Representative,
and the Representative represents and agrees that, unless it
obtains the prior consent of the Company, it has not made and will
not make any offer relating to the Shares that would constitute an
“issuer free writing prospectus,” as defined in
Rule 433, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to
be filed with the Commission. The Company has complied and will
comply with the requirements of Rule 433 under the Act applicable
to any Issuer Free Writing Prospectus, including timely filing with
the Commission where required, legending and record keeping. The
Company represents that is has satisfied and agrees that it will
satisfy the conditions set forth in Rule 433 of the Rules to avoid
a requirement to file with the Commission any Road
Show.
5. Indemnification
(a)
The Company agrees to indemnify and hold harmless each Underwriter,
its officers and employees and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all losses,
claims, damages and liabilities, joint or several (including any
reasonable investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted), to which they, or any of
them, may become subject under the Securities Act, the Exchange Act
or other Federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement, the Statutory Prospectus,
the Prospectus, any Issuer Free Writing Prospectus or any
“issuer-information” filed or required to be filed
pursuant to Rule 433(d) of the Rules, any amendment thereof or
supplement thereto, or in any Blue Sky application or other
information or other documents executed by the Company filed in any
state or other jurisdiction to qualify any or all of the Securities
under the securities laws thereof (any such application, document
or information being hereinafter referred to as a "Blue Sky
Application") or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (except
in the case of the Registration Statement, in light of the
circumstances under which they were made) not misleading; provided,
however, that such indemnity shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) on account
of any losses, claims, damages or liabilities arising from the sale
of the Shares and the Warrants to any person by such Underwriter if
such untrue statement or omission or alleged untrue statement or
omission was made in such preliminary prospectus, the Registration
Statement, the Prospectus, the Statutory Prospectus, any Issuer
Free Writing Prospectus or such amendment or supplement thereto, or
in any Blue Sky Application in reliance upon and in conformity with
the Underwriter Information. This indemnity agreement will be in
addition to any liability which the Company may otherwise
have.
(b)
Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company 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, each director of the Company,
and each officer of the Company who signs the Registration
Statement, against any losses, claims, damages or liabilities to
which such party may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration
Statement, the Statutory Prospectus, the Prospectus, or any Issuer
Free Writing Prospectus or any “issuer-information”
filed or required to be filed pursuant to Rule 433(d) of the Rules,
or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Statutory
Prospectus, the Prospectus, any Issuer Free Writing Prospectus or
any such amendment or supplement thereto in reliance upon and in
conformity with the Underwriter Information; provided, however,
that the obligation of each Underwriter to indemnify the Company
(including any controlling person, director or officer thereof)
shall be limited to the amount of the underwriting discount and
commissions applicable to the Shares and the Warrants to be
purchased by such Underwriter hereunder.
-16-
(c)
Any party that proposes to assert the right to be indemnified under
this Section will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of
which a claim is to be made against an indemnifying party or
parties under this Section, notify each such indemnifying party of
the commencement of such action, suit or proceeding, enclosing a
copy of all papers served. No indemnification provided for in
Section 5(a) or 5(b) shall be available to any party who shall fail
to give notice as provided in this Section 5(c) if the party to
whom notice was not given was unaware of the proceeding to which
such notice would have related and was prejudiced by the failure to
give such notice but the omission so to notify such indemnifying
party of any such action, suit or proceeding shall not relieve it
from any liability that it may have to any indemnified party for
contribution or otherwise than under this Section. In case any such
action, suit or proceeding shall be brought against any indemnified
party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof and the approval by the indemnified party of such counsel,
the indemnifying party shall not be liable to such indemnified
party for any legal or other expenses, except as provided below and
except for the reasonable costs of investigation subsequently
incurred by such indemnified party in connection with the defense
thereof. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless
(i) the employment of counsel by such indemnified party has been
authorized in writing by the indemnifying parties, (ii) the
indemnified party shall have been advised by counsel that there may
be one or more legal defenses available to it which are different
from or in addition to those available to the indemnifying party
(in which case the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the indemnified
party) or (iii) the indemnifying parties shall not have employed
counsel to assume the defense of such action within a reasonable
time after notice of the commencement thereof, in each of which
cases the fees and expenses of counsel shall be at the expense of
the indemnifying parties. An indemnifying party shall not be liable
for any settlement of any action, suit, and proceeding or claim
effected without its written consent, which consent shall not be
unreasonably withheld or delayed.
6.
Contribution. In order to
provide for just and equitable contribution in circumstances in
which the indemnification provided for in Section 5(a) or 5(b) is
due in accordance with its terms but for any reason is unavailable
to or insufficient to hold harmless an indemnified party in respect
to any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the
aggregate losses, liabilities, claims, damages and expenses
(including any investigation, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claims asserted, but after
deducting any contribution received by any person entitled
hereunder to contribution from any person who may be liable for
contribution) incurred by such indemnified party, as incurred, in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares and the Warrants
pursuant to this Agreement or, if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the
relative fault of the Company on the one hand and the Underwriters
on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to above. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission
or alleged omission. Notwithstanding the provisions of this Section
6, no Underwriter (except as may be provided in the Agreement Among
Underwriters) shall be required to contribute any amount in excess
of the underwriting discounts and commissions applicable
to the Shares and the Warrants
purchased by such Underwriter. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 6, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of
-17-
the
Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within
the meaning of the Section 15 of the Securities Act or Section 20
of the Exchange Act, shall have the same rights to contribution as
the Company. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under
this Section 6, notify such party or parties from whom contribution
may be sought, but the omission so to notify such party or parties
from whom contribution may be sought shall not relieve the party or
parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under
this Section 6. No party shall be liable for contribution with
respect to any action, suit, proceeding or claim settled without
its written consent. The Underwriters’ obligations to
contribute pursuant to this Section 6 are several in proportion to
their respective underwriting commitments and not
joint.
7.
Termination.
(a)
This Agreement may be terminated with respect to the Shares and the
Warrants to be purchased at the Closing Date by the Representative
by notifying the Company at any time at or before the Closing Date
in the absolute discretion of the Representative if: (i) there has
occurred any material adverse change in the securities markets or
any event, act or occurrence that has materially disrupted, or in
the opinion of the Representative, will in the future materially
disrupt, the securities markets or there shall be such a material
adverse change in general financial, political or economic
conditions or the effect of international conditions on the
financial markets in the United States is such as to make it, in
the judgment of the Representative, inadvisable or impracticable to
market the Shares and the Warrants or enforce contracts for the
sale of the Shares and the Warrants; (ii) there has occurred any
outbreak or material escalation of hostilities or acts of terrorism
or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment
of the Representative, inadvisable or impracticable to market the
Shares and the Warrants or enforce contracts for the sale of the
Shares and the Warrants; (iii) trading in the Shares or any
securities of the Company has been suspended or materially limited
by the Commission or trading generally on the New York Stock
Exchange, Inc., the NYSE American or the Nasdaq Stock Market has
been suspended or materially limited, or minimum or maximum ranges
for prices for securities shall have been fixed, or maximum ranges
for prices for securities have been required, by any of said
exchanges or by such system or by order of the Commission, FINRA,
or any other governmental or regulatory authority; or (iv) a
banking moratorium has been declared by any state or Federal
authority; or (v) in the judgment of the Representative, there has
been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the
Prospectus, any material adverse change in the assets, properties,
condition, financial or otherwise, or in the results of operations,
business affairs or business prospects of the Company and its
subsidiaries considered as a whole, whether or not arising in the
ordinary course of business.
(b)
If this Agreement is terminated pursuant to any of its provisions,
the Company shall not be under any liability to any Underwriter,
and no Underwriter shall be under any liability to the Company,
except that (x) if this Agreement is terminated by the
Representative because of any failure, refusal or inability on the
part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the
reasonable fees and disbursements of their counsel) incurred by
them in connection with the proposed purchase and sale of the
Shares and the Warrants or in contemplation of performing their
obligations hereunder and (y) no Underwriter who shall have failed
or refused to purchase the Shares and the Warrants agreed to be
purchased by it under this Agreement, without some reason
sufficient hereunder to justify cancellation or termination of its
obligations under this Agreement shall be relieved of liability to
the Company or to the other Underwriters for damages occasioned by
its failure or refusal.
-18-
8.
Substitution of Underwriters.
If any Underwriter shall default in its obligation to purchase on
the Closing Date the Shares and Warrants agreed to be purchased
hereunder on the Closing Date, the Representative shall have the
right, within 36 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters,
to purchase such Shares and Warrants on the terms contained
herein. If, however, the Representative shall not have
completed such arrangements within such 36-hour period, then the
Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory
to the Underwriters to purchase such Shares and Warrants on such
terms. If, after giving effect to any arrangements for the
purchase of the Shares and Warrants of a defaulting Underwriter or
Underwriters by the Representative and the Company as provided
above, the aggregate number of Shares and Warrants which remains
unpurchased on the Closing Date does not exceed one-eleventh of the
aggregate number of all the Shares and Warrants that all the
Underwriters are obligated to purchase on such date, then the
Company shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares and Warrants which
such Underwriter agreed to purchase hereunder at such date and, in
addition, to require each non-defaulting Underwriter to purchase
its pro rata share (based on the number of Shares and Warrants
which such Underwriter agreed to purchase hereunder) of the Shares
and Warrants of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its
default. In any such case, either the Representative or the
Company shall have the right to postpone the Closing Date for a
period of not more than seven days in order to effect any necessary
changes and arrangements (including any necessary amendments or
supplements to the Registration Statement or Prospectus or any
other documents), and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in
the opinion of the Company and the Underwriters and their counsel
may thereby be made necessary.
If, after
giving effect to any arrangements for the purchase of the Shares
and Warrants of a defaulting Underwriter or Underwriters by the
Representative and the Company as provided above, the aggregate
number of such Shares and Warrants which remains unpurchased
exceeds 10% of the aggregate number of all the Shares and Warrants
to be purchased at such date, then this Agreement shall terminate,
without liability on the part of any non-defaulting Underwriter to
the Company, and without liability on the part of the Company,
except as provided in Sections 4(b), 5, 6 and 7. The
provisions of this Section 8 shall not in any way affect the
liability of any defaulting Underwriter to the Company or the
nondefaulting Underwriters arising out of such default. The
term “Underwriter” as used in this Agreement shall
include any person substituted under this Section 8 with like
effect as if such person had originally been a party to this
Agreement with respect to such Shares.
9.
Miscellaneous.
The
respective agreements, representations, warranties, indemnities and
other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them
pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of the any Underwriter or the Company
or any of their respective officers, directors or controlling
persons referred to in Sections 5 and 6 hereof, and shall survive
delivery of and payment for the Shares and the Warrants. In
addition, the provisions of Sections 4(b), 5, 6 and 7 shall survive
the termination or cancellation of this Agreement.
This
Agreement has been and is made for the benefit of the Underwriters,
the Company and their respective successors and assigns, and, to
the extent expressed herein, for the benefit of persons controlling
any of the Underwriters, or the Company, and directors and officers
of the Company, and their respective successors and assigns, and no
other person shall acquire or have any right under or by virtue of
this Agreement. The term "successors and assigns" shall not include
any purchaser of Shares and Warrants from an Underwriter merely
because of such purchase.
-19-
All
notices and communications hereunder shall be in writing and mailed
or delivered or by telephone or telegraph if subsequently confirmed
in writing, (a) if to the Representative, c/o Oppenheimer & Co.
Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Equity
Capital Markets, with a copy to Xxxxxxxxxxx & Co. Inc., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: General Counsel,
and to Xxxxxxxxxx Xxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxxx and (b) if to the Company, to its
agent for service as such agent's address appears on the cover page
of the Registration Statement with a copy to Disclosure Law Group,
a Professional Corporation, 000 Xxxx Xxxxxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx, 00000, Attention: Xxxxxxx Xxxxxxxx.
This Agreement shall be governed by and
construed in accordance with the laws of the State of New
York. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
-20-
Please
confirm that the foregoing correctly sets forth the agreement among
us.
|
|
Very truly
yours,
By:
/s/ Xxxxx X.
Xxxxx
Name: Xxxxx X. Xxxxx
Title: Chief
Executive Officer
|
-21-
Confirmed:
XXXXXXXXXXX &
CO. INC.
By: /s/ Xxxx
Xxxxxxx
Name: Xxxx
Xxxxxxx
Title:
Managing Director
Acting
severally on behalf of itself and as
Representative of
the several Underwriters
Named
in Schedule I annexed hereto
XXXXXXXXXXX &
CO. INC.
By: /s/ Xxxx
Xxxxxxx
Name: Xxxx
Xxxxxxx
Title:
Managing Director
-22-
SCHEDULE
I
|
|
|
|
|
|
Name
|
|
Number
of Shares
to
Be
Purchased
|
Number
of Warrants to
Be
Purchased
|
|
|
|
|
|
|
Xxxxxxxxxxx &
Co. Inc.
|
|
7,500,000
|
7,500,000
|
|
|
|
|
|
|
Chardan Capital
Markets, LLC
|
|
2,500,000
|
2,500,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
10,000,000
|
10,000,000
|
|
|
|
|
|
-23-
SCHEDULE
II
Lock-up
Signatories
Xxxxx
X. Xxxxx
H.
Xxxxx Xxxxxxxxx,
Ph.D.
Xxx X.
Xxxx
Xxxxx
X. Xxxxxxxxx,
PhD.
Xxxxx
X. Xxx, Ph.D,
MBA
Xxxx X.
Xxxxx, M.D.,
Ph.D.
Xxxxxxx
X. Xxxxxx, CPA
Xxxx X.
XxXxxxxxxx
-24-
SCHEDULE
III
Pricing
Information (to be provided orally only)
Number
of Shares to be Issued: 10,000,000 shares of Common
Stock
Number
of Warrants to be Issued: Warrants to purchase up to 10,000,000
shares of Common Stock
Warrant
Coverage: 100%
Warrant
Exercise Price: $1.50 per share
Public
Offering Price: $1.50 per share and related Warrant
Underwriting
Discount: 7.0%
-25-
SCHEDULE
IV
Issuer
Free Writing Prospectuses
None.
-26-
