Exhibit 1.1
EXECUTION VERSION
Endocyte,
Inc.
$60,000,000
COMMON STOCK
SALES AGREEMENT
December
20, 2013
Xxxxx and Company, LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Endocyte, Inc. (the
“Company”), confirms its agreement (this “Agreement”) with Xxxxx and Company,
LLC (“Cowen”), as follows:
1. Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may issue and sell through Cowen, acting as agent and/or principal, shares of the Company’s
common stock, par value $0.001 per share (the “Common Stock”), having an aggregate offering price of
up to $60,000,000. Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the
limitation set forth in this Section 1 on the number of shares of Common Stock issued and sold under this Agreement shall
be the sole responsibility of the Company, and Cowen shall have no obligation in connection with such compliance. The issuance
and sale of Common Stock through Cowen will be effected pursuant to the Registration Statement (as defined below) filed by the
Company and declared effective by the Securities and Exchange Commission (the “Commission”), although
nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below) to issue
the Common Stock.
The Company has filed,
in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the “Securities Act”), with the Commission a registration statement on Form S-3 (File No. 333-187334),
including a base prospectus, relating to certain securities, including the Common Stock, to be issued from time to time by the
Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions
of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange
Act”). The Company has prepared a prospectus supplement specifically relating to the Common Stock (the “Prospectus
Supplement”) to the base prospectus included as part of such registration statement. The Company has furnished to
Cowen, for use by Cowen, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus
Supplement, relating to the Common Stock. Except where the context otherwise requires, such registration statement, as amended
when it became effective, including all documents filed as part thereof or incorporated by reference therein, and including any
information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the
Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) of the Securities Act, is
herein called the “Registration Statement.” The base prospectus, including all documents incorporated
therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form
in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant
to Rule 424(b) under the Securities Act, together with any “issuer free writing prospectus,” as defined in Rule 433
of the Securities Act (“Rule 433”), relating to the Common Stock that (i) is required to be filed with
the Commission by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the form filed or required
to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g), is herein called the “Prospectus.” Any reference herein to the Registration Statement, the
Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference
therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect
to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of
any document with the Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all references
to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed
with the Commission pursuant to either the Electronic Data Gathering Analysis and Retrieval System or Interactive Data Electronic
Applications (collectively “IDEA”).
2. Placements.
Each time that the Company wishes to issue and sell the Common Stock hereunder (each, a “Placement”),
it will notify Cowen by email notice (or other method mutually agreed to in writing by the parties) (a “Placement Notice”)
containing the parameters in accordance with which it desires the Common Stock to be sold, which shall at a minimum include the
number of shares of Common Stock to be issued (the “Placement Shares”), the time period during which
sales are requested to be made, any limitation on the number of shares of Common Stock that may be sold in any one Trading Day
(as defined in Section 3) and any minimum price below which sales may not be made, a form of which containing such minimum
sales parameters necessary is attached hereto as Schedule 1. The Placement Notice shall originate from any of the
individuals from the Company set forth on Schedule 2 (with a copy to each of the other individuals from the Company
listed on such schedule), and shall be addressed to each of the individuals from Cowen set forth on Schedule 2, as
such Schedule 2 may be amended from time to time. The Placement Notice shall be effective upon receipt by Cowen unless
and until (i) in accordance with the notice requirements set forth in Section 4, Cowen declines to accept the terms contained
therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares have been sold, (iii) in accordance
with the notice requirements set forth in Section 4, the Company suspends or terminates the Placement Notice, (iv) the Company
issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (v) the Agreement
has been terminated under the provisions of Section 11. The amount of any discount, commission or other compensation to
be paid by the Company to Cowen in connection with the sale of the Placement Shares shall be as set forth in Schedule 3.
It is expressly acknowledged and agreed that neither the Company nor Cowen will have any obligation whatsoever with respect to
a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to Cowen and Cowen does not decline
such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified therein and herein. In the
event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice
will control.
3. Sale
of Placement Shares by Cowen. Subject to the terms and conditions herein set forth, upon the Company’s issuance of a
Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated
in accordance with the terms of this Agreement, Cowen, for the period specified in the Placement Notice, will use its commercially
reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations
and the rules of the Nasdaq Stock Market, Inc. (“Nasdaq”) to sell such Placement Shares up to the amount
specified, and otherwise in accordance with the terms of such Placement Notice. Cowen will provide written confirmation to the
Company (including by email correspondence to each of the individuals of the Company set forth on Schedule 2, if
receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply)
no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales
of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company
to Cowen pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company,
with an itemization of the deductions made by Cowen (as set forth in Section 5(a)) from the gross proceeds that it
receives from such sales. Subject to the terms of the Placement Notice, Cowen may sell Placement Shares by any method permitted
by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation
sales made through Nasdaq, on any other existing trading market for the Common Stock or to or through a market maker. If expressly
authorized by the Company in a Placement Notice, Cowen may also sell Placement Shares in negotiated transactions. Notwithstanding
the provisions of Section 6(dd), Cowen shall not purchase Placement Shares for its own account as principal unless expressly
authorized to do so by the Company in a Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance
that Cowen will be successful in selling Placement Shares, and (ii) Cowen will incur no liability or obligation to the Company
or any other person or entity if it does not sell Placement Shares for any reason other than a failure by Cowen to use its commercially
reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement
Shares as required under this Section 3. During the term of this
Agreement and notwithstanding anything to the contrary herein, Cowen agrees that in no event will Cowen or its affiliates engage
in any market making, bidding, stabilization or other trading activity with regard to the Common Stock or related derivative securities
if such activity would be prohibited under Regulation M or other anti-manipulation rules under the Securities Act. For the
purposes hereof, “Trading Day” means any day on which the Company’s Common Stock is purchased and
sold on the principal market on which the Common Stock is listed or quoted.
4. Suspension
of Sales.
(a) The
Company or Cowen may, upon notice to the other party in writing (including by email correspondence to each of the individuals of
the other party set forth on Schedule 2, if receipt of such correspondence is actually acknowledged by any of the
individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile
transmission or email correspondence to each of the individuals of the other party set forth on Schedule 2), suspend
any sale of Placement Shares; provided, however, that such suspension shall not affect or impair either party’s obligations
with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees that no such
notice under this Section 4 shall be effective against the other unless it is made to one of the individuals named on Schedule
2 hereto, as such schedule may be amended from time to time.
(b) Notwithstanding
any other provision of this Agreement, during any period in which the Company is in possession of material non-public information,
the Company and Cowen agree that (i) no sale of Placement Shares will take place, (ii) the Company shall not request the sale of
any Placement Shares, and (iii) Cowen shall not be obligated to sell or offer to sell any Placement Shares.
(c) If
either Cowen or the Company has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under
the Exchange Act are not satisfied with respect to the Common Stock, it shall promptly notify the other party, and Cowen may, at
its sole discretion, suspend sales of the Placement Shares under this Agreement. Cowen shall calculate on a weekly basis the average
daily trading volume (as defined by Rule 100 of Regulation M under the Exchange Act) of the Common Stock.
5. Settlement.
(a) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the third (3rd) Trading Day (or such earlier day as is industry practice for regular-way trading) following
the date on which such sales are made (each, a “Settlement Date” and the first such settlement date,
the “First Delivery Date”). The amount of proceeds to be delivered to the Company on a Settlement Date
against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate sales
price received by Cowen at which such Placement Shares were sold, after deduction for (i) Xxxxx’x commission, discount
or other compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction fees
imposed by any governmental or self-regulatory organization in respect of such sales.
(b) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting Xxxxx’x or its designee’s account (provided Cowen shall have
given the Company written notice of such designee prior to the Settlement Date) at The Depository Trust Company through its Deposit
and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which
in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date, Cowen
will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement
Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver duly
authorized Placement Shares on a Settlement Date, the Company agrees that in addition to and in no way limiting the rights and
obligations set forth in Section 9(a) (Indemnification and Contribution) hereto, it will (i) hold Cowen harmless against
any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection
with such default by the Company and (ii) pay to Cowen any commission, discount, or other compensation to which it would otherwise
have been entitled absent such default.
6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with, Cowen that as of the date of this Agreement
and as of each Applicable Time (as defined in Section 21(a)):
(a) Compliance
with Registration Requirements. The Registration Statement and any Rule 462(b) Registration Statement have been declared
effective by the Commission under the Securities Act. The Company has complied to the Commission’s satisfaction with all
requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been instituted
or are pending or, to the best knowledge of the Company, are contemplated or threatened by the Commission. The Company meets the
requirements for use of Form S-3 under the Securities Act. The sale of the Placement Shares hereunder meets the requirements of
General Instruction I.B.1 of Form S-3.
(b) No
Misstatement or Omission. The Prospectus when filed complied and, as amended or supplemented, if applicable, will comply in
all material respects with the Securities Act. Each of the Registration Statement, any Rule 462(b) Registration Statement
and any post-effective amendment thereto, at the time it became effective, complied and, as of each of the Settlement Dates, if
any, will comply in all material respects with the Securities Act and did not and, as of each of the Settlement Dates, if any,
will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus, as amended or supplemented, as of its date, did not and, as of each
of the Settlement Dates, if any, will not contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations
and warranties set forth in the two immediately preceding sentences do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the Prospectus, or any amendments
or supplements thereto, made in reliance upon and in conformity with information relating to Cowen furnished to the Company in
writing by Cowen expressly for use therein.
(c) Offering
Materials Furnished to Cowen. The Company has delivered to Cowen one complete copy of the Registration Statement and a copy
of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without
exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as Cowen has reasonably requested.
(d) Distribution
of Offering Material By the Company. The Company has not distributed and will not distribute, prior to the completion of Xxxxx’x
distribution of the Placement Shares, any offering material in connection with the offering and sale of the Placement Shares other
than the Prospectus or the Registration Statement.
(e) The
Sales Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal,
and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity
hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally, and subject to general principles of equity. The Company
has full corporate power and authority to enter into this Agreement and to authorize, issue and sell the Placement Shares as contemplated
by this Agreement.
(f) Authorization
of the Placement Shares. The Placement Shares to be sold by Cowen, acting as agent and/or principal for the Company, have been
duly authorized and when issued and paid for as contemplated herein will be validly issued, fully paid and non-assessable.
(g) No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any
equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this
Agreement, except for such rights as have been duly waived.
(h) No
Material Adverse Change. Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as of which information
is given in the Prospectus: (i) there has been no material adverse change in the condition (financial or otherwise), assets,
rights, operations, business, management or prospects of the Company and its subsidiaries, considered as one entity (any such change
is called a “Material Adverse Change”) or any development involving a prospective material adverse change,
which, individually or in the aggregate, has had or would reasonably be expected to result in a Material Adverse Change; (ii) the
Company and its subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct
or contingent, not in the ordinary course of business nor entered into any material transaction or agreement not in the ordinary
course of business; and (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company
or, except for regular quarterly dividends publicly announced by the Company or dividends paid to the Company or other subsidiaries,
by any of its subsidiaries on any class of capital stock or repurchase or redemption by the Company or any of its subsidiaries
of any class of capital stock.
(i) Independent
Accountants. Ernst & Young LLP, who have expressed their opinion with respect to the financial statements (which term as
used in this Agreement includes the related notes thereto) and supporting schedules filed with the Commission or incorporated by
reference as a part of the Registration Statement and included in the Prospectus, is an independent registered public accounting
firm as required by the Securities Act and the Exchange Act.
(j) Preparation
of the Financial Statements. The consolidated financial statements of the Company, together with related notes and schedules
as incorporated by reference in the Registration Statement and the Prospectus, present fairly the financial position and the results
of operations and cash flows of the Company, at the indicated dates and for the indicated periods. Such financial statements and
related schedules have been prepared in accordance with U.S. generally accepted principles of accounting, consistently applied
throughout the periods involved, except as disclosed therein, and all adjustments necessary for a fair presentation of results
for such periods have been made. The summary financial and statistical data included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information shown therein and such data has been compiled on a basis consistent
with the financial statements presented therein and the books and records of the Company. The statistical, industry–related
and market–related data included or incorporated by reference in the Registration Statement and the Prospectus are based
on or derived from sources which the Company reasonably and in good faith believes are reliable and accurate. The financial data
set forth or incorporated in the Prospectus under the captions “Ratio Of Earnings To Fixed Charges And Earnings To Combined
Fixed Charges And Preferred Stock Dividends” and “Selected Financial Data” fairly present the information set
forth therein at the indicated dates and for the indicated periods on a basis consistent with that of the audited financial statements
contained, incorporated or deemed to be incorporated in the Registration Statement.
(k) XBRL.
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the each Registration Statement
fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(l) Incorporation
and Good Standing of the Company and its Subsidiaries. The Company is a corporation duly incorporated and validly existing
under the laws of the State of Delaware and is in good standing under such laws. The Company has requisite corporate power to carry
on its business as described in the Prospectus. The Company is duly qualified to transact business and is in good standing in all
jurisdictions in which the conduct of its business requires such qualification; except where the failure to be so qualified or
to be in good standing would not result in a Material Adverse Change. The Company does not own or control, directly or indirectly,
any corporation, association or other entity other than the subsidiaries listed on Schedule 4. Each subsidiary
is a corporation duly incorporated and validly existing under the laws of the jurisdiction of its incorporation and is in good
standing under such laws. Each of the subsidiaries has requisite corporate power to carry on its business as described in the Prospectus.
Each of the subsidiaries is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct
of its business requires such qualification; except where the failure to be so qualified or to be in good standing would not result
in a Material Adverse Change.
(m) Capital
Stock Matters. The Common Stock conforms in all material respects to the description thereof contained in the Prospectus. The
form of certificates for the Common Stock conforms to the corporate law of the jurisdiction of the Company’s incorporation.
All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable
and have been issued in compliance with federal and state securities laws. None of the outstanding shares of Common Stock were
issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities
of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights
to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company
or any of its subsidiaries other than those disclosed in the Prospectus or in a document filed as an exhibit to or incorporated
by reference into the Registration Statement.
(n) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. The Company is not, nor with the giving of notice
or lapse of time or both, will be, in violation of or in default under its Certificate of Incorporation (“Charter”)
or Bylaws or under any agreement, lease, contract, indenture or other instrument or obligation to which it is a party or by which
it, or any of its properties, is bound, in any case which violation or default has had or would reasonably be expected to result
in a Material Adverse Change. The execution and delivery of this Agreement and the performance by the Company of the transactions
herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default
under, (i) any contract, indenture, mortgage, deed of trust or other agreement or instrument to which the Company is a party, or
(ii) the Charter or Bylaws of the Company or (iii) any order, rule or regulation applicable to the Company of any court or of any
regulatory body or administrative agency or other governmental body having jurisdiction, except in the case of clauses (i) and
(iii) above, where such conflict, breach or default would not reasonably be expected to result in a Material Adverse Change. Each
approval, consent, order, authorization, designation, declaration or filing 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 performance
of the Company of the transactions herein contemplated has been obtained or made and is in full force and effect, except (i) with
respect to any Applicable Time at which Cowen would not be able to rely on Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory
Authority, Inc. (“FINRA”), such additional steps as may be required by FINRA or (ii) such additional
steps as may be necessary to qualify the Common Stock for sale by Cowen under state securities or Blue Sky laws. To the Company’s
knowledge, there are no affiliations or associations between any member of FINRA and any of the Company’s officers, directors
or 5% or greater security holders, except as set forth in the Registration Statement.
(o) No
Material Actions or Proceedings. There is no action, suit, claim or proceeding pending or, to the knowledge of the Company,
threatened against the Company before any court or administrative agency or otherwise (i) that is required to be described in the
Registration Statement or the Prospectus and are not so described or (ii) which, if determined adversely to the Company, would
reasonably be expected to result in a Material Adverse Change or prevent the consummation of the transactions contemplated hereby,
except as set forth in the Registration Statement and the Prospectus. No labor dispute with the employees of the Company exists
or, to the Company’s knowledge, is threatened or imminent, and the Company is not aware of any existing or imminent labor
dispute by the employees of any of its principal suppliers, contractors or customers, that would, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Change.
(p) All
Necessary Permits, etc. The Company has all material licenses, certifications, permits, franchises, approvals, clearances and
other regulatory authorizations (“Permits”) from governmental authorities as are necessary to (i) conduct
its businesses as currently conducted and (ii) own, lease and operate its properties in the manner described in the Prospectus.
There is no claim or proceeding pending or, to the knowledge of the Company, threatened, involving the status of or sanctions under
any of the Permits. The Company has fulfilled and performed all of its material obligations with respect to the Permits, and is
not aware of the occurrence of any event which allows, or after notice or lapse of time would allow, the revocation, termination,
or other impairment of the rights of the Company under such Permit.
(q) Tax
Law Compliance. The Company has filed all material Federal, State, local and foreign tax returns which have been required to
be filed, subject to permitted extensions, and has paid all taxes indicated by said returns and all assessments received by the
Company to the extent that such taxes and assessments have become due and are not being contested in good faith. All tax liabilities
have been adequately provided for in the financial statements of the Company, and the Company does not know of any actual or proposed
additional material tax assessments. There are no transfer taxes or other similar fees or charges under Federal law or the laws
of any state, or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement
or the issuance by the Company or sale by the Cowen of the Placement Shares, acting as agent and/or principal for the Company.
(r) Company
Not an “Investment Company”. The Company has been advised of the rules and requirements under the Investment Company
Act of 1940, as amended (the “Investment Company Act”). The Company is not, and after receipt of payment
for the Placement Shares will not be, an “investment company” within the meaning of Investment Company Act and will
conduct its business in a manner so that it will not become subject to the Investment Company Act.
(s) Insurance.
Except as otherwise described in the Prospectus, the Company carries, or is covered by, insurance in such amounts and covering
such risks as is generally considered adequate for the conduct of its business and the value of its properties and as is customary
for companies engaged in similar industries. All policies of insurance insuring the Company or its business, assets, employees,
officers and directors are in full force and effect, and the Company is in compliance with the terms of such policies in all material
respects. There are no claims by the Company under any such policy or instrument as to which an insurance company is denying liability
or defending under a reservation of rights clause.
(t) No
Price Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed
to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Common Stock.
(u) Related
Party Transactions. There are no business relationships or related-party transactions involving the Company or any subsidiary
or any other person required to be described in the Prospectus which have not been described as required.
(v) Exchange
Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange
Act, and, when read together with the other information in the Prospectus, at the Settlement Dates, will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(w) No
Unlawful Contributions or Other Payments. No payments or inducements have been made or given, directly or indirectly, to any
federal or local official or candidate for, any federal or state office in the United States or foreign offices by the Company
or any of its officers or directors, or, to the knowledge of the Company, by any of its employees or agents or any other person
in connection with any opportunity, contract, permit, certificate, consent, order, approval, waiver or other authorization relating
to the business of the Company, except for such payments or inducements as were lawful under applicable laws, rules and regulations.
Neither the Company, nor, to the knowledge of the Company, any director, officer, agent, employee or other person associated with
or acting on behalf of the Company, (i) has used any corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any government official or
employee from corporate funds; (iii) violated or is in violation of any applicable provision of the Foreign Corrupt Practices Act
of 1977; or (iv) made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment in connection with
the business of the Company.
(x) Company’s
Accounting System. The Company 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 authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles
and to maintain accountability for assets; (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 existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(y) Compliance
with Environmental Laws. To its knowledge, the Company is not in violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous
chemicals, toxic substances or radioactive and biological materials or relating to the protection or restoration of the environment
or human exposure to hazardous chemicals, toxic substances or radioactive and biological materials (collectively, “Environmental
Laws”). The Company neither owns nor, to its knowledge, operates any real property contaminated with any substance
that is subject to any Environmental Laws, is not liable for any off-site disposal or contamination pursuant to any Environmental
Laws, nor is it subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim would
individually or in the aggregate result in a Material Adverse Change; and the Company is not aware of any pending investigation
which might lead to such a claim.
(z) Intellectual
Property. To the Company’s knowledge, after reasonable inquiry, all patents and patent applications owned by the Company
are owned or co-owned by the Company free and clear of all liens or encumbrances, except as described in the Prospectus. The Company
is not aware of any valid or bona fide basis for a finding that any such patents in their entirety are unpatentable, invalid or
unenforceable; and the Company reasonably believes that such patents are valid and enforceable, except as described in the Prospectus.
Except as described
in the Prospectus, the Company owns, licenses, or possesses rights to use all patents, patent applications, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names and other intellectual property (collectively, “Intellectual Property”)
used in, held for use in or necessary for the conduct of the Company’s business as now conducted, and for the manufacture,
use and sale of its presently proposed products, as described in the Prospectus. Except as described in the Prospectus or as would
not reasonably be expected, individually or in the aggregate, to materially impair the business currently conducted by the Company,
or the manufacture, use, sale, offer for sale or import of its presently proposed products as described in the Prospectus, there
is no pending or threatened, action, suit, proceeding or claim by others (i) that the Company infringes, misappropriates or otherwise
violates the Intellectual Property of others, or (ii) challenging the validity, enforceability, scope or ownership of any Intellectual
Property owned by or licensed to the Company or the Company’s rights therein.
None of the Intellectual Property used or held for use by the Company in the conduct of its business as now conducted, or for the
manufacture, use and sale of its presently proposed products as described in the Prospectus, has been obtained or is being used
by the Company in material violation of any contractual obligation binding on the Company.
To the Company’s
knowledge, there are no ongoing infringements, misappropriations or other violations by third parties of any Intellectual Property
owned or used by the Company, except as (i) described in the Prospectus or (ii) would otherwise not materially impair the business
currently conducted by the Company or the manufacture, use, sale, offer for sale or import of its presently proposed products as
described in the Prospectus.
The Company has taken
reasonable steps in accordance with normal industry practice to maintain the confidentiality of all Intellectual Property the
value of which to the Company is contingent upon maintaining the confidentiality thereof.
(aa) Brokers.
Other than as contemplated by this Agreement, the Company has not incurred any liability for any finder’s or broker’s
fee, or agent’s commission in connection with the execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(bb) No
Outstanding Loans or Other Indebtedness. There are no outstanding loans, advances (except normal advances for business expenses
in the ordinary course of business) or guarantees of indebtedness by the Company to or for the benefit of any of the officers or
directors of the Company or any of their respective family members, except as disclosed in the Prospectus. The Company has not
directly or indirectly extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit,
in the form of a personal loan to or for any director or executive officer of the Company.
(cc) No
Reliance. The Company has not relied upon Xxxxx or legal counsel for Xxxxx for any legal, tax or accounting advice in connection
with the offering and sale of the Placement Shares.
(dd) Xxxxx
Purchases. The Company acknowledges and agrees that Xxxxx has informed the Company that Xxxxx may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell shares of Common Stock for its own account while this Agreement
is in effect.
(ee) FINRA
Exemption. With respect to an Applicable Time following February 4, 2014, to enable Xxxxx to rely on Rule 5110(b)(7)(C)(i)
of FINRA, the Company represents that the Company (i) has a non-affiliate, public common equity float of at least $150 million
or a non-affiliate, public common equity float of at least $100 million and annual trading volume of at least three million shares
and (ii) has been subject to the Exchange Act reporting requirements for a period of at least 36 months. With respect to any
Applicable Time at which Xxxxx would not be able to rely on Rule 5110(b)(7)(C)(i) of FINRA, copies of any Company filings required
to be filed with FINRA have been filed with the Commission or delivered to Xxxxx for filing with FINRA and FINRA has determined
to raise no objections with respect to such filing.
(ff) Compliance
with Laws. The Company has not been advised, and has no reason to believe, that it and each of its subsidiaries are not conducting
business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business,
except where failure to be so in compliance would not result in a Material Adverse Change.
(gg) Certain
Regulations. To the Company’s knowledge, the conduct of business by the Company complies, and at all times has complied,
in all material respects, with federal, state, local and foreign laws, statutes, ordinances, rules, regulations, decrees, orders
and Permits applicable to its business, including, without limitation, (a) the Federal Food, Drug and Cosmetic Act of 1938, as
amended (the “FD&C Act”) and similar federal, state, local and foreign Laws, (b) the Occupational
Safety and Health Act, the Environmental Protection Act, the Toxic Substance Control Act and similar federal, state, local and
foreign Laws applicable to hazardous or regulated substances and radioactive or biologic materials and (c) licensing and certification
Laws covering any aspect of the business of the Company. The Company has not received any notification asserting, nor has knowledge
of, any present or past failure to comply with or violation of any such Laws.
(hh) FDA
Regulations. Except to the extent disclosed in the Prospectus (or any amendment or supplement thereto), to the Company’s
knowledge after reasonable inquiry, the clinical, pre-clinical and other studies, tests and research conducted by or on behalf
of or sponsored by the Company and intended to be submitted to U.S. regulatory authorities and to serve as a basis for approval
are, and at all times have been, conducted in accordance with the FD&C Act and the regulations promulgated thereunder, including
Title 21 of the Code of Federal Regulations, and other U.S. Food and Drug Administration (“FDA”) regulations
governing clinical studies, current Good Laboratory Practices and Good Clinical Practices, the protection of human subjects and
applicable institutional review board and independent ethics committee requirements, as well as other applicable federal, state,
local and foreign Laws and consistent with current clinical and scientific research standards and procedures. The published descriptions
of the results of such studies, tests and research are accurate and complete in all material respects and fairly present the data
derived from such studies, tests and research, and the Company has no knowledge of any other studies, tests or research the results
of which are inconsistent with or otherwise call into question the results described or referred to in the Prospectus. Except to
the extent disclosed in the Prospectus (or any amendment or supplement thereto), the Company has not notified the FDA of any adverse
reactions with respect to any clinical or pre-clinical studies, tests or research that are described in the Prospectus or the results
of which are referred to in the Registration Statement and the Prospectus, and the Company has not received any notices or other
correspondence from the FDA or any other governmental agency with respect to any clinical or pre-clinical studies, tests or research
that are described in the Prospectus or the results of which are referred to in the Registration Statement and the Prospectus,
in either case that would reasonably be expected to result in any action to place a clinical hold order on or otherwise result
in the termination or suspension of such studies, tests or research, otherwise require the Company to engage in any remedial activities
with respect to such studies, test or research, or threaten to impose or actually impose any fines or other disciplinary actions.
(ii) Certain
Manufacturing Regulations. To the best of the Company’s knowledge, all the operations of the Company and all the manufacturing
facilities and operations of the Company’s suppliers of product candidates and the components thereof manufactured in or
imported into the United States that are intended to be used in clinical trials are in compliance in all material respects with
applicable FDA regulations, including current Good Manufacturing Practices, and meet sanitation standards set by the FD&C Act,
and all the operations of the Company and all the manufacturing facilities and operations of the Company’s suppliers of product
candidates manufactured outside, or exported from, the United States that are intended to be used in clinical trials are in compliance
in all material respects with applicable foreign regulatory requirements and standards.
(jj) Sarbanes–Oxley
Act. The Company is in compliance in all material respects with any provisions of the Sarbanes–Oxley Act of 2002 (the
“Sarbanes–Oxley Act”) that are applicable to the Company as of the date hereof.
(kk) Disclosure
Controls And Procedures. The Company has established and maintains “disclosure controls and procedures” (as defined
in Rules 13a–15(e) and 15d–15(e) of the Exchange Act; the Company’s “disclosure controls and procedures”
are reasonably designed to ensure that all information (both financial and non–financial) required to be disclosed by the
Company in the reports that it will file or furnish under the Exchange Act is recorded, processed, summarized and reported within
the time periods specified in the rules and regulations of the Commission, and that all such information is accumulated and communicated
to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications
of the Chief Executive Officer and Chief Financial Officer of the Company required under the Exchange Act with respect to such
reports.
(ll) ERISA.
The Company is in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”);
no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined
in ERISA) for which the Company would have any liability; the Company has not incurred and does not expect to incur liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the
“Code”); and each “pension plan” for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such qualification.
Any certificate signed by an officer of
the Company and delivered to Xxxxx or to counsel for Xxxxx shall be deemed to be a representation and warranty by the Company
to Xxxxx as to the matters set forth therein.
The Company acknowledges that Xxxxx and,
for purposes of the opinions to be delivered pursuant to Section 7 hereof, counsel to the Company and counsel to Xxxxx,
will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
7. Covenants
of the Company. The Company covenants and agrees with Xxxxx that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement
Shares is required to be delivered by Xxxxx under the Securities Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify Xxxxx promptly of the time when
any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the
Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the
Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the
Company will prepare and file with the Commission, promptly upon Xxxxx’x request, any amendments or supplements to the Registration
Statement or Prospectus that, in Xxxxx’x reasonable opinion, may be necessary or advisable in connection with the distribution
of the Placement Shares by Xxxxx (provided, however, that the failure of Xxxxx to make such request shall not relieve the
Company of any obligation or liability hereunder, or affect Xxxxx’x right to rely on the representations and warranties made
by the Company in this Agreement); (iii) the Company will not file any amendment or supplement to the Registration Statement or
Prospectus, other than documents incorporated by reference, relating to the Placement Shares or a security convertible into the
Placement Shares unless a copy thereof has been submitted to Xxxxx within a reasonable period of time before the filing and Xxxxx
has not reasonably objected thereto (provided, however, that the failure of Xxxxx to make such objection shall not relieve
the Company of any obligation or liability hereunder, or affect Xxxxx’x right to rely on the representations and warranties
made by the Company in this Agreement, and provided further, that the only remedy Xxxxx shall have with respect to the failure
by the Company to obtain such consent shall be to cease making sales under this Agreement) and the Company will furnish to Xxxxx
at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into the Registration
Statement or Prospectus, except for those documents available via IDEA; and (iv) the Company will cause each amendment or supplement
to the Prospectus, other than documents incorporated by reference, to be filed with the Commission as required pursuant to the
applicable paragraph of Rule 424(b) of the Securities Act.
(b) Notice
of Commission Stop Orders. The Company will advise Xxxxx, promptly after it receives notice or obtains knowledge thereof, of
the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to
be delivered by Xxxxx under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If during such period any event occurs as a result
of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if
during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities
Act, the Company will promptly notify Xxxxx to suspend the offering of Placement Shares during such period and the Company will
promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement
or omission or effect such compliance; provided, however, that the Company
may delay any such amendment or supplement if, in the reasonable judgment of the Company, it is in the best interests of the Company
to do so.
(d) Listing
of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to be delivered
by Xxxxx under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable efforts
to cause the Placement Shares to be listed on Nasdaq and to qualify the Placement Shares for sale under the securities laws of
such jurisdictions as Xxxxx reasonably designates and to continue such qualifications in effect so long as required for the distribution
of the Placement Shares; provided, however, that the Company shall not be required in connection therewith to qualify as
a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to Xxxxx and its counsel (at the expense of the Company)
copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments
and supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus
relating to the Placement Shares is required to be delivered under the Securities Act (including all documents filed with the Commission
during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and
in such quantities as Xxxxx may from time to time reasonably request and, at Xxxxx’x request, will also furnish copies of
the Prospectus to each exchange or market on which sales of the Placement Shares may be made; provided, however, that the
Company shall not be required to furnish any document (other than the Prospectus) to Xxxxx to the extent such document is available
on IDEA.
(f) Earnings
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later
than 15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that
satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act.
(g) Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, in accordance
with the provisions of Section 11 hereunder, will pay the following expenses all incident to the performance of its
obligations hereunder, including, but not limited to, expenses relating to (i) the preparation, printing and filing of the Registration
Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto, (ii) the
preparation, issuance and delivery of the Placement Shares, (iii) the qualification of the Placement Shares under securities laws
in accordance with the provisions of Section 7(d) of this Agreement, including filing fees (provided, however, that any
fees or disbursements of counsel for Xxxxx in connection therewith shall be paid by Xxxxx except as set forth in (vii) below),
(iv) the printing and delivery to Xxxxx of copies of the Prospectus and any amendments or supplements thereto, and of this Agreement,
(v) the fees and expenses incurred in connection with the listing or qualification of the Placement Shares for trading on Nasdaq,
(vi) filing fees and expenses, if any, of the Commission and the FINRA Corporate Financing Department (including, with respect
to any required review by FINRA, the reasonable fees and expenses of Xxxxx’x counsel in an amount not to exceed $10,000)
and (vii) the Company shall reimburse Xxxxx for the fees and disbursements of Xxxxx’x counsel in an amount not to exceed
$50,000.
(h) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(i) Notice
of Other Sales. During the pendency of any Placement Notice given hereunder, and for 5 trading days following the termination
of any Placement Notice given hereunder, the Company shall provide Xxxxx notice as promptly as reasonably possible before it offers
to sell, contracts to sell, sells, grants any option to sell or otherwise disposes of any shares of Common Stock (other than Placement
Shares offered pursuant to the provisions of this Agreement) or securities convertible into or exchangeable for Common Stock, warrants
or any rights to purchase or acquire Common Stock; provided, that such notice shall not be required in connection with the
(i) issuance, grant or sale of Common Stock, options to purchase shares of Common Stock or Common Stock issuable upon the exercise
of options or other equity awards pursuant to the any stock option, stock bonus or other stock plan or arrangement described in
the Prospectus or in a document filed as an exhibit to or incorporated by reference into the Registration Statement, (ii) the
issuance of securities in connection with an acquisition, merger, sale or purchase of assets, other business combinations or strategic
alliances, (iii) the issuance or sale of Common Stock pursuant to any dividend reinvestment plan that the Company may adopt from
time to time provided the implementation of such is disclosed to Xxxxx in advance or (iv) any shares of Common Stock issuable
upon the exchange, conversion or redemption of securities or the exercise of warrants, options or other rights in effect or outstanding.
(j) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice, advise Xxxxx promptly after it shall
have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect
any opinion, certificate, letter or other document provided to Xxxxx pursuant to this Agreement.
(k) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by Xxxxx or its agents
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available
documents and senior corporate officers, during regular business hours and at the Company’s principal offices, as Xxxxx may
reasonably request.
(l) Required
Filings Relating to Placement of Placement Shares. To the extent that the filing of a prospectus supplement with the Commission
with respect to a placement of Placement Shares becomes required under Rule 424(b) under the Securities Act, the Company agrees
that, on or before such dates as the Securities Act shall require, the Company will (i) file a prospectus supplement with
the Commission under the applicable paragraph of Rule 424(b) under the Securities Act, which prospectus supplement will set forth,
within the relevant period, the amount of Placement Shares sold through Xxxxx, the Net Proceeds to the Company and the compensation
payable by the Company to Xxxxx with respect to such Placement Shares, and (ii) deliver such number of copies of each such
prospectus supplement to each exchange or market on which such sales were effected as may be required by the rules or regulations
of such exchange or market.
(m) Representation
Dates; Certificate. On or prior to the First Delivery Date and each time the Company (i) files the Prospectus relating to the
Placement Shares or amends or supplements the Registration Statement or the Prospectus relating to the Placement Shares (other
than a prospectus supplement filed in accordance with Section 7(l) of this Agreement) by means of a post-effective amendment,
sticker, or supplement but not by means of incorporation of document(s) by reference to the Registration Statement or the Prospectus
relating to the Placement Shares; (ii) files an annual report on Form 10-K under the Exchange Act; (iii) files its quarterly reports
on Form 10-Q under the Exchange Act; or (iv) files a report on Form 8-K containing amended financial information (other than an
earnings release) under the Exchange Act (each date of filing of one or more of the documents referred to in clauses (i) through
(iv) shall be a “Representation Date”); the Company shall furnish Xxxxx with a certificate, in the form
attached hereto as Exhibit 7(m) within three (3) Trading Days of any Representation Date if requested by Xxxxx. The requirement
to provide a certificate under this Section 7(m) shall be waived for any Representation Date occurring at a time at which
no Placement Notice is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement
Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation
Date; provided, however, that such waiver shall not apply for any Representation Date on which the Company files
its annual report on Form 10-K. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares following
a Representation Date when the Company relied on such waiver and did not provide Xxxxx with a certificate under this Section
7(m), then before the Company delivers the Placement Notice or Xxxxx sells any Placement Shares, the Company shall provide
Xxxxx with a certificate, in the form attached hereto as Exhibit 7(m), dated the date of the Placement Notice.
(n) Legal
Opinion. On or prior to the First Delivery Date and within three (3) Trading Days of each Representation Date with respect
to which the Company is obligated to deliver a certificate pursuant to Section 7(m) for which no waiver is applicable,
the Company shall cause to be furnished to Cowen a written opinion of Faegre Xxxxx Xxxxxxx LLP (“Company Counsel”),
or other counsel satisfactory to Cowen, in form and substance satisfactory to Cowen and its counsel, dated the date that the opinion
is required to be delivered, in form and substance satisfactory to Cowen and its counsel; provided, however, that
in lieu of such opinions for subsequent Representation Dates, counsel may furnish Cowen with a letter (a “Reliance
Letter”) to the effect that Cowen may rely on a prior opinion delivered under this Section 7(n) to the same
extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(o) Comfort
Letter. On or prior to the First Delivery Date and within three (3) Trading Days of each Representation Date with respect to
which the Company is obligated to deliver a certificate pursuant to Section 7(m) for which no waiver is applicable,
the Company shall cause its independent accountants to furnish Cowen letters (the “Comfort Letters”),
dated the date of the Comfort Letter is delivered, in form and substance satisfactory to Cowen, (i) confirming that they are an
independent registered public accounting firm within the meaning of the Securities Act and the PCAOB, (ii) stating, as of such
date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered
by accountants’ “comfort letters” to Cowen in connection with registered public offerings (the first such letter,
the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information that
would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the
Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(p) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Common Stock or (ii) sell, bid for, or purchase the Placement Shares to be issued and sold
pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the Placement Shares other than Cowen.
(q) Insurance.
The Company and its subsidiaries shall maintain, or caused to be maintained, insurance in such amounts and covering such risks
as is reasonable and customary for the business in which it is engaged.
(r) Compliance
with Laws. The Company and each of its subsidiaries shall maintain, or cause to be maintained, all material environmental permits,
licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described in
the Prospectus, and the Company and each of its subsidiaries shall conduct their businesses, or cause their businesses to be conducted,
in substantial compliance with such permits, licenses and authorizations and with applicable environmental laws, except where the
failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected to result
in a Material Adverse Change.
(s) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its subsidiaries
is or, after giving effect to the offering and sale of the Placement Shares and the application of proceeds therefrom as described
in the Prospectus, will be, an “investment company” within the meaning of such term under the Investment Company Act.
(t) Securities
Act and Exchange Act. The Company will use its best efforts to comply with all requirements imposed upon it by the Securities
Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings
in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.
(u) No
Offer to Sell. Other than a free writing prospectus (as defined in Rule 405 under the Securities Act) approved in advance by
the Company and Cowen in its capacity as principal or agent hereunder, neither Cowen nor the Company (including its agents and
representatives, other than Cowen in its capacity as such) will make, use, prepare, authorize, approve or refer to any written
communication (as defined in Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes an
offer to sell or solicitation of an offer to buy Placement Shares hereunder.
(v) Xxxxxxxx-Xxxxx
Act. The Company and its subsidiaries will use their best efforts to comply with all effective applicable provisions of the
Xxxxxxxx-Xxxxx Act.
8. Conditions
to Xxxxx’x Obligations. The obligations of Cowen hereunder with respect to a Placement will be subject to the continuing
accuracy and completeness of the representations and warranties made by the Company herein, to the due performance by the Company
of its obligations hereunder, to the completion by Cowen of a due diligence review satisfactory to Cowen in its reasonable judgment,
and to the continuing satisfaction (or waiver by Cowen in its sole discretion) of the following additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall be effective and shall be available for the sale of all Placement Shares
contemplated to be issued by any Placement Notice which have not yet been issued and sold pursuant to such Registration Statement.
(b) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of
its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments
or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or
state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; (iv) the occurrence of any event that makes any material statement made in the Registration
Statement or the Prospectus or any material document incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires the making of any changes in the Registration Statement, related Prospectus or such documents
so that, in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in
the case of the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) No
Misstatement or Material Omission. Cowen shall not have advised the Company that the Registration Statement or Prospectus,
or any amendment or supplement thereto, contains an untrue statement of fact that in Xxxxx’x reasonable opinion is material,
or omits to state a fact that in Xxxxx’x reasonable opinion is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(d) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there
shall not have been any material adverse change in the authorized capital stock of the Company or any Material Adverse Change or
any development that could reasonably be expected to result in a Material Adverse Change, or any downgrading in or withdrawal of
the rating assigned to any of the Company’s securities (other than asset backed securities) by any rating organization or
a public announcement by any rating organization that it has under surveillance or review its rating of any of the Company’s
securities (other than asset backed securities), the effect of which, in the case of any such action by a rating organization described
above, in the reasonable judgment of Cowen (without relieving the Company of any obligation or liability it may otherwise have),
is so material as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms and
in the manner contemplated in the Prospectus.
(e) Company
Counsel Legal Opinion. Cowen shall have received the opinions of Company Counsel required to be delivered pursuant Section
7(n) on or before the date on which such delivery of such opinion is required pursuant to Section 7(n).
(f) Cowen
Counsel Legal Opinion. Cowen shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for Cowen, such opinion or opinions,
on or before the date on which the delivery of the Company Counsel legal opinion is required pursuant to Section 7(n), with
respect to such matters as Cowen may reasonably require, and the Company shall have furnished to such counsel such documents as
they request for enabling them to pass upon such matters.
(g) Comfort
Letter. Cowen shall have received the Comfort Letter required to be delivered pursuant Section 7(o) on or before the
date on which such delivery of such Comfort Letter is required pursuant to Section 7(o).
(h) Representation
Certificate. Cowen shall have received the certificate required to be delivered pursuant to Section 7(m) on or
before the date on which delivery of such certificate is required pursuant to Section 7(m).
(i) Secretary’s
Certificate. On or prior to the First Delivery Date, Cowen shall have received a certificate, signed on behalf of the Company
by its corporate Secretary, certifying as to (i) the Certificate of Incorporation of the Company, (ii) the By-laws of the Company,
(iii) the resolutions of the Board of Directors of the Company (or a committee thereof) authorizing the execution, delivery and
performance of this Agreement and the issuance of the Placement Shares and (iv) the incumbency of the officers duly authorized
to execute this Agreement and the other documents contemplated by this Agreement. Within three (3) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(m) for which no
waiver is applicable, the Company shall have furnished to the Agent such additional certificates and documents as the Agent may
reasonably request in form and substance satisfactory to Cowen and its counsel.
(j) No
Suspension. Trading in the Common Stock shall not have been suspended on Nasdaq.
(k) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(m), the Company
shall have furnished to Cowen such appropriate further opinions, certificates, letters and documents as Cowen may have reasonably
requested. All such opinions, certificates, letters and other documents shall have been in compliance with the provisions hereof.
The Company will furnish Cowen with such conformed copies of such opinions, certificates, letters and other documents as Cowen
shall have reasonably requested.
(l) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior
to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing
by Rule 424.
(m) Approval
for Listing. The Placement Shares shall either have been (i) approved for listing on Nasdaq, subject only to notice of issuance,
or (ii) the Company shall have filed an application for listing of the Placement Shares on Nasdaq at, or prior to, the issuance
of any Placement Notice.
(n) No
Termination Event. There shall not have occurred any event that would permit Cowen to terminate this Agreement pursuant to
Section 11(a).
9. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless Cowen, the directors, officers, partners, employees and
agents of Cowen and each person, if any, who (i) controls Cowen within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, or (ii) is controlled by or is under common control with Cowen (a “Cowen Affiliate”)
from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable
investigative, legal and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance
with Section 9(c)) of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties
or between any indemnified party and any third party, or otherwise, or any claim asserted), as and when incurred, to which Cowen,
or any such person, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly
or indirectly, on (x) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement
or the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus or in any free writing prospectus
or in any application or other document executed by or on behalf of the Company or based on written information furnished by or
on behalf of the Company filed in any jurisdiction in order to qualify the Common Stock under the securities laws thereof or filed
with the Commission, (y) the omission or alleged omission to state in any such document a material fact required to be stated
in it or necessary to make the statements in it not misleading or (z) any breach by any of the indemnifying parties of any of their
respective representations, warranties and agreements contained in this Agreement; provided, however, that this indemnity
agreement shall not apply to the extent that such loss, claim, liability, expense or damage arises from the sale of the Placement
Shares pursuant to this Agreement and is caused directly or indirectly by an untrue statement or omission made in reliance upon
and in conformity with written information relating to Cowen and furnished to the Company by Cowen expressly for inclusion in any
document as described in clause (x) of this Section 9(a). This indemnity agreement will be in addition to any liability
that the Company might otherwise have.
(b) Cowen
Indemnification. Cowen agrees to indemnify and hold harmless the Company and its directors and each officer of the Company
that signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company (a
“Company Affiliate”) against any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 9(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendments thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information relating to Cowen and furnished to the Company
by Cowen expressly for inclusion in any document as described in clause (x) of Section 9(a).
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 9 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section 9, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that
it might have to any indemnified party otherwise than under this Section 9 and (ii) any liability that it may have to any
indemnified party under the foregoing provision of this Section 9 unless, and only to the extent that, such omission results
in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement
of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in
any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which
case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or
(4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges
of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all
such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party
promptly as they are incurred. An indemnifying party will not, in any event, be liable for any settlement of any action or claim
effected without its written consent. No indemnifying party shall, without the prior written consent of each indemnified party,
settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating
to the matters contemplated by this Section 9 (whether or not any indemnified party is a party thereto), unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all liability arising or that may arise
out of such claim, action or proceeding.
(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 9 is applicable in accordance with its terms but for any reason is held to be unavailable from
the Company or Cowen, the Company and Cowen will contribute to the total losses, claims, liabilities, expenses and damages (including
any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other than
Cowen, such as persons who control the Company within the meaning of the Securities Act, officers of the Company who signed the
Registration Statement and directors of the Company, who also may be liable for contribution) to which the Company and Cowen may
be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand
and Cowen on the other. The relative benefits received by the Company on the one hand and Cowen on the other hand shall be deemed
to be in the same proportion as the total Net Proceeds from the sale of the Placement Shares (before deducting expenses) received
by the Company bear to the total compensation received by Cowen from the sale of Placement Shares on behalf of the Company. If,
but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence
but also the relative fault of the Company, on the one hand, and Cowen, on the other, with respect to the statements or omission
that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or Cowen, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and Cowen agree that it would not be just and equitable if contributions
pursuant to this Section 9(d) were to be determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party
as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section
9(d) shall be deemed to include, for the purpose of this Section 9(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such action or claim to the extent consistent with
Section 9(c) hereof. Notwithstanding the foregoing provisions of this Section 9(d), Cowen shall not be required to
contribute any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9(d), any person who controls a party
to this Agreement within the meaning of the Securities Act, and any officers, directors, partners, employees or agents of Cowen,
will have the same rights to contribution as that party, and each officer of the Company who signed the Registration Statement
and each director of the Company will have the same rights to contribution as the Company, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such party in
respect of which a claim for contribution may be made under this Section 9(d), will notify any such party or parties from
whom contribution may be sought, but the omission to so notify will not relieve that party or parties from whom contribution may
be sought from any other obligation it or they may have under this Section 9(d) except to the extent that the failure to
so notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution is sought.
Except for a settlement entered into pursuant to the last sentence of Section 9(c) hereof, no party will be liable for contribution
with respect to any action or claim settled without its written consent if such consent is required pursuant to Section 9(c)
hereof.
10. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 9 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of
their respective dates, regardless of (i) any investigation made by or on behalf of Cowen, any controlling persons, or the Company
(or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Shares and
payment therefor or (iii) any termination of this Agreement.
11. Termination.
(a) Cowen
shall have the right by giving notice as hereinafter specified at any time to terminate this Agreement if (i) any Material Adverse
Change, or any development that could reasonably be expected to result in a Material Adverse Change has occurred that, in the reasonable
judgment of Cowen, may materially impair the ability of Cowen to sell the Placement Shares hereunder, (ii) the Company shall have
failed, refused or been unable to perform any agreement on its part to be performed hereunder; provided, however, in the
case of any failure of the Company to deliver (or cause another person to deliver) any certification, opinion, or letter required
under Sections 7(m), 7(n), or 7(o), Xxxxx’x right to terminate shall not arise unless such failure
to deliver (or cause to be delivered) continues for more than thirty (30) days from the date such delivery was required, (iii) any
other condition of Xxxxx’x obligations hereunder is not fulfilled, or (iv), any suspension or limitation of trading in the
Placement Shares or in securities generally on Nasdaq shall have occurred. Any such termination shall be without liability of any
party to any other party except that the provisions of Section 7(g) (Expenses), Section 9 (Indemnification and Contribution),
Section 10 (Representations and Agreements to Survive Delivery), Section 16 (Applicable Law; Consent to Jurisdiction)
and Section 17 (Waiver of Jury Trial) hereof shall remain in full force and effect notwithstanding such termination. If
Cowen elects to terminate this Agreement as provided in this Section 11(a), Cowen shall provide the required notice as specified
in Section 12 (Notices).
(b) The
Company shall have the right, by giving ten (10) days' notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section
17 hereof shall remain in full force and effect notwithstanding such termination.
(c) Cowen
shall have the right, by giving ten (10) days' notice as hereinafter specified to terminate this Agreement in its sole discretion
at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except
that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof
shall remain in full force and effect notwithstanding such termination.
(d) Unless
earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the issuance and sale
of all of the Placement Shares through Cowen on the terms and subject to the conditions set forth herein; provided that
the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof
shall remain in full force and effect notwithstanding such termination.
(e) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c) or
(d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual
agreement shall in all cases be deemed to provide that Section 7(g), Section 9, Section 10, Section 16
and Section 17 shall remain in full force and effect.
(f) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by Cowen or the
Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such
Placement Shares shall settle in accordance with the provisions of this Agreement.
12. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms
of this Agreement shall be in writing, unless otherwise specified in this Agreement, and if sent to Cowen, shall be delivered
to Cowen at Xxxxx and Company, LLC, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, fax no. 000-000-0000, Attention: General
Counsel; or if sent to the Company, shall be delivered to Endocyte, Inc., 0000 Xxxx Xxxxxx, Xxxxx X0-000, Xxxx Xxxxxxxxx, XX
00000, Attention: Chief Financial Officer, Fax: (000) 000-0000. Each party to this Agreement may change such address for
notices by sending to the parties to this Agreement written notice of a new address for such purpose. Each such notice or
other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with an
original to follow) on or before 4:30 p.m., New York City time, on a Business Day (as defined below), or, if such day is
not a Business Day on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a
nationally-recognized overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail
(certified or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement,
“Business Day” shall mean any day on which Nasdaq and commercial banks in the City of New York are
open for business.
13. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and Cowen and their respective successors
and the affiliates, controlling persons, officers and directors referred to in Section 9 hereof. References to any of the
parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors
and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement. Neither party may assign its rights or obligations under this Agreement without the prior written consent
of the other party; provided, however, that Cowen may assign its rights and obligations hereunder to an affiliate
of Cowen without obtaining the Company’s consent.
14. Adjustments
for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any share split, share dividend or similar event effected with respect to the Common Stock.
15. Entire
Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) and any other writing entered into by the parties relating to this Agreement constitutes the entire agreement
and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto
with regard to the subject matter hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written
instrument executed by the Company and Cowen. In the event that any one or more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such
provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable, and the
remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision
was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions
hereof shall be in accordance with the intent of the parties as reflected in this Agreement.
16. Applicable
Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal laws of the
State of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any
dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert
in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such
suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted
by law.
17. Waiver
of Jury Trial. The Company and Cowen each hereby irrevocably waives any right it may have to a trial by jury in respect of
any claim based upon or arising out of this Agreement or any transaction contemplated hereby.
18. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Cowen
has been retained solely to act as sales agent in connection with the sale of the Common Stock and that no fiduciary, advisory
or agency relationship between the Company and Cowen has been created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether Cowen has advised or is advising the Company on other matters;
(b) the
Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement;
(c) the
Company has been advised that Cowen and its affiliates are engaged in a broad range of transactions which may involve interests
that differ from those of the Company and that Cowen has no obligation to disclose such interests and transactions to the Company
by virtue of any fiduciary, advisory or agency relationship; and
(d) the
Company waives, to the fullest extent permitted by law, any claims it may have against Cowen, for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that Cowen shall have no liability (whether direct or indirect) to the Company in respect of
such a fiduciary claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders,
partners, employees or creditors of the Company.
19. Use
of Information. Cowen may not provide any information gained in connection with this Agreement
and the transactions contemplated by this Agreement, including due diligence, to any third party other than its legal counsel advising
it on this Agreement unless expressly approved by the Company in writing.
20. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile
transmission.
21. Definitions.
As used in this Agreement, the following term has the meaning set forth below:
(a) “Applicable
Time” means the date of this Agreement, each Representation Date, the date on which a Placement Notice is given, and
any date on which Placement Shares are sold hereunder.
[Remainder of Page Intentionally Blank]
If the foregoing correctly
sets forth the understanding between the Company and Cowen, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company and Cowen.
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Very truly yours, |
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XXXXX AND COMPANY, LLC |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx |
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Title: Managing Director |
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ACCEPTED as of the date |
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first-above written: |
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ENDOCYTE, INC. |
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By: |
/s/ Xxxx Xxxxxxx |
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Name: Xxxx Xxxxxxx |
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Title: Chief Financial Officer |
SCHEDULE 1
form
of PLACEMENT NOTICE
From: |
[ ] |
Cc: |
[ ] |
To: |
[ ] |
Subject: |
Cowen at the Market Offering—Placement Notice |
Gentlemen:
Pursuant to the terms
and subject to the conditions contained in the Sales Agreement between Endocyte, Inc. (the “Company”), and Xxxxx
and Company, LLC (“Cowen”) dated December 20, 2013 (the “Agreement”), I hereby request on
behalf of the Company that Cowen sell up to [ ] shares of the Company’s common stock, par value $0.001 per share, at a minimum
market price of $_______ per share. Sales should begin on the date of this Notice and shall continue until [DATE] [all shares are
sold].
SCHEDULE 2
Notice Parties
Endocyte, Inc.
P. Xxx Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx and Company
Xxxxxx Xxxx
Xxxx Xxxxxx
SCHEDULE 3
Compensation
Cowen shall be paid compensation in an
amount agreed to in writing by the parties not to exceed 3.0% of the gross proceeds from the sales of Common Stock pursuant to
the terms of this Agreement.
SCHEDULE 4
Schedule Of Subsidiaries
Endocyte Europe B.V.
Endocyte Europe GmbH
Exhibit 7(m)
OFFICER CERTIFICATE
The undersigned, the duly qualified and
elected _______________________, of Endocyte, Inc. (“Company”), a Delaware corporation, does hereby
certify in such capacity and on behalf of the Company, pursuant to Section 7(m) of the Sales Agreement dated December 20,
2013 (the “Sales Agreement”) between the Company and Xxxxx and Company, LLC, that to the best of the
knowledge of the undersigned:
(i) The
representations and warranties of the Company in Section 6 of the Sales Agreement (A) to the extent such representations
and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Change,
are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof,
except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such
date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and
correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and effect as
if expressly made on and as of the date hereof except for those representations and warranties that speak solely as of a specific
date and which were true and correct as of such date; and
(ii) The
Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the
Sales Agreement at or prior to the date hereof.
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By: |
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Name: |
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Title: |
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Date: __________ |
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