COMMON STOCK PURCHASE AGREEMENT by and between KINGSBRIDGE CAPITAL LIMITED and MICROMET, INC. dated as of December 1, 2008
Execution
Copy
by
and between
KINGSBRIDGE
CAPITAL LIMITED
and
dated
as of December 1, 2008
TABLE
OF CONTENTS
|
Page
|
||
|
3
|
||
|
Section
1.01.
|
“Alternative
Draw Down Amount” .
|
3
|
|
Section
1.02.
|
“Average
Trading Volume” .
|
3
|
|
Section
1.03.
|
“Blackout
Amount”
|
3
|
|
Section
1.04.
|
“Blackout
Shares”
|
3
|
|
Section
1.05.
|
“Business
Day”
|
3
|
|
Section
1.06.
|
“Bylaws”
|
3
|
|
Section
1.07.
|
“Certificate”
|
3
|
|
Section
1.08.
|
“Closing
Date”
|
3
|
|
Section
1.09.
|
“Closing
Price” .
|
3
|
|
Section
1.10.
|
“Commission”
|
3
|
|
Section
1.11.
|
“Commission
Documents”
|
3
|
|
Section
1.12.
|
“Commitment
Period”
|
3
|
|
Section
1.13.
|
“Common
Stock”
|
4
|
|
Section
1.14.
|
“Condition
Satisfaction Date”
|
4
|
|
Section
1.15.
|
“Consolidated
Subsidiary”
|
4
|
|
Section
1.16.
|
“Convertible
Security”
|
4
|
|
Section
1.17.
|
“Conversion
Price”
|
4
|
|
Section
1.18.
|
“Damages”
|
4
|
|
Section
1.19.
|
“Draw
Down”
|
4
|
|
Section
1.20.
|
“Draw
Down Amount”
|
4
|
|
Section
1.21.
|
“Draw
Down Discount Price”
|
4
|
|
Section
1.22.
|
“Draw
Down Notice”
|
4
|
|
Section
1.23.
|
“Draw
Down Pricing Period”
|
4
|
|
Section
1.24.
|
“DTC”
|
4
|
|
Section
1.25.
|
“Effective
Date”
|
4
|
|
Section
1.26.
|
“Exchange
Act”
|
5
|
|
Section
1.27.
|
“Excluded
Merger or Sale”
|
5
|
|
Section
1.28.
|
“FINRA”.
|
5
|
|
Section
1.29.
|
“Knowledge”
|
5
|
|
Section
1.30.
|
“LIBOR”
|
5
|
|
Section
1.31.
|
“Liquidity
Ratio”
|
5
|
|
Section
1.32.
|
“Make
Whole Amount”
|
5
|
|
Section
1.33.
|
“Market
Capitalization”
|
5
|
|
Section
1.34.
|
“Material
Adverse Effect”
|
5
|
|
Section
1.35.
|
“Maximum
Commitment Amount”
|
5
|
|
Section
1.36.
|
“Maximum
Draw Down Amount”
|
6
|
|
Section
1.37.
|
“NASD”
|
6
|
|
Section
1.38.
|
“Permitted
Transaction”
|
6
|
|
Section
1.39.
|
“Person”
|
6
|
|
Section
1.40.
|
“Principal
Market”
|
6
|
|
Section
1.41.
|
“Prohibited
Transaction”
|
6
|
|
Section
1.42.
|
“Prospectus”
|
6
|
i
|
Section
1.43.
|
“Registrable
Securities”
|
6
|
|
Section
1.44.
|
“Registration
Rights Agreement”
|
6
|
|
Section
1.45.
|
“Registration
Statement”
|
7
|
|
Section
1.46.
|
“Regulation
D”
|
7
|
|
Section
1.47.
|
“Section 4(2)”
|
7
|
|
Section
1.48.
|
“Securities
Act”
|
7
|
|
Section
1.49.
|
“Settlement
Date”
|
7
|
|
Section
1.50.
|
“Shares”
|
7
|
|
Section
1.51.
|
“Trading
Day”
|
7
|
|
Section
1.52.
|
“VWAP”
|
7
|
|
Section
1.53.
|
“Warrant”
|
7
|
|
Section
1.54.
|
“Warrant
Shares”
|
7
|
|
ARTICLE
II
PURCHASE AND SALE OF COMMON STOCK
|
8
|
|
|
Section
2.01.
|
Purchase
and Sale of Stock.
|
8
|
|
Section
2.02.
|
Closing.
|
8
|
|
Section
2.03.
|
Registration
Statement and Prospectus.
|
8
|
|
Section
2.04.
|
Warrant.
|
8
|
|
Section
2.05.
|
Blackout
Shares.
|
8
|
|
ARTICLE
III DRAW
DOWN TERMS
|
8
|
|
|
Section
3.01.
|
Draw
Down Notice.
|
8
|
|
Section
3.02.
|
Number
of Shares.
|
9
|
|
Section
3.03.
|
Limitation
on Draw Downs.
|
9
|
|
Section
3.04.
|
Trading
Cushion.
|
9
|
|
Section
3.05.
|
Settlement.
|
9
|
|
Section
3.06.
|
Delivery
of Shares; Payment of Draw Down Amount.
|
9
|
|
Section
3.07.
|
Failure
to Deliver Shares.
|
10
|
|
ARTICLE
IV REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
|
11
|
|
|
Section
4.01.
|
Organization,
Good Standing and Power.
|
11
|
|
Section
4.02.
|
Authorization;
Enforcement.
|
11
|
|
Section
4.03.
|
Capitalization.
|
11
|
|
Section
4.04.
|
Issuance
of Shares.
|
12
|
|
Section
4.05.
|
No
Conflicts.
|
12
|
|
Section
4.06.
|
Commission
Documents, Financial Statements.
|
13
|
|
Section
4.07.
|
No
Material Adverse Change.
|
14
|
|
Section
4.08.
|
No
Undisclosed Liabilities.
|
14
|
|
Section
4.09.
|
No
Undisclosed Events or Circumstances.
|
14
|
|
Section
4.10.
|
Actions
Pending.
|
14
|
|
Section
4.11.
|
Compliance
with Law.
|
14
|
|
Section
4.12.
|
Certain
Fees.
|
15
|
|
Section
4.13.
|
Disclosure.
|
15
|
|
Section
4.14.
|
Material
Non-Public Information.
|
15
|
ii
|
Section
4.15.
|
Exemption
from Registration; Valid Issuances.
|
15
|
|
Section
4.16.
|
No
General Solicitation or Advertising in Regard to this
Transaction.
|
15
|
|
Section
4.17.
|
No
Integrated Offering.
|
16
|
|
Section
4.18.
|
Acknowledgment
Regarding Investor’s Purchase of Shares.
|
16
|
|
ARTICLE
V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR
|
16
|
|
|
Section
5.01.
|
Organization
and Standing of the Investor.
|
16
|
|
Section
5.02.
|
Authorization
and Power.
|
16
|
|
Section
5.03.
|
No
Conflicts.
|
17
|
|
Section
5.04.
|
Financial
Capability.
|
17
|
|
Section
5.05.
|
Information.
|
17
|
|
Section
5.06.
|
Selling
Restrictions.
|
17
|
|
Section
5.07.
|
Statutory
Underwriter Status.
|
18
|
|
Section
5.08.
|
Not
an Affiliate.
|
18
|
|
Section
5.09.
|
Manner
of Sale.
|
18
|
|
Section
5.10.
|
Prospectus
Delivery.
|
18
|
|
ARTICLE
VI COVENANTS
OF THE COMPANY
|
19
|
|
|
Section
6.01.
|
Securities.
|
19
|
|
Section
6.02.
|
Reservation
of Common Stock.
|
19
|
|
Section
6.03.
|
Registration
and Listing.
|
19
|
|
Section
6.04.
|
Registration
Statement.
|
19
|
|
Section
6.05.
|
Compliance
with Laws.
|
20
|
|
Section
6.06.
|
Reporting
Requirements.
|
20
|
|
Section
6.07.
|
Other
Financing.
|
20
|
|
Section
6.08.
|
Prohibited
Transactions.
|
21
|
|
Section
6.09.
|
Corporate
Existence.
|
21
|
|
Section
6.10.
|
Non-Disclosure
of Non-Public Information.
|
22
|
|
Section
6.11.
|
Notice
of Certain Events Affecting Registration; Suspension of Right to
Request a
Draw Down.
|
22
|
|
Section
6.12.
|
Amendments
to the Registration Statement.
|
22
|
|
Section
6.13.
|
Prospectus
Delivery.
|
22
|
|
ARTICLE
VII
CONDITIONS TO THE OBLIGATION OF THE INVESTOR TO ACCEPT A DRAW
DOWN
|
23
|
|
|
Section
7.01.
|
Accuracy
of the Company’s Representations and Warranties.
|
23
|
|
Section
7.02.
|
Performance
by the Company.
|
23
|
|
Section
7.03.
|
Compliance
with Law.
|
23
|
|
Section
7.04.
|
Effective
Registration Statement.
|
23
|
|
Section
7.05.
|
No
Knowledge.
|
23
|
|
Section
7.06.
|
No
Suspension.
|
24
|
|
Section
7.07.
|
No
Injunction.
|
24
|
|
Section
7.08.
|
No
Proceedings or Litigation.
|
24
|
iii
|
Section
7.09.
|
Sufficient
Shares Registered for Resale.
|
24
|
|
Section
7.10.
|
Warrant.
|
24
|
|
Section
7.11.
|
Opinion
of Counsel.
|
24
|
|
Section
7.12.
|
Accuracy
of Investor’s Representation and Warranties.
|
24
|
|
Section
7.13.
|
Payment
of Fees.
|
24
|
|
ARTICLE
VIII TERMINATION
|
25
|
|
|
Section
8.01.
|
Term.
|
25
|
|
Section
8.02.
|
Other
Termination.
|
25
|
|
Section
8.03.
|
Effect
of Termination.
|
25
|
|
ARTICLE
IX INDEMNIFICATION
|
26
|
|
|
Section
9.01.
|
Indemnification.
|
26
|
|
Section
9.02.
|
Notification
of Claims for Indemnification.
|
27
|
|
ARTICLE
X
MISCELLANEOUS
|
28
|
|
|
Section
10.01.
|
Fees
and Expenses.
|
28
|
|
Section
10.02.
|
Reporting
Entity for the Common Stock.
|
29
|
|
Section
10.03.
|
Brokerage.
|
29
|
|
Section
10.04.
|
Notices.
|
29
|
|
Section
10.05.
|
Assignment.
|
31
|
|
Section
10.06.
|
Amendment;
No Waiver.
|
31
|
|
Section
10.07.
|
Entire
Agreement.
|
31
|
|
Section
10.08.
|
Severability.
|
32
|
|
Section
10.09.
|
Title
and Subtitles.
|
32
|
|
Section
10.10.
|
Counterparts.
|
32
|
|
Section
10.11.
|
Choice
of Law.
|
32
|
|
Section
10.12.
|
Specific
Enforcement, Consent to Jurisdiction.
|
32
|
|
Section
10.13.
|
Survival.
|
32
|
|
Section
10.14.
|
Publicity.
|
33
|
|
Further
Assurances.
|
33
|
|
|
Section
10.16.
|
Absence
of Presumption.
|
33
|
iv
by
and between
KINGSBRIDGE
CAPITAL LIMITED
and
dated
as December 1, 2008
This
COMMON STOCK PURCHASE AGREEMENT (this “Agreement”)
is
entered into as of December 1, 2008, by and between KINGSBRIDGE
CAPITAL LIMITED,
an
entity organized and existing under the laws of the British Virgin Islands,
whose business address is X.X. Xxx 0000, Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xx.
Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxxx (the “Investor”)
and
MICROMET, INC., a corporation organized and existing under the laws of the
State
of Delaware (the “Company”).
WHEREAS,
the parties desire that, upon the terms and subject to the conditions and
limitations set forth herein, the Company may issue and sell to the Investor,
from time to time as provided herein, and the Investor shall purchase from
the
Company, up to $75 million worth of shares of Common Stock (as defined below);
and
WHEREAS,
such investments will be made in reliance upon the provisions of
Section 4(2) (“Section 4(2)”)
and
Regulation D (“Regulation
D”)
of the
United States Securities Act of 1933, as amended and the rules and regulations
promulgated thereunder (the “Securities
Act”),
and/or upon such other exemption from the registration requirements of the
Securities Act as may be available with respect to any or all of the investments
in Common Stock to be made hereunder; and
WHEREAS,
the parties previously entered into a Common Stock Purchase Agreement dated
as
of August 30, 2006 (the "Prior
Purchase Agreement"),
pursuant to which the Investor agreed to purchase up to $25 million worth of
shares of Common Stock from the Company on the terms and conditions set forth
in
the Prior Purchase Agreement; and
WHEREAS,
the parties hereto are concurrently entering into a Registration Rights
Agreement in the form of Exhibit A hereto (the “Registration
Rights Agreement”)
pursuant to which the Company shall register the Common Stock issued and sold
to
the Investor under this Agreement and under the Warrant (as defined below),
upon
the terms and subject to the conditions and limitations set forth therein;
and
WHEREAS,
the Company desires to terminate the Prior Purchase Agreement pursuant to
Section 8.02(d) thereunder upon the effectiveness of the registration statement
referred to in the Registration Rights Agreement; and
WHEREAS,
in consideration for the Investor’s execution and delivery of, and its
performance of its obligations under, this Agreement, the Company is
concurrently issuing to the Investor a warrant in the form of Exhibit
B
hereto
(the “Warrant”) pursuant to which the Investor may purchase from the Company up
to 135,000 shares of Common Stock, upon the terms and subject to the conditions
and limitations set forth therein;
NOW,
THEREFORE, the parties hereto agree as follows:
2
ARTICLE
I
DEFINITIONS
Section
1.01. “Alternative
Draw Down Amount”
means
the product of (i) Average Trading Volume, (ii) the Closing Price on the Trading
Day preceding the issuance of the Draw Down Notice, and (iii) four (4) (being
the number of Trading Days during a Draw Down Pricing Period multiplied by
the
Liquidity Ratio).
Section
1.02. “Average
Trading Volume”
means
the average trading volume of the twenty (20) Trading Days during the thirty
(30) Trading Days prior to the issuance of the Draw Down Notice that results
from excluding the five (5) highest and five (5) lowest Trading Days during
such
period.
Section
1.03. “Blackout
Amount”
shall
have the meaning assigned to such term in the Registration Rights
Agreement.
Section
1.04. “Blackout
Shares”
shall
have the meaning assigned to such term in the Registration Rights
Agreement.
Section
1.05. “Business
Day”
shall
mean any day other than a Saturday, a Sunday or a day on which banks in New
York
City, New York are authorized or obligated by executive order to
close.
Section
1.06. “Bylaws”
shall
have the meaning assigned to such term in Section 4.03 hereof.
Section
1.07. “Certificate”
shall
have the meaning assigned to such term in Section 4.03 hereof.
Section
1.08. “Closing
Date”
means
the date on which this Agreement is executed and delivered by the Company and
the Investor.
Section
1.09. “Closing
Price”
as
of
any particular day shall mean the closing price per share of the Common Stock
as
reported by the Principal Market on such day.
Section
1.10. “Commission”
means
the United States Securities Exchange Commission.
Section
1.11. “Commission
Documents”
shall
have the meaning assigned to such term in Section 4.06 hereof.
Section
1.12. “Commitment
Period”
means
the period commencing on the Effective Date and expiring on the earliest to
occur of (i) the date on which the Investor shall have purchased Shares
pursuant to this Agreement for an aggregate purchase price equal to the Maximum
Commitment Amount, (ii) the date this Agreement is terminated pursuant to
Article VIII hereof, and (iii) December 1, 2011.
3
Section
1.13. “Common
Stock”
means
the common stock of the Company, par value $0.00004 per share.
Section
1.14. “Condition
Satisfaction Date”
shall
have the meaning assigned to such term in Article VII hereof.
Section
1.15. “Consolidated
Subsidiary”
means
any subsidiary that the Company consolidates in the preparation of its audited
consolidated financial statements.
Section
1.16. “Convertible
Security”
shall
have the meaning assigned to such term in Section 6.08 hereof.
Section
1.17. “Conversion
Price”
shall
have the meaning assigned to such term in Section 6.08 hereof.
Section
1.18. “Damages”
means
any loss, claim, damage, liability, costs and expenses (including, without
limitation, reasonable attorneys’ fees and expenses and costs and reasonable
expenses of expert witnesses and investigation).
Section
1.19. “Draw
Down”
shall
have the meaning assigned to such term in Section 3.01 hereof.
Section
1.20. “Draw
Down Amount”
means
the actual amount of a Draw Down paid to the Company.
Section
1.21. “Draw
Down Discount Price”
means
(i) 86% of the VWAP on any Trading Day during a Draw Down Pricing Period when
the VWAP equals or exceeds $2.00 but is less than or equal to $2.50, (ii) 88%
of
the VWAP on any Trading Day during a Draw Down Pricing Period when the VWAP
exceeds $2.50 but is less than or equal to $4.35, (iii) 90% of the VWAP on
any
Trading Day during a Draw Down Pricing Period when the VWAP exceeds $4.35 but
is
less than or equal to $8.00, (iv) 92% of the VWAP on any Trading Day during
a
Draw Down Pricing Period when the VWAP exceeds $8.00 but is less than or equal
to $10.00, or (v) 94% of the VWAP on any Trading Day during a Draw Down Pricing
Period when VWAP exceeds $10.00.
Section
1.22. “Draw
Down Notice”
shall
have the meaning assigned to such term in Section 3.01 hereof.
Section
1.23. “Draw
Down Pricing Period”
shall
mean, with respect to each Draw Down, a period of eight (8) consecutive Trading
Days beginning on the first Trading Day specified in a Draw Down
Notice.
Section
1.24. “DTC”
shall
mean the Depository Trust Company, or any successor thereto.
Section
1.25. “Effective
Date”
means
the first Trading Day immediately following the date on which the Registration
Statement is declared effective by the Commission.
4
Section
1.26. “Exchange
Act”
means
the U.S. Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
Section
1.27. “Excluded
Merger or Sale”
shall
have the meaning assigned to such term in the Warrant.
Section
1.28. “FINRA”
means the Financial Industry Regulatory Authority.
Section
1.29. “Knowledge”
with
respect to the Company means the actual knowledge of the President, Chief
Executive Officer, Vice President-Business Development, Senior Vice President,
General Counsel and Secretary, Chief Financial Officer, Senior Vice
President-Clinical Development, Director-Human Resources, Vice President-Process
Development, Vice President Preclinical Development, Vice President Research
and
the Senior Vice President and Chief Scientific Officer or any other Vice
President of the Company.
Section
1.30. “LIBOR”
means
the three month London interbank offered rate as reported in the Money Rates
table of the Wall Street Journal on the day that is two (2) Business Days prior
to the beginning of the relevant period.
Section
1.31. “Liquidity
Ratio”
means
fifty percent (50%).
Section
1.32. “Make
Whole Amount”
shall
have the meaning specified in Section 3.07.
Section
1.33. “Market
Capitalization”
means,
as of any Trading Day, the product of (i) the closing sale price of the
Common Stock as reported by Bloomberg L.P. using the AQR function and
(ii) the number of outstanding shares of Common Stock of the Company as
reported by Bloomberg L.P. using the DES function.
Section
1.34. “Material
Adverse Effect”
means
any effect that is not negated, corrected, cured or otherwise remedied by the
Company within a reasonable period of time on the business, operations,
properties or financial condition of the Company and its Consolidated
Subsidiaries that is material and adverse to the Company and such subsidiaries,
taken as a whole, and/or any condition, circumstance, or situation that would
prohibit or otherwise interfere with the ability of the Company to perform
any
of its obligations under this Agreement, the Registration Rights Agreement
or
the Warrant in any material respect; provided,
that
none of the following shall constitute a “Material Adverse Effect”: (i) the
effects of conditions or events that are generally applicable to the capital,
financial, banking, currency, biotechnology or pharmaceutical industries,
(ii) any changes or effects resulting from the announcement or consummation
of the transactions contemplated by this Agreement, including, without
limitation, any changes or effects associated with any particular Draw Down,
and
(iii) changes in the market price of the Common Stock.
Section
1.35. “Maximum
Commitment Amount”
means
the lesser of (i) (x) $75 million in aggregate Draw Down Amounts minus (y)
the
aggregate Draw Down Amounts made pursuant to the Prior Purchase Agreement;
or
(ii) (x) 10,104,919 shares of Common Stock minus (y) the number of shares of
Common Stock issued to the Investor pursuant to the Prior Purchase Agreement
(as
adjusted for stock splits, stock combinations, stock dividends,
recapitalizations and the like that occur on or after the date of this Agreement
minus the number of Blackout Shares, if any, delivered to the Investor under
the
Registration Rights Agreement), provided,
however,
that
the Maximum Commitment Amount shall not exceed that number of shares of Common
Stock which the Company may issue pursuant to the Agreement and the transactions
contemplated herein, without breaching the Company’s obligations under the rules
and regulations of the Principal Market.
5
Section
1.36. “Maximum
Draw Down Amount”
means
the lesser of:
(a) $10
million, or
(b) the
greater of (x) (i) if the Company’s Market Capitalization is equal to or greater
than $225 million at the time of the Draw Down, 1.5% of the Company’s Market
Capitalization at the time of the Draw Down; (ii) if the Company’s Market
Capitalization is equal to or exceeds $175 million but is less than $225 million
at the time of the Draw Down, 1.25% of the Company’s Market Capitalization at
the time of the Draw Down; (iii) if the Company’s Market Capitalization is equal
to or exceeds $62.8 million but is less than $175 million at the time of the
Draw Down, 1% of the Company’s Market Capitalization at the time of the Draw
Down; and (y) the Alternative Draw Down Amount.
Section
1.37. “NASD”
means
the National Association of Securities Dealers, Inc.
Section
1.38. “Permitted
Transaction”
shall
have the meaning assigned to such term in Section 6.07 hereof.
Section
1.39. “Person”
means
any individual, corporation, partnership, limited liability company,
association, trust or other entity or organization, including any government
or
political subdivision or an agency or instrumentality thereof.
Section
1.40. “Principal
Market”
means
the NASDAQ National Market, NASDAQ Global Market, the NASDAQ Capital Market,
the
American Stock Exchange or the New York Stock Exchange, whichever is at the
time
the principal trading exchange or market for the Common Stock.
Section
1.41. “Prior
Purchase Agreement”
shall
have the meaning set forth in the recitals of this Agreement.
Section
1.42. “Prohibited
Transaction”
shall
have the meaning assigned to such term in Section 6.08 hereof.
Section
1.43. “Prospectus”
as
used
in this Agreement means the prospectus in the form included in the Registration
Statement, as supplemented from time to time pursuant to Rule 424(b) of the
Securities Act.
Section
1.44. “Registrable
Securities”
means
(i) the Shares, (ii) the Warrant Shares, and (iii) any securities
issued or issuable with respect to any of the foregoing by way of exchange,
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
As
to any particular Registrable Securities, once issued such securities shall
cease to be Registrable Securities when (w) the Registration Statement has
been
declared effective by the Commission and such Registrable Securities have been
disposed of pursuant to the Registration Statement, (x) such Registrable
Securities have been sold under circumstances under which all of the applicable
conditions of Rule 144 (or any similar provision then in force) under the
Securities Act (“Rule
144”)
are
met, (y) such time as such Registrable Securities have been otherwise
transferred to holders who may trade such shares without restriction under
the
Securities Act, and the Company has delivered a new certificate or other
evidence of ownership for such securities not bearing a restrictive legend
or
(z) in the opinion of inside or outside counsel to the Company such
Registrable Securities may be sold without registration and without any time,
volume or manner limitations pursuant to Rule 144(k) (or any similar provision
then in effect) under the Securities Act.
6
Section
1.45. “Registration
Rights Agreement”
shall
have the meaning set forth in the recitals of this Agreement.
Section
1.46. “Registration
Statement”
shall
have the meaning assigned to such term in the Registration Rights
Agreement.
Section
1.47. “Regulation
D”
shall
have the meaning set forth in the recitals of this Agreement.
Section
1.48. “Section 4(2)”
shall
have the meaning set forth in the recitals of this Agreement.
Section
1.49. “Securities
Act”
shall
have the meaning set forth in the recitals of this Agreement.
Section
1.50. “Settlement
Date”
shall
have the meaning assigned to such term in Section 3.05 hereof.
Section
1.51. “Shares”
means
the shares of Common Stock of the Company that are and/or may be purchased
hereunder.
Section
1.52. “Trading
Day”
means
any day other than a Saturday or a Sunday on which the Principal Market is
open
for trading in equity securities.
Section
1.53. “VWAP”
means
the volume weighted average price (the aggregate sales price of all trades
of
Common Stock during each Trading Day divided by the total number of shares
of
Common Stock traded during such Trading Day) of the Common Stock during any
Trading Day as reported by Bloomberg, L.P. using the AQR function.
Section
1.54. “Warrant”
shall
have the meaning set forth in the recitals of this Agreement.
Section
1.55. “Warrant
Shares”
means
the shares of Common Stock issuable to the Investor upon exercise of the
Warrant.
7
ARTICLE
II
PURCHASE
AND SALE OF COMMON STOCK
Section
2.01. Purchase
and Sale of Stock.
Upon
the terms and subject to the conditions set forth in this Agreement, the Company
shall, to the extent it elects to make Draw Downs in accordance with
Article III hereof, issue and sell to the Investor and the Investor shall
purchase from the Company Common Stock for an aggregate in Draw Down Amounts
of
up to the Maximum Commitment Amount, consisting of purchases based on Draw
Downs
in accordance with Article III hereof.
Section
2.02. Closing.
In
consideration of and in express reliance upon the representations, warranties,
covenants, terms and conditions of this Agreement, the Company agrees to issue
and sell to the Investor, and the Investor agrees to purchase from the Company,
that number of the Shares to be issued in connection with each Draw Down. The
execution and delivery of this Agreement (the “Closing”)
shall
take place on the date hereof (the “Closing
Date”).
Each
party shall deliver at or prior to the Closing all documents, instruments and
writings required to be delivered at the Closing by such party pursuant to
this
Agreement.
Section
2.03. Registration
Statement and Prospectus.
The
Company shall prepare and file with the Commission the Registration Statement
(including the Prospectus) in accordance with the provisions of the Securities
Act and the Registration Rights Agreement.
Section
2.04. Warrant.
On the
Closing Date, the Company shall issue and deliver the Warrant to the
Investor.
Section
2.05. Blackout
Shares.
The
Company shall deliver any Blackout Amount or issue and deliver any Blackout
Shares to the Investor in accordance with Section 1(e) of the Registration
Rights Agreement.
ARTICLE
III
DRAW
DOWN TERMS
Subject
to the satisfaction of the conditions hereinafter set forth in this Agreement,
the parties agree as follows:
Section
3.01. Draw
Down Notice.
During
the Commitment Period, the Company may, in its sole discretion, issue a Draw
Down Notice (defined below) specifying the dollar amount of Shares it elects
to
sell to the Investor (each such election a “Draw
Down”)
up to
a Draw Down Amount equal to the Maximum Draw Down Amount, which Draw Down the
Investor will be obligated to accept. The Company shall inform the Investor
in
writing via e-mail to the addresses set forth in Section 10.04 and via facsimile
transmission to the number set forth in Section 10.04, with a copy to the
Investor’s counsel, as to such Draw Down Amount before commencement of trading
on the first Trading Day of the related Draw Down Pricing Period (the
“Draw
Down Notice”).
In
addition to the Draw Down Amount, each Draw Down Notice shall designate the
first Trading Day of the Draw Down Pricing Period. In no event shall any Draw
Down Amount exceed the Maximum Draw Down Amount. Each Draw Down Notice shall
be
accompanied by a certificate, signed by the Chief Executive Officer or Chief
Financial Officer and dated as of the date of such Draw Down Notice, in the
form
of Exhibit C
hereof.
8
Section
3.02. Number
of Shares.
Subject
to Section 3.06(b), the number of Shares to be issued in connection with
each Draw Down shall be equal to the sum of the number of shares issuable on
each Trading Day of the Draw Down Pricing Period. Subject to Section 3.06(b),
the number of Shares issuable on a Trading Day during a Draw Down Pricing Period
shall be equal to the quotient of one eighth (1/8th)
of the
Draw Down Amount divided by the Draw Down Discount Price for such Trading
Day.
Section
3.03. Limitation
on Draw Downs.
Only
one Draw Down shall be permitted for each Draw Down Pricing Period.
Section
3.04. Trading
Cushion.
Unless
the parties agree in writing otherwise, there shall be a minimum of ten (10)
Trading Days between the expiration of any Draw Down Pricing Period and the
beginning of the next succeeding Draw Down Pricing Period.
Section
3.05. Settlement.
Subject
to Section 3.06(b), the number of Shares purchased by the Investor in any Draw
Down shall be determined and settled on two separate dates. Shares purchased
by
the Investor during the first four Trading Days of any Draw Down Pricing Period
shall be determined and settled no later than the sixth Trading Day of such
Draw
Down Pricing Period. Shares purchased by the Investor during the second four
Trading Days of any Draw Down Pricing Period shall be determined and settled
no
later than the second Trading Day after the last Trading Day of such Draw Down
Pricing Period. Each date on which settlement of the purchase and sale of Shares
occurs hereunder being referred to as a “Settlement
Date.”
The
Investor shall provide the Company with delivery instructions for the Shares
to
be issued at each Settlement Date at least two Trading Days in advance of such
Settlement Date. The number of Shares actually issued shall be rounded to the
nearest whole number of Shares.
Section
3.06. Delivery
of Shares; Payment of Draw Down Amount.
(a) On
each
Settlement Date, the Company shall deliver the Shares purchased by the Investor
to the Investor or its designees exclusively via book-entry through the DTC
to
an account designated by the Investor, and upon receipt of the Shares, the
Investor shall cause payment therefor to be made to the Company’s designated
account by wire transfer of immediately available funds, if the Shares are
received by the Investor no later than 12:00 p.m. (Eastern Time), or next day
available funds, if the Shares are received thereafter. Upon the written request
of the Company, the Investor will cause its banker to confirm to the Company
that the Investor has provided irrevocable instructions to cause payment for
the
Shares to be made as set forth above, upon confirmation by such banker that
the
Shares have been delivered through the DTC in unrestricted form.
(b) For
each
Trading Day during a Draw Down Pricing Period that the VWAP is less than the
greater of (i) 85% of the Closing Price of the Company’s Common Stock on the
Trading Day immediately preceding the commencement of such Draw Down Pricing
Period, or (ii) $2.00, such Trading Day shall not be used in calculating
the number of Shares to be issued in connection with such Draw Down, and the
Draw Down Amount in respect of such Draw Down Pricing Period shall be reduced
by
one eighth (1/8th)
of the
initial Draw Down Amount specified in the Draw Down Notice. If trading in the
Company’s Common Stock is suspended for any reason for more than three (3)
consecutive or non-consecutive hours during any Trading Day during a Draw Down
Pricing Period, such Trading Day shall not be used in calculating the number
of
Shares to be issued in connection with such Draw Down, and the Draw Down Amount
in respect of such Draw Down Pricing Period shall be reduced by one eighth
(1/8th) of the initial Draw Down Amount specified in the Draw Down Notice.
In
the event that the Company delivers a Blackout Notice to the Investor at any
time on or after the date that a Draw Down Notice is issued, each Trading Day
during the applicable Draw Down Pricing Period after the delivery of such
Blackout Notice shall be disregarded (subject to waiver by the Investor) for
the
purposes of calculating the number of Shares to be issued in respect of the
applicable Draw Down, and the Draw Down Amount in respect of such Draw Down
Pricing Period shall be reduced by one eighth (1/8th) of the initial Draw Down
Amount specified in the Draw Down Notice for each such Trading Day that is
so
disregarded.
9
Section
3.07. Failure
to Deliver Shares.
If the
Company fails, on any Settlement Date, to take all actions within its reasonable
control to cause the delivery of the Shares purchased by the Investor, and
such
failure is not cured within two (2) Trading Days following such Settlement
Date,
the Company shall pay to the Investor on demand in cash by wire transfer of
immediately available funds to an account designated by the Investor the
“Make
Whole Amount;”
provided,
however,
that in
the event that the Company is prevented from delivering Shares in respect of
any
such Settlement Date in a timely manner by any fact or circumstance that is
reasonably within the control of, or directly attributable to, the Investor,
then such two (2) Trading Day period shall be automatically extended until
such
time as such fact or circumstance is cured. As used herein, the Make Whole
Amount shall be an amount equal to the sum of (i) the Draw Down Amount actually
paid by the Investor in respect of such Shares plus (ii) an amount equal to
the
actual loss suffered by the Investor in respect of sales to subsequent
purchasers, pursuant to transactions entered into before the Settlement Date,
of
the Shares that were required to be delivered by the Company, which shall be
based upon documentation reasonably satisfactory to the Company demonstrating
the difference (if greater than zero) between (A) the price per share paid
by
the Investor to purchase such number of shares of Common Stock necessary for
the
Investor to meet its share delivery obligations to such subsequent purchasers
minus (B) the average Draw Down Discount Price during the applicable Draw Down
Pricing Period. In the event that the Make Whole Amount is not paid within
two
(2) Trading Days following a demand therefor from the Investor, the Make Whole
Amount shall accrue interest compounded daily at a rate of LIBOR plus 300 basis
points per annum, up to and including the date on which the Make Whole Amount
is
actually paid. Notwithstanding anything to the contrary set forth in this
Agreement, in the event that the Company pays the Make Whole Amount (plus
interest, if applicable) in respect of any Settlement Date in accordance with
this Section 3.07, such payment shall be the Investor’s sole remedy in respect
of the Company’s failure to deliver Shares in respect of such Settlement Date,
and the Company shall not be obligated to deliver such Shares.
10
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company hereby makes the following representations and warranties to the
Investor except as set forth on the Disclosure Schedule:
Section
4.01. Organization,
Good Standing and Power.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. Except as set forth in the Commission Documents (as
defined below), as of the date hereof the Company does not own more than fifty
percent (50%) of the outstanding capital stock of or control any other business
entity, other than any wholly-owned subsidiary that is not “significant” within
the meaning of Regulation S-X promulgated by the Commission. The Company is
duly
qualified as a foreign corporation to do business and is in good standing in
every jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, other than those in which the
failure so to qualify or be in good standing would not have a Material Adverse
Effect.
Section
4.02. Authorization;
Enforcement.
(i) The Company has the requisite corporate power and authority to enter
into and perform its obligations under this Agreement, the Registration Rights
Agreement and the Warrant and to issue the Shares, the Warrant, the Warrant
Shares and any Blackout Shares (except to the extent that the number of Blackout
Shares required to be issued exceeds the number of authorized shares of Common
Stock under the Certificate); (ii) the execution and delivery of this
Agreement and the Registration Rights Agreement, and the execution, issuance
and
delivery of the Warrant, by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action and no further consent or authorization of the
Company or its Board of Directors or stockholders is required (other than as
contemplated by Section 6.05); and (iii) each of this Agreement and
the Registration Rights Agreement has been duly executed and delivered, and
the
Warrant has been duly executed, issued and delivered, by the Company and
constitutes a valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such enforceability may
be
limited by applicable bankruptcy, securities, insolvency, or similar laws
relating to, or affecting generally the enforcement of, creditors’ rights and
remedies, or indemnification or by other equitable principles of general
application.
Section
4.03. Capitalization.
The
authorized capital stock of the Company and the shares thereof issued and
outstanding as of November 3, 2008 are set forth in the Commission Documents.
All of the outstanding shares of the Common Stock as of November 3, 2008 have
been duly and validly authorized and issued, and are fully paid and
non-assessable. Except as set forth in this Agreement or in the Commission
Documents, as of November 3, 2008, no shares of Common Stock were entitled
to
preemptive rights or registration rights, and there were no outstanding options,
warrants, scrip, rights issued by the Company to subscribe to, call or
commitments of any character whatsoever issued by the Company relating to,
or
securities or rights convertible into or exchangeable for or giving any right
to
subscribe for, any shares of capital stock of the Company. Except as set forth
in this Agreement or in the Commission Documents, as of November 3, 2008, there
were no contracts, commitments, understandings, or arrangements by which the
Company is or may become bound to issue additional shares of the capital stock
of the Company or options, securities or rights convertible into or exchangeable
for or giving any right to subscribe for any shares of capital stock of the
Company. Except as described in the Commission Documents, as of the date hereof
the Company is not a party to any agreement granting registration rights to
any
Person with respect to any of its equity or debt securities. Except as set
forth
in the Commission Documents or as previously disclosed to the Investor in
writing, as of the date hereof the Company is not a party to, and it has no
Knowledge of, any agreement restricting the voting or transfer of any shares
of
the capital stock of the Company. The offer and sale of all capital stock,
convertible securities, rights, warrants, or options of the Company issued
during the twenty-four month period immediately prior to the Closing complied
in
all material respects with all applicable federal and state securities laws,
and
no stockholder has a right of rescission or damages with respect thereto that
could reasonably be expected to have a Material Adverse Effect. The Company
has
furnished or made available to the Investor true and correct copies of the
Amended and Restated Certificate of Incorporation of the Company, as amended,
as
in effect on the date hereof (the “Certificate”),
and
the Amended and Restated Bylaws of the Company, as amended, as in effect on
the
date hereof (the “Bylaws”).
11
Section
4.04. Issuance
of Shares.
Subject
to Section 6.05, the Shares, the Warrant and the Warrant Shares have been,
and
any Blackout Shares will be, duly authorized by all necessary corporate action
(except to the extent that the number of Blackout Shares required to be issued
exceeds the number of authorized shares of Common Stock under the Certificate)
and, when issued and paid for in accordance with the terms of this Agreement,
the Registration Rights Agreement and the Warrant, the Shares and the Warrant
Shares shall be validly issued and outstanding, fully paid and non-assessable,
and the Investor shall be entitled to all rights accorded to a holder of shares
of Common Stock.
Section
4.05. No
Conflicts.
The
execution, delivery and performance of this Agreement, the Registration Rights
Agreement, the Warrant and any other document or instrument contemplated hereby
or thereby, by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby do not: (i) violate any
provision of the Certificate or Bylaws, (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become
a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any material agreement, mortgage, deed of
trust, indenture, note, bond, license, lease agreement, instrument or obligation
to which the Company is a party where such default or conflict would constitute
a Material Adverse Effect, (iii) create or impose a lien, charge or
encumbrance on any property of the Company under any agreement or any commitment
to which the Company is a party or by which the Company is bound or by which
any
of its respective properties or assets are bound which would constitute a
Material Adverse Effect, (iv) result in a violation of any federal, state,
local or foreign statute, rule, regulation, order, writ, judgment or decree
(including federal and state securities laws and regulations) applicable to
the
Company or any of its Consolidated Subsidiaries or by which any property or
asset of the Company or any of its Consolidated Subsidiaries are bound where
such violation would constitute a Material Adverse Effect, or (v) require any
consent of any third-party that has not been obtained pursuant to any material
contract to which the Company is subject or to which any of its assets,
operations or management may be subject where the failure to obtain any such
consent would constitute a Material Adverse Effect. The Company is not required
under federal, state or local law, rule or regulation to obtain any consent,
authorization or order of, or make any filing or registration with, any court
or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement, the Registration Rights Agreement or the
Warrant, or issue and sell the Shares, the Warrant Shares or the Blackout Shares
(except to the extent that the number of Blackout Shares required to be issued
exceeds the number of authorized shares of Common Stock under the Certificate)
in accordance with the terms hereof and thereof (other than any filings that
may
be required to be made by the Company with the Commission, the FINRA/NASDAQ
or
state securities commissions subsequent to the Closing, and, any registration
statement (including any amendment or supplement thereto) which may be filed
pursuant hereto); provided
that,
for purposes of the representation made in this sentence, the Company is
assuming and relying upon the accuracy of the relevant representations and
agreements of the Investor herein.
12
Section
4.06. Commission
Documents, Financial Statements.
The
Common Stock is registered pursuant to Section 12(b) or 12(g) of the
Exchange Act, and since January 1, 2008, the Company has timely filed all
reports, schedules, forms, statements and other documents required to be filed
by it with the Commission pursuant to the reporting requirements of the Exchange
Act, including material filed pursuant to Section 13(a) or 15(d) of the
Exchange Act (all of the foregoing, including
any such reports, schedules, forms, statements and other documents filed after
the date hereof,
including filings incorporated by reference in any such filings, being referred
to herein as the “Commission
Documents”).
Except as previously disclosed to the Investor in writing, since January 1,
2008, the Company has maintained all requirements for the continued listing
or
quotation of its Common Stock, and such Common Stock is currently listed or
quoted on the Nasdaq Global Market. To the extent not available on the
Commission’s XXXXX filing system, the Company has made available to the Investor
true and complete copies of the Commission Documents filed with the Commission
since January 1, 2008, and prior to the Closing Date. The Company has not
provided to the Investor any information which, according to applicable law,
rule or regulation, should have been disclosed publicly by the Company but
which
has not been so disclosed, other than with respect to the transactions
contemplated by this Agreement. As of its date, the Company’s Form 10-K for
the year ended December 31, 2007 complied in all material respects with the
requirements of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder applicable to such document, and, as of its date, after
giving effect to the information disclosed and incorporated by reference
therein, such Form 10-K did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. As of their respective dates, the
financial statements of the Company included in the Commission Documents filed
with the Commission since January 1, 2008, complied as to form and substance
in
all material respects with applicable accounting requirements and the published
rules and regulations of the Commission or other applicable rules and
regulations with respect thereto. Such financial statements have been prepared
in accordance with generally accepted accounting principles (“GAAP”)
applied on a consistent basis during the periods involved (except (i) as
may be otherwise indicated in such financial statements or the notes thereto
or
(ii) in the case of unaudited interim statements, to the extent they may
not include footnotes or may be condensed or summary statements), and fairly
present in all material respects the financial position of the Company and
its
Consolidated Subsidiaries as of the dates thereof and the results of operations
and cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments).
13
Section
4.07. No
Material Adverse Change.
Except
as disclosed in the Commission Documents, since September 30, 2008 no event
or
series of events has or have occurred that would, individually or in the
aggregate, have a Material Adverse Effect on the Company.
Section
4.08. No
Undisclosed Liabilities.
Neither
the Company nor any of its Consolidated Subsidiaries has any liabilities,
obligations, claims or losses (whether liquidated or unliquidated, secured
or
unsecured, absolute, accrued, contingent or otherwise) that would be required
to
be disclosed on a balance sheet of the Company or any Consolidated Subsidiary
(including the notes thereto) in conformity with GAAP and are not disclosed
in
the Commission Documents, other than those incurred in the ordinary course
of
the Company’s or its Consolidated Subsidiaries respective businesses since
September 30, 2008, or which, individually or in the aggregate, do not or would
not have a Material Adverse Effect on the Company.
Section
4.09. No
Undisclosed Events or Circumstances.
To the
Company’s Knowledge, no event or circumstance has occurred or exists with
respect to the Company or its Consolidated Subsidiaries or their respective
businesses, properties, operations or financial condition, which, under
applicable law, rule or regulation, requires public disclosure or announcement
by the Company but which has not been so publicly announced or disclosed and
which, individually or in the aggregate, would have a Material Adverse Effect
on
the Company.
Section
4.10. Actions
Pending.
There
is no action, suit, claim, investigation or proceeding of which the Company
is
aware or which has been served on the Company or, to the Knowledge of the
Company, threatened against the Company or any Consolidated Subsidiary which
questions the validity of this Agreement or the transactions contemplated hereby
or any action taken or to be taken pursuant hereto or thereto. Except as set
forth in the Commission Documents, there is no action, suit, claim,
investigation or proceeding pending or, to the Knowledge of the Company,
threatened against or involving the Company, any Consolidated Subsidiary or
any
of their respective properties or assets that could be reasonably expected
to
have a Material Adverse Effect on the Company. Except as set forth in the
Commission Documents or as previously disclosed to the Investor in writing,
no
judgment, order, writ, injunction or decree or award has been issued by or,
to
the Knowledge of the Company, requested of any court, arbitrator or governmental
agency which could be reasonably expected to result in a Material Adverse
Effect.
Section
4.11. Compliance
with Law.
The
businesses of the Company and its Consolidated Subsidiaries have been and are
presently being conducted in accordance with all applicable federal, state
and
local governmental laws, rules, regulations and ordinances, except as set forth
in the Commission Documents or such that would not reasonably be expected to
cause a Material Adverse Effect. Except as set forth in the Commission
Documents, the Company and each of its Consolidated Subsidiaries have all
franchises, permits, licenses, consents and other governmental or regulatory
authorizations and approvals necessary for the conduct of its business as now
being conducted by it, except for such franchises, permits, licenses, consents
and other governmental or regulatory authorizations and approvals, the failure
to possess which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
14
Section
4.12. Certain
Fees.
Except
as expressly set forth in this Agreement, no brokers, finders or financial
advisory fees or commissions will be payable by the Company or any of its
Consolidated Subsidiaries in respect of the transactions contemplated by this
Agreement.
Section
4.13. Disclosure.
To the
Company’s Knowledge, neither this Agreement nor any other documents,
certificates or instruments furnished to the Investor by or on behalf of the
Company or any Consolidated Subsidiary in connection with the transactions
contemplated by this Agreement, the Registration Rights Agreement or the Warrant
contain any untrue statement of a material fact or omit to state a material
fact
necessary in order to make the statements made herein or therein, in the light
of the circumstances under which they were made herein or therein, not
misleading.
Section
4.14. Material
Non-Public Information.
Except
for this Agreement and the transactions contemplated hereby, neither the
Company, nor its employees nor its agents have disclosed to the Investor, any
material non-public information that, according to applicable law, rule or
regulation, should have been disclosed publicly by the Company prior to the
date
hereof but which has not been so disclosed.
Section
4.15. Exemption
from Registration; Valid Issuances.
Subject
to, and in reliance on the representations, warranties and covenants made herein
by the Investor, the issuance and sale of the Shares, the Warrant, the Warrant
Shares and any Blackout Shares in accordance with the terms and on the bases
of
the representations and warranties set forth in this Agreement, may and shall
be
properly issued pursuant to Section 4(2), Regulation D and/or any other
applicable federal and state securities laws; provided,
however,
that at
the request of and with the express agreement of the Investor, the Shares and,
under certain circumstances, the Warrant Shares, will be delivered to the
Investor via book entry through DTC and shall not bear legends noting
restrictions as to resale of such shares under federal and state securities
laws, nor shall such shares be subject to stop transfer instructions. Neither
the sales of the Shares, the Warrant, the Warrant Shares or any Blackout Shares
pursuant to, nor the Company’s performance of its obligations under, this
Agreement, the Registration Rights Agreement, or the Warrant shall
(i) result in the creation or imposition of any liens, charges, claims or
other encumbrances upon the Shares, the Warrant Shares, any Blackout Shares
or
any of the assets of the Company, or (ii) except as previously disclosed to
the Investor in writing, entitle the holders of any outstanding shares of
capital stock of the Company to preemptive or other rights to subscribe to
or
acquire the shares of Common Stock or other securities of the
Company.
Section
4.16. No
General Solicitation or Advertising in Regard to this
Transaction.
Neither
the Company nor any of its affiliates or any person acting on its or their
behalf (i) has conducted any general solicitation (as that term is used in
Rule 502(c) of Regulation D) or general advertising with respect to any of
the
Shares, the Warrant, the Warrant Shares or any Blackout Shares or (ii) has
made any offers or sales of any security or solicited any offers to buy any
security under any circumstances that would require registration of the Shares
under the Securities Act.
15
Section
4.17. No
Integrated Offering.
Neither
the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security
or
solicited any offers to buy any security, other than pursuant to this Agreement
and employee benefit plans, under circumstances that would require registration
under the Securities Act of shares of the Common Stock issuable hereunder with
any other offers or sales of securities of the Company.
Section
4.18. Acknowledgment
Regarding Investor’s Purchase of Shares.
The
Company acknowledges and agrees that the Investor is acting solely in the
capacity of an arm’s length investor with respect to this Agreement and the
transactions contemplated hereunder. The Company further acknowledges that
the
Investor is not acting as a financial advisor or fiduciary of the Company (or
in
any similar capacity) with respect to this Agreement and the transactions
contemplated hereunder, and that any advice given by the Investor or any of
its
representatives or agents in connection with this Agreement and the transactions
contemplated hereunder is merely incidental to the Investor’s purchase of the
Shares.
ARTICLE
V
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE INVESTOR
The
Investor hereby makes the following representations, warranties and covenants
to
the Company:
Section
5.01. Organization
and Standing of the Investor.
The
Investor is a company duly organized, validly existing and in good standing
under the laws of the British Virgin Islands.
Section
5.02. Authorization
and Power.
The
Investor has the requisite power and authority to enter into and perform its
obligations under this Agreement, the Registration Rights Agreement and the
Warrant and to purchase the Shares, the Blackout Shares, the Warrant and the
Warrant Shares in accordance with the terms hereof and thereof. The execution,
delivery and performance of this Agreement and the Registration Rights Agreement
by the Investor and the consummation by it of the transactions contemplated
hereby or thereby have been duly authorized by all necessary corporate action,
and no further consent or authorization of the Investor, its Board of Directors
or stockholders is required. Each of this Agreement and the Registration Rights
Agreement has been duly executed and delivered by the Investor and constitutes
a
valid and binding obligation of the Investor enforceable against the Investor
in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
conservatorship, receivership, or similar laws relating to, or affecting
generally the enforcement of creditor’s rights and remedies or by other
equitable principles of general application.
16
Section
5.03. No
Conflicts.
The
execution, delivery and performance of this Agreement, the Warrant, the
Registration Rights Agreement and any other document or instrument contemplated
hereby, by the Investor and the consummation of the transactions contemplated
thereby do not (i) violate any provision of the Investor’s charter
documents or bylaws, (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any material agreement, mortgage, deed of trust, indenture,
note, bond, license, lease agreement, instrument or obligation to which the
Investor is a party, (iii) create or impose a lien, charge or encumbrance
on any property of the Investor under any agreement or any commitment to which
the Investor is a party or by which the Investor is bound or by which any of
its
respective properties or assets are bound, (iv) result in a violation of
any federal, state, local or foreign statute, rule, regulation, order, writ,
judgment or decree (including federal and state securities laws and regulations)
applicable to the Investor or by which any property or asset of the Investor
are
bound or affected, or (v) require the consent of any third-party that has
not been obtained pursuant to any material contract to which Investor is subject
or to which any of its assets, operations or management may be subject. The
Investor is not required under federal, state, foreign or local law, rule or
regulation to obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental agency in order for it to
execute, deliver or perform any of its obligations under this Agreement or
to
purchase the Shares or the Warrant in accordance with the terms hereof,
provided
that,
for purposes of the representation made in this sentence, the Investor is
assuming and relying upon the accuracy of the relevant representations and
agreements of the Company herein.
Section
5.04. Financial
Capability.
The
Investor has the financial capability to perform all of its obligations under
this Agreement, including the capability to purchase the Shares, the Warrant
and
the Warrant Shares in accordance with the terms hereof. The Investor has such
knowledge and experience in business and financial matters that it is capable
of
evaluating the merits and risks of an investment in Common Stock and the
Warrant. The Investor is an “accredited investor” as defined in Regulation D.
The Investor is a “sophisticated investor” as described in Rule
506(b)(2)(ii) of Regulation D. The Investor acknowledges that an investment
in the Common Stock and the Warrant is speculative and involves a high degree
of
risk.
Section
5.05. Information.
The
Investor and its advisors, if any, have been furnished with all materials
relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Shares, the Blackout Shares, the Warrant
and the Warrant Shares which have been requested by the Investor. The Investor
has reviewed or received copies of the Commission Documents. The Investor and
its advisors, if any, have been afforded the opportunity to ask questions of
the
Company. The Investor has sought such accounting, legal and tax advice as it
has
considered necessary to make an informed investment decision with respect to
its
acquisition of the Shares, the Warrant and the Warrant Shares. The Investor
understands that it (and not the Company) shall be responsible for its own
tax
liabilities that may arise as a result of this investment or the transactions
contemplated by this Agreement.
Section
5.06. Selling
Restrictions.
(a) The
Investor has not directly or indirectly, nor has any Person acting on behalf
of
or pursuant to any understanding with the Investor, engaged in any transactions
in the Company’s securities (including, without limitation, any “short sale”, as
such term is defined in Rule 200 of Regulation SHO, or any successor regulation,
promulgated by the Commission under the Exchange Act involving Common Stock)
since the time that the Investor was first contacted by the Company, or any
Person acting on behalf of the Company, regarding the transactions contemplated
hereby.
17
(b) The
Investor covenants that during the Commitment Period, neither the Investor
nor
any of its affiliates nor any entity managed or controlled by the Investor
will
ever (i) enter into or execute or cause any Person to enter into or execute
any
“short sale” (as such term is defined in Rule 200 of Regulation SHO or any
successor regulation promulgated by the Commission under the Exchange Act)
of
any shares of Common Stock, (ii) sell, during the term of a Draw Down Pricing
Period, Common Stock other than Common Stock purchased (or to be purchased)
pursuant to the Draw Down pertaining to such Draw Down Pricing Period or (iii)
engage, through related parties or otherwise, in any derivative transaction
directly related to shares of Common Stock (including, without limitation,
the
purchase of any option or contract to sell). Notwithstanding the foregoing,
the
Investor shall have the right during any Draw Down Pricing Period to sell shares
of Common Stock equal in number to the aggregate number of the Shares purchased
(or to be purchased) pursuant to the Draw Down pertaining to such Draw Down
Pricing Period.
Section
5.07. Statutory
Underwriter Status.
The
Investor acknowledges that, pursuant to the Commission’s current interpretations
of the Securities Act, the Investor will be disclosed as an “underwriter” within
the meaning of the Securities Act in the Registration Statement (and amendments
thereto) and in any Prospectus contained therein to the extent required by
applicable law. The Company acknowledges that the Investor does not necessarily
agree with such characterization.
Section
5.08. Not
an
Affiliate.
The
Investor is not an officer, director or “affiliate” (as defined in Rule 405 of
the Securities Act) of the Company.
Section
5.09. Manner
of Sale.
At no
time was Investor presented with or solicited by or through any leaflet, public
promotional meeting, television advertisement or any other form of general
solicitation or advertising by or on behalf of the Company.
Section
5.10. Prospectus
Delivery.
The
Investor agrees that unless the Shares and Warrant Shares are eligible for
resale pursuant to all the conditions of Rule 144, it will resell the Shares
and
Warrant Shares only pursuant to the Registration Statement, in a manner
described under the caption “Plan of Distribution” in the Registration
Statement, and in a manner in compliance with all applicable securities laws,
including, without limitation, the xxxxxxx xxxxxxx restrictions of the Exchange
Act and the prospectus delivery requirements of the Securities Act, if any,
as
applicable to it in connection with sales of Registrable Securities pursuant
to
the Registration Statement, and the Investor shall have delivered a current
prospectus in connection with such sale or shall have confirmed that a current
prospectus is deemed to be delivered in connection with such sale, or relied
on
an exemption from such prospectus delivery requirements. The Investor,
acknowledges that the delivery of the Shares or Warrant Shares through DTC
is
predicated upon the Company’s reliance that the Investor will sell any Shares or
Warrant Shares pursuant to either (i) the registration requirements of the
Securities Act, or (ii) an exemption therefrom. The Investor further
acknowledges and agrees that the Company shall be under no obligation to
supplement the Prospectus to reflect the issuance of any Shares pursuant to
a
Draw Down at any time prior to the day following the Settlement Date with
respect to such Shares.
18
ARTICLE
VI
COVENANTS
OF THE COMPANY
The
Company covenants with the Investor as follows, which covenants are for the
benefit of the Investor and its permitted assignees (as defined
herein):
Section
6.01. Securities.
The
Company shall notify the Commission and the Principal Market, if and as
applicable, in accordance with their rules and regulations, of the transactions
contemplated by this Agreement, and shall use commercially reasonable efforts
to
take all other necessary action and proceedings as may be required and permitted
by applicable law, rule and regulation, for the legal and valid issuance of
the
Shares, the Warrant Shares and the Blackout Shares, if any, to the Investor;
provided,
that in
no event shall the Company be under any obligation to supplement the Prospectus
to reflect the issuance of any Shares pursuant to a Draw Down at any time prior
to the day following the Settlement Date with respect to such
Shares.
Section
6.02. Reservation
of Common Stock.
As of
the date hereof, the Company has available and the Company shall reserve and
keep available at all times, free of preemptive rights and other similar
contractual rights of stockholders, shares of Common Stock for the purpose
of
enabling the Company to satisfy any obligation to issue the Shares in connection
with all Draw Downs contemplated hereunder and the Warrant Shares. The number
of
shares so reserved from time to time, as theretofore increased or reduced as
hereinafter provided, may be reduced by the number of shares actually delivered
hereunder.
Section
6.03. Registration
and Listing.
During
the Commitment Period, the Company shall use commercially reasonable efforts:
(i) to take all action necessary to cause its Common Stock to continue to
be registered under Section 12(b) or 12(g) of the Exchange Act,
(ii) to comply in all material respects with its reporting and filing
obligations under the Exchange Act, (iii) to prevent the termination or
suspension of such registration, or the termination or suspension of its
reporting and filing obligations under the Exchange Act or Securities Act
(except as expressly permitted herein). The Company shall use commercially
reasonable efforts to maintain the listing and trading of its Common Stock
and
the listing of the Shares purchased by Investor hereunder on the Principal
Market (including, without limitation, maintaining sufficient net tangible
assets) and will comply in all material respects with the Company’s reporting,
filing and other obligations under the bylaws or rules of FINRA and the
Principal Market. The Company will not be required to carry out any action
pursuant to this Agreement, the Registration Rights Agreement or the Warrant
that would adversely impact the listing of the Company’s securities on the
Principal Market as now in effect or as subsequently modified by applicable
rules and regulations.
Section
6.04. Registration
Statement.
Without
the prior written consent of the Investor, the Registration Statement shall
be
used solely in connection with the transactions between the Company and the
Investor contemplated hereby.
19
Section
6.05. Compliance
with Laws.
(a) The
Company shall comply, and cause each Consolidated Subsidiary to comply, with
all
applicable laws, rules, regulations and orders, noncompliance with which could
reasonably be expected to have a Material Adverse Effect.
(b) (b) Without
the consent of its stockholders in accordance with FINRA and The NASDAQ Stock
Market LLC rules, the Company will not be obligated to issue, and the Investor
will not be obligated to purchase, any Shares or Blackout Shares which would
result in the issuance under this Agreement, the Warrant and the Registration
Rights Agreement of Shares, Warrant Shares and Blackout Shares (collectively)
representing more than the applicable percentage under the rules of the FINRA
and The NASDAQ Stock Market LLC, including, without limitation, NASDAQ
Marketplace Rule 4350(i), that would require stockholder approval of the
issuance thereof. Nothing herein shall compel the Company to seek such consent
of its stockholders.
Section
6.06. Reporting
Requirements.
Upon
reasonable written request of the Investor during the Commitment Period, the
Company shall furnish copies of the following to the Investor within three
Business Days of such request (but not sooner than filed with or submitted
to
the Commission):
(a) Quarterly
Reports on Form 10-Q;
(b) Annual
Reports on Form 10-K;
(c) Current
Reports on Form 8-K; and
(d) any
other
documents publicly submitted to the Commission.
Section
6.07. Other
Financing.
(a) Nothing
in this Agreement shall be construed to restrict the right of the Company to
offer, sell and/or issue securities of any kind whatsoever, provided such
transaction is not a Prohibited Transaction (as defined below) (any such
transaction that is not a Prohibited Transaction is referred to in this
Agreement as a “Permitted Transaction”). Without limiting the generality of the
preceding sentence, the Company may, without the prior written consent of the
Investor, (i) establish stock option or award plans or agreements (for
directors, employees, consultants and/or advisors), and issue securities
thereunder, and amend such plans or agreements, including increasing the number
of shares available thereunder, (ii) issue equity securities to finance, or
otherwise in connection with, the acquisition of one or more other companies,
equipment, technologies or lines of business, (iii) issue shares of Common
Stock
and/or Preferred Stock in connection with the Company’s option or award plans,
stock purchase plans, rights plans, warrants or options, (iv) issue shares
of Common Stock and/or Preferred Stock in connection with the acquisition of
products, licenses, equipment or other assets and strategic partnerships or
joint ventures; (v) issue shares of Common and/or Preferred Stock to
consultants and/or advisors as consideration for services rendered or to be
rendered, (vi) issue and sell equity or debt securities in a public offering,
(vii) issue and sell any equity or debt securities in a private placement (other
than in connection with any Prohibited Transaction), (viii) issue equity
securities to equipment lessors, equipment vendors, banks or similar lending
institutions in connection with leases or loans, or in connection with strategic
commercial or licensing transactions, (ix) issue securities in connection with
any stock split, stock dividend, recapitalization, reclassification or similar
event by the Company, and (x) issue shares of Common Stock to the Investor
under any other agreement entered into between the Investor and the
Company.
20
(b) Notwithstanding
the foregoing, other than in the ordinary course of the Company’s business, the
Company shall not engage in any Permitted Transaction involving the issuance,
sale, disposition or other transaction in the capital markets (whether public
or
private) involving the Common Stock or any other capital or debt securities
of
the Company during any Draw Down Pricing Period.
Section
6.08. Prohibited
Transactions.
During
the term of this Agreement, the Company shall not enter into any Prohibited
Transaction without the prior written consent of the Investor, which consent
may
be withheld in the sole and absolute discretion of the Investor. For the
purposes of this Agreement, the term “Prohibited Transaction” shall refer to:
(i) the issuance by the Company of any rights, warrants or options to subscribe
for or purchase Common Stock, or any other securities directly or indirectly
convertible into or exchangeable or exercisable for Common Stock, at an
effective conversion, exchange or exercise price that varies or may vary with
or
is otherwise issuable in relation to the market price of Common Stock, including
by way of one or more resets to any fixed price; (ii) any “at-the-market
offering” (as defined in Rule 415(a)(4) under the Securities Act or any
successor rule thereto) of the Company’s securities by or on behalf of the
Company, other than (A) a customary, firm-commitment underwritten public
offering or (B) an unregistered private placement of Common Stock where the
price per share of such Common Stock is fixed upon signing of definitive
documentation of the sale, but not afterwards; and (iii) any equity line or
other form of financing that is substantially similar to the financing provided
for under this Agreement, provided that any future issuance by the Company
of a
convertible security (“Convertible
Security”)
that
contains provisions that adjust the conversion price of such Convertible
Security (“Conversion
Price”)
in the
event of stock splits, dividends, distributions or similar events or pursuant
to
anti-dilution provisions shall not be a Prohibited Transaction for purposes
of
this Section 6.08 so long as such Convertible Security does not contain a
provision that adjusts the Conversion Price as a result of any decline in the
market price of the Common Stock after the issue date of the Convertible
Security, other than a decline resulting directly from stock splits, dividends,
distributions or similar events including, without limitation, the type of
conversion price adjustments customarily found in a firm commitment Rule 144A
offering to qualified institutional buyers.
Section
6.09. Corporate
Existence.
The
Company shall take all steps necessary to preserve and continue the corporate
existence of the Company; provided,
however,
that
nothing in this Agreement shall be deemed to prohibit the Company from engaging
in any Excluded Merger or Sale with another Person provided that in the event
of
an Excluded Merger or Sale, if the surviving, successor or purchasing Person
does not agree to assume the obligations under the Warrant, then the Company
shall deliver a notice to the Investor at least ten (10) days before the
consummation of such Excluded Merger or Sale (provided that, to the extent
that
such transaction has not been publicly disclosed, then the Investor agrees
to
maintain the confidentiality of such information and to use such information
only in connection with a decision to exercise the Warrant), the Investor may
exercise the Warrant at any time before the consummation of such Excluded Merger
or Sale (and such exercise may be made contingent upon the consummation of
such
Excluded Merger or Sale), and any portion of the Warrant that has not been
exercised before consummation of such Excluded Merger or Sale shall terminate
and expire, and shall no longer be outstanding.
21
Section
6.10. Non-Disclosure
of Non-Public Information.
Except
as otherwise expressly provided in this Agreement, including Section 6.10
hereof, the Registration Rights Agreement or the Warrant, none of the Company,
its officers, directors, employees nor agents shall disclose material non-public
information to the Investor, its advisors or representatives.
Section
6.11. Notice
of Certain Events Affecting Registration; Suspension of Right to Request a
Draw
Down.
The
Company shall promptly notify the Investor upon the occurrence of any of the
following events in respect of the Registration Statement or the Prospectus
related to the offer, issuance and sale of the Shares and the Warrant Shares
hereunder: (i) receipt of any request for additional information by the
Commission or any other federal or state governmental authority during the
period of effectiveness of the Registration Statement for 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; and (iii) receipt of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale
in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company shall not be required to disclose to the Investor the
substance or specific reasons of any of the events set forth in clauses (i)
through (iii) of the previous sentence, only that the event has occurred. The
Company shall not request a Draw Down during the continuation of any of the
foregoing events.
Section
6.12. Amendments
to the Registration Statement.
When
the Registration Statement is declared effective by the Commission, the Company
shall (i) not file any amendment to the Registration Statement or make any
amendment or supplement to the Prospectus of which the Investor shall not
previously have been advised; provided,
however,
that
the Company shall, to the extent it deems advisable, and without the prior
consent of or notice to Investor, supplement the Prospectus within one Trading
Day following the Settlement Date for each Draw Down solely to reflect the
issuance of Shares with respect to such Draw Down and (ii) so long as, in
the reasonable opinion of counsel for the Investor, a Prospectus is required
to
be delivered in connection with sales of the Shares by the Investor, if the
Company files any information, documents or reports that are incorporated by
reference in the Registration Statement pursuant to the Exchange Act, the
Company shall, if requested in writing by the Investor, deliver a copy of such
information, documents or reports to the Investor promptly following such
filing.
Section
6.13. Prospectus
Delivery.
From
time to time for such period as in the reasonable opinion of counsel for the
Investor a prospectus is required by the Securities Act to be delivered in
connection with sales by the Investor, the Company will expeditiously deliver
to
the Investor, without charge, as many copies of the Prospectus (and of any
amendment or supplement thereto) as the Investor may reasonably request. The
Company consents to the use of the Prospectus (and of any amendment or
supplement thereto) in accordance with the provisions of the Securities Act
and
state securities laws in connection with the offering and sale of the Shares
and
the Warrant Shares and for such period of time thereafter as the Prospectus
is
required by the Securities Act to be delivered in connection with sales of
the
Shares and the Warrant Shares.
22
ARTICLE
VII
CONDITIONS
TO THE OBLIGATION OF THE INVESTOR TO ACCEPT A DRAW DOWN
The
obligation of the Investor hereunder to accept a Draw Down Notice and to acquire
and pay for the Shares in accordance therewith is subject to the satisfaction
or
waiver, at each Condition Satisfaction Date, of each of the conditions set
forth
below. Other than those conditions set forth in Section 7.12 which are for
the Company’s sole benefit and may be waived by the Company at any time in its
sole discretion, the conditions are for the Investor’s sole benefit and may be
waived by the Investor at any time in its sole discretion. As used in this
Agreement, the term “Condition
Satisfaction Date”
shall
mean, with respect to each Draw Down, the date on which the applicable Draw
Down
Notice is delivered to the Investor and each Settlement Date in respect of
the
applicable Draw Down Pricing Period.
Section
7.01. Accuracy
of the Company’s Representations and Warranties.
Each of
the representations and warranties of the Company shall be true and correct
in
all material respects as of the date when made as though made at that time
except for representations and warranties that are expressly made as of a
particular date.
Section
7.02. Performance
by the Company.
The
Company shall have, in all material respects, performed, satisfied and complied
with all covenants, agreements and conditions required by this Agreement, the
Registration Rights Agreement and the Warrant to be performed, satisfied or
complied with by the Company.
Section
7.03. Compliance
with Law.
The
Company shall have complied in all respects with all applicable federal, state
and local governmental laws, rules, regulations and ordinances in connection
with the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby except for any failures
to
so comply which could not reasonably be expected to have a Material Adverse
Effect.
Section
7.04. Effective
Registration Statement.
Upon
the terms and subject to the conditions set forth in the Registration Rights
Agreement, the Registration Statement shall have previously become effective
and
shall remain effective and (i) neither the Company nor the Investor shall
have received notice that the Commission has issued or intends to issue a stop
order with respect to the Registration Statement or that the Commission
otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened
to do
so (unless the Commission’s concerns have been addressed and the Investor is
reasonably satisfied that the Commission no longer is considering or intends
to
take such action), and (ii) no other suspension of the use or withdrawal of
the effectiveness of the Registration Statement or the Prospectus shall
exist.
Section
7.05. No
Knowledge.
The
Company shall have no Knowledge of any event that could reasonably be expected
to have the effect of causing the Registration Statement with respect to the
resale of the Registrable Securities by the Investor to be suspended or
otherwise ineffective (which event is more likely than not to occur within
eight
Trading Days following the Trading Day on which a Draw Down Notice is
delivered).
23
Section
7.06. No
Suspension.
Trading
in the Company’s Common Stock shall not have been suspended by the Commission,
the Principal Market or FINRA and trading in securities generally as reported
on
the Principal Market shall not have been suspended or limited as of the
Condition Satisfaction Date.
Section
7.07. No
Injunction.
No
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction which prohibits the consummation of any
of
the transactions contemplated by this Agreement.
Section
7.08. No
Proceedings or Litigation.
No
action, suit or proceeding before any arbitrator or any governmental authority
shall have been commenced, and, to the Knowledge of the Company, no
investigation by any governmental authority shall have been threatened, against
the Company or any subsidiary, or any of the officers, directors or affiliates
of the Company or any subsidiary seeking to enjoin, prevent or change the
transactions contemplated by this Agreement.
Section
7.09. Sufficient
Shares Registered for Resale.
The
Company shall have sufficient Shares, calculated using the closing trade price
of the Common Stock as of the Trading Day immediately preceding such Draw Down
Notice, registered under the Registration Statement to issue and sell such
Shares in accordance with such Draw Down Notice.
Section
7.10. Warrant.
The
Warrant shall have been duly executed, delivered and issued to the Investor,
and
the Company shall not be in default in any material respect under any of the
provisions thereof, provided that any refusal by or failure of the Company
to
issue and deliver Warrant Shares in respect of any exercise (in whole or in
part) thereof shall be deemed to be material for the purposes of this
Section 7.10.
Section
7.11. Opinion
of Counsel.
The
Investor shall have received an opinion of counsel to the Company, dated as
of
the Effective Date, in the form reasonably agreed to by the Investor and its
counsel prior to the date hereof.
Section
7.12. Accuracy
of Investor’s Representation and Warranties.
The
representations and warranties of the Investor shall be true and correct in
all
material respects as of the date when made as though made at that time except
for representations and warranties that are made as of a particular
date.
Section
7.13. Payment
of Fees.
The
Company shall be current on all undisputed expense invoices that the Company
is
required to pay pursuant to Section 10.01.
24
ARTICLE
VIII
TERMINATION
Section
8.01. Term.
Unless
otherwise terminated in accordance with Section 8.02 below, this Agreement
shall terminate upon the earlier to occur of (i) the expiration of the
Commitment Period or (ii) the issuance of Shares pursuant to this Agreement
in
an amount equal to the Maximum Commitment Amount.
Section
8.02. Other
Termination.
(a) The
Investor may terminate this Agreement upon one (1) Business Day’s notice if the
Company enters into any Prohibited Transaction as set forth in Section 6.08
without the Investor’s prior written consent.
(b) The
Investor may terminate this Agreement upon one (1) Business Day’s notice to the
Company at any time in the event that the Registration Statement is not first
declared effective in accordance with the Registration Rights Agreement;
provided,
however,
that in
the event the Registration Statement is declared effective prior to the delivery
of such notice, the Investor shall thereafter have no right to terminate this
Agreement pursuant to this Section 8.02(b).
(c) Beginning
on the first anniversary of the Effective Date, the Investor may terminate
this
Agreement upon one (1) Business Day’s notice to the Company at any time in the
event that the Company fails to make cumulative Draw Downs of at least $1.25
million during any consecutive twelve (12) month period during the
term.
(d) The
Company may terminate this Agreement upon one (1) Business Day’s notice;
provided,
however,
that
the Company shall not terminate this Agreement pursuant to this Section 8.02(d)
during
any Draw Down Pricing Period; provided further
that, in
the event of any termination of this Agreement by the Company hereunder, so
long
as the Investor owns Shares purchased hereunder and/or Warrant Shares, unless
all of such shares of Common Stock may be resold by the Investor without
registration and without any time, volume or manner limitations pursuant to
Rule
144(k) (or any similar provision then in effect) under the Securities Act,
the
Company shall not suspend or withdraw the Registration Statement or otherwise
cause the Registration Statement to become ineffective, or voluntarily delist
the Common Stock from, the Principal Market without listing the Common Stock
on
another Principal Market.
(e) Each
of
the parties hereto may terminate this Agreement upon one (1) Business Day’s
notice if the other party has breached a material representation, warranty
or
covenant to this Agreement and such breach is not remedied within ten (10)
Business Days after notice of such breach is delivered to the breaching
party.
Section
8.03. Effect
of Termination.
In the
event of termination by the Company or the Investor, written notice thereof
shall forthwith be given to the other party and the transactions contemplated
by
this Agreement shall be terminated without further action by either party.
If
this Agreement is terminated as provided in Section 8.01 or 8.02 herein,
this Agreement shall become void and of no further force and effect, except
as
provided in Section 10.13. Nothing in this Section 8.03 shall be
deemed to release the Company or the Investor from any liability for any breach
under this Agreement occurring prior to such termination, or to impair the
rights of the Company and the Investor to compel specific performance by the
other party of its obligations under this Agreement arising prior to such
termination.
25
ARTICLE
IX
INDEMNIFICATION
Section
9.01. Indemnification.
(a) Except
as
otherwise provided in this Article IX, unless disputed as set forth in
Section 9.02, the Company agrees to indemnify, defend and hold harmless the
Investor and its affiliates and their respective officers, directors, agents,
employees, subsidiaries, partners, members and controlling persons (each, an
“Investor
Indemnified Party”),
to
the fullest extent permitted by law from and against any and all Damages
directly resulting from or directly arising out of any breach of any
representation or warranty, covenant or agreement by the Company in this
Agreement, the Registration Rights Agreement or the Warrant; provided,
however,
that
the Company shall not be liable under this Article IX to an Investor
Indemnified Party to the extent that such Damages resulted or arose from the
breach by an Investor Indemnified Party of any representation, warranty,
covenant or agreement of an Investor Indemnified Party contained in this
Agreement, the Registration Rights Agreement or the Warrant or the negligence,
recklessness, willful misconduct or bad faith of an Investor Indemnified Party.
The parties intend that any Damages subject to indemnification pursuant to
this
Article IX will be net of insurance proceeds (which the Investor
Indemnified Party agrees to use commercially reasonable efforts to recover).
Accordingly, the amount which the Company is required to pay to any Investor
Indemnified Party hereunder (a “Company
Indemnity Payment”)
will
be reduced by any insurance proceeds actually recovered by or on behalf of
any
Investor Indemnified Party in reduction of the related Damages. In addition,
if
an Investor Indemnified Party receives a Company Indemnity Payment required
by
this Article IX in respect of any Damages and subsequently receives any
such insurance proceeds, then the Investor Indemnified Party will pay to the
Company an amount equal to the Company Indemnity Payment received less the
amount of the Company Indemnity Payment that would have been due if the
insurance proceeds had been received, realized or recovered before the Company
Indemnity Payment was made.
(b) Except
as
otherwise provided in this Article IX, unless disputed as set forth in
Section 9.02, the Investor agrees to indemnify, defend and hold harmless
the Company and its affiliates and their respective officers, directors, agents,
employees, subsidiaries, partners, members and controlling persons (each, a
“Company
Indemnified Party”),
to
the fullest extent permitted by law from and against any and all Damages
directly resulting from or directly arising out of any breach of any
representation or warranty, covenant or agreement by the Investor in this
Agreement, the Registration Rights Agreement or the Warrant; provided,
however,
that
the Investor shall not be liable under this Article IX to a Company
Indemnified Party to the extent that such Damages resulted or arose from the
breach by a Company Indemnified Party of any representation, warranty, covenant
or agreement of a Company Indemnified Party contained in this Agreement, the
Registration Rights Agreement or the Warrant or negligence, recklessness,
willful misconduct or bad faith of a Company Indemnified Party. The parties
intend that any Damages subject to indemnification pursuant to this
Article IX will be net of insurance proceeds (which the Company agrees to
use commercially reasonable efforts to recover). Accordingly, the amount which
the Investor is required to pay to any Company Indemnified Party hereunder
(an
“Investor
Indemnity Payment”)
will
be reduced by any insurance proceeds theretofore actually recovered by or on
behalf of any Company Indemnified Party in reduction of the related Damages.
In
addition, if a Company Indemnified Party receives an Investor Indemnity Payment
required by this Article IX in respect of any Damages and subsequently
receives any such insurance proceeds, then the Company Indemnified Party will
pay to the Investor an amount equal to the Investor Indemnity Payment received
less the amount of the Investor Indemnity Payment that would have been due
if
the insurance proceeds had been received, realized or recovered before the
Investor Indemnity Payment was made.
26
Section
9.02. Notification
of Claims for Indemnification.
Each
party entitled to indemnification under this Article IX (an “Indemnified
Party”)
shall,
promptly after the receipt of notice of the commencement of any claim against
such Indemnified Party in respect of which indemnity may be sought from the
party obligated to indemnify such Indemnified Party under this Article IX
(the “Indemnifying
Party”),
notify the Indemnifying Party in writing of the commencement thereof. Any such
notice shall describe the claim in reasonable detail. The failure of any
Indemnified Party to so notify the Indemnifying Party of any such action shall
not relieve the Indemnifying Party from any liability which it may have to
such
Indemnified Party (a) other than pursuant to this Article IX or (b) under
this Article IX unless, and only to the extent that, such failure results
in the Indemnifying Party’s forfeiture of substantive rights or defenses or the
Indemnifying Party is prejudiced by such delay. The procedures listed below
shall govern the procedures for the handling of indemnification
claims.
(a) Any
claim
for indemnification for Damages that do not result from a Third Party Claim
as
defined in the following paragraph, shall be asserted by written notice given
by
the Indemnified Party to the Indemnifying Party. Such Indemnifying Party shall
have a period of thirty (30) days after the receipt of such notice within which
to respond thereto. If such Indemnifying Party does not respond within such
thirty (30) day period, such Indemnifying Party shall be deemed to have refused
to accept responsibility to make payment as set forth in Section 9.01. If
such Indemnifying Party does not respond within such thirty (30) day period
or
rejects such claim in whole or in part, the Indemnified Party shall be free
to
pursue such remedies as specified in this Agreement.
(b) If
an
Indemnified Party shall receive notice or otherwise learn of the assertion
by a
person or entity not a party to this Agreement of any threatened legal action
or
claim (collectively a “Third
Party Claim”),
with
respect to which an Indemnifying Party may be obligated to provide
indemnification, the Indemnified Party shall give such Indemnifying Party
written notice thereof within twenty (20) days after becoming aware of such
Third Party Claim.
27
(c) An
Indemnifying Party may elect to defend (and, unless the Indemnifying Party
has
specified any reservations or exceptions, to seek to settle or compromise)
at
such Indemnifying Party’s own expense and by such Indemnifying Party’s own
counsel, any Third Party Claim. Within thirty (30) days after the receipt of
notice from an Indemnified Party (or sooner if the nature of such Third Party
Claim so requires), the Indemnifying Party shall notify the Indemnified Party
whether the Indemnifying Party will assume responsibility for defending such
Third Party Claim, which election shall specify any reservations or exceptions.
If such Indemnifying Party does not respond within such thirty (30) day period
or rejects such claim in whole or in part, the Indemnified Party shall be free
to pursue such remedies as specified in this Agreement. In case any such Third
Party Claim shall be brought against any Indemnified Party, and it shall notify
the Indemnifying Party of the commencement thereof, the Indemnifying Party
shall
be entitled to assume the defense thereof at its own expense, with counsel
satisfactory to such Indemnified Party in its reasonable judgment; provided,
however, that any Indemnified Party may, at its own expense, retain separate
counsel to participate in such defense at its own expense. Notwithstanding
the
foregoing, in any Third Party Claim in which both the Indemnifying Party, on
the
one hand, and an Indemnified Party, on the other hand, are, or are reasonably
likely to become, a party, such Indemnified Party shall have the right to employ
separate counsel and to control its own defense of such claim if, in the
reasonable opinion of counsel to such Indemnified Party, either (x) one or
more significant defenses are available to the Indemnified Party that are not
available to the Indemnifying Party or (y) a conflict or potential conflict
exists between the Indemnifying Party, on the one hand, and such Indemnified
Party, on the other hand, that would make such separate representation
advisable; provided,
however,
that in
such circumstances the Indemnifying Party (i) shall not be liable for the
fees and expenses of more than one counsel to all Indemnified Parties and
(ii) shall reimburse the Indemnified Parties for such reasonable fees and
expenses of such counsel incurred in any such Third Party Claim, as such
expenses are incurred, provided that the Indemnified Parties agree to repay
such
amounts if it is ultimately determined that the Indemnifying Party was not
obligated to provide indemnification under this Article IX. The
Indemnifying Party agrees that it will not, without the prior written consent
of
the Indemnified Party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim relating to the matters contemplated
hereby (if any Indemnified Party is a party thereto or has been actually
threatened to be made a party thereto) unless such settlement, compromise or
consent includes an unconditional release of such Indemnified Party from all
liability arising or that may arise out of such claim. The Indemnifying Party
shall not be liable for any settlement of any claim effected against an
Indemnified Party without the Indemnifying Party’s written consent, which
consent shall not be unreasonably withheld, conditioned or delayed. The rights
accorded to an Indemnified Party hereunder shall be in addition to any rights
that any Indemnified Party may have at common law, by separate agreement or
otherwise; provided,
however,
that
notwithstanding the foregoing or anything to the contrary contained in this
Agreement, nothing in this Article IX shall restrict or limit any rights
that any Indemnified Party may have to seek equitable relief.
ARTICLE
X
MISCELLANEOUS
Section
10.01. Fees
and Expenses.
(a) Each
of
the Company and the Investor agrees to pay its own expenses incident to the
performance of its obligations hereunder, except that the Company shall be
solely responsible for (i) all reasonable attorneys fees and expenses
incurred by the Investor in connection with (A) the preparation, negotiation,
execution and delivery of this Agreement, the Registration Rights Agreement
and
the Warrant, and (B) the review of the Registration Statement, correspondence
with the Commission and amendments and supplements to the Registration Statement
and Prospectus, (ii) all reasonable fees and expenses incurred by the Investor
in connection with any amendments, modifications or waivers of this Agreement,
including, without limitation, all reasonable attorneys fees and expenses,
(iii) all reasonable fees and expenses incurred in connection with the
Investor’s enforcement of this Agreement, including, without limitation, all
reasonable attorneys fees and expenses, (iv) due diligence expenses
incurred by the Investor during the term of this Agreement equal to $12,500
per
calendar quarter, and (v) all stamp or other similar taxes and duties, if
any, levied in connection with issuance of the Shares pursuant hereto;
provided,
however,
that in
each of the above instances the Investor shall provide customary supporting
invoices or similar documentation in reasonable detail describing such expenses
(however, the Investor shall not be obligated to provide detailed time sheets);
provided further
that the
maximum aggregate amount payable by the Company pursuant to clause (i) and
(ii)
above shall be $75,000 and the Investor shall bear all fees and expenses in
excess of $75,000 incurred in connection with the events described under
clauses (i) and (ii) above.
28
(b) If
any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the Registration Rights Agreement or the Warrant, the prevailing
party shall be entitled to reasonable fees, costs and necessary disbursements
in
addition to any other relief to which such party may be entitled.
Section
10.02. Reporting
Entity for the Common Stock.
The
reporting entity relied upon for the determination of the trading price or
trading volume of the Common Stock on any given Trading Day for the purposes
of
this Agreement shall be Bloomberg, L.P. or any successor thereto. The written
mutual consent of the Investor and the Company shall be required to employ
any
other reporting entity.
Section
10.03. Brokerage.
Each of
the parties hereto represents that it has had no dealings in connection with
this transaction with any finder or broker who will demand payment of any fee
or
commission from the other party. The Company, on the one hand, and the Investor,
on the other hand, agree to indemnify the other against and hold the other
harmless from any and all liabilities to any Persons claiming brokerage
commissions or finder’s fees on account of services purported to have been
rendered on behalf of the indemnifying party in connection with this Agreement
or the transactions contemplated hereby.
Section
10.04. Notices.
All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in
the mail, registered or certified, return receipt requested, postage prepaid,
(iii) delivered by reputable air courier service with charges prepaid, or
(iv) transmitted by hand delivery, telegram, or facsimile, addressed as set
forth below or to such other address as such party shall have specified most
recently by written notice given in accordance herewith, in each case with
a
copy to the e-mail address set forth beside the facsimile number for the
addressee below. Any notice or other communication required or permitted to
be
given hereunder shall be deemed effective (a) upon hand delivery or delivery
by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a Business
Day during normal business hours where such notice is to be received), or the
first Business Day following such delivery (if delivered other than on a
Business Day during normal business hours where such notice is to be received)
or (b) on the second Business Day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
29
If
to the
Company:
Xxxxxxx
Xxxxxxxx
0000
Xxxxxxxxx Xxxxxxxxx - Xxxxx 000
Xxxxxxxx,
XX 00000
Fax:
(000) 000-0000
Email:
xxxx.xxxxxxxx@xxxxxxxx-xxx.xxx
Attention:
Chief Financial Officer
With
a
copy (which shall not constitute notice) to:
Xxxxxx
Godward Kronish LLP
00000
Xxxxxxx Xxxxx
Xxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Email:
xxxxxx@xxxxxx.xxx
Attention:
Xxxxxxxxx X. Plaza, Esq.
And
another a copy (which shall not constitute notice) to:
Micromet
Legal Department
0000
Xxxxxxxxx Xxxxxxxxx - Xxxxx 000
Xxxxxxxx,
XX 00000
Fax:
(000) 000-0000
Email:
xxxxxxxx.xxxxx@xxxxxxxx-xxx.xxx
Attention: SVP
and
General Counsel
If
to the
Investor:
Kingsbridge
Capital Limited
Attention:
Xx. Xxxx Xxxxxxx
XX
Xxx
0000
Xxxxxxxxx
House
0
Xxxxxx
Xxxxxx
Xx
Xxxxxx
Xxxxxx
XX00XX
Channel
Islands
Tel:
000-00-0000-000-000
Fax:
000-00-0000-000-000
Email:
xxxxx@xxxxxxxxxxxxxx.xxx
30
With
a
copy (which shall not constitute notice) to:
Kingsbridge
Corporate Services
Xxxxxxxxxxx
Xxxxx
Xxx
Xxxxx
Xxxxxxxxx
Xx.Xxxxxxx
Xxxxxxx
Tel:
000-000-00-000-000
Fax:
000-000-00-000-000
Email:
xxxxxxxxxx@xxxxxxxxxxx.xx; xxxxxxxxxx@xxxxxxxxxxx.xx, and
xxxxxxx@xxxxxxxxxxx.xx
And
another a copy (which shall not constitute notice) to:
Stroock
& Stroock & Xxxxx LLP
000
Xxxxxx Xxxx
Xxx
Xxxx,
XX 00000
Telephone:
(000)
000-0000
Facsimile: (000)
000-0000
Attention:
Xxxxx
X.
Xxxxxxxxxx, Esq.
E-mail:
xxxxxxxxxxx@xxxxxxx.xxx
Either
party hereto may from time to time change its address or facsimile number for
notices under this Section by giving at least ten (10) days’ prior
written notice of such changed address or facsimile number to the other party
hereto.
Section
10.05. Assignment.
Neither
this Agreement nor any rights of the Investor or the Company hereunder may
be
assigned by either party to any other Person.
Section
10.06. Amendment;
No Waiver.
No
party shall be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically set forth in
this Agreement, the Warrant and the Registration Rights Agreement. Except as
expressly provided in this Agreement, neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated other than by a written
instrument signed by both parties hereto. The failure of the either party to
insist on strict compliance with this Agreement, or to exercise any right or
remedy under this Agreement, shall not constitute a waiver of any rights
provided under this Agreement, nor estop the parties from thereafter demanding
full and complete compliance nor prevent the parties from exercising such a
right or remedy in the future.
Section
10.07. Entire
Agreement.
This
Agreement, the Registration Rights Agreement and the Warrant set forth the
entire agreement and understanding of the parties relating to the subject matter
hereof and supersede all prior and contemporaneous agreements, negotiations
and
understandings between the parties, both oral and written, relating to the
subject matter hereof.
31
Section
10.08. Severability.
In the
event that any provision of this Agreement becomes or is declared by a court
of
competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided
that, if
the severance of such provision materially changes the economic benefits of
this
Agreement to either party as such benefits are anticipated as of the date
hereof, then such party may terminate this Agreement on five (5) Business Days
prior written notice to the other party. In such event, the Registration
Rights Agreement will terminate simultaneously with the termination of this
Agreement; provided that in the event that this Agreement is terminated by
the
Company in accordance with this Section 10.08 and the Warrant Shares either
have
not been registered for resale by the Investor in accordance with the
Registration Rights Agreement or are otherwise not freely tradable (if and
when
issued) in accordance with applicable law, then the Registration Rights
Agreement in respect of the registration of the Warrant Shares shall remain
in
full force and effect.
Section
10.09. Title
and Subtitles.
The
titles and subtitles used in this Agreement are used for the convenience of
reference and are not to be considered in construing or interpreting this
Agreement.
Section
10.10. Counterparts.
This
Agreement may be executed in multiple counterparts, each of which may be
executed by less than all of the parties and shall be deemed to be an original
instrument which shall be enforceable against the parties actually executing
such counterparts and all of which together shall constitute one and the same
instrument.
Section
10.11. Choice
of Law.
This
Agreement shall be construed under the laws of the State of New
York.
Section
10.12. Specific
Enforcement; Consent to Jurisdiction.
(a) The
Company and the Investor acknowledge and agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement
and
to enforce specifically the terms and provisions hereof or thereof, this being
in addition to any other remedy to which any of them may be entitled by law
or
equity.
(b) Subject
to Section 9.03, each of the Company and the Investor (i) hereby
irrevocably submits to the jurisdiction of the United States District Court
and
other courts of the United States sitting in the State of New York for the
purposes of any suit, action or proceeding arising out of or relating to this
Agreement and (ii) hereby waives, and agrees not to assert in any such
suit, action or proceeding, any claim that it is not personally subject to
the
jurisdiction of such court, that the suit, action or proceeding is brought
in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. Each of the Company and the Investor consents to process being served
in any such suit, action or proceeding by mailing a copy thereof 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 in this Section shall affect or limit any right to serve
process in any other manner permitted by law.
Section
10.13. Survival.
The
representations and warranties of the Company and the Investor contained in
Articles IV and V of this Agreement and the covenants contained in
Articles V, VI and X of this Agreement shall survive the execution and
delivery hereof and the Closing until the termination of this Agreement, and
the
agreements and covenants set forth in Article VIII and Article IX of
this Agreement shall survive the execution and delivery hereof and the Closing
hereunder.
32
Section
10.14. Publicity.
Except
as otherwise required by applicable law or regulation, or Nasdaq rule or
judicial process, prior to the Closing, neither the Company nor the Investor
shall issue any press release or otherwise make any public statement or
announcement with respect to this Agreement or the transactions contemplated
hereby or the existence of this Agreement. In the event the Company is required
by law, regulation, Nasdaq rule or judicial process, based upon reasonable
advice of the Company’s inside or outside counsel, to issue a press release or
otherwise make a public statement or announcement with respect to this Agreement
prior to the Closing, the Company shall consult with the Investor on the form
and substance of such press release, statement or announcement. Promptly after
the Closing, each party may issue a press release or otherwise make a public
statement or announcement with respect to this Agreement or the transactions
contemplated hereby or the existence of this Agreement; provided
that,
prior to issuing any such press release, making any such public statement or
announcement, the party wishing to make such release, statement or announcement
consults and cooperates in good faith with the other party in order to formulate
such press release, public statement or announcement in form and substance
reasonably acceptable to both parties.
Section
10.15. Further
Assurances.
From
and after the date of this Agreement, upon the request of the Investor or the
Company, each of the Company and the Investor shall execute and deliver such
instruments, documents and other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement.
Section
10.16. Absence
of Presumption.
This
Agreement shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting or causing any
instrument to be drafted.
Section
10.17. Termination
of Prior Purchase Agreement.
The
parties hereby agree that the Prior Purchase Agreement shall terminate and
be of
no further force or effect as of the close of business on the date immediately
prior to the Effective Date.
[Remainder
of this page intentionally left blank]
33
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officer as of the date first
written.
|
KINGSBRIDGE
CAPITAL LIMITED
|
|
|
By:
|
/s/
Xxxxxx Xxxxxxx-Xxxxxxx
|
|
Xxxxxx
Xxxxxxx-Xxxxxxx
|
|
|
Director
|
|
|
By:
|
/s/
Xxxxxxxxx Xxxx
|
|
Name:
Xxxxxxxxx Xxxx
|
|
|
Title:
President and CEO
|
|
34
Exhibit
A
Form
of
Registration Rights Agreement
[The
Registration Rights Agreement is attached as Exhibit 10.2 to the Current
Report
on Form 8-K filed by Micromet, Inc. on December 2, 2008.]
Exhibit
B
Warrant
[The
Warrant is attached as Exhibit 10.3 to the Current Report on Form 8-K filed
by
Micromet, Inc. on December 2, 2008.]
Exhibit
C
Officer’s
Certificate
I,
[NAME
OF OFFICER], do hereby certify to Kingsbridge Capital Limited (the “Investor”),
with respect to the common stock of Micromet, Inc. (the “Company”) issuable in
connection with the Draw Down Notice, dated _____________ (the “Notice”)
attached hereto and delivered pursuant to Article III of the Common Stock
Purchase Agreement, dated as of December 1, 2008 (the “Agreement”), by and
between the Company and the Investor, as follows (capitalized terms used but
undefined herein have the meanings given to such terms in the
Agreement):
1.
I
am the
duly elected [OFFICER] of the Company.
2.
The
representations and warranties of the Company set forth in Article IV of
the Agreement are true and correct in all material respects as though made
on
and as of the date hereof (except for such representations and warranties that
are made as of a particular date).
3.
The
Company has performed in all material respects all covenants and agreements
to
be performed by the Company on or prior to the date hereof related to the Notice
and has satisfied each of the conditions to the obligation of the Investor
set
forth in Article VII of the Agreement.
4. The
Shares issuable in respect of the Notice will be delivered without restrictive
legend via book entry through the Depositary Trust Company to an account
designated by the Investor.
The
undersigned has executed this Certificate this ____ day of ________,
200[_].
|
Name:
|
|
Title:
|
