SUBSCRIPTION AGREEMENT
EXHIBIT
10.1
000
Xxxxxx Xxx
Xxxx,
Xxxxxx 00000
Gentlemen:
The
undersigned (the “Investor”) hereby confirms its
agreement with Altair Nanotechnologies Inc., a corporation continued under the
Canada Business Corporations Act (the “Company”), as
follows:
1. This
Subscription Agreement, including the Terms and Conditions for Purchase of Units
attached hereto as Annex I
(collectively, this “Agreement”) is made as of the
date set forth below between the Company and the Investor.
2. The
Company has authorized the sale and issuance to certain investors of up to an
aggregate of 11,994,469 units (the “Units”), subject to adjustment by the
Company’s Board of Directors or a committee thereof, with each Unit consisting
of (i) one share (the “Share,” collectively, the
“Shares”) of its common
shares, without nominal or par value (the “Common Shares”), and (ii) one
warrant (the “Warrant,”
collectively, the “Warrants”) to purchase 0.55
Common Shares (and the fractional amount being the “Warrant Ratio”), in
substantially the form attached hereto as Exhibit B, for a
purchase price of $1.17 per Unit (the “Purchase
Price”). The Common Shares issuable upon the exercise of the
Warrants are referred to herein as the “Warrant Shares” and, together
with the Units, the Shares and the Warrants, are referred to herein as the
“Securities”). Units
will not be issued or certificated. The Shares and Warrants are
immediately separable and will be issued separately.
3. The
offering and sale of the Units (the “Offering”) are being made
pursuant to (1) an effective Registration Statement on Form S-3, No. 333-137099
(the “Registration
Statement”) filed by the Company with the Securities and Exchange
Commission (the “Commission”), including the
Prospectus contained therein (the “Base Prospectus”), (2) if
applicable, certain “free writing prospectuses” (as that term is defined in Rule
405 under the Securities Act of 1933, as amended (the “Act”)), that have been or will
be filed, if required, with the Commission and delivered to the Investor on or
prior to the date hereof (the “Issuer Free Writing
Prospectus”), containing certain supplemental information regarding the
Units, the terms of the Offering and the Company and
(3) a Prospectus Supplement (the “Prospectus Supplement” and,
together with the Base Prospectus, the “Prospectus”) containing
certain supplemental information regarding the Securities and terms of the
Offering that has been or will be filed with the Commission and delivered to the
Investor (or made available to the Investor by the filing by the Company of an
electronic version thereof with the Commission) along with the Company’s
counterpart to this Agreement..
4. The
Company and the Investor agree that the Investor will purchase from the Company
and the Company will issue and sell to the Investor the Units set forth on the
signature page hereof at the Purchase Price per Unit for the aggregate purchase
price set forth on the signature page hereof. The Units shall be
purchased pursuant to the Terms and Conditions for Purchase of Units attached
hereto as Annex
I and incorporated herein by this reference as if fully set forth
herein. The Investor acknowledges that the Offering is not being
underwritten by the placement agent (the “Placement Agent”) named in the Prospectus
Supplement and that there is no minimum offering amount.
5. The
manner of settlement of the Shares included in the Units purchased by the
Investor shall be determined by such Investor as follows (check
one):
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A.
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Delivery
by crediting the account of the Investor's prime broker (as specified by
such Investor on Exhibit A annexed hereto) with the Depository Trust
Company (“DTC”)
through its Deposit/Withdrawal At Custodian ("DWAC") system, whereby
Investor's prime broker shall initiate a DWAC transaction on the Closing
Date using its DTC participant identification number, and released by
Equity Transfer & Trust Company, the Company’s transfer agent (the
“Transfer Agent”),
at the Company's direction. NO LATER THAN ONE (1) BUSINESS
DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY,
THE INVESTOR SHALL:
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(I)
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DIRECT
THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH THE
SHARES ARE MAINTAINED TO SET UP A DWAC INSTRUCTING THE TRANSFER AGENT TO
CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES,
AND
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(II)
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REMIT
BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE PRICE
FOR THE UNITS BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING
ACCOUNT:
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JPMorgan
Chase Bank, N.A.
ABA #
000000000
Account
Name: Altair Nanotechnologies Inc.
Account
Number: To Be Provided Under Separate Cover
Attention: Xxxxxx
Xxxxx
Tel:
(000) 000-0000
– OR
–
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B.
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Delivery
versus payment (“DVP”) through DTC (i.e., on the
Closing Date, the Company shall deliver Shares registered in the
Investor’s name and address as set forth below and released by the
Transfer Agent to the Investor through DTC at the Closing directly to the
account(s) at Lazard Capital Markets LLC (“LCM”) identified by the
Investor; upon receipt of such Shares, LCM shall promptly electronically
deliver such Shares to the Investor, and simultaneously therewith payment
shall be made by LCM by wire transfer to the Company). NO LATER THAN ONE (1) BUSINESS
DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY,
THE INVESTOR SHALL:
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(I)
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NOTIFY LCM OF THE ACCOUNT OR
ACCOUNTS AT LCM TO BE CREDITED WITH THE SHARES BEING PURCHASED BY SUCH
INVESTOR, AND
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(II)
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CONFIRM
THAT THE ACCOUNT OR ACCOUNTS AT LCM TO BE CREDITED WITH THE SHARES BEING
PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE EQUAL TO THE AGGREGATE
PURCHASE PRICE FOR THE UNITS BEING PURCHASED BY THE
INVESTOR.
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IT IS THE INVESTOR’S
RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR CONFIRM THE PROPER
ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC
OR DVP IN A TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER THE
AGGREGATE PURCHASE PRICE FOR THE UNITS OR DOES NOT MAKE PROPER ARRANGEMENTS FOR
SETTLEMENT IN A TIMELY MANNER, THE SHARES AND WARRANTS MAY NOT BE DELIVERED AT
CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING
ALTOGETHER.
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6. The
executed Warrant shall be delivered in accordance with the terms
thereof.
7. The
Investor represents that, except as set forth below, (a) it has had no position,
office or other material relationship within the past three years with the
Company or persons known to it to be affiliates of the Company, (b) it is not a
member of the Financial Industry Regulatory Authority, Inc. or an Associated
Person (as such term is defined under the NASD Membership and Registration Rules
Section 1011) as of the Closing, and (c) neither the Investor nor any group of
Investors (as identified in a public filing made with the Commission) of which
the Investor is a part in connection with the Offering of the Units, acquired,
or obtained the right to acquire, 20% or more of the Common Shares (or
securities convertible into or exercisable for Common Shares) or the voting
power of the Company on a post-transaction basis.
Exceptions:
(If no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
8. The
Investor represents that it has received (or otherwise had made available to it
by the filing by the Company of an electronic version thereof with the
Commission) the Base Prospectus, dated October 3, 2006, as amended, which is a
part of the Company’s Registration Statement, the documents incorporated by
reference therein and any free writing prospectus (collectively, the “Disclosure Package”), prior to
or in connection with the receipt of this Agreement. The Investor
acknowledges that, prior to the delivery of this Agreement to the Company, the
Investor will receive certain additional information regarding the Offering,
including pricing information (the “Offering Information”). Such
information may be provided to the Investor by any means permitted under the
Act, including the Prospectus Supplement, a free writing prospectus and oral
communications.
9. No
offer by the Investor to buy Units will be accepted and no part of the Purchase
Price will be delivered to the Company until the Investor has received the
Offering Information and the Company has accepted such offer by countersigning a
copy of this Agreement, and any such offer may be withdrawn or revoked by the
Investor, without obligation or commitment of any kind, at any time prior to the
Company (or Placement Agent on behalf of the Company) sending (orally, in
writing or by electronic mail) notice of its acceptance of such
offer. An indication of interest will involve no obligation or
commitment of any kind until the Investor has been delivered the Offering
Information and this Agreement is accepted and countersigned by or on behalf of
the Company.
10. Unless
the Investor has executed a non-disclosure agreement with the Company, the
Company acknowledges that the only material, non-public information relating to
the Company it has provided to the Investor in connection with the Offering
prior to the date hereof is the existence of the Offering.
11. The
Investor represents that, except as set forth below, (a) the Investor is
domiciled, and has its principal office, at the address identified as the
address of the Investor on the signature page hereof; (b) the Investor is an
“institutional investor” in that it is an entity which is in the business of
purchasing and selling securities for its own account with net assets in excess
of US$15,000,000 and was not formed for the purpose of purchasing the Units; (c)
the Investor is not domiciled in Canada, is not purchasing the Units for the
account or benefit of any resident of any province or territory of Canada and is
not purchasing the Units with a view to resale into Canada of the Units, the
Shares or the Warrant Shares; and (d) the Units were not offered to the investor
in Canada, and this Agreement was not received or executed in
Canada.
Exceptions:
(If no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
12. For
so long as any Warrants remain outstanding, the Company shall not, in any
manner, issue or sell any rights, warrants or options to subscribe for or
purchase Common Stock, or directly or indirectly convertible into or
exchangeable for Common Stock at a price which resets as a function of market
price of the Common Stock, unless the conversion, exchange or exercise price of
any such security cannot be less than the then applicable Exercise Price (as
defined in the Warrants) with respect to the Common Stock into which any Warrant
is exercisable (other than as a result in the ordinary course of business of the
issuance of Common Stock issued pursuant to the exercise of stock options under
the Company’s stock plans, the issuance of Common Stock under the Company’s
stock plans, and the issuance of Common Stock pursuant to employee stock
purchase plans
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Number
of Units: _______________
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Purchase
Price Per Unit:
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$
_________________________
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Aggregate
Purchase Price:
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$
_________________________
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Please confirm that the foregoing
correctly sets forth the agreement between us by signing in the space provided
below for that purpose.
Dated as of: May __,
2009
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INVESTOR
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By:
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_____________________________________________________________ | ||
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Print
Name:
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_____________________________________________________________ | ||
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Title:
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_____________________________________________________________ | ||
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Address:
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_____________________________________________________________ | ||
Agreed
and Accepted
this ___
day of May, 2009:
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By:
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_____________________________________________________________ | |
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Title:
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_____________________________________________________________ |
4
ANNEX I
TERMS
AND CONDITIONS FOR PURCHASE OF UNITS
1. Authorization and Sale of the
Units. Subject to the terms and conditions of this Agreement,
the Company has authorized the sale of the Units.
2. Agreement
to Sell and Purchase the Units; Placement Agent.
2.1 At
the Closing (as defined in Section 3.1), the
Company will sell to the Investor, and the Investor will purchase from the
Company, upon the terms and conditions set forth herein, the number of Units set forth on the last page
of the Agreement to which these Terms and Conditions for Purchase of Units are attached as Annex I (the “Signature Page”) for the
aggregate purchase price therefor set forth on the Signature Page.
2.2 The
Company proposes to enter into substantially this same form of Subscription
Agreement with certain other investors (the “Other Investors”) and expects to complete
sales of Units to them. The Investor and the Other Investors are
hereinafter sometimes collectively referred to as the “Investors,” and this Agreement
and the Subscription Agreements executed by the Other Investors are hereinafter
sometimes collectively referred to as the “Agreements.”
2.3 Investor
acknowledges that the Company has agreed to pay Lazard Capital Markets LLC (the
“Placement Agent” or
“LCM”) a fee (the “Placement Fee”) in respect of
the sale of Units to the Investor.
2.4 The
Company has entered into a Placement Agent Agreement, dated May 22, 2009 (the
“Placement Agreement”),
with the Placement Agent that contains certain representations, warranties,
covenants and agreements of the Company that may be relied upon by the Investor,
which shall be a third party beneficiary thereof.
3. Closing
and Delivery of the Shares, Warrants and Funds.
3.1 Closing. The completion of
the purchase and sale of the Units (the “Closing”) shall occur at a
place and time (the “Closing
Date”) to be specified by the Company and the Placement Agent, and of
which the Investors will be notified in advance by the Placement Agent, in
accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of
1934, as amended (the “Exchange
Act”). At the Closing, (a) the Company shall cause the
Transfer Agent to deliver to the Investor the number of Shares equal to the
number of Units set forth on the Signature Page registered in the name of the
Investor or, if so indicated on the Investor Questionnaire attached hereto as
Exhibit A, in
the name of a nominee designated by the Investor, (b) the Company shall cause to
be placed with an express courier for delivery to the Investor a Warrant to
purchase a number of whole Warrant Shares determined by multiplying the number
of Units set forth on the signature page by the Warrant Ratio and rounding down
to the nearest whole number and (c) the aggregate purchase price for the Units
being purchased by the Investor will be delivered by or on behalf of the
Investor to the Company.
3.2 Conditions to the
Obligations of the Parties.
(a) Conditions
to the Company’s Obligations. The Company’s
obligation to issue and sell the Units to the Investor shall be subject to: (i)
the receipt by the Company of the purchase price for the Units being purchased
hereunder as set forth on the Signature Page and (ii) the accuracy of the
representations and warranties made by the Investor and the fulfillment of those
undertakings of the Investor to be fulfilled prior to the Closing
Date.
5
(b) Conditions
to the Investor’s Obligations. The Investor’s
obligation to purchase the Units will be subject to the accuracy of the
representations and warranties made by the Company and the fulfillment of those
undertakings of the Company to be fulfilled prior to the Closing Date, including
without limitation, those contained in the Placement Agreement, and to the
condition that the Placement Agent shall not have: (i) terminated the Placement
Agreement pursuant to the terms thereof or (ii) determined that the conditions
to the closing in the Placement Agreement have not been
satisfied. The Investor’s obligations are expressly not conditioned
on the purchase by any or all of the Other Investors of the Units that they have
agreed to purchase from the Company. The Investor understands and
agrees that, in the event that the Placement Agent in its sole discretion
determines that the conditions to closing in the Placement Agreement have not
been satisfied or if the Placement Agent Agreement may be terminated for any
other reason permitted by such Agreement, then the Placement Agent may, but
shall not be obligated to, terminate such Agreement, which shall have the effect
of terminating this Subscription Agreement pursuant to Section 14
below.
3.3 Delivery
of Funds.
(a) DWAC
Delivery. If the Investor elects to settle the Shares
purchased by such Investor through DTC’s Deposit/Withdrawal at Custodian (“DWAC”) delivery
system, no later
than one (1) business day after the execution of this Agreement by the Investor
and the Company, the Investor shall remit by wire transfer the amount of
funds equal to the aggregate purchase price for the Units being purchased by the
Investor to the following account designated by the Company and the Placement
Agent pursuant to the terms of that certain Escrow Agreement (the “Escrow Agreement”) dated as of
the date hereof, by and among the Company, the Placement Agent and JPMorgan
Chase Bank, N.A. (the “Escrow
Agent”):
JPMorgan
Chase Bank, N.A.
ABA #
000000000
Account
Name: Altair Nanotechnologies Inc.
Account
Number: To Be Provided Under Separate Cover
Attention: Xxxxxx
Xxxxx
Tel:
(000) 000-0000
Such
funds shall be held in escrow until the Closing and delivered by the Escrow
Agent on behalf of the Investors to the Company upon the satisfaction, in the
sole judgment of the Placement Agent, of the conditions set forth in Section
3.2(b) hereof. The Placement Agent shall have no rights in or to any
of the escrowed funds, unless the Placement Agent and the Escrow Agent are
notified in writing by the Company in connection with the Closing that a portion
of the escrowed funds shall be applied to the Placement Fee. The
Company agrees to indemnify and hold the Escrow Agent harmless from and against
any and all losses, costs, damages, expenses and claims (including, without
limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this
Section 3.3 or
otherwise with respect to the funds held in escrow pursuant hereto or arising
under the Escrow Agreement, unless it is finally, judicially determined that
such Losses resulted directly from the willful misconduct or gross negligence of
the Escrow Agent. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Escrow Agent be liable for any special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Escrow Agent has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
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(b) Delivery Versus Payment
through The Depository Trust Company. If the Investor elects
to settle the Shares purchased by such Investor by delivery versus payment
through DTC, no later
than one (1) business day after the execution of this Agreement by the Investor
and the Company, the Investor shall confirm that the account or accounts
at the Placement Agent to be credited with the Units being purchased by the
Investor have a minimum balance equal to the aggregate purchase price for the
Units being purchased by the Investor.
3.4 Delivery
of Shares.
(a) DWAC
Delivery. If the Investor elects to settle the Shares
purchased by such Investor through DTC’s DWAC delivery system, no later
than one (1) business day after the execution of this Agreement by the Investor
and the Company, the Investor shall direct the broker-dealer at which the
account or accounts to be credited with the Shares being purchased by such
Investor are maintained, which broker/dealer shall be a DTC participant, to set
up a DWAC instructing Equity Transfer & Trust Company, the Company’s “Transfer Agent”, to credit
such account or accounts with the Shares. Such DWAC instruction shall
indicate the settlement date for the deposit of the Shares, which date shall be
provided to the Investor by LCM. Simultaneously with the delivery to
the Company by the Escrow Agent of the funds held in escrow pursuant to Section 3.3 above,
the Company shall direct the Transfer Agent to credit the Investor’s account or
accounts with the Shares pursuant to the information contained in the
DWAC.
(b) Delivery Versus Payment
through The Depository Trust Company. If the Investor elects
to settle the Shares purchased by such Investor by delivery versus payment
through DTC, no later
than one (1) business day after the execution of this Agreement by the Investor
and the Company, the Investor shall notify LCM of the account or accounts
at LCM to be credited with the Shares being purchased by such
Investor. On the Closing Date, the Company shall deliver the Shares
to the Investor through DTC directly to the account(s) at LCM identified by
Investor and simultaneously therewith payment shall be made by LCM by wire
transfer to the Company.
4. Representations,
Warranties and Covenants of the Investor.
The Investor acknowledges, represents
and warrants to, and agrees with, the Company and the Placement Agent
that:
4.1 The
Investor (a) is knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in shares presenting an
investment decision like that involved in the purchase of the Units, including
investments in securities issued by the Company and investments in comparable
companies, (b) has answered all questions on the Signature Page and the Investor
Questionnaire and the answers thereto are true and correct as of the date hereof
and will be true and correct as of the Closing Date and (c) in connection with
its decision to purchase the number of Units set forth on the Signature Page,
has received and is relying solely upon the Disclosure Package and the documents
incorporated by reference therein and the Offering Information.
4.2 (a)
No action has been or will be taken in any jurisdiction outside the United
States by the Company or the Placement Agent that would permit an offering of
the Units, or possession or distribution of offering materials in connection
with the issue of the Securities in any jurisdiction outside the United States
where action for that purpose is required, (b) if the Investor is outside the
United States, it will comply with all applicable laws and regulations in each
foreign jurisdiction in which it purchases, offers, sells or delivers Securities
or has in its possession or distributes any offering material, in all cases at
its own expense and (c) the Placement Agent is not authorized to make and has
not made any representation, disclosure or use of any information in connection
with the issue, placement, purchase and sale of the Units, except as set forth
or incorporated by reference in the Base Prospectus or the Prospectus Supplement
or any free writing prospectus.
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4.3 (a)
The Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement, and (b) this Agreement constitutes a valid and binding
obligation of the Investor enforceable against the Investor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
to the enforceability of any rights to indemnification or contribution that may
be violative of the public policy underlying any law, rule or regulation
(including any federal or state securities law, rule or
regulation).
4.4 The
Investor understands that nothing in this Agreement, the Prospectus, the
Disclosure Package, the Offering Information or any other materials presented to
the Investor in connection with the purchase and sale of the Units constitutes legal, tax or
investment advice. The Investor has consulted such legal, tax and
investment advisors and made such investigation as it, in its sole discretion,
has deemed necessary or appropriate in connection with its purchase of
Units. The Investor also understands that there is no established
public trading market for the Warrants being offered in the Offering, and that
the Company does not expect such a market to develop. In addition,
the Company does not intend to apply for listing the Warrants on any securities
exchange. Without an active market, the liquidity of the Warrants
will be limited.
4.5 Since
the date on which the Placement Agent first contacted the Investor about the
Offering, the Investor has not disclosed any information regarding the Offering
to any third parties (other than its legal, accounting and other advisors) and
has not engaged in any purchases or sales involving the securities of the
Company (including, without limitation, any Short Sales involving the Company’s
securities). The Investor covenants that it will not engage in any
purchases or sales involving the securities of the Company (including Short
Sales) prior to the time that the transactions contemplated by this Agreement
are publicly disclosed. The Investor agrees that it will not use any
of the Securities acquired pursuant to this Agreement to cover any short
position in the Common Shares if doing so would be in violation of applicable
securities laws. For purposes hereof, “Short Sales” include, without
limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Exchange Act, whether or not against the box, and all
types of direct and indirect stock pledges, forward sales contracts, options,
puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule
16a-1(h) under the Exchange Act) and similar arrangements (including on a total
return basis), and sales and other transactions through non-US broker dealers or
foreign regulated brokers.
5. Survival of Representations,
Warranties and Agreements; Third Party
Beneficiary. Notwithstanding any investigation made by any
party to this Agreement or by the Placement Agent, all covenants, agreements,
representations and warranties made by the Company and the Investor herein will
survive the execution of this Agreement, the delivery to the Investor of the
Shares and Warrants being purchased and the payment therefor. The
Placement Agent and Lazard Fréres & Co. shall be third party beneficiaries
with respect to the representations, warranties and agreements of the Investor
in Section 4 hereof.
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6. Notices. All
notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile or (b) if delivered from outside the
United States, by International Federal Express or facsimile, and (c) will be
deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally
recognized overnight carrier, one business day after so mailed, (iii) if
delivered by International Federal Express, two business days after so mailed
and (iv) if delivered by facsimile, upon electronic confirmation of receipt and
will be delivered and addressed as follows:
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(a)
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if to the Company,
to:
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000
Xxxxxx Xxx
Xxxx,
Xxxxxx 00000
Attention:
Xxxx Xxxxxxx
Facsimile:
000-000-0000
with copies
to:
Xxxx
Xxxxx Xxx & Xxxxxxxx, a Professional Corporation
000 Xxxxx
Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx
Xxxx, Xxxx 00000
Attention: Xxxxx
Xxxxx, Esq.
Facsimile: 000-000-0000
(b) if
to the Investor, at its address on the Signature Page hereto, or at such other
address or addresses as may have been furnished to the Company in
writing.
7. Changes. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
8. Headings. The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this
Agreement.
9. Severability. In
case any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein will not in any way be affected or
impaired thereby.
10. Governing Law. This
Agreement will be governed by, and construed in accordance with, the internal
laws of the State of New York, without giving effect to the principles of
conflicts of law that would require the application of the laws of any other
jurisdiction.
11. Counterparts. This
Agreement may be executed in two or more counterparts, each of which will
constitute an original, but all of which, when taken together, will constitute
but one instrument, and will become effective when one or more counterparts have
been signed by each party hereto and delivered to the other
parties. The Company and the Investor acknowledge and agree that the
Company shall deliver its counterpart to the Investor along with the Prospectus
Supplement (or the filing by the Company of an electronic version thereof with
the Commission).
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12. Confirmation of
Sale. The Investor acknowledges and agrees that such
Investor’s receipt of the Company’s signed counterpart to this Agreement,
together with the Prospectus Supplement (or the filing by the Company of an
electronic version thereof with the Commission), shall constitute written
confirmation of the Company’s sale of the Units to such Investor.
13. Press Release. The
Company and the Investor agree that the Company shall, prior to the opening of
the financial markets in New York City on the business day immediately after the
date hereof, (a) issue a press release announcing the Offering and disclosing
all material information regarding the Offering and (b) file a Current Report on
Form 8-K with the Securities and Exchange Commission including a form of this
Agreement and a form of Warrant as exhibits thereto.
14. Termination. In the
event that the Placement Agreement is terminated by the Placement Agent pursuant
to the terms thereof, this Agreement shall terminate without any further action
on the part of the parties hereto.
10
Exhibit
A
INVESTOR
QUESTIONNAIRE
Pursuant
to Section 3 of
Annex I to the
Agreement, please provide us with the following information:
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1.
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The
exact name that your Shares and Warrants are to be registered in. You may
use a nominee name if appropriate:
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2.
|
The
relationship between the Investor and the registered holder listed in
response to item 1 above:
|
|
|
|
3.
|
The
mailing address of the registered holder listed in response to item 1
above:
|
|
|
|
4.
|
The
Social Security Number or Tax Identification Number of the registered
holder listed in the response to item 1 above:
|
|
|
|
5.
|
Name
of DTC Participant (broker-dealer at which the account or accounts to be
credited with the Shares are maintained):
|
|
|
|
6.
|
DTC
Participant Number:
|
|
|
|
7.
|
Name
of Account at DTC Participant being credited with the
Shares:
|
|
|
|
8.
|
Account
Number at DTC Participant being credited with the Shares:
|
|
11
