CONFIDENTIAL Richard Garr President & CEO
June 28,
2010
CONFIDENTIAL
Xxxxxxx
Xxxx
President
& CEO
Neuralstem
Inc.
0000
Xxxxx Xxxxxx Xxxxxxx
Rockville,
MD 20850
Dear
Xxxxxxx:
This
letter (the “Agreement”)
constitutes the agreement between Noble International Investment, Inc., a
Florida corporation, D/B/A Noble Financial Capital Markets (“Noble” or the “Placement Agent”) and
Neuralstem Inc., a Delaware corporation (the “Company”), that Noble
shall serve as the exclusive placement agent for the Company, on a “reasonable
best efforts” basis, in connection with the proposed placement (the “Placement”) of
registered securities (the “Securities”) of the
Company, including shares (the “Shares”) of the
Company’s common stock, par value $0.01 per share (the “Common Stock”), and
warrants to purchase shares of Common Stock. The terms of such Placement and the
Securities shall be mutually agreed upon by the Company and the purchasers
(each, a “Purchaser” and
collectively, the “Purchasers”) and
nothing herein constitutes that Noble would have the power or authority to bind
the Company or any Purchaser or an obligation for the Company to issue any
Securities or complete the Placement. This Agreement and the documents executed
and delivered by the Company and the Purchasers in connection with the Placement
shall be collectively referred to herein as the “Transaction
Documents.” The date of the closing of the Placement shall be
referred to herein as the “Closing
Date.” The Company expressly acknowledges and agrees that
Xxxxx’x obligations hereunder are on a reasonable best efforts basis only and
that the execution of this Agreement does not constitute a commitment by Xxxxx
to purchase the Securities and does not ensure the successful placement of the
Securities or any portion thereof or the success of Noble with respect to
securing any other financing on behalf of the Company.
SECTION
1. COMPENSATION AND OTHER
FEES.
As
compensation for the services provided by Xxxxx hereunder, the Company agrees to
pay to Noble:
(A) The
fees set forth below with respect to the Placement:
1. A
cash fee payable immediately upon the closing of the Placement and equal to 7%
of the aggregate
gross proceeds raised in the Placement.
2. Such
number of warrants (the “Noble
Warrants”) to
Noble or its designees at the Closing to purchase shares of Common Stock equal
to 7% of the aggregate number of Shares sold in the Placement. The
Noble Warrants shall have the same terms as the warrants (if any) issued to the
Purchasers in the Placement except that in no event shall the expiration
date of the Noble Warrants be later than five years from the effective date of
the shelf registration statement referred to in Section 2(A)
below. The Noble Warrants shall not have antidilution protections and
further, the number of Shares underlying the Noble Warrants shall be reduced if
necessary to comply with FINRA rules or regulations.
SECTION
2. REGISTRATION
STATEMENT.
The
Company represents and warrants to, and agrees with, the Placement Agent
that:
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(A) The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (Registration File No. 333-153387) under the
Securities Act of 1933, as amended (the “Securities Act”), which became
effective on September 29, 2008, for the registration under the Securities Act
of the Shares. At the time of such filing, the Company met the requirements of
Form S-3 under the Securities Act. Such registration statement meets
the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
complies with said Rule. The Company will file with the Commission pursuant to
Rule 424(b) under the Securities Act, and the rules and regulations (the “Rules
and Regulations”) of the Commission promulgated thereunder, a supplement to the
form of prospectus included in such registration statement relating to the
placement of the Shares and the plan of distribution thereof and has advised the
Placement Agent of all further information (financial and other) with respect to
the Company required to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date of this Agreement, is
hereinafter called the “Registration Statement”; such prospectus in the form in
which it appears in the Registration Statement is hereinafter called the “Base
Prospectus”; and the supplemented form of prospectus, in the form in which it
will be filed with the Commission pursuant to Rule 424(b) (including the Base
Prospectus as so supplemented) is hereinafter called the “Prospectus
Supplement.” Any reference in this Agreement to the Registration Statement, the
Base Prospectus or the Prospectus Supplement shall be deemed to refer to and
include the documents incorporated by reference therein (the “Incorporated
Documents”) pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or
before the date of this Agreement, or the issue date of the Base Prospectus or
the Prospectus Supplement, as the case may be; and any reference in this
Agreement to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, the Base Prospectus or the Prospectus Supplement shall
be deemed to refer to and include the filing of any document under the Exchange
Act after the date of this Agreement, or the issue date of the Base Prospectus
or the Prospectus Supplement, as the case may be, deemed to be incorporated
therein by reference. All references in this Agreement to financial statements
and schedules and other information which is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration
Statement, the Base Prospectus or the Prospectus Supplement (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement, the Base
Prospectus or the Prospectus Supplement, as the case may be. No stop
order suspending the effectiveness of the Registration Statement or the use of
the Base Prospectus or the Prospectus Supplement has been issued, and no
proceeding for any such purpose is pending or has been initiated or, to the
Company's knowledge, is threatened by the Commission.
(B) The
Registration Statement (and any further documents to be filed with the
Commission) contains all exhibits and schedules as required by the Securities
Act. Each of the Registration Statement and any post-effective amendment
thereto, at the time it became effective, complied in all material respects with
the Securities Act and the Exchange Act and the applicable Rules and Regulations
and did not and, as amended or supplemented, if applicable, will not, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Base Prospectus and the Prospectus Supplement, each as of its
respective date, comply in all material respects with the Securities Act and the
Exchange Act and the applicable Rules and Regulations. Each of the Base
Prospectus and the Prospectus Supplement, as amended or supplemented, did not
and will not contain as of the date thereof any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Incorporated Documents, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act and the applicable Rules and Regulations, and none of such
documents, when they were filed with the Commission, contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein (with respect to Incorporated Documents incorporated
by reference in the Base Prospectus or Prospectus Supplement), in light of the
circumstances under which they were made not misleading; and any further
documents so filed and incorporated by reference in the Base Prospectus or
Prospectus Supplement, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and the
applicable Rules and Regulations, as applicable, and will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. No post-effective amendment to the Registration Statement
reflecting any facts or events arising after the date thereof which represent,
individually or in the aggregate, a fundamental change in the information set
forth therein is required to be filed with the Commission. There are
no documents required to be filed with the Commission in connection with the
transaction contemplated hereby that (x) have not been filed as required
pursuant to the Securities Act or (y) will not be filed within the requisite
time period. There are no contracts or other documents required to be described
in the Base Prospectus or Prospectus Supplement, or to be filed as exhibits or
schedules to the Registration Statement, which have not been described or filed
as required.
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(C) The
Company is ineligible to use free writing prospectuses in connection with the
Placement pursuant to Rules 164 and 433 under the Securities Act.
(D) The
Company has delivered, or will as promptly as practicable deliver, to the
Placement Agent complete conformed copies of the Registration Statement and of
each consent and certificate of experts, as applicable, filed as a part thereof,
and conformed copies of the Registration Statement (without exhibits), the Base
Prospectus and the Prospectus Supplement, as amended or supplemented, in such
quantities and at such places as the Placement Agent reasonably
requests. Neither the Company nor any of its directors and officers
has distributed and none of them will distribute, prior to the Closing Date, any
offering material in connection with the offering and sale of the Shares other
than the Base Prospectus, the Prospectus Supplement, the Registration Statement,
copies of the documents incorporated by reference therein and any other
materials permitted by the Securities Act.
SECTION
3. REPRESENTATIONS AND
WARRANTIES. The Company hereby makes the representations and
warranties set forth below to the Placement Agent:
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(A)
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Organization and
Qualification. All of the active direct and indirect
subsidiaries (individually, a “Subsidiary”) of
the Company are set forth on the Incorporated Documents. The
Company owns, directly or indirectly, all of the capital stock or other
equity interests of each United States Subsidiary free and clear of any
“Liens” (which for purposes of this Agreement shall mean a lien, charge,
security interest, encumbrance or other restriction), and all the issued
and outstanding shares of capital stock of each Subsidiary are validly
issued and are fully paid, non-assessable and free of preemptive and
similar rights to subscribe for or purchase securities. The
Company and each of the Subsidiaries is an entity duly incorporated or
otherwise organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or organization (as applicable),
with the requisite power and authority to own and use its properties and
assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in
material violation or default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational
or charter documents. Each of the Company and the Subsidiaries
is duly qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good
standing, as the case may be, could not have or reasonably be expected to
result in (i) a material adverse effect on the legality, validity or
enforceability of any Transaction Document, (ii) a material adverse effect
on the results of operations, assets, business, prospects or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a
whole, or (iii) a material adverse effect on the Company’s ability to
perform in any material respect on a timely basis its obligations under
any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no “Proceeding” (which for purposes of this Agreement
shall mean any action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding,
such as a deposition), whether commenced or threatened) has been
instituted in any such jurisdiction revoking, limiting or curtailing or
seeking to revoke, limit or curtail such power and authority or
qualification.
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(B)
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Authorization;
Enforcement. The Company has the requisite corporate
power and authority to enter into and to consummate the transactions
contemplated by each of the Transaction Documents and otherwise to carry
out its obligations hereunder and thereunder. The execution and
delivery of each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated thereby have been or
will be duly authorized by all necessary action on the part of the Company
and no further action will be required by the Company, its board of
directors or its stockholders in connection therewith other than in
connection with filings as are required to be made: (i) under applicable
Federal and state securities laws or (ii) in connection with the Company’s
listing of additional securities on its primary Trading Market (the “Required
Approvals”). Each Transaction Document has been (or upon
delivery will have been) duly executed by the Company and, when delivered
in accordance with the terms hereof and thereof, will constitute the valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally and (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable
remedies.
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(C)
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No
Conflicts. The execution, delivery and performance of
the Transaction Documents by the Company, the issuance and sale of the
Securities and the consummation by the Company of the other transactions
contemplated hereby and thereby do not and will not (i) conflict with or
violate any provision of the Company’s or any Subsidiary’s certificate or
articles of incorporation, bylaws or other organizational or charter
documents, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or assets of
the Company or any Subsidiary, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or
other instrument (evidencing a Company or Subsidiary debt or otherwise) or
other understanding to which the Company or any Subsidiary is a party or
by which any property or asset of the Company or any Subsidiary is bound
or affected, or (iii) subject to the Required Approvals, conflict with or
result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including
federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected;
except in the case of each of clauses (ii) and (iii), such as could not
have or reasonably be expected to result in a Material Adverse
Effect.
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(D)
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Certain
Fees. Except as otherwise provided in this Agreement, no
brokerage or finder’s fees or commissions are or will be payable by the
Company to any broker, financial advisor or consultant, finder, placement
agent, investment banker, bank or other individual or corporation,
partnership, trust, incorporated or unincorporated association, joint
venture, limited liability company, joint stock company, government (or an
agency or subdivision thereof) or other entity of any kind, including,
without limitation, the NYSE AMEX (each, a “Person”) with
respect to the transactions contemplated by the Transaction
Documents. The Purchasers shall have no obligation with respect
to any fees or with respect to any claims made by or on behalf of other
Persons for fees of a type contemplated in this Section that may be due in
connection with the transactions contemplated by the Transaction
Documents.
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(E)
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FINRA
Affiliations. There are no
affiliations with any FINRA member firm among the Company’s officers,
directors or, to the knowledge of the Company, any five percent (5%) or
greater stockholder of the Company, except as set forth in the Base
Prospectus.
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(F)
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Reliance
on Transaction Documents. Noble shall be
entitled to rely upon any and all representations and warranties of the
Company included in the purchase agreements entered into by the Company
and the Purchasers in connection with the Placement, subject to the
qualifications and limitations
therein.
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SECTION
4. INDEMNIFICATION. The
Company agrees to the indemnification and other agreements set forth in the
Indemnification Provisions (the “Indemnification”)
attached hereto as Addendum A, the provisions of which are incorporated herein
by reference and shall survive the termination or expiration of this
Agreement.
SECTION
5. ENGAGEMENT
TERM. Unless terminated as provided for herein, Xxxxx’x
engagement hereunder will be for the earlier of: (i) a period of 30 days from
the date hereof, or (ii) completion of the Placement.. The engagement may be
terminated by either the Company or Noble at any time upon 10 days’ written
notice. Notwithstanding anything to the contrary contained herein, the
provisions in this Agreement concerning confidentiality, indemnification,
contribution and the Company’s obligations to pay fees and reimburse expenses
contained herein and the Company’s obligations contained in the Indemnification
Provisions will survive any expiration or termination of this
Agreement. Xxxxx agrees not to use any confidential information
concerning the Company provided to them by the Company for any purposes other
than those contemplated under this Agreement.
SECTION
6. NOBLE
INFORMATION. The Company agrees that any information or advice
rendered by Xxxxx in connection with this engagement is for the confidential use
of the Company only in their evaluation of the Placement and, except as
otherwise required by law, the Company will not disclose or otherwise refer to
the advice or information in any manner without Xxxxx’x prior written
consent.
SECTION
7. NO FIDUCIARY
RELATIONSHIP. This Agreement does not create, and shall not be
construed as creating rights enforceable by any person or entity not a party
hereto, except those entitled hereto by virtue of the Indemnification Provisions
hereof. The Company acknowledges and agrees that Xxxxx is not and
shall not be construed as a fiduciary of the Company and shall have no duties or
liabilities to the equity holders or the creditors of the Company or any other
person by virtue of this Agreement or the retention of Noble hereunder, all of
which are hereby expressly waived.
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SECTION
8. CLOSING. The
obligations of the Placement Agent and the Purchasers, and the closing of the
sale of the Securities hereunder are subject to the accuracy, when made and on
the Closing Date, of the representations and warranties on the part of the
Company and its Subsidiaries contained herein, to the accuracy of the statements
of the Company and its Subsidiaries made in any certificates pursuant to the
provisions hereof, to the performance by the Company and its Subsidiaries of
their obligations hereunder, and to each of the following additional terms and
conditions:
(A) No
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission, and any request for additional information on the
part of the Commission (to be included in the Registration Statement, the Base
Prospectus or the Prospectus Supplement or otherwise) shall have been complied
with to the reasonable satisfaction of the Placement Agent. Any
filings required to be made by the Company in shall have been timely filed with
the Commission.
(B) The
Placement Agent shall not have discovered and disclosed to the Company on or
prior to the Closing Date that the Registration Statement, the Base Prospectus
or the Prospectus Supplement or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of counsel for the Placement
Agent, is material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(C) All
corporate proceedings and other legal matters incident to the authorization,
form, execution, delivery and validity of each of this Agreement, the
Securities, the Registration Statement, the Base Prospectus and the Prospectus
Supplement and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Placement Agent, and the Company shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(D) The
Placement Agent shall have received from outside counsel to the Company such
counsel’s written opinion, addressed to the Placement Agent and the Purchasers
dated as of the Closing Date, in form and substance reasonably satisfactory to
the Placement Agent.
(E) Neither
the Company nor any of its Subsidiaries shall have sustained since the date of
the latest financial statements included or incorporated by reference in the
Base Prospectus, any loss or interference with its business from fire,
explosion, flood, terrorist act or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth in or contemplated by the Base Prospectus
and (ii) since such date there shall not have been any change in the capital
stock or long-term debt of the Company or any of its Subsidiaries or any change,
or any development involving a prospective change, in or affecting the business,
general affairs, management, financial position, stockholders’ equity, results
of operations or prospects of the Company and its Subsidiaries, otherwise than
as set forth in or contemplated by the Base Prospectus, the effect of which, in
any such case described in clause (i) or (ii), is, in the judgment of the
Placement Agent, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Securities on the terms
and in the manner contemplated by the Base Prospectus and the Prospectus
Supplement.
(F)
The Common Stock is
registered under the Exchange Act.
(G) Subsequent
to the execution and delivery of this Agreement, there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock
Exchange, the Nasdaq National Market or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
or maximum prices or maximum ranges for prices shall have been established on
any such exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, or (ii) a
banking moratorium shall have been declared by federal or state authorities or a
material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States.
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(H) No
action shall have been taken and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any governmental agency or body which
would, as of the Closing Date, prevent the issuance or sale of the Securities or
materially and adversely affect or potentially and adversely affect the business
or operations of the Company; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction shall
have been issued as of the Closing Date which would prevent the issuance or sale
of the Securities or materially and adversely affect or potentially and
adversely affect the business or operations of the Company.
(I)
The Company shall
have prepared and filed with the Commission a Current Report on Form 8-K with
respect to the Placement, including as an exhibit thereto this
Agreement.
(J)
The Company shall have
entered into subscription agreements with each of the Purchasers and such
agreements shall be in full force and effect and shall contain representations
and warranties of the Company as agreed between the Company and the
Purchasers.
(K) FINRA
shall have raised no objection to the fairness and reasonableness of the terms
and arrangements of this Agreement. In addition, the Company shall
authorize Placement Agent’s counsel to make on the Company’s behalf, an Issuer
Filing with FINRA pursuant to FINRA Rule 5110 with respect to the Registration
Statement and pay all filing fees required in connection therewith.
(L)
Prior to the Closing Date, the
Company shall have furnished to the Placement Agent such further information,
certificates and documents as the Placement Agent may reasonably
request.
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Placement Agent.
SECTION
9. GOVERNING
LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York applicable to agreements made
and to be performed entirely in such State. This Agreement may not be
assigned by either party without the prior written consent of the other
party. This Agreement shall be binding upon and inure to the benefit
of the parties hereto, and their respective successors and permitted assigns.
Any right to trial by jury with respect to any dispute arising under this
Agreement or any transaction or conduct in connection herewith is
waived. Any dispute arising under this Agreement may be brought into
the courts of the State of New York or into the Federal Court located in New
York, New York and, by execution and delivery of this Agreement, the Company
hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of aforesaid courts. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by delivering a copy
thereof via overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law. If either party shall
commence an action or proceeding to enforce any provisions of a Transaction
Document, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorneys fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
action or proceeding.
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SECTION
10. ENTIRE
AGREEMENT/MISC. This Agreement (including the attached
Indemnification Provisions) embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof. If any
provision of this Agreement is determined to be invalid or unenforceable in any
respect, such determination will not affect such provision in any other respect
or any other provision of this Agreement, which will remain in full force and
effect. This Agreement may not be amended or otherwise modified or
waived except by an instrument in writing signed by both Noble and the
Company. The representations, warranties, agreements and covenants
contained herein shall survive the closing of the Placement and delivery and/or
exercise of the Securities, as applicable. This Agreement may be
executed in two or more counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it
being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or a .pdf format file, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile or
..pdf signature page were an original thereof.
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SECTION
11. NOTICES. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified on
the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a
business day, (b) the next business day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number on
the signature pages attached hereto on a day that is not a business day or later
than 6:30 p.m. (New York City time) on any business day, (c) the business day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications
shall be as set forth on the signature pages hereto.
Please
confirm that the foregoing correctly sets forth our agreement by signing and
returning to Noble the enclosed copy of this Agreement.
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Very
truly yours,
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NOBLE
FINANCIAL CAPITAL MARKETS
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By:
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Name:
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Title:
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Address for notice:
0000
Xxxxxxxx Xxxxxx
Xxxx
Xxxxx, Xxxxxxx 00000
Attention:
Xxxx X. Xxxxx
Fax:
(000) 000-0000
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Accepted
and Agreed to as of
the date
first written above:
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By:
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Name:
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Title:
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Address for
notice:
ADDENDUM
A
INDEMNIFICATION
PROVISIONS
In connection with the engagement of
Noble International Investment, Inc., a Florida corporation, D/B/A Noble
Financial Capital Markets (“Noble”) by
Neuralstem, Inc., a Delaware corporation (the “Company”), pursuant
to a letter agreement dated June 28, 2010, between the Company and Noble, as it
may be amended from time to time in writing (the “Agreement”), the
Company hereby agrees as follows:
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1.
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To
the extent permitted by law, the Company will indemnify Noble and its
affiliates, stockholders, directors, officers, employees and controlling
persons (within the meaning of Section 15 of the Securities Act of 1933,
as amended, or Section 20 of the Securities Exchange Act of 1934) against
all losses, claims, damages, expenses and liabilities, as the same are
incurred (including the reasonable fees and expenses of counsel), relating
to or arising out of its activities hereunder or pursuant to the
Agreement, except to the extent that any losses, claims, damages, expenses
or liabilities (or actions in respect thereof) are found in a final
judgment (not subject to appeal) by a court of law to have resulted
primarily and directly from Xxxxx’x willful misconduct or gross negligence
in performing the services described
herein.
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2.
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Promptly
after receipt by Xxxxx of notice of any claim or the commencement of any
action or proceeding with respect to which Xxxxx is entitled to indemnity
hereunder, Xxxxx will notify the Company in writing of such claim or of
the commencement of such action or proceeding, and the Company will assume
the defense of such action or proceeding and will employ counsel
reasonably satisfactory to Noble and will pay the fees and expenses of
such counsel. Notwithstanding the preceding sentence, Xxxxx
will be entitled to employ counsel separate from counsel for the Company
and from any other party in such action if counsel for
Noble reasonably determines that it would be inappropriate
under the applicable rules of professional responsibility for the same
counsel to represent both the Company and Noble. In such event,
the reasonable fees and disbursements of no more than one such separate
counsel will be paid by the Company. The Company will have the
exclusive right to settle the claim or proceeding provided that the
Company will not settle any such claim, action or proceeding without the
prior written consent of Noble, which will not be unreasonably
withheld.
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3.
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The
Company agrees to notify Xxxxx promptly of the assertion against it or any
other person of any claim or the commencement of any action or proceeding
relating to a transaction contemplated by the
Agreement.
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4.
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If
for any reason the foregoing indemnity is unavailable to Noble or
insufficient to hold Noble harmless, then the Company shall contribute to
the amount paid or payable by Noble as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect not
only the relative benefits received by the Company on the one hand and
Noble on the other, but also the relative fault of the Company on the one
hand and Noble on the other that resulted in such losses, claims, damages
or liabilities, as well as any relevant equitable
considerations. The amounts paid or payable by a party in
respect of losses, claims, damages and liabilities referred to above shall
be deemed to include any legal or other fees and expenses incurred in
defending any litigation, proceeding or other action or
claim. Notwithstanding the provisions hereof, Xxxxx’x share of
the liability hereunder shall not be in excess of the amount of fees
actually received, or to be received, by Noble under the Agreement
(excluding any amounts received as reimbursement of expenses incurred by
Xxxxx).
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5.
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These
Indemnification Provisions shall remain in full force and effect whether
or not the transaction contemplated by the Agreement is completed and
shall survive the termination of the Agreement, and shall be in addition
to any liability that the Company might otherwise have to any indemnified
party under the Agreement or
otherwise.
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NOBLE
FINANCIAL CAPITAL MARKETS
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By:
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Name:
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Title:
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Accepted
and Agreed to as of
the date
first written above:
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By:
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Name:
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Title:
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