Super League Gaming, , Inc.
Exhibit 1.1
May 13,
2020
Super
League Gaming, , Inc.
000
Xxxxxxxx Xxx.
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention:
Xxx Xxxx
Chief
Executive Officer
Dear
Ms. Hand:
This
letter (the “Agreement”) constitutes the
agreement between A.G.P./Alliance Global Partners, as placement
agent (“A.G.P.”), (A.G.P. is also referred
to as, the “Placement
Agent”), and Super League Gaming, Inc., a company
organized under the laws of the state of Delaware (the
“Company”), that
the Placement Agent shall serve as the placement agent for the
Company, on a “reasonable best efforts” basis, in
connection with the proposed placement (the “Placement”) of shares of common
stock, par value, $0.001 per share (the “Shares”). The Shares actually
placed by the Placement Agent are referred to herein as the
“Placement Agent
Securities.” The Placement Agent Securities shall be
offered and sold under the Company’s registration statement
on Form S-3 (File No. 333-237626) with respect to the Placement
Agent Securities. The documents executed and delivered by the
Company and the Purchasers (as defined below) in connection with
the Placement, including, without limitation, a securities purchase
agreement (the “Purchase Agreement”), shall be collectively
referred to herein as the “Transaction Documents.” The
purchase price to the Purchasers for each Share is $3.50. The
Placement Agent may retain other brokers or dealers to act as
sub-agents or selected-dealers on its behalf in connection with the
Placement.
The
terms of the Placement shall be mutually agreed upon by the Company
and the purchasers listed in the Purchase Agreement (each, a
“Purchaser” and
collectively, the “Purchasers”), and nothing herein
constitutes that the Placement Agent would have the power or
authority to bind the Company or any Purchaser, or an obligation
for the Company will issue any Securities or complete the
Placement. The Company expressly acknowledges and agrees that the
Placement Agent’s obligations hereunder are on a reasonable
best efforts basis only and that the execution of this Agreement
does not constitute a commitment by the Placement Agent to purchase
the Placement Agent Securities and does not ensure the successful
placement of the Placement Agent Securities or any portion thereof
or the success of the Placement Agent with respect to securing any
other financing on behalf of the Company. Certain affiliates of the
Placement Agent may participate in the Placement by purchasing some
of the Placement Agent Securities. The sale of Placement Agent
Securities to any Purchaser will be evidenced by the Purchase
Agreement between the Company and such Purchaser, in a form
reasonably acceptable to the Company and the Purchaser. Capitalized
terms that are not otherwise defined herein have the meanings given
to such terms in the Purchase Agreement. Prior to the signing of
any Purchase Agreement, officers of the Company will be available
to answer inquiries from prospective Purchasers.
SECTION
1. REPRESENTATIONS AND WARRANTIES OF THE
COMPANY; COVENANTS OF THE COMPANY.
A. Representations
of the Company. With respect to the Placement Agent
Securities, each of the representations and warranties (together
with any related disclosure schedules thereto) and covenants made
by the Company to the Purchasers in the Purchase Agreement in
connection with the Placement, is hereby incorporated herein by
reference into this Agreement (as though fully restated herein) and
is, as of the date of this Agreement and as of the Closing Date,
hereby made to, and in favor of, the Placement Agent. In addition
to the foregoing, the Company represents and warrants that there
are no affiliations with any FINRA member firm participating in the
Placement among the Company’s officers, directors or, to the
knowledge of the Company, any five percent (5.0%) or greater
stockholder of the Company.
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B. Covenants
of the Company. The Company covenants and agrees to continue
to retain (i) a firm of independent PCAOB registered public
accountants for a period of at least three (3) years after the
Closing Date and (ii) a competent transfer agent with respect to
the Shares for a period of three (3) years after the Closing Date.
Furthermore, (i) for
ninety (90) days after the closing date of the Placement (except
for any Exempt Issuance as defined in the Purchase Agreement) , the
Company shall not issue, enter into any agreement to issue or
announce the issuance or proposed issuance of any
Common Stock or
Common Stock Equivalents (as defined in the Purchase
Agreement) and (ii) except for
offerings with the Placement Agent, for ninety (90) days s
after the
closing date of the Placement, the Company shall not effect or
enter into an agreement to effect any issuance of Common Stock or
Common Stock Equivalents involving an at-the-market offering or
Variable Rate Transaction (as defined in the Purchase
Agreement).
SECTION 2.
REPRESENTATIONS OF THE PLACEMENT
AGENT. The
Placement Agent, represents and warrants that it (i) is a member in
good standing of the Financial Industry Regulatory Authority
(“FINRA”), (ii)
is registered as a broker/dealer under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), (iii) is licensed
as a broker/dealer under the laws of the United States of America,
applicable to the offers and sales of the Placement Agent
Securities by the Placement Agent, (iv) is and will be a corporate
body validly existing under the laws of its place of incorporation,
and (v) has full power and authority to enter into and perform its
obligations under this Agreement. The Placement Agent will
immediately notify the Company in writing of any change in its
status with respect to subsections (i) through (v) above. The
Placement Agent covenants that it will use its reasonable best
efforts to conduct the Placement hereunder in compliance with the
provisions of this Agreement and the requirements of applicable
law.
SECTION 3.
COMPENSATION. In consideration
of the services to be provided for hereunder, the Company shall pay
to the Placement Agent or its respective designees a total cash fee
equal to six and one half percent (6.5%) of gross proceeds from the
Placement of the total amount of Placement Agent Securities
sold(the “Cash
Fee”) and an accountable expense allowance as set
forth in Section 4 below; provided, however, that no Cash Fee will
be payable to the Placement Agent in connection with the Placement
of Shares to Silverback Capital. The Placement Agent reserves the
right to reduce any item of compensation or adjust the terms
thereof as specified herein in the event that a determination shall
be made by FINRA to the effect that the Placement Agent’s
aggregate compensation is in excess of FINRA Rules or that the
terms thereof require adjustment.
SECTION
4. EXPENSES.
The Company agrees to pay all costs, fees and expenses incurred by
the Company in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated
hereby, including, without limitation: (i) all expenses incident to
the issuance, delivery and qualification of the Placement Agent
Securities (including all printing and engraving costs); (ii) all
fees and expenses of the registrar and transfer agent of the
Shares; (iii) all necessary issue, transfer and other stamp taxes
in connection with the issuance and sale of the Placement Agent
Securities; (iv) all fees and expenses of the Company’s
counsel, independent public or certified public accountants and
other advisors; (v) all costs and expenses incurred in connection
with the preparation, printing, filing, shipping and distribution
of the Registration Statement (including financial statements,
exhibits, schedules, consents and certificates of experts), the
Base Prospectus and each Prospectus Supplement, and all amendments
and supplements thereto, and this Agreement; (vi) all filing fees,
reasonable attorneys’ fees and expenses incurred by the
Company in connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) all or any
part of the Placement Agent Securities for offer and sale under the
state securities or blue sky laws or the securities laws of any
other country; (vii) the fees and expenses associated with
including the Placement Agent Securities on the Trading Market;
(ix) up to $50,000 for accountable expenses related to legal fees
of counsel to the Placement Agent. Notwithstanding the foregoing,
any advance received by the Placement Agent will be reimbursed to
the Company to the extent not actually incurred in compliance with
FINRA Rule 5110(f)(2)(C). In the event that this Agreement shall
not be carried out for any reason whatsoever, within the time
specified herein or any extensions thereof pursuant to the terms
herein, the Company shall be obligated to pay to the Placement
Agent their actual and accountable out-of-pocket expenses related
to the transactions contemplated herein then due and payable
(including the fees and disbursements of Representative Counsel) up
to $50,000 and upon demand the Company shall pay the full amount
thereof to the Placement Agent; provided, however, that such expense cap in no
way limits or impairs the indemnification and contribution
provisions of this Agreement.
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SECTION
5. INDEMNIFICATION.
A. To
the extent permitted by law, with respect to the Placement Agent
Securities, the Company will indemnify the Placement Agent and its
affiliates, stockholders, directors, officers, employees, members
and controlling persons (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) 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 this Agreement, including, without limitation, any failure by
the Company to obtain any required consent (including, but not
limited to any consent required by that certain Investors’
Rights Agreement by and among the Company and the investors named
therein, entered into between the Company and the investors
signatory thereto in 2016 and 2017), 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 a Placement Agent’s willful misconduct or gross
negligence in performing the services described
herein.
B. Promptly
after receipt by the Placement Agent of notice of any claim or the
commencement of any action or proceeding with respect to which the
Placement Agent is entitled to indemnity hereunder, the Placement
Agent will promptly notify the Company in writing of such claim or
of the commencement of such action or proceeding, but failure to so
notify the Company shall not relieve the Company from any
obligation it may have hereunder, except and only to the extent
such failure results in the forfeiture by the Company of
substantial rights and defenses. If the Company so elects or is
requested by the Placement Agent, the Company will assume the
defense of such action or proceeding and will employ counsel
reasonably satisfactory to the Placement Agent and will pay the
fees and expenses of such counsel. Notwithstanding the preceding
sentence, the Placement Agent will be entitled to employ its own
counsel separate from counsel for the Company and from any other
party in such action if counsel for the Placement Agent reasonably
determines that it would be inappropriate under the applicable
rules of professional responsibility for the same counsel to
represent both the Company and the Placement Agent. In such event,
the reasonable fees and disbursements of no more than one such
separate counsel will be paid by the Company, in addition to fees
of local counsel. The Company will have the 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 the Placement Agent, which will not be unreasonably
withheld.
C. The
Company agrees to notify the Placement Agent 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 this Agreement.
D. If
for any reason the foregoing indemnity is unavailable to the
Placement Agent or insufficient to hold the Placement Agent
harmless, then the Company shall contribute to the amount paid or
payable by the Placement Agent 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 the Placement Agent on the other, but also the
relative fault of the Company on the one hand and the Placement
Agent 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, the Placement Agent’s
share of the liability hereunder shall not be in excess of the
amount of fees actually received, or to be received, by the
Placement Agent under this Agreement (excluding any amounts
received as reimbursement of expenses incurred by the Placement
Agent).
E. These
indemnification provisions shall remain in full force and effect
whether or not the transaction contemplated by this Agreement is
completed and shall survive the termination of this Agreement, and
shall be in addition to any liability that the Company might
otherwise have to any indemnified party under this Agreement or
otherwise.
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SECTION
6. ENGAGEMENT TERM. The Placement
Agent’s engagement hereunder will be until the earlier of (i)
May 15, 2020 and (ii) the Closing Date. The date of termination of
this Agreement is referred to herein as the “Termination Date.” In the event,
however, in the course of the Placement Agent’s performance
of due diligence it deems, it necessary to terminate the
engagement, the Placement Agent may do so prior to the Termination
Date. The Company may elect to terminate the engagement hereunder
for any reason prior to the Termination Date but will remain
responsible for fees pursuant to Section 3 hereof with respect to
the Placement Agent Securities if sold in the Placement.
Notwithstanding anything to the contrary contained herein, the
provisions concerning the Company’s obligation to pay any
fees actually earned pursuant to Section 3 hereof and the
provisions concerning confidentiality, indemnification and
contribution contained herein will survive any expiration or
termination of this Agreement. If this Agreement is terminated
prior to the completion of the Placement, all fees due to the
Placement Agent as set forth in Section 3 shall be paid by the
Company to the Placement Agent on or before the Termination Date
(in the event such fees are earned or owed as of the Termination
Date). The Placement Agent agree not to use any confidential
information concerning the Company provided to the Placement Agent
by the Company for any purposes other than those contemplated under
this Agreement.
SECTION
7. PLACEMENT AGENT INFORMATION.
The Company agrees that any information or advice rendered by the
Placement Agent in connection with this engagement is for the
confidential use of the Company only in its 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 the Placement Agent’s prior written
consent.
SECTION
8. 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 the
Placement Agent 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 the Placement Agent
hereunder, all of which are hereby expressly waived.
SECTION
9. CLOSING. The obligations of the
Placement Agent, and the closing of the sale of the Placement Agent
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 contained herein and in the Purchase Agreement, to
the performance by the Company of its obligations hereunder, and to
each of the following additional terms and conditions, except as
otherwise disclosed to and acknowledged and waived by the Placement
Agent:
A. All
corporate proceedings and other legal matters incident to the
authorization, form, execution, delivery and validity of each of
this Agreement, the Placement Agent Securities, and all other legal
matters relating to this Agreement and the transactions
contemplated hereby with respect to the Placement Agent Securities
shall be reasonably satisfactory in all material respects to the
Placement Agent.
B. The
Placement Agent shall have received from outside counsel to the
Company such counsel’s written opinion with respect to the
Placement Agent Securities, addressed to the Placement Agent and
dated as of the Closing Date, in form and substance reasonably
satisfactory to the Placement Agent.
C. The
Shares shall be registered under the Exchange Act. The Company
shall have taken no action designed to, or likely to have the
effect of terminating the registration of the Common Stocks under
the Exchange Act or delisting or suspending from trading the Shares
from the Trading Market or other applicable U.S. national exchange,
nor has the Company received any information suggesting that the
Commission or the Trading Market or other U.S. applicable national
exchange is contemplating terminating such registration or
listing.
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D. 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 Placement Agent 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
Placement Agent Securities or materially and adversely affect or
potentially and adversely affect the business or operations of the
Company.
E. The
Company shall have entered into a Purchase Agreement with each of
the Purchasers of the Placement Agent Securities and such
agreements shall be in full force and effect and shall contain
representations, warranties and covenants of the Company as agreed
upon between the Company and the Purchasers.
F. FINRA
shall have raised no objection to the fairness and reasonableness
of the terms and arrangements of this Agreement. In addition, the
Company shall, if requested by the Placement Agent, make or
authorize Placement Agent’s counsel to make on the
Company’s behalf, any filing with the FINRA Corporate
Financing Department pursuant to FINRA Rule 5110 with respect to
the Placement and pay all filing fees required in connection
therewith.
If any
of the conditions specified in this Section 9 shall not have been
fulfilled when and as required by this Agreement, all obligations
of the Placement Agent hereunder may be cancelled by the Placement
Agent at, or at any time prior to, the Closing Date. Notice of such
cancellation shall be given to the Company in writing or orally.
Any such oral notice shall be confirmed promptly thereafter in
writing.
SECTION
10. 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, without regard to principles of
conflicts of law. 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 this Agreement, then the prevailing party in such
action or proceeding shall be reimbursed by the other party for its
attorney's fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or
proceeding.
SECTION
11. ENTIRE AGREEMENT/MISCELLANEOUS.
This Agreement 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 the Placement Agent and
the Company. The representations, warranties, agreements and
covenants contained herein shall survive the Closing Date of the
Placement and delivery of the Placement Agent Securities. 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 12. 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 sent to the email
address 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 sent to the email address 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 third
business day following the date of mailing, if sent by U.S.
internationally recognized air 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.
SECTION
13. PRESS ANNOUNCEMENTS. The
Company agrees that the Placement Agent shall, on and after the
Closing Date, have the right to reference the Placement and the
Placement Agent’s role in connection therewith in the
Placement Agent’s marketing materials and on its website and
to place advertisements in financial and other newspapers and
journals, in each case at its own expense.
[The remainder of this page has been
intentionally left blank.]
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Please
confirm that the foregoing correctly sets forth our agreement by
signing and returning to the Placement Agents the enclosed copy of
this Agreement.
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Very
truly yours,
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A.G.P./ALLIANCE GLOBAL PARTNERS
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By:
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/s/ Xxxxxx
Xxxxxxx
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Name:
Xxxxxx Xxxxxxx
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Title: Managing
Director
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Address
for notice:
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000
Xxxxxxx Xxxxxx 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxxx
Email:
xxxxxxxx@xxxxxxxxx.xxx
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[Signature
Page to Placement Agency Agreement.]
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Accepted
and Agreed to as of
the
date first written above:
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By:
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/s/ Xxx
Xxxx
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Name:
Xxx Xxxx
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Title: Chief
Executive Officer
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Address
for notice:
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000
Xxxxxxxx Xxx.
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention:
Xxx Xxxx
Email:
xxx.xxxx@xxxxxxxxxxx.xxx
[Signature
Page to Placement Agency Agreement.]
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