SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
This
Securities Purchase Agreement (this “Agreement”) is dated as
of May 13, 2020, and is between Super League Gaming, Inc, a
corporation incorporated under the laws of the state of Delaware
(the “Company”), and each
purchaser identified on the signature pages hereto (each, including
its successors and assigns, a “Purchaser” and
collectively the “Purchasers”).
WHEREAS, subject to
the terms and conditions set forth in this Agreement and pursuant
to an effective registration statement under the Securities Act (as
defined below) as to the Shares, the Company desires to issue and
sell to each Purchaser, and each Purchaser, severally and not
jointly, desires to purchase from the Company, securities of the
Company as more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the Company
and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement, for
all purposes of this Agreement, the following terms have the
meanings set forth in this Section 1.1:
“A.G.P.” means
A.G.P./Alliance Global Partners, placement agent.
“Acquiring
Person” shall have the
meaning ascribed to such term in Section 4.5.
“Action” shall have the
meaning ascribed to such term in Section 3.1(m).
“Affiliate” means any
Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common
control with a Person as such terms are used in and construed under
Rule 405 under the Securities Act.
“Applicable Laws” shall
have the meaning ascribed to such term in Section
3.1(ss).
“Authorization” shall have
the meaning ascribed to such term in Section 3.1(ss).
“BHCA” shall have the
meaning ascribed to such term in Section 3.1(oo).
“Board
of Directors” means the board of directors of the
Company.
“Business Day” means any
day except any Saturday, any Sunday, any day which is a federal
legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by
law or other governmental action to close.
“Closing”
means the closing of the purchase and sale of the Shares pursuant
to Section 2.1.
“Closing Date” means the
Trading Day on which all of the Transaction Documents have been
executed and delivered by the applicable parties thereto, and all
conditions precedent to (i) the Purchasers’ obligations to
pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Shares, in each case, have been
satisfied or waived, but in no event later than the second
(2nd)
Trading Day following the date hereof.
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“Code” means the United
States Internal Revenue Code of 1986, as amended.
“Commission” means the
United States Securities and Exchange Commission.
“Common
Stock Equivalents” means any securities of the Company
or the Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, including, without limitation,
any debt, preferred stock, right, option, warrant or other
instrument that is at any time convertible into or exercisable or
exchangeable for, or otherwise entitles the holder thereof to
receive, Common Stock.
“Common Stock” means the
common stock of the Company, par value $0.001 per share, and any
other class of securities into which such securities may hereafter
be reclassified or changed.
“Company Counsel” means,
Disclosure Law Group, 000 Xxxx Xxxxxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxxxx 00000.
“Disclosure Schedules ”
means the Disclosure Schedules of the Company delivered
concurrently herewith.
“Disclosure
Time” means, (i) if this Agreement is signed on a day
that is not a Trading Day or after 9:00 a.m. (New York City time)
and before midnight (New York City time) on any Trading Day, 9:01
a.m. (New York City time) on the Trading Day immediately following
the date hereof, unless otherwise instructed as to an earlier time
by A.G.P., and (ii) if this Agreement is signed between midnight
(New York City time) and 9:00 a.m. (New York City time) on any
Trading Day, no later than 9:01 a.m. (New York City time) on the
date hereof, unless otherwise instructed as to an earlier time by
A.G.P.
“DWAC” shall have the
meaning ascribed to such term in Section 2.2(a)(v).
“XXXXX” means the
Commission’s Electronic Data Gathering, Analysis and
Retrieval System.
“Environmental Law” shall
have the meaning ascribed to such term in Section
3.1(p).
“Evaluation Date” shall
have the meaning ascribed to such term in Section
3.1(v).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Exempt Issuance” means
the issuance of (a) shares of Common Stock or options to employees,
officers, directors, consultants or advisors of the Company
pursuant to any stock or option plan duly adopted for such purpose,
by a majority of the non-employee members of the Board of Directors
or a majority of the members of a committee of non-employee
directors established for such purpose, (b) securities upon the
exercise or exchange of or conversion of any Securities issued
hereunder and/or other securities exercisable or exchangeable for
or convertible into shares of Common Stock issued and outstanding
on the date of this Agreement, provided that such securities have
not been amended since the date of this Agreement to increase the
number of such securities or to decrease the exercise price,
exchange price or conversion price of such securities (other than
in connection with stock splits or combinations) or to extend the
term of such securities, and (c) securities issued pursuant to
acquisitions or strategic transactions approved by a majority of
the disinterested directors of the Company, provided that any such
issuance shall only be to a Person (or to the equityholders of a
Person) which is, itself or through its subsidiaries, an operating
company or an owner of an asset in a business synergistic with the
business of the Company and shall provide to the Company additional
benefits in addition to the investment of funds, but shall not
include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose
primary business is investing in securities.
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“FCPA” means the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
“Federal Reserve” shall
have the meaning ascribed to such term in Section
3.1(oo).
“Hazardous
Substances” shall have the meaning ascribed to such
term in Section 3.1(p).
“Intellectual Property
Rights” shall have the meaning ascribed to such term
in Section 3.1(s).
“Issuer Free Writing
Prospectus” shall have the meaning ascribed to such
term in Section 3.1(f)(ii).
“IT Systems” shall have
the meaning ascribed to such term in Section 3.1(qq).
“Lien”
means a lien, charge, mortgage, pledge, security interest, claim,
right of first refusal, pre-emptive right, or other encumbrance of
any kind whatsoever.
“Material
Adverse Effect” shall have the meaning assigned to
such term in Section 3.1(b).
“Material Permits” shall
have the meaning assigned to such term in Section
3.1(r).
“Money Laundering Laws”
shall have the meaning assigned to such term in Section
3.1(pp).
“Person” means an
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.
“Personal Data” shall have
the meaning ascribed to such term in Section 3.1(qq).
“Proceeding” means an
action, claim, suit, investigation or proceeding (including,
without limitation, an informal investigation or partial
proceeding, such as a deposition) pending or, to the
Company’s knowledge, threatened in writing against or
affecting the Company, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state,
county, local or foreign).
“Prospectus” means the
final base prospectus filed for the Registration
Statement.
“Prospectus Supplement”
means the supplement to the Prospectus complying with Rule 424(b)
of the Securities Act that is filed with the Commission and
delivered by the Company to each Purchaser at the
Closing.
“Purchaser
Party” shall have the meaning ascribed to such term in
Section 4.8.
“Registration Statement”
shall have the meaning ascribed to such term in Section
3.1(f)(ii).
“Required
Approvals” shall have the meaning ascribed to such
term in Section 3.1(e).
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“Sanctions” shall have the
meaning ascribed to such term in Section 3.1(kk).
“SEC Reports” shall have
the meaning ascribed to such term in Section 3.1(j).
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Shares”
means the Common Stock issued or issuable to each Purchaser
pursuant to this Agreement.
“Short
Sales” means all “short sales” as defined
in Rule 200 of Regulation SHO under the Exchange Act (but shall not
be deemed to include locating and/or borrowing Common
Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate
amount to be paid for Shares purchased hereunder as specified below
such Purchaser’s name on the signature page of this Agreement
and next to the heading “Subscription Amount,” in
United States dollars and in immediately available
funds.
“Subsidiary” and
“Subsidiaries” shall have
the meanings ascribed to such terms in Section 3.1(a).
“Trading Day” means a day
on which the New York Stock Exchange is open for
trading.
“Trading Market” means any
of the following markets or exchanges on which the Common Stock are
listed or quoted for trading on the date in question: the NYSE
American, the Nasdaq Capital Market, the Nasdaq Global Market, the
Nasdaq Global Select Market, the New York Stock Exchange (or any
successors to any of the foregoing).
“Transaction Documents”
means this Agreement and the Placement Agency Agreement, all
exhibits and schedules thereto and hereto and any other documents
or agreements executed in connection with the transactions
contemplated hereunder.
“Transfer Agent” means
Issuer Direct , the current transfer agent of the Company, at its
principal office in Salt Lake City, Utah, and any successor
transfer agent of the Company.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions
set forth herein, the Company agrees to sell, and the Purchasers,
severally and not jointly, agree to purchase, up to an aggregate of
approximately $6,387,500 of Shares. The Company shall deliver to
each Purchaser its respective Shares, and the Company and each
Purchaser shall deliver the other items set forth in Section 2.2
deliverable at the Closing. Upon satisfaction of the covenants and
conditions set forth in Sections 2.2 and 2.3, the Closing shall
occur at the offices of Gracin & Xxxxxx, LLP or such other
location as the parties shall mutually agree.
2.2 Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to
be delivered to each Purchaser the following:
(i) this Agreement duly
executed by the Company;
(ii) a
legal opinion of Company Counsel, in a form reasonably acceptable
to A.G.P.;
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(iii) a
certificate executed by the Chief Financial Officer of the Company,
in form and substance reasonably satisfactory to
A.G.P.;
(iv) the
Company shall have provided each Purchaser with the Company’s
wire instructions, on Company letterhead and executed by the Chief
Executive Officer or Chief Financial Officer;
(v) a copy of the
irrevocable instructions to the Transfer Agent instructing the
Transfer Agent to deliver on an expedited basis via The Depository
Trust Company Deposit or Withdrawal at Custodian system
(“DWAC”) Shares equal to
such Purchaser’s Subscription Amount divided by the Per Share
Purchase Price, registered in the name of such
Purchaser;
(vi) Lock-up
Agreements, in form and substance reasonably acceptable to the
Purchasers, executed by each officer and director and greater than
10% shareholders of the Company;
(vii) Officer’s
Certificate, in form and substance satisfactory to the
Purchasers;
(viii)
Secretary’s Certificate, in form and substance satisfactory
to the Purchasers; and
(ix) the
Prospectus and Prospectus Supplement (which may be delivered in
accordance with Rule 172 under the Securities Act).
(b) On or prior to the
Closing Date, each Purchaser shall deliver or cause to be delivered
to the Company the following:
(i) this Agreement duly
executed by such Purchaser; and
(ii) such
Purchaser’s Subscription Amount.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing
are subject to the following conditions being
met:
(i) the accuracy in all
material respects (or, to the extent representations or warranties
are qualified by materiality or Material Adverse Effect, in all
respects) when made and on the Closing Date of the representations
and warranties of the Purchasers contained herein (unless as of a
specific date therein in which case they shall be accurate as of
such date);
(ii) all
obligations, covenants and agreements of each Purchaser required to
be performed at or prior to the Closing Date shall have been
performed; and
(iii) the
delivery by each Purchaser of the items set forth in Section 2.2(b)
of this Agreement.
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(b) The respective
obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being
met:
(i) the accuracy in all
material respects (or, to the extent representations or warranties
are qualified by materiality or Material Adverse Effect, in all
respects) when made and on the Closing Date of the representations
and warranties of the Company contained herein (unless as of a
specific date therein in which case they shall be accurate as of
such date);
(ii) all
obligations, covenants and agreements of the Company required to be
performed at or prior to the Closing Date shall have been
performed;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of
this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the
Company since the date hereof; and
(v) from the date
hereof to the Closing Date, trading in the Common Stock shall not
have been suspended by the Commission or the Nasdaq Capital Market,
and, at any time prior to the Closing Date, trading in securities
generally as reported by Bloomberg L.P. shall not have been
suspended or limited, or minimum prices shall not have been
established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium
have been declared either by the United States or New York State
authorities nor shall there have occurred any material outbreak or
escalation of hostilities or other national or international
calamity of such magnitude in its effect on, or any material
adverse change in, any financial market which, in each case, in the
reasonable judgment of such Purchaser, makes it impracticable or
inadvisable to purchase the Shares at the Closing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company.
The Company hereby makes the following representations and
warranties to each Purchaser:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set
forth on Schedule 3.1(a) (each, a “Subsidiary”,
and collectively, the “Subsidiaries”).
The Company owns, directly or indirectly, all of the capital stock
or other equity interests of each Subsidiary free and clear of any
Liens, and all of 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. There are no outstanding
options, warrants, scrip rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exercisable or
exchangeable for, or giving any Person any right to subscribe for
or acquire, any capital stock of any Subsidiary, or contracts,
commitments, understandings or arrangements by which any Subsidiary
is or may become bound to issue capital stock. If the Company has
no Subsidiaries, all references to the Subsidiaries or any of them
in the Transaction Documents shall be
disregarded.
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(b) Organization
and Qualification. The Company
and each of the Subsidiaries has been duly organized and validly
exists as a corporation, limited partnership or company in good
standing (or the foreign equivalent thereof, if any) under the laws
of its jurisdiction of organization. The Company and each of the
Subsidiaries is duly qualified to do business and is in good
standing as a foreign or extra-provincial corporation, partnership,
company or limited liability company in each jurisdiction in which
the character or location of its properties (owned, leased or
licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so
qualified or in good standing which (individually and in the
aggregate) would not have a Material Adverse Effect. No Proceeding
has been instituted in any such jurisdiction revoking, limiting or
curtailing or seeking to revoke, limit or curtail such power and
authority or qualification. Neither the Company nor any Subsidiary
is in violation nor default of any of the provisions of its
respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. The term
“Material Adverse
Effect” means an effect,
change, event or occurrence that, alone or in conjunction with any
other or others: (i) has or would reasonably be expected to have a
material adverse effect on: (A) the business, general affairs,
management, condition (financial or otherwise), results of
operations, shareholders’ equity, properties or prospects of
the Company and the Subsidiaries, taken as a whole, or (B) the
legality, validity or enforceability of any Transaction Document,
(ii) the Company’s ability to perform in any material respect
on a timely basis its obligations under any Transaction Document or
(iii) would result in the Prospectus or any amendment thereto
containing a misrepresentation within the meaning of applicable
securities laws; provided that a change in the market price or trading
volume of the Common Stock alone shall not be deemed, in and of
itself, to constitute a Material Adverse
Effect.
(c) Authorization;
Enforcement. The Company has
the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement and each
of the other Transaction Documents and otherwise to carry out its
obligations hereunder and thereunder. The execution and delivery of
this Agreement and each of the other Transaction Documents by the
Company and the consummation by it of the transactions contemplated
hereby and thereby have been duly authorized by all necessary
action on the part of the Company and no further action is required
by the Company, the Board of Directors or the Company’s
shareholders in connection herewith or therewith other than in
connection with the Required Approvals. This Agreement and each
other Transaction Document to which the Company is a party 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 general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable
law.
(d) No
Conflicts. The execution,
delivery and performance by the Company of this Agreement and the
other Transaction Documents to which it is a party, the issuance
and sale of the Shares and the consummation by it of the
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, anti-dilution or similar
adjustments, 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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(e) Filings,
Consents and Approvals. The
Company is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing
or registration with, any court or other federal, state, local or
other governmental authority or other Person in connection with the
execution, delivery and performance by the Company of this
Agreement, other than: (i) the filings required pursuant to Section
4.4 of this Agreement, (ii) the filing with the Commission of the
Prospectus Supplement, and (iv) application to the Nasdaq Capital
Market for the listing of the Shares for trading thereon in the
time and manner required thereby (collectively, the
“Required
Approvals”).
(f) Issuance
of the Shares; Qualification; Registration.
(i) The
Shares are duly authorized and, when issued and paid for in
accordance with the applicable Transaction Documents, will be duly
and validly issued, fully paid and non-assessable, free and clear
of all Liens imposed by the Company. The Company has reserved from
its duly authorized capital stock the maximum number of shares of
Common Stock issuable pursuant to this Agreement.
(ii) The
Company meets the general eligibility requirements for the use of
Form S-3 under the Securities Act and it meets the transaction
requirements as set forth in General Instruction I.B.6 of Form S-3
and the aggregate market value of the outstanding voting and
non-voting common equity (as defined in Rule 405 of the Securities
Act Regulations) of the Company held by persons other than
affiliates of the Company (pursuant to Rule 144 of the Securities
Act Regulations, those that directly, or indirectly through one or
more intermediaries, control, or are controlled by, or are under
common control with, the Company) (the “Non-Affiliate
Shares”), as of May 12, 2020 was $36,116,935 based on
7,937,788 Shares held by non-affiliates at a price per share of
$4.55 which was the closing price of the Shares reported on the
Nasdaq capital market on May 12, 2020. The Company has prepared and
filed with the Commission a registration statement under the
Securities Act on Form S-3 (File No. 333-237626) on April 10, 2020,
as amended on April 16, 2020, providing for the offer and sale,
from time to time, of up to $40,000,000 of the Company’s
securities (the “Registration
Statement”). The
Registration Statement became effective pursuant to Rule 467(a)
under the Securities Act on April 20, 2020. The prospectus included
in the Registration Statement at the time it became effective,
including documents incorporated therein by reference, is referred
to herein as the “Base Prospectus”. No stop order
suspending the effectiveness of the Registration Statement has been
issued under the Securities Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission and any request on the
part of the Commission for additional information has been complied
with..
The
term “Prospectus” means the
prospectus supplement (the “Prospectus Supplement”)
relating to the offering and sale of the Shares to filed with the
Commission pursuant to General Instructions of Form S-3, together
with the Base Prospectus, including all documents incorporated
therein by reference.
Any
“issuer free writing prospectus” (as defined in Rule
433 under the Securities Act) relating to the Shares is hereafter
referred to as an “Issuer Free Writing
Prospectus”. Any reference herein to the Base
Prospectus and the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein as of the
date of filing thereof; and any reference herein to any
“amendment” or “supplement” with respect to
any of the Base Prospectus and the Prospectus shall be deemed to
refer to and include (i) the filing of any document with the
Commission incorporated or deemed to be incorporated therein by
reference after the date of filing of such Base Prospectus or
Prospectus and (ii) any such document so filed.
All
references in this Agreement to the Registration Statement, the
Base Prospectus, or the Prospectus, or any Issuer Free Writing
Prospectus, or any amendments or supplements to any of the
foregoing, shall be deemed to include any copy thereof filed with
the Commission on XXXXX.
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(g) Securities
Act Compliance. The
Registration Statement t complies, and the Prospectus and any
further amendments or supplements to the Registration Statement or
the Prospectus will comply, with the applicable provisions of the
Securities Act. Each part of the Registration Statement, when such
part became effective, did not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading The Prospectus, as of its filing date, and
any amendment thereof or supplement thereto, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(h) No
Stop Orders. No order
preventing or suspending the use of the Base Prospectus or any
Issuer Free Writing Prospectus has been issued by the
Commission.
(i) Capitalization.
The equity capitalization of the
Company is as set forth on Schedule
3.1(i). All of the issued and
outstanding shares of Common Stock are fully paid and
non-assessable and have been duly and validly authorized and
issued, in compliance with all federal and state securities laws
and not in violation of or subject to any preemptive or similar
right that entitles any person to acquire from the Company any
Common Stock or other security of the Company or any security
convertible into, or exercisable or exchangeable for, Common Stock
or any other such security, except for such rights as may have been
fully satisfied or waived prior to the date hereof. Except as set
forth on Schedule
3.1(i), the Company has no
outstanding options, warrants, scrip rights to subscribe to, calls
or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exercisable
or exchangeable for, or giving any Person any right to subscribe
for or acquire, any Common Stock, or contracts, commitments,
understandings or arrangements by which the Company is or may
become bound to issue additional Common Stock or Common Stock
Equivalents. No Person has any right of first refusal, pre-emptive
right, right of participation, or any similar right to participate
in the transactions contemplated by the Transaction Documents. The
issuance and sale of the Shares will not obligate the Company to
issue Common Stock or other securities to any Person (other than
the Purchasers) and will not result in a right of any holder of
Company securities to adjust the exercise, conversion, exchange or
reset price under any of such securities or require the Company to
register its stock. There are no outstanding securities or
instruments of the Company with any provision that adjusts the
exercise, conversion, exchange or reset price of such security or
instrument upon an issuance of securities by the Company. There are
no outstanding securities or instruments of the Company that
contain any redemption or similar provisions, and there are no
contracts, commitments, understandings or arrangements by which the
Company is or may become bound to redeem a security of the Company.
Except for the Required Approvals, no further approval or
authorization of any shareholder of the Company, the Board of
Directors or others is required for the issuance and sale of the
Shares. There are no shareholders agreements, voting agreements,
investor rights agreements or other similar agreements with respect
to the Company’s capital stock to which the Company is a
party or, to the knowledge of the Company, between or among any of
the Company’s shareholders.
(j) Reports.
The Company has filed all reports,
schedules, forms, statements and other documents required to
be filed by the Company under the Securities Act and Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof
(the foregoing materials, including the exhibits thereto and
documents incorporated by reference therein, together with
the Prospectus and the Prospectus Supplements, being collectively
referred to herein as the “SEC
Reports”) on a timely
basis or has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC
Reports complied in all material respects with the
requirements of the Securities Act and the Exchange Act, as
applicable, and none of the SEC Reports, when filed, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
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(k) Financial
Statements. The consolidated
financial statements, including the notes thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus comply in all material respects with applicable
accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of filing.
Such financial statements have been prepared in accordance
with
generally accepted
accounting principles applied on a consistent basis during the
periods involved, except as may be otherwise specified in such
financial statements or the notes thereto and except that unaudited
financial statements may not contain all footnotes required by
generally accepted accounting principles, and fairly present in all
material respects the financial position of the Company and its
consolidated Subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
(l) Material
Changes; Undisclosed Events, Liabilities or
Developments. Since the date of
the latest consolidated financial statements included in or
incorporated by reference into the Registration Statement and the
Prospectus, except as set forth in the Registration and the
Prospectus, (i) there has been no event, occurrence or development
that has had or that could reasonably be expected to result in a
Material Adverse Effect, (ii) neither the Company nor any
Subsidiary has incurred any liabilities (contingent or otherwise)
other than (A) trade payables and accrued expenses incurred in the
ordinary course of business consistent with past practice and (B)
liabilities not required to be reflected in the Company’s
financial statements pursuant to generally accepted accounting
principles or disclosed in filings made with the Commission, (iii)
the Company has not altered its method of accounting, (iv) the
Company has not declared or made any dividend or distribution of
cash or other property to its stockholders or purchased, redeemed
or made any agreements to purchase or redeem any shares of its
capital stock and (v) the Company has not issued any equity
securities to any officer, director or Affiliate, except pursuant
to existing Company stock option plans. The Company does not have
pending before the Commission any request for confidential
treatment of information. Except for the issuance of the Shares
contemplated by this Agreement, no event, liability, fact,
circumstance, occurrence or development has occurred or exists or
is reasonably expected to occur or exist with respect to the
Company or its Subsidiaries or their respective businesses,
prospects, properties, operations, assets or financial condition
that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made
or deemed made that has not been publicly disclosed at least 1
Trading Day prior to the date that this representation is
made.
(m) Litigation.
There is no material action, suit, inquiry, notice of violation,
proceeding or investigation pending or, to the knowledge of the
Company, threatened against or affecting the Company, any
Subsidiary or any of their respective properties before or by any
court, arbitrator, governmental or administrative agency or
regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”)
which (i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Shares,
or (ii) is expected to result in a Material Adverse Effect. The
Company has disclosed, in the documents filed by the Company
pursuant to Sections 12, 13, 14 or 15 of the Exchange Act and
incorporated or deemed to be incorporated by reference into the
Prospectus, all such information that it is required to disclose in
respect of any Action pursuant to the requirements of the
Securities Act and the Exchange Act, as applicable. Neither the
Company nor any Subsidiary, nor any director or officer thereof, is
or has been the subject of any Action involving a claim of
violation of or liability under federal or state securities laws or
a claim of breach of fiduciary duty. There has not been, and to the
knowledge of the Company, there is not pending or contemplated, any
material investigation by the Commission involving the Company or
any current or former director or officer of the Company which is
required to be disclosed in the SEC Reports. The Commission has not
issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company or any
Subsidiary under the Exchange Act or the Securities
Act.
-10-
(n) Labor
Relations. No labor dispute
exists or, to the knowledge of the Company, is imminent with
respect to any of the employees of the Company, which could
reasonably be expected to result in a Material Adverse Effect. None
of the Company’s or its Subsidiaries’ employees is a
member of a union that relates to such employee’s
relationship with the Company or such Subsidiary, and neither the
Company nor any of its Subsidiaries is a party to a collective
bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the
knowledge of the Company, no executive officer of the Company or
any Subsidiary, is, or is now expected to be, in violation of any
material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition
agreement, or any other contract or agreement or any restrictive
covenant in favor of any third party, and the continued employment
of each such executive officer does not subject the Company or any
of its Subsidiaries to any liability with respect to any of the
foregoing matters. The Company and its Subsidiaries are in
compliance with all U.S. federal, state, local and foreign laws and
regulations relating to employment and employment practices, terms
and conditions of employment and wages and hours, except where the
failure to be in compliance could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect
(o) Compliance.
Neither the Company nor any
Subsidiary: (i) is in default under or in violation of (and no
event has occurred that has not been waived that, with notice or
lapse of time or both, would result in a default by the Company or
any Subsidiary under), nor has the Company or any Subsidiary
received notice of a claim that it is in default under or that it
is in violation of, any indenture, loan or credit agreement or any
other agreement or instrument to which it is a party or by which it
or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any judgment,
decree or order of any court, arbitrator or other governmental
authority or (iii) is or has been in violation of any statute,
rule, ordinance or regulation of any governmental authority,
including without limitation all foreign, federal, state and local
laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and
labor matters, except in each case of (i), (ii) and (iii) as could
not have or reasonably be expected to result in a Material Adverse
Effect.
(p) Environmental
Law. There has been no storage,
generation, transportation, handling, use, treatment, disposal,
discharge, emission, contamination, release or other activity
involving any kind of hazardous, toxic or other wastes, pollutants,
contaminants, petroleum products or other hazardous or toxic
substances, chemicals or materials (“Hazardous
Substances”) by, due to,
on behalf of, or caused by the Company or any Subsidiary (or, to
the Company’s knowledge, any other entity for whose acts or
omissions the Company is or may be liable) upon any property now or
previously owned, operated, used or leased by the Company or any
Subsidiary, or upon any other property, which would be a violation
of or give rise to any liability under any applicable law, rule,
regulation, order, judgment, decree or permit, common law provision
or other legally binding standard relating to pollution or
protection of human health and the environment
(“Environmental
Law”), except for
violations and liabilities which, individually or in the aggregate,
would not have a Material Adverse Effect. There has been no
disposal, discharge, emission contamination or other release of any
kind at, onto or from any such property or into the environment
surrounding any such property of any Hazardous Substances with
respect to which the Company or any Subsidiary has knowledge,
except as would not, individually or in the aggregate, have a
Material Adverse Effect. There is no pending or, to the best of the
Company’s knowledge, threatened administrative, regulatory or
judicial action, claim or notice of noncompliance or violation,
investigation or proceedings relating to any Environmental Law
against the Company or any Subsidiary, except as would not,
individually or in the aggregate, have a Material Adverse Effect.
No property of the Company or any Subsidiary is subject to any Lien
under any Environmental Law. Except as disclosed in the Prospectus,
neither the Company nor any Subsidiary is subject to any order,
decree, agreement or other individualized legal requirement related
to any Environmental Law, which, in any case (individually or in
the aggregate), would have a Material Adverse Effect. The Company
and each Subsidiary has all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements. In the ordinary course of its
business, the Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of
the Company and the Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure or remediation of
properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the
basis of such review, the Company has reasonably concluded that
such associated costs and liabilities would not, individually or in
the aggregate, have a Material Adverse Effect.
-11-
(q) Title
to Assets. The Company and the
Subsidiaries have good and marketable title in fee simple to all
real property owned by them and good and marketable title in all
personal property owned by them that is material to the business of
the Company and the Subsidiaries, in each case free and clear of
all Liens, except for (i) Liens as do not materially affect the
value of such property and do not materially interfere with the use
made and proposed to be made of such property by the Company and
the Subsidiaries and (ii) Liens for the payment of federal, state
or other taxes, for which appropriate reserves have been made
therefor in accordance with generally accepted accounting
principles and, the payment of which is neither delinquent nor
subject to penalties. Any real property and facilities held under
lease by the Company and the Subsidiaries are held by them under
valid, subsisting and enforceable leases with which the Company and
the Subsidiaries are in compliance in all material
respects.
(r) Regulatory
Permits. The Company and the
Subsidiaries possess all certificates, authorizations and permits
issued by the appropriate federal, state, local or foreign
regulatory authorities necessary to conduct their respective
businesses as described in the SEC Reports, except where the
failure to possess such permits could not reasonably be expected to
result in a Material Adverse Effect (“Material
Permits”), and neither
the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any
Material Permit.
(s) Intellectual
Property. The Company and the
Subsidiaries have, or have rights to use, all patents, patent
applications, trademarks, trademark applications, service marks,
trade names, trade secrets, inventions, copyrights, licenses and
other intellectual property rights and similar rights necessary or
required for use in connection with their respective businesses as
described in the SEC Reports and which the failure to so have could
have a Material Adverse Effect (collectively, the
“Intellectual Property
Rights”). None of, and
neither the Company nor any Subsidiary has received a notice
(written or otherwise) that any of, the Intellectual Property
Rights has expired, terminated or been abandoned, or is expected to
expire or terminate or be abandoned, within two (2) years from the
date of this Agreement except as would not reasonably be expected
to have a Material Adverse Effect. Neither the Company nor any
Subsidiary has received, since the date of the latest audited
financial statements included within the SEC Reports, a written
notice of a claim or otherwise has any knowledge that the
Intellectual Property Rights violate or infringe upon the rights of
any Person and neither is aware of any facts which would form a
reasonable basis for any such claim, except as could not have or
reasonably be expected to not have a Material Adverse Effect. To
the knowledge of the Company, all such Intellectual Property Rights
are enforceable and there is no existing infringement by another
Person of any of the Intellectual Property Rights. The Company and
its Subsidiaries have taken reasonable security measures to protect
the secrecy, confidentiality and value of all of their intellectual
properties, except where failure to do so could not, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect. None of the
Intellectual Property Rights used by the Company or any of its
Subsidiaries in their respective businesses has been obtained or is
being used by the Company or such Subsidiary in violation of any
contractual obligation binding on the Company or any of its
subsidiaries in violation of the rights of any
person. The Company and its
subsidiaries have taken all reasonable steps in accordance with
normal industry practice to protect and maintain the Intellectual
Property Rights including, without limitation, the execution of
appropriate nondisclosure and invention assignment agreements. The
consummation of the transactions contemplated by this Agreement
will not result in the loss or impairment of, or payment of, and
additional amounts with respect to, nor require the consent of, any
other person regarding the Company’s or any of its
subsidiaries’ right to own or use any of the Intellectual
Property Rights as owned or used in the conduct of such
party’s business as currently conducted. To the knowledge of
the Company and its Subsidiaries, no employee of any of the Company
or its subsidiaries is the subject of any pending claim or
proceeding involving a violation of any term of any employment
contract, invention disclosure agreement, patent disclosure
agreement, noncompetition agreement, non-solicitation agreement,
nondisclosure agreement or restrictive covenant to or with a former
employer, where the basis of such violation relates to such
employee’s employment with the Company or its subsidiaries or
actions undertaken by the employee while employed with the Company
or its Subsidiaries.
-12-
(t) Insurance.
The Company and the Subsidiaries are
insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and
customary in the businesses in which the Company and the
Subsidiaries are engaged, including, but not limited to, directors
and officers insurance coverage. Neither the Company nor any
Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business without a significant
increase in cost.
(u) Transactions
With Affiliates and Employees.
Except as set forth on Schedule
3.1(u), none of the officers or
directors of the Company or any Subsidiary and, to the knowledge of
the Company, none of the employees of the Company or any Subsidiary
is presently a party to any transaction with the Company or any
Subsidiary (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, providing for the
borrowing of money from or lending of money to or otherwise
requiring payments to or from any officer, director or such
employee or, to the knowledge of the Company, any entity in which
any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member
or partner, in each case in excess of $120,000 other than for (i)
payment of salary or consulting fees for services rendered, (ii)
reimbursement for expenses incurred on behalf of the Company and
(iii) other employee benefits, including stock option agreements
under any stock option plan of the Company.
(v) Xxxxxxxx-Xxxxx;
Internal Accounting Controls. The Company and the Subsidiaries and their
respective officers and directors are in compliance with the
applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002, as
amended. The Company and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with IFRS and to maintain asset
accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company and the Subsidiaries have established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and the Subsidiaries and designed such
disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or
submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the
Commission’s rules and forms. The Company’s certifying
officers have evaluated the effectiveness of the disclosure
controls and procedures of the Company and the Subsidiaries as of
applicable dates specified under the Exchange Act (such date, the
“Evaluation
Date”). The Company
presented in its most recently filed annual report on Form 10-K the
conclusions of the certifying officers about the effectiveness of
the disclosure controls and procedures based on their evaluations
as of the Evaluation Date. Except as set forth in the Prospectus,
since the Evaluation Date, there have been no changes in the
internal control over financial reporting (as such term is defined
in the Exchange Act) of the Company and the Subsidiaries that have
materially affected, or is reasonably likely to materially affect,
the internal control over financial reporting of the Company and
the Subsidiaries.
(w) Certain
Fees. Except for fees payable
to A.G.P as will be as set forth in the Prospectus, no brokerage or
finder’s fees or commissions are or will be payable by the
Company, any Subsidiary or any Related Entity to any broker,
financial advisor or consultant, finder, placement agent,
investment banker, bank or other 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.
-13-
(x) Investment
Company. The Company is not,
and is not an Affiliate of, and immediately after receipt of
payment for the Shares, will not be or be an Affiliate of, an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended. The Company shall
conduct its business in a manner so that it will not become an
“investment company” subject to registration under the
Investment Company Act of 1940, as amended.
(y) Registration
Rights. No Person has any right
to cause the Company or any Subsidiary to effect the
registration under the Securities Act of any securities of
the Company or any Subsidiary.
(z) Listing
and Maintenance Requirements. The Company is subject to the reporting
requirements of Section 13 of the Exchange Act and files periodic
reports with the SEC; the Shares are registered with the SEC under
Section 12(b) of the Exchange Act and the Company is not in breach
of any filing or other requirements under the Exchange Act. The
Company has not received any notice from that the Commission is
contemplating terminating such registration Except as disclosed in
the SEC Reports, the Company has not, in the 12 months preceding
the date hereof, received notice from any Trading Market on which
the Common Stock are or have been listed or quoted to the effect
that the Company is not in compliance with the listing or
maintenance requirements of such Trading Market. The Company is,
and has no reason to believe that it will not in the foreseeable
future continue to be, in compliance with all such listing and
maintenance requirements. The Common Stock is currently eligible
for electronic transfer through the Depository Trust Company or
another established clearing corporation and the Company is current
in payment of the fees to the Depository Trust Company (or such
other established clearing corporation) in connection with such
electronic transfer.
(aa) Application
of Takeover Protections. The
Company and the Board of Directors have taken all necessary
action, if any, in order to render inapplicable any control
share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s articles
of incorporation (or similar charter documents) or the laws of its
jurisdiction of incorporation that is or could become
applicable to the Purchasers as a result of the Purchasers
and the Company fulfilling their obligations or exercising their
rights under the Transaction Documents, including without
limitation as a result of the Company’s issuance of
the Shares and the Purchasers’ ownership of the
Shares.
(bb) Disclosure. Except
with respect to the material terms and conditions of the
transactions contemplated by the Transaction Documents, the Company
confirms that neither it nor any other Person acting on its behalf
has provided any of the Purchasers or their agents or counsel with
any information that it believes constitutes or might constitute
material, non-public information which is not otherwise disclosed
in the Prospectus Supplement. The Company understands and confirms
that the Purchasers will rely on the foregoing representation in
effecting transactions in securities of the Company. All of the
disclosure furnished by or on behalf of the Company to the
Purchasers regarding the Company and its Subsidiaries, their
respective businesses and the transactions contemplated hereby,
including the Disclosure Schedules to this Agreement, is true and
correct in all material respects and does not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not
misleading. The press releases disseminated by the Company during
the twelve months preceding the date of this Agreement taken as a
whole do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made and when made, not
misleading. The Company acknowledges and agrees that no Purchaser
makes or has made any representations or warranties with respect to
the transactions contemplated hereby other than those specifically
set forth in Section 3.2 hereof.
-14-
(cc) No
Integrated Offering. Assuming
the accuracy of the Purchasers’ representations and
warranties set forth in Section 3.2, neither the Company, nor any
of its Affiliates, nor any Person acting on its or their behalf
has, directly or indirectly, made any sales of any security or
solicited any offers to buy any security, under circumstances that
would cause this offering of the Securities to be integrated with
prior offerings by the Company for purposes of (i) the Securities
Act, or (ii) any applicable shareholder approval provisions of any
Trading Market on which any of the securities of the Company are
listed or designated.
(dd) Insolvency;
Indebtedness. Based on the
consolidated financial condition of the Company as of the Closing
Date, after giving effect to the receipt by the Company of the
proceeds from the sale of the Shares hereunder, (i) the fair
saleable value of the Company’s assets exceeds the amount
that will be required to be paid on or in respect of the
Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the
Company’s assets do not constitute unreasonably small capital
to carry on its business as now conducted and as proposed to be
conducted including its capital needs taking into account the
particular capital requirements of the business conducted by the
Company, consolidated and projected capital requirements and
capital availability thereof, and (iii) the current cash flow of
the Company, together with the proceeds the Company would receive,
were it to liquidate all of its assets, after taking into account
all anticipated uses of the cash, would be sufficient to pay all
amounts on or in respect of its liabilities when such amounts are
required to be paid. The Company does not intend to incur debts
beyond its ability to pay such debts as they mature (taking into
account the timing and amounts of cash to be payable on or in
respect of its debt). The Company has no knowledge of any facts or
circumstances which lead it to believe that it will file for
reorganization or liquidation under the bankruptcy or
reorganization laws of any jurisdiction within one year from the
Closing Date. Schedule
3.1(dd) sets forth as of the
date hereof all outstanding secured and unsecured Indebtedness of
the Company or any Subsidiary, or for which the Company or any
Subsidiary has commitments. For the purposes of this Agreement,
“Indebtedness” means (x) any liabilities for borrowed
money or amounts owed by the Company in excess of $50,000 (other
than trade accounts payable incurred in the ordinary course of
business), (y) all guaranties, endorsements and other contingent
obligations in respect of indebtedness of others to third parties,
whether or not the same are or should be reflected in the
Company’s consolidated balance sheet (or the notes thereto),
except guaranties by endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business; and (z) the present value of any lease payments
in excess of $50,000 due under leases required to be capitalized in
accordance with GAAP. Neither the Company nor any Subsidiary is in
default with respect to any Indebtedness.
(ee) Tax
Status. Except for matters that
would not, individually or in the aggregate, have or reasonably be
expected to result in a Material Adverse Effect, the Company and
its Subsidiaries each (i) has made or filed all United States
federal, state and local income and all foreign tax returns,
reports and declarations required by any jurisdiction to which it
is subject, (ii) has paid all taxes and other governmental
assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations and
(iii) has set aside on its books provision reasonably adequate for
the payment of all material taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There
are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of the
Company or of any Subsidiary know of no basis for any such
claim.
(ff) Foreign
Corrupt Practices; Criminal Acts. Neither the Company nor any Subsidiary, nor to the
knowledge of the Company or any Subsidiary, any agent or other
person acting on behalf of the Company or any Subsidiary, has (i)
directly or indirectly, used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses related to foreign
or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any
foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the
Company or any Subsidiary (or made by any person acting on its
behalf of which the Company is aware) which is in violation of law,
or (iv) violated in any material respect any provision of
FCPA.
-15-
(gg) Accountants.
The Company’s independent registered public accounting firm
is as set forth in the Prospectus. To the knowledge and belief of
the Company, such accounting firm (i) is a registered public
accounting firm as required by the Exchange Act and (ii) shall
express its opinion with respect to the financial statements to be
included in the Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2020.
(hh) Acknowledgment
Regarding Purchasers’ Purchase of Shares. The Company acknowledges and agrees that each of
the Purchasers is acting solely in the capacity of an arm’s
length purchaser with respect to the Transaction Documents and the
transactions contemplated thereby. The Company further acknowledges
that no Purchaser is acting as a financial advisor or fiduciary of
the Company (or in any similar capacity) with respect to the
Transaction Documents and the transactions contemplated thereby and
any advice given by any Purchaser or any of their respective
representatives or agents in connection with the Transaction
Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Shares. The
Company further represents to each Purchaser that the
Company’s decision to enter into this Agreement and the other
Transaction Documents has been based solely on the independent
evaluation of the transactions contemplated hereby by the Company
and its representatives.
(ii) Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein
to the contrary notwithstanding (except for Sections 3.2(e) and
4.14 hereof), it is understood and acknowledged by the Company
that: (i) none of the Purchasers has been asked by the Company to
agree, nor has any Purchaser agreed, to desist from purchasing or
selling, long and/or short, securities of the Company, or
“derivative” securities based on securities issued by
the Company or to hold the Shares for any specified term; (ii) past
or future open market or other transactions by any Purchaser,
specifically including, without limitation, Short Sales or
“derivative” transactions, before or after the closing
of this or future private placement transactions, may negatively
impact the market price of the Company’s publicly-traded
securities; (iii) any Purchaser, and counter-parties in
“derivative” transactions to which any such Purchaser
is a party, directly or indirectly, presently may have a
“short” position in the Common Stock, and (iv) each
Purchaser shall not be deemed to have any affiliation with or
control over any arm’s length counter-party in any
“derivative” transaction. The Company further
understands and acknowledges that (y) one or more Purchasers may
engage in hedging activities (in material compliance with
applicable laws) at various times during the period that the Shares
are outstanding, and (z) such hedging activities (if any) could
reduce the value of the existing shareholders’ equity
interests in the Company at and after the time that the hedging
activities are being conducted. The Company acknowledges that such
aforementioned hedging activities do not constitute a breach of any
of the Transaction Documents.
(jj) Regulation
M Compliance. The Company has
not, and to its knowledge no one acting on its behalf has, (i)
taken, directly or indirectly, any action designed to cause or to
result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of
the Shares, (ii) sold, bid for, purchased, or, paid any
compensation for soliciting purchases of, any of the Shares, or
(iii) paid or agreed to pay to any Person any compensation for
soliciting another to purchase any other securities of the Company,
other than, in the case of clauses (ii) and (iii), compensation
paid to A.G.P..
(kk) Office
of Foreign Assets Control.
Neither the Company nor any Subsidiary nor, to the Company's
knowledge, any director, officer, agent, employee or affiliate of
the Company or any Subsidiary is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department (“OFAC”)
and the Company will not, directly or indirectly, use the proceeds
of the Offering hereunder, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered
by OFAC.
-16-
(ll) Stock
Option Plans. Each stock option
granted by the Company under the Company’s stock option plan
or omnibus long-term incentive plan was granted (i) in accordance
with the terms of such plan and (ii) with an exercise price at
least equal to the fair market value of the Common Stock on the
date such stock option would be considered granted under GAAP and
applicable law. No stock option granted under the Company’s
stock option plan or omnibus long-term incentive plan has been
backdated. The Company has not knowingly granted, and there is no
and has been no Company policy or practice to knowingly grant,
stock options prior to, or otherwise knowingly coordinate the grant
of stock options with, the release or other public announcement of
material information regarding the Company or the Subsidiaries or
their financial results or prospects.
(mm) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the
Company's knowledge, any director, officer, agent, employee or
affiliate of the Company or any Subsidiary is currently subject to
any U.S. sanctions administered by the OFAC.
(nn) U.S.
Real Property Holding Corporation. The Company is not and has never been a United
States real property holding corporation within the meaning of
Section 897 of the Internal Revenue Code of 1986, as amended, and
the Company shall so certify upon Purchaser’s
request.
(oo) Bank
Holding Company Act. Neither
the Company nor any of its Subsidiaries or Affiliates is subject to
the Bank Holding Company Act of 1956, as amended (the
“BHCA”)
and to regulation by the Board of Governors of the Federal Reserve
System (the “Federal
Reserve”). Neither the
Company nor any of its Subsidiaries or Affiliates owns or controls,
directly or indirectly, five percent (5%) or more of the
outstanding shares of any class of voting securities or twenty-five
percent or more of the total equity of a bank or any entity that is
subject to the BHCA and to regulation by the Federal Reserve.
Neither the Company nor any of its Subsidiaries or Affiliates
exercises a controlling influence over the management or policies
of a bank or any entity that is subject to the BHCA and to
regulation by the Federal Reserve.
(pp) Money
Laundering. The operations of
the Company and its Subsidiaries are and have been conducted at all
times in compliance with applicable financial record-keeping and
reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, applicable money laundering
statutes and applicable rules and regulations thereunder
(collectively, the “Money Laundering
Laws”), and no action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any
Subsidiary with respect to the Money Laundering Laws is pending or,
to the knowledge of the Company or any Subsidiary,
threatened.
(qq) Information
Technology. The
Company’s, the Subsidiaries’ and, to the knowledge of
the Company, the Related Parties’ information technology
assets and equipment, computers, systems, networks, hardware,
software, websites, applications, and databases (collectively,
“IT
Systems”) are adequate in
all material respects for, and operate and perform in all material
respects as required in connection with the operation of the
business of the Company, the Subsidiaries and the Related Entities
as currently conducted free and clear of all material bugs, errors,
defects, Trojan horses, time bombs, malware and other corruptants.
The Company, the Subsidiaries and, to the knowledge of the Company,
the Related Parties have implemented and maintain commercially
reasonable controls, policies, procedures, and safeguards to
maintain and protect their material confidential information and
the integrity, continuous operation, redundancy and security of all
IT Systems and data, including all personal, personally
identifiable, sensitive, confidential or regulated data
(“Personal
Data”), used in
connection with its business, and to the knowledge of the Company,
there have been no breaches, incidents, violations, outages,
compromises or unauthorized uses of or accesses to same, except for
those that have been remedied without material cost or liability or
the duty to notify any other person, nor any incidents under
internal review or investigations relating to the same. The
Company, the Subsidiaries and, to the knowledge of the Company, the
Related Parties are presently in compliance in all material
respects with all applicable laws or statutes and all applicable
judgments, orders, rules and regulations of any court or arbitrator
or governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of IT
Systems and Personal Data and to the protection of such IT Systems
and Personal Data from unauthorized use, access, misappropriation
or modification, except for any such noncompliance that would not
have a Material Adverse Effect.
-17-
(rr) Other
Covered Persons. Other than
A.G.P., the Company is not aware of any person that has been or
will be paid (directly or indirectly) remuneration for solicitation
of purchasers in connection with the sale of any
Shares.
(ss) Regulatory.
Except as described in the Registration Statement and the
Prospectus, as applicable, the Company and its Subsidiaries (i) are
and at all times have been in material compliance with all
statutes, rules and regulations applicable to its business
(collectively, the “Applicable
Laws”); (ii) have not received any notice from any
court or arbitrator or governmental or regulatory authority or
third party alleging or asserting noncompliance with any Applicable
Laws or any licenses, exemptions, certificates, approvals,
clearances, authorizations, permits, registrations and supplements
or amendments thereto required by any such Applicable Laws
(“Authorizations”);
(iii) possess all material Authorizations and such Authorizations
are valid and in full force and effect and are not in violation of
any term of any such Authorizations; (iv) have not received written
notice of any claim, action, suit, proceeding, hearing,
enforcement, investigation arbitration or other action from any
court or arbitrator or governmental or regulatory authority or
third party alleging that any product operation or activity is in
violation of any Applicable Laws or Authorizations nor is any such
claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action threatened; (v) have not
received any written notice that any court or arbitrator or
governmental or regulatory authority has taken, is taking or
intends to take, action to limit, suspend, materially modify or
revoke any Authorizations nor is any such limitation, suspension,
modification or revocation threatened; (vi) have filed, obtained,
maintained or submitted all material reports, documents, forms,
notices, applications, records, claims, submissions and supplements
or amendments as required by any Applicable Laws or Authorizations
and that all such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments were
complete and accurate on the date filed (or were corrected or
supplemented by a subsequent submission); and (vii) are not a party
to any corporate integrity agreements, monitoring agreements,
consent decrees, settlement orders, or similar agreements with or
imposed by any governmental or regulatory
authority.
(tt) Material
Agreements. The agreements and
documents described in the Registration Statement or Prospectus
conform in all material respects to the descriptions thereof
contained or incorporated by reference therein conformed in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable at the time filed, and were filed on a
timely basis with the Commission and none of such documents
contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; any further documents so filed and there are no agreements or other documents
required by the Securities Act and the rules and regulations
thereunder to be described in the Prospectus or to be filed with
the Commission as exhibits to the Registration Statement or to be
incorporated by reference in the Registration Statement or
Prospectus, that have not been so described or filed or
incorporated by reference.
(uu) Intentionally
Omitted
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other
Purchaser, hereby represents and warrants as of the date hereof and
as of the Closing Date to the Company as follows (unless as of a
specific date therein, in which case they shall be accurate as of
such date):
-18-
(a) Organization;
Authority. Such Purchaser is
either an individual or an entity duly incorporated or formed,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation with full right,
corporate, partnership, limited liability company or similar power
and authority to enter into and to consummate the transactions
contemplated by the Transaction Documents and otherwise to carry
out its obligations hereunder and thereunder. The execution and
delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction
Documents have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as
applicable, on the part of such Purchaser. Each Transaction
Document to which it is a party has been duly executed by such
Purchaser, and when delivered by such Purchaser in accordance with
the terms hereof or thereof, will constitute the valid and legally
binding obligation of such Purchaser, enforceable against it in
accordance with its terms, except: (i) as limited by general
equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally; (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies; and
(iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
(b) Understandings
or Arrangements. Such Purchaser
is acquiring the Shares as principal for its own account and has no
direct or indirect arrangement or understandings with any other
persons to distribute or regarding the distribution of such Shares
(this representation and warranty not limiting such
Purchaser’s right to sell the Shares pursuant to the
Registration Statement or otherwise in compliance with applicable
federal and state securities laws). Such Purchaser is acquiring the
Shares hereunder in the ordinary course of its business. Such
Purchaser is acquiring such Shares as principal for his, her or its
own account and not with a view to or for distributing or reselling
such Shares or any part thereof in violation of the Securities Act
or any applicable state securities law, has no present intention of
distributing any of such Securities in violation of the Securities
Act or any applicable state securities law and has no direct or
indirect arrangement or understandings with any other persons to
distribute or regarding the distribution of such Shares in
violation of the Securities Act or any applicable state securities
law (this representation and warranty not limiting such
Purchaser’s right to sell such Shares pursuant to a
registration statement or otherwise in compliance with applicable
federal and state securities laws).
(c) Purchaser
Status. At the time such
Purchaser was offered the Shares, it was, and as of the date hereof
it is a “qualified institutional buyer” as defined in
Rule 144A(a) under the Securities Act.
(d) Experience
of Such Purchaser. Such
Purchaser, either alone or together with its representatives, has
such knowledge, sophistication and experience in business and
financial matters so as to be capable of evaluating the merits and
risks of the prospective investment in the Shares, and has so
evaluated the merits and risks of such investment. Such Purchaser
is able to bear the economic risk of an investment in the Shares
and, at the present time, is able to afford a complete loss of such
investment.
(e) Access
to Information. Such Purchaser
acknowledges that it has had the opportunity to review the
Transaction Documents (including all exhibits and schedules
thereto) and the reports filed with the Commission and has been
afforded: (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives
of the Company concerning the terms and conditions of the offering
of the Shares and the merits and risks of investing in the Shares;
(ii) access to information about the Company and its financial
condition, results of operations, business, properties, management
and prospects sufficient to enable it to evaluate its investment;
and (iii) the opportunity to obtain such additional information
that the Company possesses or can acquire without unreasonable
effort or expense that is necessary to make an informed investment
decision with respect to the investment. Such Purchaser
acknowledges and agrees that neither A.G.P., nor any Affiliate of
A.G.P. has provided such Purchaser with any information or advice
with respect to the Shares nor is such information or advice
necessary or desired. Neither A.G.P., nor any Affiliate has made or
makes any representation as to the Company or the quality of the
Shares and A.G.P., and any Affiliate may have acquired non-public
information with respect to the Company which such Purchaser agrees
need not be provided to it. In connection with the issuance of the
Shares to such Purchaser, neither A.G.P., nor any of its Affiliates
has acted as a financial advisor or fiduciary to such
Purchaser.
-19-
(f) Certain
Transactions and Confidentiality. Other than consummating the transactions
contemplated hereunder, such Purchaser has not, nor has any Person
acting on behalf of or pursuant to any understanding with such
Purchaser, directly or indirectly executed any purchases or sales,
including Short Sales, of the securities of the Company during the
period commencing as of the time that such Purchaser first received
a term sheet (written or oral) from the Company or any other Person
representing the Company setting forth the material terms of the
transactions contemplated hereunder and ending immediately prior to
the execution hereof.
Notwithstanding the foregoing, in the case of a Purchaser that is a
multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets
and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other
portions of such Purchaser’s assets, the representation set
forth above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision
to purchase the Shares covered by this Agreement. Other than to
other Persons party to this Agreement or to such Purchaser’s
representatives, including, without limitation, its officers,
directors, partners, legal and other advisors, employees, agents
and Affiliates, such Purchaser has maintained the confidentiality
of all disclosures made to it in connection with this transaction
(including the existence and terms of this transaction).
Notwithstanding the foregoing, for the avoidance of doubt, nothing
contained herein shall constitute a representation or warranty
against, or a prohibition of, any actions with respect to the
borrowing of, arrangement to borrow, identification of the
availability of, and/or securing of, securities of the Company in
order for such Purchaser (or its broker or other financial
representative) to effect Short Sales or similar transactions in
the future.
(g) General
Solicitation. Such Purchaser is
not purchasing the Shares as a result of any advertisement,
article, notice or other communication regarding the Shares
published in any newspaper, magazine or similar media or broadcast
over television or radio or presented at any seminar or, to the
knowledge of such Purchaser, any other general solicitation or
general advertisement.
The
Company acknowledges and agrees that the representations contained
in this Section 3.2 shall not modify, amend or affect such
Purchaser’s right to rely on the Company’s
representations and warranties contained in this Agreement or any
representations and warranties contained in any other Transaction
Document or any other document or instrument executed and/or
delivered in connection with this Agreement or the consummation of
the transactions contemplated hereby. Notwithstanding the
foregoing, for the avoidance of doubt, nothing contained herein
shall constitute a representation or warranty, or preclude any
actions, with respect to locating or borrowing shares in order to
effect Short Sales or similar transactions in the
future.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Legends.
The Shares shall be issued free of legends.
4.2 [Reserved].
4.3 [Reserved].
-20-
4.4 Securities
Laws Disclosure; Publicity. The
Company shall (a) by the Disclosure Time issue a press release
disclosing the material terms of the transactions contemplated
hereby, (b) file a Current Report on Form 8-K, including the
Transaction Documents as exhibits thereto, with the Commission
within the time required by the Exchange Act. From and after the
issuance of such press release, the Company represents to the
Purchasers that it shall have publicly disclosed all material,
non-public information delivered to any of the Purchasers by the
Company or any of the Subsidiaries, or any of their respective
officers, directors, employees or agents in connection with the
transactions contemplated by the Transaction Documents. In
addition, effective upon the issuance of such press release, the
Company acknowledges and agrees that any and all confidentiality or
similar obligations under any agreement, whether written or oral,
between the Company, any of the Subsidiaries or any of their
respective officers, directors, agents, employees or Affiliates on
the one hand, and any of the Purchasers or any of their Affiliates
on the other hand, shall terminate. The Company and each Purchaser
shall consult with each other in issuing any other press releases
with respect to the transactions contemplated hereby, and neither
the Company nor any Purchaser shall issue any such press release
nor otherwise make any such public statement without the prior
consent of the Company, with respect to any press release of any
Purchaser, or without the prior consent of each Purchaser, with
respect to any press release of the Company, which consent shall
not unreasonably be withheld or delayed, except if such disclosure
is required by law, in which case the disclosing party shall
promptly provide the other party with prior notice of such public
statement or communication. Notwithstanding the foregoing, the
Company shall not publicly disclose the name of any Purchaser, or
include the name of any Purchaser in any filing with the Commission
or any regulatory agency or Trading Market, without the prior
written consent of such Purchaser, except (a) as required by
federal securities law in connection with the filing of final
Transaction Documents with the Commission and (b) to the extent
such disclosure is required by law or Trading Market regulations,
in which case the Company shall provide the Purchasers with prior
notice of such disclosure permitted under this clause
(b).
4.5 Shareholder
Rights Plan. No claim will be
made or enforced by the Company or, with the consent of the
Company, any other Person, that any Purchaser is an
“Acquiring
Person” under any control
share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or similar anti-takeover
plan or arrangement in effect or hereafter adopted by the Company,
or that any Purchaser could be deemed to trigger the provisions of
any such plan or arrangement, by virtue of receiving Shares under
the Transaction Documents or under any other agreement between the
Company and the Purchasers.
4.6 Non-Public
Information. Except with
respect to the material terms and conditions of the transactions
contemplated by the Transaction Documents, which shall be disclosed
pursuant to Section 4.4, the Company covenants and agrees that
neither it, nor any other Person acting on its behalf will provide
any Purchaser or any Purchaser’s agents or counsel with any
information that constitutes, or the Company reasonably believes
constitutes, material non-public information, unless prior thereto
such Purchaser shall have consented to the receipt of such
information and agreed with the Company to keep such information
confidential. The Company understands and confirms that each
Purchaser shall be relying on the foregoing covenant in effecting
transactions in securities of the Company. To the extent that the
Company delivers any material, non-public information to a
Purchaser without such Purchaser’s consent, the Company
hereby covenants and agrees that such Purchaser shall not have any
duty of confidentiality to the Company, any of the Subsidiaries, or
any of their respective officers, directors, agents, employees or
Affiliates, or a duty to the Company, any of the Subsidiaries or
any of their respective officers, directors, agents, employees or
Affiliates not to trade on the basis of, such material, non-public
information, provided that the Purchaser shall remain subject to
applicable law. To the extent that any notice provided pursuant to
any Transaction Document constitutes, or contains, material,
non-public information regarding the Company or any Subsidiaries,
the Company shall simultaneously file such material non-public
information on with the Commission pursuant to a Current Report on
Form 8-K. The Company understands and confirms that each Purchaser
shall be relying on the foregoing covenant in effecting
transactions in securities of the Company.
-21-
4.7 Use
of Proceeds. The Company shall
use the net proceeds from the sale of the Shares hereunder for
working capital purposes and shall not use such proceeds: (a) for
the satisfaction of any portion of the Company’s debt (other
than payment of trade payables in the ordinary course of the
Company’s business and prior practices), (b) for the
redemption of any Common Stock or Common Stock Equivalents, (c) for
the settlement of any outstanding litigation, or (d) in violation
of FCPA or OFAC regulations.
4.8 Indemnification
of Purchasers.
Subject to the provisions of this
Section 4.8, the Company will indemnify and hold each
Purchaser and its directors, officers, shareholders,
members, partners, employees and agents (and any other
Persons with a functionally equivalent role of a Person holding
such titles notwithstanding a lack of such title or any
other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the directors,
officers, shareholders, agents, members, partners or employees (and
any other Persons with a functionally equivalent role of a
Person holding such titles notwithstanding a lack of such
title or any other title) of such controlling persons (each, a
“Purchaser
Party”) harmless
from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all
judgments, amounts paid in settlements, court costs and reasonable
attorneys’ fees and costs of investigation that any
such Purchaser Party may suffer or incur caused by or based
upon (a) any breach of any of
the representations or warranties made by the Company in
this Agreement or in the other Transaction Documents,(b) any action
instituted against the Purchaser Parties in any capacity, or
any of them or their respective Affiliates, by any
shareholder of the Company who is not an Affiliate of such
Purchaser Party, with respect to any of the transactions
contemplated by the Transaction Documents (unless such action is
solely based upon a material breach of such Purchaser
Party’s representations, warranties or covenants under
the Transaction Documents or any agreements or understandings such
Purchaser Party may have with any such shareholder or any
violations by such Purchaser Party of state or federal
securities laws or any conduct by such Purchaser Party which
is finally judicially determined to constitute fraud, gross
negligence or willful misconduct) or (c) any breach of the terms of
the XXX. The Company will indemnify each Purchaser Party, to
the fullest extent permitted by applicable law, from and against
any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable attorneys’ fees)
and expenses, as incurred, caused by or based upon (i) any
untrue or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereto,
any Issuer Free Writing Prospectus, the Prospectus or any
amendment or supplement thereto, or caused by or based upon
any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein
(in the case of any prospectus or supplement thereto, in the
light of the circumstances under which they were made) not
misleading, except to the extent, but only to the extent,
that such untrue statements or omissions are based solely upon
information regarding such Purchaser Party furnished in
writing to the Company by such Purchaser Party expressly for
use therein, or (ii) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act or any state
securities law, or any rule or regulation thereunder in
connection therewith. If any action shall be brought against
any Purchaser Party in respect of which indemnity may be sought
pursuant to this Agreement, such Purchaser Party shall promptly
notify the Company in writing, and the Company shall have the right
to assume the defense thereof with counsel of its own choosing
reasonably acceptable to the Purchaser Party. Any Purchaser Party
shall have the right to employ separate counsel in any such action
and participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Purchaser Party
except to the extent that (x) the employment thereof has been
specifically authorized by the Company in writing, (y) the Company
has failed after a reasonable period of time to assume such defense
and to employ counsel or (z) in such action there is, in the
reasonable opinion of counsel, a material conflict on any material
issue between the position of the Company and the position of such
Purchaser Party, in which case the Company shall be responsible for
the reasonable fees and expenses of no more than one such separate
counsel. The Company will not be liable to any Purchaser Party
under this Agreement (1) for any settlement by a Purchaser Party
effected without the Company’s prior written consent, which
shall not be unreasonably withheld or delayed; or (2) to the
extent, but only to the extent that a loss, claim, damage or
liability is attributable to any Purchaser Party’s breach of
any of the representations, warranties, covenants or agreements
made by such Purchaser Party in this Agreement or in the other
Transaction Documents. The indemnification required by this Section
4.8 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are
received or are incurred. The indemnity agreements contained herein
shall be in addition to any cause of action or similar right of any
Purchaser Party against the Company or others and any liabilities
the Company may be subject to pursuant to law.
-22-
4.9 Reservation
of Common Stock. As of the date
hereof, the Company has reserved and the Company shall continue to
reserve and keep available at all times, free of preemptive rights,
a sufficient number of shares of Common Stock for the purpose of
enabling the Company to issue the Shares pursuant to this
Agreement.
4.10 Listing
of Common Stock. The Company
hereby agrees to use commercially reasonable best efforts to
maintain the listing or quotation of the Common Stock on the
Nasdaq, and concurrently with the Closing, the Company shall apply
to list or quote all of the Stock on the Nasdaq and promptly secure
the listing of all of the Stock on the Nasdaq. The Company further
agrees, if the Company applies to have the Common Stock traded on
any other Trading Market, it will then include in such application
all of the Stock, and will take such other action as is necessary
to cause all of the Shares to be listed or quoted on such other
Trading Market as promptly as possible. The Company will then take
all action reasonably necessary to continue the listing and trading
of its Common Stock on a Trading Market and will comply in all
respects with the Company’s reporting, filing and other
obligations under the bylaws or rules of the Trading Market. For so
long as the Company maintains a listing or quotation of the Common
Stock on a Trading Market, the Company agrees to maintain the
eligibility of the Common Stock for electronic transfer through the
Depository Trust Company or another established clearing
corporation, including, without limitation, by timely payment of
fees to the Depository Trust Company or such other established
clearing corporation in connection with such electronic
transfer.
4.11 Intentionally
Omitted.
4.12 Subsequent
Equity Sales.
(a) From the date
hereof until 90 days after the Closing Date, neither the Company
nor any Subsidiary shall issue, enter into any agreement to issue
or announce the issuance or proposed issuance of any Common Stock
or Common Stock Equivalents.
(b) Notwithstanding the
foregoing, this Section 4.12 shall not apply in respect of an
Exempt Issuance.
(c) From the date hereof until 90 days after the
Closing Date (the “Restriction
Period”), the Company
shall be prohibited from effecting or entering into an agreement to
effect any issuance by the Company or any of its Subsidiaries of
Common Stock or Common Stock Equivalents (or a combination of units
thereof) involving an at-the-market offering or Variable Rate
Transaction; provided, however, that subsequent to the
period set forth in Section 4.12(a) above, the Company is permitted
effect or enter into any agreement with the Placement Agent to
conduct an offering of its
securities. “Variable Rate
Transaction” means a
transaction in which the Company (i) issues or sells any debt or
equity securities that are convertible into, exchangeable or
exercisable for, or include the right to receive additional shares
of Common Stock either (A) at a conversion price, exercise price or
exchange rate or other price that is based upon and/or varies with
the trading prices of or quotations for the shares of Common Stock
at any time after the initial issuance of such debt or equity
securities, or (B) with a conversion, exercise or exchange price
that is subject to being reset at some future date after the
initial issuance of such debt or equity security or upon the
occurrence of specified or contingent events directly or indirectly
related to the business of the Company or the market for the Common
Stock or (ii) enters into, or effects a transaction under, any
agreement, including, but not limited to, an equity line of credit,
whereby the Company may issue securities at a future determined
price. Any Purchaser shall be entitled to obtain injunctive relief
against the Company to preclude any such issuance, which remedy
shall be in addition to any right to collect
damages.
-23-
4.13 Equal
Treatment of Purchasers. No
consideration (including any modification of any Transaction
Document) shall be offered or paid to any Person to amend or
consent to a waiver or modification of any provision of the
Transaction Documents unless the same consideration is also offered
to all of the parties to such Transaction Documents. For
clarification purposes, this provision constitutes a separate right
granted to each Purchaser by the Company and negotiated separately
by each Purchaser, and is intended for the Company to treat the
Purchasers as a class and shall not in any way be construed as the
Purchasers acting in concert or as a group with respect to the
purchase, disposition or voting of Shares or
otherwise.
4.14 Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with
the other Purchasers, covenants that neither it nor any Affiliate
acting on its behalf or pursuant to any understanding with it will
execute any purchases or sales, including Short Sales of any of the
Company’s securities during the period commencing with the
execution of this Agreement and ending at such time that the
transactions contemplated by this Agreement are first publicly
announced pursuant to the initial press release as described in
Section 4.4. Each Purchaser, severally and not jointly with the
other Purchasers, covenants that until such time as the
transactions contemplated by this Agreement are publicly disclosed
by the Company pursuant to the initial press release as described
in Section 4.4, such Purchaser will maintain the confidentiality of
the existence and terms of this transaction and the information
included in this Agreement, including the schedules hereto.
Notwithstanding the foregoing, and notwithstanding anything
contained in this Agreement to the contrary, the Company expressly
acknowledges and agrees that (i) no Purchaser makes any
representation, warranty or covenant hereby that it will not engage
in effecting transactions in any securities of the Company after
the time that the transactions contemplated by this Agreement are
first publicly announced pursuant to the initial press release as
described in Section 4.4, (ii) no Purchaser shall be restricted or
prohibited from effecting any transactions in any securities of the
Company in accordance with applicable securities laws from and
after the time that the transactions contemplated by this Agreement
are first publicly announced pursuant to the initial press release
as described in Section 4.4 and (iii) no Purchaser shall have any
duty of confidentiality or duty not to trade in the securities of
the Company to the Company or the Subsidiaries after the issuance
of the initial press release as described in Section 4.4.
Notwithstanding the foregoing, in the case of a Purchaser that is a
multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets
and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other
portions of such Purchaser’s assets, the covenant set forth
above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision
to purchase the Shares covered by this
Agreement.
ARTICLE V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by any Purchaser, as to such
Purchaser’s obligations hereunder only and without any effect
whatsoever on the obligations between the Company and the other
Purchasers, by written notice to the other parties, if the Closing
has not been consummated on or before May 30, 2020;
provided,
however,
that no such termination will affect the right of any party to xxx
for any breach by any other party (or parties).
5.2 Fees
and Expenses. Except as
expressly set forth in the Transaction Documents to the contrary,
each party shall pay the fees and expenses of its advisers,
counsel, accountants and other experts, if any, and all other
expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement.
The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any
instruction letter delivered by the Company and any exercise notice
delivered by a Purchaser), stamp taxes and other taxes and duties
levied in connection with the delivery of any Shares to the
Purchasers.
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5.3 Entire
Agreement. The Transaction
Documents, together with the exhibits and schedules thereto, and
the Prospectus contain the entire understanding of the parties with
respect to the subject matter hereof and thereof and supersede all
prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged
into such documents, exhibits and schedules.
5.4 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 time of
transmission, if such notice or communication is delivered via
facsimile at the facsimile number or email attachment at the email
address as set forth on the signature pages attached hereto at or
prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the
next Trading Day after the time of transmission, if such notice or
communication is delivered via facsimile at the facsimile number or
email attachment at the email address as set forth on the signature
pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the
second (2nd)Trading
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 attached hereto. To the extent that any notice
provided pursuant to any Transaction Document constitutes, or
contains, material, non-public information regarding the Company or
any Subsidiaries, the Company shall simultaneously disclose such
information in accordance with applicable law and file such notice
with the Commission pursuant to a Current Report on Form
8-K.
5.5 Amendments;
Waivers. No provision of this
Agreement may be waived, modified, supplemented or amended except
in a written instrument signed, in the case of an amendment, by the
Company and Purchasers which purchased a majority in interest of
the Shares based on the initial Subscription Amounts hereunder or,
in the case of a waiver, by the party against whom enforcement of
any such waived provision is sought. No waiver of any default with
respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future
or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or
omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right. .
5.6 Headings.
The headings herein are for convenience only, do not constitute a
part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
5.7 Successors
and Assigns. This Agreement
shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The Company may not assign
this Agreement or any rights or obligations hereunder without the
prior written consent of each Purchaser (other than by merger). Any
Purchaser may assign any or all of its rights under this Agreement
to any Person to whom such Purchaser assigns or transfers any
Shares, provided that such transferee agrees in writing to be
bound, with respect to the transferred Shares, by the provisions of
the Transaction Documents that apply to the
“Purchasers.”
5.8 No
Third-Party Beneficiaries.
A.G.P. shall be the third party beneficiaries of the
representations and warranties of the Company in Section 3.1 and
the representations and warranties of the Purchasers in Section
3.2. This Agreement is intended for the benefit of the parties
hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced
by, any other Person, except as otherwise set forth in Section 4.8
and this Section 5.8.
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5.9 Governing
Law. All questions concerning
the construction, validity, enforcement and interpretation of the
Transaction Documents shall be governed by and construed and
enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law thereof.
Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents
(whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, partners, members,
employees or agents) shall be commenced exclusively in the state
and federal courts sitting in the City of New York. Each party
hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in the City of New York, Borough
of Manhattan for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or
discussed herein (including with respect to the enforcement of any
of the Transaction Documents), and hereby irrevocably waives, and
agrees not to assert in any action or proceeding, any claim that it
is not personally subject to the jurisdiction of any such court,
that such action or proceeding is improper or is an inconvenient
venue for such Proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in
any such action or proceeding by mailing a copy thereof via
registered or certified mail or 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 other manner permitted by
law. If any party shall commence an action or proceeding to enforce
any provisions of the Transaction Documents, then, in addition to
the obligations of the Company under Section 4.8, the prevailing
party in such action or proceeding shall be reimbursed by the
non-prevailing party for its reasonable attorneys’ fees and
other costs and expenses incurred with the investigation,
preparation and prosecution of such action or
proceeding.
5.10 Survival.
The representations and warranties contained herein shall survive
the Closing and the delivery of the Shares for a period of not
longer than five (5) years from the Closing.
5.11 Execution.
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 each other party, it being
understood that the parties need not sign the same counterpart. In
the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data 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.
5.12 Severability.
If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their
commercially reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.
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5.13 Rescission
and Withdrawal Right.
Notwithstanding anything to the contrary contained in (and without
limiting any similar provisions of) any of the other Transaction
Documents, whenever any Purchaser exercises a right, election,
demand or option under a Transaction Document and the Company does
not timely perform its related obligations within the periods
therein provided, then such Purchaser may rescind or withdraw, in
its sole discretion from time to time upon written notice to the
Company, any relevant notice, demand or election in whole or in
part without prejudice to its future actions and
rights.
5.14 Replacement
of Shares. If any certificate
or instrument evidencing any Shares is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in
exchange and substitution for and upon cancellation thereof (in the
case of mutilation), or in lieu of and substitution therefor, a new
certificate or instrument, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or
destruction. The applicant for a new certificate or instrument
under such circumstances shall also pay any reasonable third-party
costs (including customary indemnity) associated with the issuance
of such replacement Shares.
5.15 Remedies.
In addition to being entitled to exercise all rights provided
herein or granted by law, including recovery of damages, each of
the Purchasers and the Company will be entitled to specific
performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations contained in the
Transaction Documents and hereby agree to waive and not to assert
in any action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
5.16 Payment
Set Aside. To the extent that
the Company makes a payment or payments to any Purchaser pursuant
to any Transaction Document or a Purchaser enforces or exercises
its rights thereunder, and such payment or payments or the proceeds
of such enforcement or exercise or any part thereof are
subsequently invalidated, declared to be fraudulent or
preferential, set aside, recovered from, disgorged by or are
required to be refunded, repaid or otherwise restored to the
Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, state or
federal law, common law or equitable cause of action), then to the
extent of any such restoration the obligation or part thereof
originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or
such enforcement or setoff had not occurred.
5.17 Independent
Nature of Purchasers’ Obligations and
Rights. The obligations of each
Purchaser under any Transaction Document are several and not joint
with the obligations of any other Purchaser, and no Purchaser shall
be responsible in any way for the performance or non-performance of
the obligations of any other Purchaser under any Transaction
Document. Nothing contained herein or in any other Transaction
Document, and no action taken by any Purchaser pursuant hereto or
thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Purchasers are in any way
acting in concert or as a group with respect to such obligations or
the transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce
its rights including, without limitation, the rights arising out of
this Agreement or out of the other Transaction Documents, and it
shall not be necessary for any other Purchaser to be joined as an
additional party in any proceeding for such purpose. Each Purchaser
has been represented by its own separate legal counsel in its
review and negotiation of the Transaction Documents. For reasons of
administrative convenience only, each Purchaser and its respective
counsel have chosen to communicate with the Company through the
legal counsel of A.G.P. The legal counsel of A.G.P. does not
represent any of the Purchasers and only represents A.G.P. The
Company has elected to provide all Purchasers with the same terms
and Transaction Documents for the convenience of the Company and
not because it was required or requested to do so by any of the
Purchasers. It is expressly understood and agreed that each
provision contained in this Agreement and in each other Transaction
Document is between the Company and a Purchaser, solely, and not
between the Company and the Purchasers collectively and not between
and among the Purchasers.
-27-
5.18 [Reserved].
5.19 Saturdays,
Sundays, Holidays,
etc. If
the last or appointed day for the taking of any action or the
expiration of any right required or granted herein shall not be a
Business Day, then such action may be taken or such right may be
exercised on the next succeeding Business Day.
5.20 Currency.
Unless otherwise stated, all dollar amounts and references to
“$” in this Agreement refer to the lawful
currency of the United States.
5.21 Construction.
The parties agree that each of them and/or their respective counsel
have reviewed and had an opportunity to revise the Transaction
Documents and, therefore, the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of the
Transaction Documents or any amendments thereto. In addition, each
and every reference to share prices and Common Stock in any
Transaction Document shall be subject to adjustment for reverse and
forward stock splits, stock dividends, stock combinations and other
similar transactions of the Common Stock that occur after the date
of this Agreement.
5.22 WAIVER
OF JURY TRIAL. IN ANY ACTION,
SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY
AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND
INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW,
HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY
WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
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IN
WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
|
|
Address
for Notice:
|
|
By:
________________________
Name:
Xxx Xxxx
Title:
Chief Executive Officer
|
000
Xxxxxxxx Xxxxxx
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
E-mail:
xxx.xxxx@xxxxxxxxxxx.xxx
|
|
|
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
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[PURCHASER
SIGNATURE PAGES TO SUPER LEAGUE GAMING, INC.
IN
WITNESS WHEREOF, the undersigned have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
Name of
Purchaser:
______________________________________________________
Signature of Authorized Signatory of
Purchaser: _________________________________
Name of
Authorized Signatory:
_______________________________________________
Title
of Authorized Signatory:
________________________________________________
Email
Address of Authorized
Signatory:_________________________________________
Facsimile Number of
Authorized Signatory:
__________________________________________
Address
for Notice to Purchaser:
DWAC
for Shares:
Subscription
Amount: $_________________
Shares:
_________________
EIN
Number: ____________________
-30-
