Nanophase Technologies Corporation Shelf Offering 1,900,000 Shares Common Stock PLACEMENT AGENCY AGREEMENT
Exhibit 1.1
Shelf Offering
1,900,000 Shares
Common Stock
June 29, 2007
GLOBAL CROWN CAPITAL, LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Nanophase Technologies Corporation, a Delaware corporation (the “Company”), proposes
to issue and sell to certain investors (each an “Investor” and, collectively, the
“Investors”), up to an aggregate of 1,900,000 shares of the Company’s common stock, $0.01
par value per share (the “Common Stock”). The aggregate of up to 1,900,000 shares of
Common Stock so proposed to be sold is hereinafter referred to as the “Shares.” The
Company desires to engage Global Crown Capital, LLC as its exclusive placement agent (the
“Placement Agent”) in connection with such issuance and sale of the Shares.
1. Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the
representations, warranties and agreements of the Company herein contained, and subject to all the
terms and conditions of this Agreement:
(a) The Company engages the Placement Agent to act as its exclusive placement agent in
connection with the issuance and sale of the Shares and the Placement Agent hereby agrees, as an
agent of the Company, to use its best efforts to solicit offers to purchase the Shares upon the
terms and conditions set forth in the Prospectus (as defined below).
(b) Upon the Closing Date (as defined below), the Company shall pay to the Placement Agent an
aggregate of five percent of the gross proceeds received by the Company from its sale of the
Shares. This Agreement shall not give rise to a commitment by the Placement Agent or any of its
affiliates to underwrite or purchase any of the Shares or otherwise provide any financing, and the
Placement Agent shall have no authority to bind the Company in respect of the sale of any Shares.
The sale of the Shares shall be made pursuant to subscription agreements in the form included as
Exhibit A hereto (the “Subscription Agreements”). The Company shall have the sole
right to accept offers to purchase the Shares and may reject any such offer in whole or in part.
Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its
affiliates may, solely at their discretion and without any obligation to do so, purchase Shares as
principals.
(c) Concurrently with the execution and delivery of this Agreement, the Placement Agent and
Citibank, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement (the
“Escrow Agreement”), pursuant to which an escrow account (the “Escrow
Account”) will be established for the benefit of the Company and the Investors who desire to
settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior
to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the
product of (x) the number of Shares such Investor has agreed to purchase and (y) the purchase price
per share as set forth on the cover page of the Prospectus (the “Purchase Amount”). The
aggregate of such Purchase Amounts is herein referred to as the “Escrow Funds”. On the date
of the closing of the transactions contemplated by this Placement Agency Agreement (the “Closing
Date”), the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as
provided in the Escrow Agreement and the Company shall cause its transfer agent to deliver the
Shares purchased by such Investors.
(d) Prior to forwarding a Subscription Agreement to the Company for acceptance, the Placement
Agent shall use its reasonable efforts to determine that the subscriber for Shares has a legitimate
source of funds, that there is no reason to suspect such subscriber of money laundering activities,
and that in forwarding the Subscription Agreement the Placement Agent is compliant with the program
described in Section 3(c).
(e) Any Investor not settling its purchase of Shares pursuant to Section 1(c) above
shall deposit its respective Purchase Amount into an account or accounts established with the
Placement Agent. On the Closing Date, the Placement Agent shall, with respect to each such
Investor, cause the Purchase Amount for such Shares to be wired from such accounts to an account
designated by the Company in exchange for the release of such Investor’s Shares.
(f) The Shares shall be registered in such names and in such denominations as the Placement
Agent shall request by written notice to the Company.
2. Representations and Warranties of the Company. The Company represents and warrants
to the Placement Agent as follows:
(a) Registration Statement. The Company meets the requirements for the use of Form
S-3 under the Securities Act of 1933 (the “Securities Act”), and a registration statement
(Registration No. 333-143153) on Form S-3 relating to the Shares being offered by the Company, and
such amendments thereof as may have been required to the date of this Agreement, has been prepared
by the Company in accordance with the provisions of the Securities Act and the rules and
regulations (collectively referred to as the “Rules and Regulations”) of the Securities and
Exchange Commission (the “Commission”) thereunder, and has been filed with and has been
declared effective by the Commission. A final prospectus supplement containing information
permitted to be omitted at the time of effectiveness by Rule 430B of the Rules and Regulations will
be filed promptly by the Company with the Commission in accordance with Rule 424 of the Rules and
Regulations.
(i) The term “Registration Statement” as used in this Agreement means the registration
statement, as amended at the time it became effective, including all documents filed as a part
thereof, and including any information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424 under the Securities Act and deemed to be a part of the
registration statement at the time of effectiveness pursuant to Rule 430B under the Securities Act,
and as supplemented or amended, prior to the execution of this Agreement, including all financial
schedules and exhibits thereto.
(ii) The term “Base Prospectus” as used in this Agreement means the base prospectus,
dated as of May 31, 2007, included in the Registration Statement at the time it was declared
effective by the Commission. The term “Prospectus Supplement” as used in this Agreement
means the final prospectus supplement specifically relating to the Shares in the form that is first
filed with the Commission pursuant to Rule 424 under the Securities Act after the date and time
this Agreement is executed and delivered by the parties hereto. The term “Prospectus” as
used in this Agreement means the Base Prospectus together with the Prospectus Supplement.
(iii) The term “Time of Sale” as used in this Agreement means the time of execution of
this Agreement.
(iv) The term “Pricing Information” as used in this Agreement, means the information
included on Exhibit B hereto (which information the Placement Agent has informed the
Company is being conveyed orally by the Placement Agent to prospective purchasers at or prior to
confirming sales of the shares in the offering).
(b) Registration Statement and Prospectus. No order preventing or suspending the use
of the Base Prospectus has been issued by the Commission, and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment thereto has been
issued, and no proceedings for that purpose have been instituted or, to the Company’s knowledge,
are threatened by the Commission. The Registration Statement complied when it became effective, in
all material respects, with the requirements of the Securities Act; the Pricing Information, at the
Time of Sale, did not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading; the Registration Statement did not, as of the time such
Registration Statement became effective and at the Time of Sale, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and the Prospectus, as of the date that it is filed with the
Commission and as of the Closing Date, will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, in each case, that the
Company makes no representations or warranty with respect to any Placement Agent Information (as
defined in Section 9).
(c) Organization. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with the corporate power and
authority necessary to own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus.
(d) Capitalization. The authorized capital stock of the Company consists of (i)
30,000,000 shares of Common Stock and (ii) 24,088 shares of preferred stock, par value $0.01 per
share (the “Preferred Stock”). As of the date hereof, 19,080,495 shares of Common Stock
are issued and outstanding and no shares of Preferred Stock are issued and outstanding.
(e) The Shares. The Shares have been duly and validly authorized by the Company and,
when issued, delivered and paid for in accordance with the terms of this Agreement and the
Subscription Agreements, will have been duly and validly issued and will be fully paid and
nonassessable.
(f) Description of Capital Stock. The terms of the capital stock of the Company,
including the Shares, conforms in all material respects to the description thereof contained in the
Registration Statement and the Prospectus.
(g) Due Authorization and Execution. This Agreement has been duly authorized,
executed and delivered by the Company.
(h) No Violation or Default. The Company is not in breach or violation of or in
default under (i) the provisions of its charter or by-laws, (ii) any material agreement filed as an
exhibit to the Registration Statement, or (iii) any federal or state statute or law, any rule or
regulation issued pursuant to any federal or state statute or law, or any order issued pursuant to
any federal or state statute or law by any court or governmental agency or body having jurisdiction
over the Company, except, with respect to clauses (ii) and (iii) above, to the extent any such
contravention would not, individually or in the aggregate, have a material adverse effect on the
business, properties, financial condition or results of operations of the Company (a “Material
Adverse Effect”).
(i) No Conflicts. The execution, delivery by the Company of this Agreement and each
of the Subscription Agreements and including the issuance and sale by the Company of the Shares as
contemplated herein and therein, will not conflict with or result in a breach or violation of, or
constitute a default under (i) the provisions of its charter or by-laws, (ii) any material
agreement filed as an exhibit to the Registration Statement, or (iii) any federal or state statute
or law, any rule or regulation issued pursuant to any federal or state statute or law, or any order
issued pursuant to any federal or state statute or law by any court or governmental agency or body
having jurisdiction over the Company, except, with respect to clauses (ii) and (iii) above, to the
extent any such contravention would not, individually or in the aggregate, have a Material Adverse
Effect.
(j) No Consents Required. No filing with, or authorization, approval, consent or
order of, any court or governmental agency or body is required for the issuance and sale of the
Shares, except as referred to in this Agreement, the Registration Statement or the Prospectus and
(i) such as have been already obtained or as may be required under the Securities Act, or the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), (ii) such as may be
required under the bylaws, rules and regulations of the National Association of Securities Dealers,
Inc. (“NASD”), or (iii) such as may be required under the “blue sky” laws of any
jurisdiction in connection with the purchase and distribution of the Shares in the manner
contemplated in this Agreement, the Registration Statement and the Prospectus.
(k) Legal Proceedings. Except as described in the Registration Statement and the
Prospectus, there are no legal proceedings pending or, to the Company’s knowledge, threatened to
which the Company or any of its properties is or would be subject at law or in equity, before or by
any federal or state court or governmental agency or body, except any such legal proceedings, which
if resolved adversely to the Company, would not result in a judgment, decree or order having,
individually or in the aggregate, a Material Adverse Effect.
(l) Independent Accountants. McGladrey & Xxxxxx, LLP, whose reports with respect to
the audited consolidated financial statements and schedules of the Company are included in the
Registration Statement and the Prospectus are, to the Company’s knowledge, an independent
registered public accounting firm as required by the Securities Act and the Rules and Regulations.
(m) Financial Statements. The consolidated financial statements of the Company,
together with the related schedules and notes thereto, set forth in the Registration Statement and
the Prospectus present fairly in all material respects the consolidated financial condition of the
Company as of the
dates indicated and the consolidated results of operations, cash flows and changes in net
assets of the Company for the periods specified and have been prepared in conformity with United
States generally accepted accounting principles, consistently applied throughout the periods
involved.
(n) No Material Adverse Change. Subsequent to the date of the Prospectus, and other
than as contemplated therein, there has not been (i) any material adverse change in the business,
properties, financial condition or results of operations of the Company, (ii) any transaction which
is material to the Company, (iii) any material change in the capital stock, or any material change
in the outstanding indebtedness, of the Company, or (v) any dividend or distribution declared, paid
or made on the capital stock of the Company.
(o) Taxes. The Company has timely filed all material federal and state income and
franchise tax returns (or timely filed applicable extensions therefore) that have been required to
be filed and is not in default in the payment of any taxes which were payable pursuant to said
returns or any assessments with respect thereto, except to the extent that the failure to timely
file or pay would not, individually or in the aggregate, have a Material Adverse Effect.
(p) Accounting Controls. The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific authorization; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (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 existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(q) Disclosure Controls. The Company has established, maintains and evaluates
“disclosure controls and procedures” (as such term is defined in Rule 13a-15e and 15d-15e under the
Exchange Act), which (i) are designed to ensure that material information required to be disclosed
by the Company in the reports that it files under the Exchange Act is made known to the Company’s
principal executive officer and its principal financial officer, particularly during the periods in
which the periodic reports required under the Exchange Act are being prepared, and such disclosure
controls and procedures are effective to perform the functions for which they were established; the
Company’s auditors and the Audit Committee of the Board of Directors of the Company have been
advised of: (i) any significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting (as such term is defined in Rule 13a-15f and 15d-15f
under the Exchange Act) which could adversely affect the Company’s ability to record, process,
summarize, and report financial data; and (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal control over financial
reporting; any material weaknesses in internal control over financial reporting have been
identified for the Company’s auditors; and since the date of the most recent evaluation of such
internal control over financial reporting, there have been no changes in internal control over
financial reporting or in other factors that could significantly affect internal control over
financial reporting, including any corrective actions with regard to significant deficiencies and
material weaknesses.
(r) No Stabilization. Neither the Company, nor, to the Company’s knowledge, any of
its officers, directors, affiliates or controlling persons, has taken or will take, directly or
indirectly, any action designed or intended to stabilize or manipulate the price of any security of
the Company to facilitate the sale or resale of the Shares.
(s) Xxxxxxxx-Xxxxx Act. The Company, and to its knowledge, all of the Company’s
directors or officers, in their capacities as such, is in compliance in all material respects with
all applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”).
3. Representations and Warranties of the Placement Agent. The Placement Agent
represents and warrants to the Company as follows:
(a) Due Authorization and Execution. This Agreement has been duly authorized,
executed and delivered by the Placement Agent.
(b) NASD Compliance. The Placement Agent (i) maintains all licenses and registrations
necessary under applicable law and regulations (including the rules of the NASD) to provide the
services required to be provided by the Placement Agent under this Agreement, (ii) has submitted or
will submit all filings required under the rules and regulations of the NASD with respect to this
Agreement and the transactions contemplated hereby, and (iii) will use its best efforts to obtain
confirmation from the NASD, prior to the Closing Date, that the NASD will not raise any objection
with respect to the fairness or reasonableness of the placement agent compensation, or other
arrangements of the transactions, contemplated hereby.
(c) Anti-Money Laundering. The Placement Agent maintains an anti-money laundering
program reasonably designed to comply with Section 352 of the USA Patriot Act and NASD Rule 3011.
The Placement Agent’s anti-money laundering program includes: (i) Anti-Money Laundering/“Know Your
Customer” policies and procedures (ii) the designation of an Anti-Money Laundering Compliance
Officer; (iii) recording-keeping and reporting practices in accordance with applicable law; (iv)
reporting of suspicious activity to government authorities in accordance with applicable law; (v)
anti-money laundering training; and (vi) independent testing for compliance.
4. Covenants of the Company. The Company covenants and agrees with the Placement Agent
as follows:
(a) Prospectus Supplement. The Company shall file the Prospectus Supplement with the
Commission within the time periods specified by Rule 424 and Rule 430B under the Securities Act.
(b) Amendments or Supplements. The Company will not, during such period as the
Prospectus would be required under the Securities Act to be delivered in connection with sales of
the Shares by the Placement Agent in connection with the offering contemplated by this Agreement,
file any amendment or supplement to the Registration Statement or the Prospectus, except as
required by law, unless a copy thereof shall first have been submitted to the Placement Agent
within a reasonable period of time prior to the filing thereof.
(c) Notice to Placement Agent. During the time during which a prospectus relating to
the Shares is required to be delivered under the Securities Act, the Company will notify the
Placement Agent promptly, and will, if requested, confirm such notification in writing: (i) when
any post-effective amendment to the Registration Statement becomes effective; (ii) of any request
by the Commission for any amendment to the Registration Statement or the Prospectus or for
additional information relating to or in connection with the sale of the Shares; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of
becoming aware of the occurrence of any event during the time during which a prospectus related to
the Shares is required to be delivered that in the judgment of the Company makes any statement made
in the Registration Statement or the Prospectus then being used
untrue in any material respect or that requires the making of any changes in the Registration
Statement or the Prospectus then being used in order to make the statements therein, in light of
the circumstances in which they are made, not misleading; and, during such time, prepare and
furnish, at the Company’s expense, to the Placement Agent promptly such amendments or supplements
to such Prospectus as may be necessary to reflect any such change; or (v) of receipt by the Company
of any notification with respect to any suspension of the qualification of the Shares for offer and
sale in any jurisdiction.
(d) Undertakings. If at any time during which a prospectus related to the Shares is
required to be delivered under the Securities Act the Commission shall issue any order suspending
the effectiveness of the Registration Statement in connection with the offering contemplated
hereby, the Company will make every reasonable effort to obtain the withdrawal of any such order at
the earliest possible moment. If the Company has omitted any information from the Registration
Statement, pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the
provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and
notify the Placement Agent promptly of all such filings.
(e) Delivery of Copies. So long as a prospectus relating to the Shares is required to
be delivered under the Securities Act, to deliver to the Placement Agent as many copies of the
Prospectus or any amendment or supplement thereto as the Placement Agent shall reasonably request.
(f) Blue Sky Compliance. The Company will promptly take from time to time such
actions as the Placement Agent may reasonably request to qualify the Shares for offering and sale
under the state securities, or blue sky, laws of such jurisdictions as the Placement Agent may
reasonably request, provided, that in no event shall the Company be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or to file a general
consent to service of process in any jurisdiction or subject itself to taxation as doing business
in any jurisdiction.
(g) Use of Proceeds. The Company will apply the net proceeds from the sale of the
Shares in the manner set forth in the Prospectus under the heading “Use of Proceeds”.
(h) Right of First Refusal. The Company hereby grants to the Placement Agent a
fifteen-day right of first refusal to place any sale of equity securities of the Company or
successor of the Company offered to the investors who have participated in the offering
contemplated in the Prospectus on a “best efforts” public basis (“Future Best-Efforts
Offering”) during the period up until March 31, 2008; provided that there is no right of first
refusal for an underwritten public offering. If the Placement Agent fails to accept in writing any
proposal for such Future Best-Efforts Offering within 15 days after receipt of a written notice
from the Company containing such proposal, then the Placement Agent shall have no claim or right
with respect to such Future Best-Efforts Offering. The 15 days notice period will be extended, if
necessary, by an additional 10 days upon written notice by the Placement Agent to the Company.
(i) Stabilization. The Company will not at any time, directly or indirectly, take any
action designed or that might reasonably be expected to cause or result in, or that will
constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or
resale of any of the Shares.
(j) Listing. The Company shall use its best efforts to maintain its listing on the
Nasdaq Global Market.
5. Payment Of Expenses. The Company will pay all costs and expenses
incident to the performance of the obligations of the Company under this Agreement and in
connection with the
transactions contemplated hereby, including but not limited to costs and expenses of or
relating to (i) the preparation, printing and filing of the Registration Statement, the Prospectus,
and any amendment or supplement to any of the foregoing and the printing and furnishing of copies
of each thereof to the Placement Agent (including costs of mailing and shipment), (ii) the
registration, issue, sale and delivery of the Shares including any stock or transfer taxes and
stamp or similar duties payable upon the sale, issuance or delivery of the Shares and the printing,
delivery, and shipping of the certificates representing the Shares, (iii) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions designated pursuant to Section 4(f), (including filing fees) (iv) the fees
and expenses of any transfer agent or registrar for the Shares, (v) any filings required to be made
by the Company with the NASD, (vi) fees, disbursements and other charges of counsel to the Company,
and (vii) listing fees, if any, for the listing or quotation of the Shares on the Nasdaq Global
Market. It is understood that the Company shall not pay any expenses of the Placement Agent in
connection with the transactions contemplated by this Placement Agency Agreement, except as
provided in Section 8, and the Placement Agent shall pay all of its own expenses, including
the fees and disbursements of its counsel.
6. Conditions of the Placement Agent’s Obligations. The obligations of the Placement
Agent hereunder are subject to the following conditions:
(a) Each of the representations and warranties of the Company contained herein shall be true
and correct at the Closing Date, as if made on such date, and all covenants and agreements herein
contained to be performed on the part of the Company and all conditions herein contained to be
fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly
performed, fulfilled or complied with.
(b) The Placement Agent shall have received from the Company on the Closing Date a
certificate, addressed to the Placement Agent and dated the Closing Date, to the effect that:
(i) each of the representations, warranties and agreements of the Company in this Agreement
were true and correct when originally made and are true and correct as of the Closing Date; and the
Company has complied with all agreements and satisfied all the conditions on its part required
under this Agreement to be performed or satisfied at or prior to the Closing Date;
(ii) subsequent to the date of the most recent financial statements included in each of the
Registration Statement and the Prospectus, there has not been a material adverse change in the
business, properties, financial condition or results of operations of the Company other than as set
forth in or contemplated by the Registration Statement or the Prospectus; and
(iii) (A) no stop order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued, and no proceedings for that purpose shall be pending or threatened
by the Commission and (B) no order suspending the qualification or registration of the Shares under
the securities or blue sky laws of any jurisdiction shall be in effect and no proceeding for such
purpose shall be pending before or threatened by any securities or other governmental authority.
(c) The Shares shall have been approved for listing on the Nasdaq Global Market, subject only
to official notice of issuance.
(d) Prior to the Closing Date, the Company shall have furnished to the Placement Agent such
further information, certificates or documents as the Placement Agent shall have reasonably
requested.
7. Conditions of the Company’s Obligations. The obligations of the Company hereunder
are subject to the following conditions:
(a) The Company shall have received from the Placement Agent on the Closing Date a
certificate, addressed to the Company and dated the Closing Date, to the effect that each of the
warranties and agreements of the Placement Agent in this Agreement were true and correct when
originally made and are true and correct as of the Closing Date.
(b) The NASD shall have confirmed that it will raise no objection with respect to the fairness
or reasonableness of the placement agent compensation, or other arrangements of the transactions,
contemplated hereby.
8. Indemnification and Contribution.
(a) Indemnification of the Placement Agent. The Company agrees to indemnify, defend
and hold harmless the Placement Agent, its partners, directors and officers, and each person, if
any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, and the successors and assigns of all of the foregoing persons,
from and against any loss, damage, expense, liability or claim, which, jointly or severally, the
Placement Agent or any such person may incur under the Securities Act, the Exchange Act, the common
law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Pricing Information, or the Prospectus, or any omission or alleged
omission to state a material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not misleading, except
insofar as any such loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in or omitted from, and
in conformity with information concerning the Placement Agent furnished in writing by or on behalf
of the Placement Agent to the Company expressly for use therein, which information the parties
hereto agree is limited to the Placement Agent Information (as defined in Section 9).
(b) Indemnification of the Company. The Placement Agent agrees to indemnify, defend
and hold harmless the Company, its directors and officers, and each person, if any, who controls
the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim which, jointly or severally, the Company or any such
person may incur under the Securities Act, the Exchange Act, the common law or otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in, and in conformity with
information concerning the Placement Agent furnished in writing by or on behalf of the Placement
Agent to the Company expressly for use in, the Registration Statement, the Pricing Information, or
the Prospectus, or arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make such statements, in light of the
circumstances under which they were made, not misleading; provided, that the parties hereto hereby
agree that such written information provided by the Placement Agent consists solely of the
Placement Agent Information (as defined in Section 9).
(c) Notice and Procedures. If any action, suit or proceeding (each, a
“Proceeding”) is brought against a person (an “indemnified party”) in respect of
which indemnity may be sought against the Company or the Placement Agent (as applicable, the
“indemnifying party”) pursuant to subsection (a) or (b), respectively, of
this Section 8, such indemnified party shall promptly notify such indemnifying party in
writing of the institution of such Proceeding and such indemnifying party shall
assume the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all reasonable fees and expenses; provided,
however, that the omission to so notify such indemnifying party shall not relieve such indemnifying
party from any liability which such indemnifying party may have to any indemnified party or
otherwise, except to the extent the indemnifying party does not otherwise learn of the Proceeding
and such failure results in the forfeiture by the indemnifying party of substantial rights or
defenses. The indemnified party or parties shall have the right to employ its or their own counsel
in any such case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall have been authorized
in writing by the indemnifying party in connection with the defense of such Proceeding, (ii) the
indemnifying party shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or (iii) such indemnified party or
parties shall have reasonably concluded that there may be defenses available to it or them which
are in conflict with those available to such indemnifying party (it being understood, however, that
such indemnifying party shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to such Proceeding). The
indemnifying party shall not be liable for any settlement of any Proceeding effected without its
written consent. Notwithstanding the foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel as contemplated by herein, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent, but only if (i)
such settlement is entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall not have fully reimbursed the indemnified
party for such reasonable fees and expenses of counsel in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the indemnifying party at
least 30 days’ prior notice of its intention to settle. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any pending or threatened
Proceeding in respect of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability and damages on claims that are
the subject matter of such Proceeding and does not include an admission of fault or culpability or
a failure to act by or on behalf of such indemnified party.
(d) Contribution. If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsections (a) or (b) of this
Section 8 or insufficient to hold an indemnified party harmless in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each applicable indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one hand and the
Placement Agent on the other from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative fault
and good faith of the indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Placement Agent on the other
hand shall be deemed to be in the same respective proportions as the total net proceeds from the
offering of the Shares (before deducting expenses) received by the Company and the total placement
agent commissions received by the Placement Agent, in each case as set forth on the cover of the
Prospectus, bear to the aggregate public offering price of the Shares. The relative fault of the
Company on the one hand and the Placement Agent on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or by the Placement Agent and the parties’ relevant intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission. The Company
and the Placement Agent agree that it would not be just and equitable if contribution pursuant to
this Section 8(d) were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred to in the first
sentence of this Section 8(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first sentence of this
Section 8(d) shall be deemed to include any reasonable legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending against any action
or claim which is the subject of this Section 8(d). Notwithstanding the provisions of this
Section 8(d), the Placement Agent shall not be required to contribute any amount in excess
of the total commissions received by such Placement Agent in accordance with Section 1(b).
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) Survival. The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have. The indemnity and contribution
agreements contained in this Section 8 shall remain operative and in full force and effect
regardless of any termination of this Agreement.
9. Information Furnished by Placement Agent. The Company acknowledges that the
statements set forth under the heading “Plan of Distribution” in the Prospectus Supplement (the
“Placement Agent Information”) constitute the only information relating to the Placement
Agent furnished in writing to the Company by the Placement Agent as such information is referred to
in Sections 2 and 8 hereof.
10. Termination.
(a) The Placement Agent shall have the right to terminate this Agreement by giving notice as
hereinafter specified at any time at or prior to the Closing Date, without liability on the part of
the Placement Agent to the Company, if, prior to delivery and payment for the Shares (i) trading in
securities generally shall have been suspended or materially limited on the Nasdaq Global Market or
the New York Stock Exchange (each, a “Trading Market”), (ii) trading in the Common Stock of
the Company shall have been suspended by the Commission or by the Nasdaq Global Market, or trading
of any other securities issued or guaranteed by the Company shall have been suspended on any
Trading Market or in any over-the-counter market, (iii) a banking moratorium shall have been
declared by federal or Delaware state authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States shall have occurred, or (iv) there
shall have occurred any outbreak or material escalation of hostilities or acts of terrorism
involving the United States or there shall have been a declaration by the United States of a
national emergency or war, if the effect, in the reasonable judgment of the Placement Agent, makes
it impractical or inadvisable to proceed with the completion of the sale of and payment for the
Shares on the Closing Date on the terms and in the manner contemplated by this Agreement and the
Registration Statement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 5, Section 8 and Section 13
hereof shall at all times be effective notwithstanding such termination.
11. Notices. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Placement Agent, shall be delivered or sent by mail, telex or facsimile
transmission to Global Crown Capital, LLC, 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX
00000, Attention: General Counsel and Chief Compliance Officer Xxxxx Xxxxxxxx Xxxxxx (Fax:
000-000-0000); and
(b) if to the Company, shall be delivered or sent by mail, telex or facsimile transmission to
Nanophase Technologies Corporation, 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000, Attention: Xxxx
Xxxxxxxxx, Chief Financial Officer (Fax: 000-000-0000), with a copy to Wildman, Harrold, Xxxxx &
Xxxxx LLP, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxxxxx
(Fax: 000-000-0000).
Any such notice shall be effective only upon receipt. Any party to this Agreement may change
such address for notices by sending to the parties to this Agreement written notice of a new
address for such purpose.
12. Successors and Assigns. This Agreement shall be binding upon the Placement Agent
and the Company and their successors and assigns and any successor or assign of any substantial
portion of the Company’s and the Placement Agent’s respective businesses and/or assets.
13. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts formed and to be performed entirely
within the State of Delaware, without regard to the applicability or effect of conflict of law
principles or rules thereof, to the extent such principles would require or permit the application
or the laws of another jurisdiction.
14. Headings. The Section headings in this Agreement have been inserted as a matter
of convenience of reference and are not a part of this Agreement.
15. Entire Agreement; Amendments and Waivers. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations and discussions, whether oral or written, of the
parties, and there are no warranties, representations or other agreements among the parties in
connection with the subject matter hereof except as set forth specifically herein or contemplated
hereby. No supplement, modification or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. The failure of a party to exercise any right or remedy
shall not be deemed or constitute a waiver of such right or remedy in the future. No waiver of any
of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (regardless of whether similar), nor shall any such waiver constitute a continuing
waiver unless otherwise expressly provided. Each party to this Agreement agrees that (i) no other
party to this Agreement (including its agents and representatives) had made any representation,
warranty, covenant or agreement to or with such party relating to the transactions contemplated
hereby, other than those expressly set forth herein, and (ii) such party has not relied upon any
representation, warranty, covenant or agreement relating to the transactions contemplated hereby,
other than those referred to in clause (i) above.
16. Counterparts. This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be deemed to be an
original and all such counterparts shall together constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
If the foregoing is in accordance with your understanding of the agreement between the Company
and the Placement Agent, kindly indicate your acceptance in the space provided for that purpose
below.
| Very truly yours, | ||||||
| NANOPHASE TECHNOLOGIES CORPORATION | ||||||
| By: Name: |
/s/ Xxxx Xxxxxxxxx
|
|||||
| Its: | Chief Legal Officer | |||||
Accepted as of
the date first above written:
the date first above written:
GLOBAL CROWN CAPITAL, LLC
By: Name: |
/s/ Xxxx Xxxxxx
|
|||
Title:
|
Managing Partner |
SCHEDULES AND EXHIBITS
EXHIBIT A: FORM OF SUBSCRIPTION AGREEMENT
EXHIBIT B: PRICING INFORMATION
Exhibit
1.1
EXHIBIT A
FORM OF SUBSCRIPTION AGREEMENT
PLEASE
SEE ATTACHED
Exhibit A
Subscription Agreement
Ladies and Gentlemen:
The undersigned (the “Investor”) hereby confirms and agrees with you as follows:
1. The subscription terms set forth herein (this “Subscription”) are made as of the date
set forth below between Nanophase Technologies Corporation, a corporation organized and existing
under the laws of the State of Delaware (the “Company”), and the Investor.
2. As of the Closing (as defined below) and subject to the terms and conditions hereof, the Company
and the Investor agree that the Investor will purchase from the Company, and the Company will issue
and sell to the Investor, such number of shares of common stock, par value $0.01 per share, of the
Company (the “Common Stock”) as is set forth on the signature page hereto (the
“Signature Page”) for a purchase price of $5.92 per share (the “Shares”). The
Investor acknowledges that the offering is not a firm commitment underwriting and that there is no
minimum offering amount.
3. The completion of the purchase and sale of the Shares shall occur at a closing (the
“Closing”) which is expected to occur on or about
June 29, 2007 at the offices of Wildman,
Harrold, Xxxxx & Xxxxx LLP in Chicago, Illinois. At the Closing, (a) the Company shall cause its
transfer agent to release to the Investor the number of Shares being purchased by the Investor and
(b) the aggregate purchase price for the Shares being purchased by the Investor will be delivered
by or on behalf of the Investor to the Company. The provisions set forth in Exhibit A
hereto shall be incorporated herein by reference as if set forth fully herein.
4. The offering and sale of the Shares are being made pursuant to the Registration Statement and
the Prospectus (as such terms are defined below). The Investor acknowledges that the Company
intends to enter into subscriptions in substantially the same form as this Subscription with
certain other investors and intends to offer and sell (the “Offering”) up to an aggregate
of 1,900,000 shares of Common Stock pursuant to the Registration Statement and Prospectus. The
Company may accept or reject this Subscription or any one or more other subscriptions with other
investors in its sole discretion.
1
5. The Company has filed or shall file with the Securities and Exchange Commission (the
“Commission”) a prospectus (the “Base Prospectus”) and will file a final prospectus
supplement (collectively, the “Prospectus”) with respect to the registration statement
(the “Registration Statement”) reflecting the Offering, including all amendments thereto,
the exhibits and any schedules thereto, the documents otherwise deemed to be a part thereof or
included therein by the rules and regulations of the Commission (the “Rules and
Regulations”) in conformity with the Securities Act of 1933,
as amended (collectively with the
Rules and Regulations, the “Securities Act”), including Rule 424 thereunder. The Investor
hereby confirms that it has had full access to the Registration Statement, the Prospectus, and the
Company’s periodic reports and other information incorporated by reference therein, and was able to
read, review, download, and print such materials.
6. The Company has entered into a Placement Agency Agreement (the “Placement Agreement”),
dated June 29, 2007, with Global Crown Capital, LLC (the “Placement Agent”), which will
act as the Company’s placement agent with respect to the Offering and receive a fee in connection
with the sale of the Shares. The Investor shall be a third party beneficiary to the
representations, warranties, and covenants as set forth in Sections 2 and 4 of the Placement
Agreement. Capitalized terms used, but not otherwise defined, herein shall have the meanings
ascribed to such terms in the Placement Agreement.
7. The obligations of the Company and the Investor to complete the transactions contemplated by
this Subscription shall be subject to the following:
a. The Company’s obligation to issue and sell the Shares to the Investor shall be subject
to: (i) the acceptance by the Company of this Subscription (as may be indicated by the
Company’s execution of the Signature Page hereto), (ii) the receipt by the Company of the
purchase price for the Shares being purchased hereunder as set forth on the Signature Page,
and (iii) the accuracy of the representations and warranties made by the Investor and the
fulfillment of those undertakings of the Investor to be fulfilled prior to the Closing
Date.
b. The Investor’s obligation to purchase the Shares will be subject to the condition that
the Placement Agent shall not have: (i) terminated the Placement Agreement pursuant to the
terms thereof or (ii) determined that the conditions to closing in the Placement Agreement
have not been satisfied.
2
8. The Company hereby makes the following representations, warranties, and covenants to the
Investor:
a. The Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Subscription and otherwise to carry out
its obligations hereunder. The execution and delivery of this Subscription by the Company
and the consummation by it of the transactions contemplated hereunder have been duly
authorized by all necessary corporate action on the part of the Company. This Subscription,
when accepted by the Company, shall have been duly executed by the Company and, when
delivered in accordance with the terms hereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditors’ and contracting parties’
rights generally and except as enforceability may be subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity
or at law).
b. The Company shall (i) before the opening of trading on the NASDAQ Global Market on the
trading day immediately following the date of execution of this Agreement, file a Form 8-K,
disclosing all material aspects of the transactions contemplated hereby and (ii) make such
other filings and notices in the manner and time required by the Commission with respect to
the transactions contemplated hereby. The Company shall not identify the Investor by name
in any press release or public filing, or otherwise publicly disclose the Investor’s name,
without the Investor’s prior written consent, unless required by law or the rules and
regulations of any self-regulatory organization or governmental authority to which the
Company or its securities are subject, until such time as the Investor identifies itself
publicly.
9. The Investor hereby makes the following representations, warranties, and covenants to the
Company:
a. The Investor represents that (i) it has had full access to the Registration Statement,
the Prospectus and the Company’s periodic reports and other information incorporated by
reference therein, prior to or in connection with its receipt of this Subscription, (ii) it
is knowledgeable, sophisticated, and experienced in making, and is qualified to make,
decisions with respect to investments in securities representing an investment decision
like that involved in the purchase of the Shares, (iii) it does not have any agreement or
understanding, directly or indirectly, with any person or entity to distribute any of the
Shares, and (iv) it is not an affiliate of the Company as that term is defined under Rule
501(b) of the Securities Act.
3
b. The Investor has the requisite power and authority to enter into this Subscription and
to consummate the transactions contemplated hereby. The execution and delivery of this
Subscription by the Investor and the consummation by it of the transactions contemplated
hereunder have been duly authorized by all necessary action on the part of the Investor.
This Subscription has been executed by the Investor and, when delivered in accordance with
the terms hereof, will constitute a valid and binding obligation of the Investor
enforceable against the Investor in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditors’ and contracting parties’ rights generally
and except as enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
c. The Investor understands that nothing in this Subscription or any other materials
presented to the Investor in connection with the purchase and sale of the Shares
constitutes legal, tax, or investment advice. The Investor has consulted such legal, tax,
and investment advisors as it, in its sole discretion, has deemed necessary or appropriate
in connection with its purchase of Shares.
d. Neither the Investor nor any person acting on behalf of, or pursuant to any
understanding with or based upon any information received from, the Investor has, directly
or indirectly, engaged in any purchases or sales of in the securities of the Company
(including, without limitation, any Short Sales involving the Company’s securities) since
the earlier to occur of (i) the time that the Investor was first contacted by the Placement
Agent or the Company with respect to the transactions contemplated hereby and (ii) the date
that is the twentieth (20th) trading day prior to the date the Investor executes this
Subscription. “Short Sales” include, without limitation, all “short sales” as defined in
Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), whether or not against the box, and all types of
direct and indirect stock pledges, forward sale contracts, options, puts, calls, short
sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange
Act) and similar arrangements (including on a total return basis), and sales and other
transactions through non-U.S. broker dealers or foreign regulated brokers. The Investor
covenants that neither it, nor any Person acting on behalf of, or pursuant to any
understanding with or based upon any information received from, the Investor will engage in
any purchases or sales of in the securities of the Company (including Short Sales) prior to
the time that the transactions contemplated by this Subscription are publicly disclosed.
4
e. The Investor represents that, except as set forth below, (i) it has had no position,
office or other material relationship within the past three years with the Company or
persons known to it to be affiliates of the Company, (ii) it is not a, and it has no direct
or indirect affiliation or association with any, NASD member or an Associated Person (as
such term is defined under the NASD Membership and Registration Rules Section 1011) as of
the date the Investor executes this Subscription, and (iii) neither it nor any group of
investors (as identified in a public filing made with the Commission) of which it is a
member, acquired, or obtained the right to acquire, 20% or more of
the Common Stock (or securities convertible or exercisable for Common Stock) or the voting power of the Company
on a post-transaction basis. Exceptions:
(If no exceptions, write “none.” If left blank, response will be deemed to be “none.”)
NONE
f. The Investor, if outside the United States, will comply with all applicable laws and
regulations in each foreign jurisdiction in which it purchases, offers, sells, or delivers
Shares or has in its possession or distributes any offering material, in all cases at its
own expense.
g. No consent, authorization or order of, or filing or registration with, any governmental
entity or other person is required to be obtained or made by it for the execution, delivery
and performance by the Investor of this Subscription other than those that will have been
made or obtained on or prior to Closing.
h. The execution, delivery and performance by the Investor of this Subscription and the
transactions contemplated hereby will not violate any provision of the Investor’s Charter,
bylaws or governing documents, if applicable, or of any other agreement or instrument to
which the Investor is bound, or to which any of the Investor’s properties or assets is
subject.
i. The Investor will promptly notify the Company of any changes in the information in this
Subscription.
10. Notwithstanding any investigation made by any party to this Subscription, all covenants,
agreements, representations, and warranties made by the Company and the Investor herein will
survive the execution of this Subscription, the delivery to the Investor of the Shares being
purchased, and the payment therefor.
5
11. This Subscription may not be modified or amended except pursuant to an instrument in writing
signed by the Company and the Investor.
12. In case any provision contained in this Subscription should be invalid, illegal, or
unenforceable in any respect, the validity, legality, and enforceability of the remaining
provisions contained herein will not in any way be affected or impaired thereby.
13. This Subscription will be governed by, and construed in accordance with, the internal laws of
the state of Delaware, without giving effect to the principles of conflicts of law that would
require the application of the laws of any other jurisdiction.
14. This Subscription may be executed in one or more counterparts, each of which will constitute an
original, but all of which, when taken together, will constitute but one instrument, and will
become effective when one or more counterparts have been signed by each party hereto and delivered
to the other parties.
15. The Investor acknowledges and agrees that such Investor’s receipt of the Company’s counterpart
to this Subscription shall constitute written confirmation of the Company’s sale of Shares to such
Investor.
16. In the event that the Placement Agreement is terminated by the Placement Agent pursuant to the
terms thereof, this Subscription shall terminate without any further action on the part of the
parties hereto.
6
INVESTOR SIGNATURE PAGE
Number of Shares:
|
||
Purchase Price Per Share:
|
||
Aggregate Purchase Price:
|
||
Please confirm that the foregoing correctly sets forth the agreement between us by signing in the
space provided below for that purpose.
Dated as of: June , 2007
INVESTOR
By:
|
||
Print Name:
|
||
Title:
|
||
Name in which Shares are to be registered:
|
||
Mailing Address:
|
||
Taxpayer Identification Number:
|
||
Agreed and Accepted this day of June 2007:
COMPANY: NANOPHASE TECHNOLOGIES CORPORATION
By:
|
||
Print Name:
|
||
Title:
|
||
The sale of the shares purchased hereunder was made pursuant to a registration statement or in a
transaction in which a final prospectus would have been required to have been delivered in the
absence of Rule 172 promulgated under the Securities Act.
7
EXHIBIT A
TO BE COMPLETED BY INVESTOR
Delivery by electronic book-entry at The Depository Trust Company (“DTC”), registered in
the Investor’s name and address as set forth on the Signature Page of the Subscription to which
this Exhibit A is attached, and released by LaSalle National Bank, the Company’s transfer
agent (the “Transfer Agent”), to the Investor at the Closing.
Name of DTC Participant (broker-dealer
at which the account or accounts to be
credited with the Shares are maintained)
|
||
DTC Participant Number
|
||
Name of Account at DTC Participant
being credited with the Shares
|
||
Account Number at DTC Participant being credited with the Shares |
||
NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THE SUBSCRIPTION TO WHICH THIS
EXHIBIT A IS ATTACHED BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
(I) DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH THE
SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL AT CUSTODIAN (“DWAC”) INSTRUCTING THE
TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES, AND
(II) REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE PRICE FOR
THE SHARES BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT:
GLOBAL CROWN CAPITAL, LLC
CITIBANK N.A.
000 XXXXXXXXXX XXXXXX
XXX XXXXXXXXX, XX 00000
000 XXXXXXXXXX XXXXXX
XXX XXXXXXXXX, XX 00000
ACCOUNT # 000000000
ABA # 0000-0000-0
ABA # 0000-0000-0
8
EXHIBIT B
PRICING INFORMATION
Number of
Shares to be sold 1,900,000
Offering
Price $5.92
Placement
Agent Commission $562,400
Net
Proceeds to the Company $10,685,600
