900,000 Units CELSIUS HOLDINGS, INC. Each Unit consisting of Four Shares of Common Stock and One Warrant, each to Purchase One Share of Common Stock UNDERWRITING AGREEMENT
Exhibit 1
900,000
Units
Four
Shares of Common Stock
and
One
Warrant, each to Purchase One Share of Common Stock
February
__, 0000
Xxxxxxxxx
Xxxxxxxx & Co. Inc.
As
Representative of the
Several
Underwriters named
in
Schedule I hereto
Ladies
and Gentlemen:
CELSIUS
HOLDINGS, INC, a Nevada corporation (the “Company”), proposes to issue
and sell to the several Underwriters (as defined below) an aggregate of (i)
3,600,000 shares (the “Shares”) of its common stock,
$0.001 par value per share (the “Common Stock”) and (ii)
warrants (the “Warrants”) to purchase up to
an aggregate of 900,000 shares of Common Stock (the “Warrant Shares”) pursuant to
and in accordance with the terms and conditions of this underwriting agreement
(the “Agreement”). The
Shares and Warrants shall be sold in units (each a “Unit”), each Unit consisting
of four (4) Shares and one (1) Warrant, each to purchase one (1) Warrant Share
at the exercise price per share specified in the Prospectus (as defined
below). The Shares and the Warrants shall be issued separately and
shall be transferable separately immediately upon issuance. The
Warrants will be issued pursuant to the terms of a Warrant Agreement (the “Warrant Agreement”) to be
entered into by and between the Company and Interwest Transfer Company, Inc., as
warrant agent (the “Warrant
Agent”) in substantially the form attached hereto as Exhibit
A.
It is
understood that, subject to the conditions hereinafter stated, an aggregate of
900,000 Units (the “Firm
Securities”) will be sold to the several Underwriters named in
Schedule I hereto (the “Underwriters”) in connection
with the public offering (the “Offering”) and sale of such
Firm Securities. Ladenburg Xxxxxxxx & Co. Inc. shall act as the
representative (the “Representative”) of the
several Underwriters. In addition, as set forth below, the Company
proposes to issue and sell to the Underwriters, upon the terms and conditions
set forth in Section 3 hereof, an aggregate of up to 135,000 additional Units
(“Optional
Securities”). The Firm Securities and the Optional Securities,
and the shares of Common Stock and Warrants (and the underlying Warrant Shares)
comprising such Units, are hereinafter called the “Securities.”
This is
to confirm the agreement concerning the purchase of the Securities from the
Company by the Underwriters.
1
1. Representations and Warranties of the
Company. The Company represents and warrants to, and agrees
with, each Underwriter that:
(a) The
Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a
registration statement on Form S-1 (No. 333-163207), which contains a form of
prospectus to be used in connection with the public offering and sale of the
Securities. Such registration statement, as amended on Form S-1,
including the financial statements, exhibits and schedules thereto, in the form
in which it was declared effective by the Commission under the Securities Act of
1933, as amended (the “Securities Act”) and the rules
and regulations promulgated thereunder (the “Rules and Regulations”),
including any required information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430A under the Securities Act, is called the
“Registration
Statement.” Any registration statement filed by the Company
pursuant to Rule 462(b) under the Securities Act is called the “Rule 462(b) Registration
Statement”, and from and after the date and time of filing of the Rule
462(b) Registration Statement the term “Registration Statement” shall
include the Rule 462(b) Registration Statement. Any preliminary
prospectus included in the Registration Statement is hereinafter called a “preliminary
prospectus.” The term “Prospectus” shall mean the
final prospectus relating to the Securities that is first filed pursuant to Rule
424(b) after the date and time that this Agreement is executed and delivered by
the parties hereto (the “Execution Time”) or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration Statement at
the time it became effective. All references in this Agreement to the
Registration Statement, the Rule 462(b) Registration Statement, a preliminary
prospectus, the Prospectus, or any amendments or supplements to any of the
foregoing, shall include any copy thereof filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”).
(b) The
Registration Statement and any Rule 462(b) Registration Statement have been
declared effective by the Commission under the Securities Act. The
Company has complied, to the Commission’s satisfaction, with all requests of the
Commission for additional or supplemental information. No stop order
suspending the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement is in effect and no proceedings for such purpose have
been instituted or are pending or, to the best knowledge of the Company, are
contemplated or threatened by the Commission.
The final
preliminary prospectus included in the Disclosure Package (as defined below) and
the Prospectus when filed complied in all material respects with the Securities
Act and the rules thereunder and, if filed by electronic transmission pursuant
to XXXXX (except as may be permitted by Regulation S-T under the Securities
Act), was identical to the copy thereof delivered to the Underwriters for use in
connection with the offer and sale of the Securities. Each of the
Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto, at the time it became effective and at the
date hereof, and each Closing Date, complied and will comply in all material
respects with the Securities Act and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. The Prospectus (including any Prospectus wrapper), as
amended or supplemented, as of its date and at the date hereof, the Closing Date
and any Option Closing Date, did not and will 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 the light of the circumstances under which they were
made, not misleading. The representations and warranties set forth in
the two immediately preceding sentences do not apply to statements in or
omissions from the Registration Statement, any Rule 462(b) Registration
Statement, or any post-effective amendment
2
thereto,
or the Prospectus, or any amendments or supplements thereto, made in reliance
upon and in conformity with information relating to any Underwriter furnished to
the Company in writing by the Representative expressly for use therein, it being
understood and agreed that the only such information furnished by the
Representative consists of the information described as such in Section 12
hereof. There are no contracts or other documents required to be
described in the Prospectus or to be filed as exhibits to the Registration
Statement which have not been described or filed as required.
(c) The term
“Disclosure Package”
shall mean, collectively, (i) the preliminary prospectus that is included in the
Registration Statement immediately prior to the Initial Sale Time (as defined
below), if any, as amended or supplemented, (ii) any issuer free writing
prospectuses as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing
Prospectus”) identified in Schedule III hereto, and (iii) any other free
writing prospectus that the parties hereto shall hereafter expressly agree in
writing to treat as part of the Disclosure Package. As of :
PM (Eastern time) on the date of this Agreement (the “Initial Sale Time”), the
Disclosure Package did not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by the Representative specifically for use
therein, it being understood and agreed that the only such information furnished
by or on behalf of any Underwriter consists of the information described as such
in Section 12 hereof.
(d) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the Offering or until any earlier date that the
Company notified or notifies the Representative as described in the next
sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the
Registration Statement. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon
and in conformity with written information furnished to the Company by the
Representative specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
information described as such in Section 12 hereof.
(e) The
Company has delivered to the Representative one complete manually signed copy of
the Registration Statement and of each consent and certificate of experts filed
as a part thereof, and conformed copies of the Registration Statement (without
exhibits) and preliminary prospectuses and the Prospectus, as amended or
supplemented, in such quantities and at such places as the Representative have
reasonably requested for each of the Underwriters.
(f) The
Company has not distributed and will not distribute, prior to the later of the
Option Closing Date (as defined in Section 4 below) and the completion of the
Underwriters’ distribution of the Securities (other than the Warrant Shares),
any offering material in connection with the offering and sale of the Securities
other than any preliminary prospectus, the Prospectus, any Issuer Free Writing
Prospectus reviewed and consented to by the Representative or included in
Schedule III hereto or the Registration Statement.
(g) Sherb
& Co. LLP, whose report appears in the Registration Statement, and included
in the Disclosure Package and the Prospectus, are independent certified public
accountants as required by the Securities Act and the Rules and
Regulations. The financial statements and schedules (including the
related notes) included in the Registration Statement, and included in the
3
Disclosure
Package and the Prospectus, present fairly the financial condition, the results
of the operations and changes in financial condition of the entities purported
to be shown thereby at the dates or for the periods indicated and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods indicated. All adjustments
necessary for a fair presentation of results for such periods have been
made. The selected financial, operating and statistical data set
forth in any preliminary prospectus included in the Disclosure Package and the
Prospectus under the captions “Prospectus Summary,” “Selected Consolidated
Financial Data” and “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” fairly present, when read in conjunction with the
Company’s financial statements and the related notes and schedules and on the
basis stated in the Registration Statement, the information set forth
therein.
(h) Each of
the Company and its subsidiaries (“Subsidiaries”) has been duly
organized and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its organization, with full power and authority
(corporate and other) to own or lease its properties and conduct its business as
described in the Disclosure Package and Prospectus, and is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which the character of the business conducted by it or the location of the
properties owned or leased by it makes such qualification necessary and, except
where any failure to do so could not reasonably be expected to result in a
material adverse change in the condition (financial or otherwise), business,
prospects, properties or results of operations of the Company and its
Subsidiaries taken as a whole (a “Material Adverse Effect”);
each of the Company and its Subsidiaries is in possession of and operating in
compliance with all franchises, grants, authorizations, licenses, permits,
easements, consents, certificates and orders required for the conduct of its
business, all of which are valid and in full force and effect, except where
failure to do could not reasonably be expected to have a Material Adverse
Effect; and neither the Company nor any of its Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
franchise, grant, authorization, license, permit, easement, consent, certificate
or order which, individually or in the aggregate, if the subject of an
unfavorable decision, could reasonably be expected to result, individually or in
the aggregate, in having a Material Adverse Effect.
(i) The
capitalization of the Company is as set forth under the caption “Capitalization”
in the Disclosure Package and Prospectus, and the Common Stock conforms to the
description thereof contained under the caption “Description of Securities” in
the Disclosure Package and Prospectus; the outstanding shares of capital stock
have been duly authorized, validly issued, fully paid and nonassessable and have
been issued in compliance with federal and state securities laws. The
shares of Common Stock and Warrants comprising the Units (and the shares of
Common Stock underlying such Warrants) have been reserved for issuance by the
Company and when issued in accordance with the terms hereof and the Final
Prospectus shall be validly issued fully paid and, in the case of the shares of
Common Stock, nonassessable. There are no preemptive rights or other
rights to subscribe for or to purchase, or any restriction upon the voting or
transfer of, any shares of capital stock pursuant to the Company’s certificate
of incorporation, by-laws or other governing documents or any agreement or other
instrument to which the Company or any of its Subsidiaries is a party or by
which any of them may be bound other than those described in the Disclosure
Package and the Prospectus. None of the outstanding shares of capital
stock were issued in violation of any preemptive rights, rights of first refusal
or other similar rights to subscribe for or purchase securities of the
Company. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to purchase, or
equity or debt securities convertible into or exchangeable or exercisable for,
any capital stock of the Company other than those described in the
4
Disclosure
Package and the Prospectus. The description of the Company’s stock
option, stock bonus and other stock plans or arrangements, and the options or
other rights granted thereunder, set forth in the Disclosure Package and the
Prospectus accurately and fairly presents the information required to be shown
with respect to such plans, arrangements, options and rights. Neither
the filing of the Registration Statement nor the offering or sale of the
Securities as contemplated by this Agreement and the Warrant Agreement gives
rise to any rights, other than those which have been waived or satisfied, for or
relating to the registration of any shares of Common Stock. All of
the outstanding shares of capital stock of each Subsidiary of the Company have
been duly authorized and validly issued, are fully paid and nonassessable and
are owned directly or indirectly by the Company, free and clear of any claim,
lien, encumbrance or security interest. There are no authorized or
outstanding options, warrants, preemptive rights, rights of first refusal or
other rights to purchase, or equity or debt securities convertible into or
exchangeable or exercisable for, any capital stock of any Subsidiary other than
those described in the Disclosure Package and the Prospectus.
(j) Subsequent
to the respective dates as of which information is given in the Disclosure
Package and the Prospectus, and except as described or contemplated in the
Disclosure Package and Prospectus or otherwise disclosed to the Underwriters in
writing: neither the Company nor any of its Subsidiaries has incurred any
liabilities or obligations, direct or contingent, nor entered into any
transactions not in the ordinary course of business, which in either case are
material to the Company or such Subsidiary, as the case may be; there has not
been any Material Adverse Effect; and there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital
stock.
(k) Except as
could reasonably be expected not to have a Material Adverse Effect, neither the
Company nor any of its Subsidiaries is, or with the giving of notice or lapse of
time or both would be, in violation of or in default under, nor will the
execution or delivery hereof or of the Warrant Agreement or consummation of the
transactions contemplated hereby or thereby result in a violation of, or
constitute a default under, the certificate of incorporation, bylaws or other
governing documents of the Company or any of its Subsidiaries, or any agreement,
contract, mortgage, deed of trust, loan agreement, note, lease, indenture or
other instrument, to which the Company or any of its Subsidiaries is a party or
by which any of them is bound, or to which any of their properties is subject,
nor will the performance by the Company of its obligations hereunder violate any
law, rule, administrative regulation or decree of any court, or any governmental
agency or body having jurisdiction over the Company, its Subsidiaries or any of
their properties, or result in the creation or imposition of any lien, charge,
claim or encumbrance upon any property or asset of the Company or any of its
Subsidiaries.
(l) Each of
this Agreement and the Warrant Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company and is enforceable against the Company in accordance with its
terms.
(m) The
Securities to be purchased by the Underwriters from the Company have been duly
authorized for issuance and sale pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement, will be validly issued,
fully paid and nonassessable. The Warrants conform, or when issued
will conform, to the description thereof in the Prospectus and have been duly
and validly authorized by the Company and upon issuance and delivery will be
valid and binding obligations of the Company, enforceable in accordance with
their terms, except (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights and
remedies of creditors generally, (ii) as enforceability of any
5
indemnification
or contribution provision may be limited under the federal and state securities
laws, and (iii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought. The Warrant Shares have been duly authorized for issuance
and sale pursuant to the Warrant Agreement and, when issued and delivered by the
Company pursuant to the Warrant Agreement will be validly issued, fully paid and
nonassessable. The Company has reserved a sufficient number of its
duly authorized and unissued shares of Common Stock to permit the full exercise
of the Warrants. The issuance of the Securities pursuant to this
Agreement and the Warrant Agreement, as applicable, will not be subject to any
preemptive rights, rights of first refusal or other similar rights to subscript
for or purchase securities of the Company. There are no restrictions
upon the voting or transfer of the Securities under the Company’s certificate of
incorporation or by laws or any agreement or other instrument to which the
Company is a party or otherwise filed as an exhibit to the Registration
Statement.
(n) The
Company and its Subsidiaries have good and marketable title in fee simple to all
items of real property owned by them and good and marketable title to all
personal property owned by them, in each case clear of all liens, encumbrances
and defects except such as are described or referred to in the Disclosure
Package and Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made or proposed to be made of such
property by the Company or such Subsidiaries; and any real property and
buildings held under lease by the Company and its Subsidiaries are held by them
under valid, existing and enforceable leases with such exceptions as are not
material and do not interfere with the use made or proposed to be made of such
property and buildings by the Company or such Subsidiaries.
(o) Except as
fully described in the Disclosure Package and Prospectus, there is no litigation
or governmental proceeding to which the Company or any of its Subsidiaries is a
party or to which any property of the Company or any of its Subsidiaries is
subject or which is pending or, to the knowledge of the Company, threatened
against the Company which individually or in the aggregate could reasonably be
expected to result in any Material Adverse Effect, which would materially and
adversely affect the consummation of this Agreement or the transactions
contemplated hereby or which is required to be disclosed in the Disclosure
Package and Prospectus.
(p) Neither
the Company nor any Subsidiary is in violation of any law, ordinance,
governmental rule or regulation or court decree to which it may be subject which
violation could reasonably be expected to have a Material Adverse
Effect.
(q) The
Company has not taken and may not take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or resale of the
Securities.
(r) The
Company and its Subsidiaries have filed all necessary federal, state and foreign
income and franchise tax returns, and all such tax returns are complete and
correct in all material respects, and the Company and its Subsidiaries have not
failed to pay any taxes which were payable pursuant to said returns or any
assessments with respect thereto. The Company has no knowledge of any
tax deficiency which has been or is likely to be threatened or asserted against
the Company or its Subsidiaries.
6
(s) 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 in the United States 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. Except as disclosed in the Registration Statement, the Disclosure
Package and the Prospectus, since the date of the most recent evaluation of such
system of internal accounting controls, there has been no material change in
internal control over financial reporting, including any corrective actions with
regard to significant deficiencies or material weaknesses.
(t) The
Company and its Subsidiaries maintain insurance of the types and in the amounts
generally deemed adequate for its business, including, but not limited to,
directors’ and officers’ insurance, product liability insurance, and insurance
covering real and personal property owned or leased by the Company and its
Subsidiaries against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against, all of which insurance is in full force and
effect. The Company has not been refused any insurance coverage
sought or applied for, and the Company has no 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 at a cost that could not reasonably be expected to have
a Material Adverse Effect.
(u) Neither
the Company nor any of its Subsidiaries nor, to the best of the Company’s
knowledge, any of its employees or agents has at any time during the last five
years (i) made any unlawful contribution to any candidate for foreign
office, or failed to disclose fully any contribution in violation of law, or
(ii) made any payment to any foreign, federal or state governmental officer
or official or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States or
any jurisdiction thereof.
(v) The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described under the
caption “Use of Proceeds” in the Disclosure Package or the Prospectus, will not
be an “investment company” as defined in the Investment Company Act of 1940, as
amended.
(w) Except as
disclosed in the Disclosure Package or the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would give
rise to a valid claim against the Company or any Underwriter for a brokerage
commission, finder’s fee or other like payment in connection with the
Offering.
(x) Except as
disclosed in the Disclosure Package or the Prospectus or otherwise disclosed to
the Underwriters, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Securities
Act.
7
(y) The
Common Stock and Warrants (and the shares underlying such Warrants) comprising
the Securities and the Common Stock and Warrants (and the shares underlying such
Warrants) reserved for issuance under the Underwriters’ Purchase Option have
been approved for listing on the Nasdaq Capital Market, subject only to official
notice of issuance. The Common Stock of the Company and the Warrants
have been registered under Section 12(b) of the Securities Exchange Act of 1934,
as amended (the “Exchange
Act”).
(z) The
Company is in material compliance with all applicable provision of the
Xxxxxxxx-Xxxxx Act of 2002 that are currently effective and the rules and
regulations promulgated in connection therewith.
(aa) No
consent, approval, authorization, or order of, or filing with, any governmental
agency or body or any court is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance and sale of the
Securities by the Company, except such as have been obtained and made under the
Securities Act and such as may be required by the Financial Industry Regulatory
Authority (“FINRA”) or
under state securities laws or the laws of any foreign
jurisdiction.
(bb) The
execution, delivery and performance of this Agreement and the Warrant Agreement,
and the issuance and sale of the Securities will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
(i) any statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over the Company,
except in the case of this clause (i) for such breaches, violations or defaults
which could not, individually or in the aggregate, reasonably expected to have a
Material Adverse Effect or (ii) any agreement or instrument to which the
Company is a party or by which the Company is bound, except in the case of this
clause (ii) for such breaches, violations or defaults which could not,
individually or in the aggregate, reasonably expected to have a Material Adverse
Effect, or (iii) the charter or by-laws of the Company, and the Company has
full power and authority to authorize, issue and sell the Securities as
contemplated by this Agreement and the Warrant Agreement.
(cc) The
Company is not presently doing business with the government of Cuba or with any
person or affiliate located in Cuba.
(dd) No labor
dispute with the employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent that could reasonably be expected to have
a Material Adverse Effect.
(ee) The
Company and its Subsidiaries own or possess the right to use sufficient
trademarks, trade names, patent rights, copyrights, domain names, licenses,
approvals, trade secrets, inventions, technology, know-how and other similar
rights (collectively, “Intellectual Property Rights”)
as are (i) necessary or material to conduct its business as now conducted
and as described in the Disclosure Package and the Prospectus and as are
(ii) necessary or material for the commercialization of the products
described in the Disclosure Package and the Prospectus as being under
development. Except as set forth in the Disclosure Package and the
Prospectus, (a) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding, or claim by others challenging the rights
of the Company or any of its Subsidiaries in or to any such Intellectual
Property Rights that, if decided adversely to the Company could, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect, and
the Company is unaware of any facts which would form a reasonable basis for any
such claim; (b) there is no pending, or to the
8
Company’s
knowledge, threatened action, suit, proceeding, or claim by others that the
Company or any of its Subsidiaries infringes, misappropriates, or otherwise
violates any Intellectual Property Rights, of others that, if decided adversely
to the Company could, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (c) there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding, or claim by
others challenging the validity, scope, or enforceability of any such
Intellectual Property Rights owned by the Company or its Subsidiaries and the
Company is unaware of any facts which would form a reasonable basis for any such
claim; (d) to the Company’s knowledge, the operation of the business of the
Company and its Subsidiaries as now conducted, and as described in the
Disclosure Package and the Prospectus, and in connection with the development
and commercialization of the products described in the Disclosure Package and
the Prospectus does not infringe any claim of any patent or published patent
application; (e) there is no prior art of which the Company is aware that
may render any patent owned or licensed by the Company or its Subsidiaries
invalid or any patent application owned or licensed by the Company unpatentable
which has not been disclosed to the applicable government patent office; and
(f) the Company’s granted or issued patents, registered trademarks, and
registered copyrights have been duly maintained and are in full force and in
effect, and none of the patents, trademarks and copyrights have been adjudged
invalid or unenforceable in whole or in part. Neither the Company nor
any of its Subsidiaries is a party to or bound by any options, licenses or
agreements with respect to the Intellectual Property Rights of any other person
or entity that are required to be set forth in the Disclosure Package and the
Prospectus and are not described therein in all material
respects. None of the technology or intellectual property used by the
Company and its Subsidiaries in its business has been obtained or is being used
by the Company or its Subsidiaries in violation of any contractual obligation
binding on the Company or its Subsidiaries, or, to the Company’s knowledge, any
of its officers, directors, or employees or otherwise in violation of the rights
of any persons. No third party has been granted by the Company or its
Subsidiaries rights to the Intellectual Property Rights of the Company or its
Subsidiaries that, if exercised, could enable such party to develop products
competitive to those of the Company as described in the Disclosure Package and
the Prospectus.
(ff) The
Company has duly and properly filed or caused to be filed with the U.S. Patent
and Trademark Office (the “PTO”) and applicable foreign
and international patent and trademark authorities all patents, trademarks,
copyrights and applications relating to same owned by the Company and its
Subsidiaries (the “Company
Patent and Trademark Applications”). To the knowledge of the
Company, the Company has complied with the PTO’s duty of candor and disclosure
for the Company Patent and Trademark Applications and has made no material
misrepresentation in the Company Patent and Trademark
Applications. To the Company’s knowledge, the Company Patent and
Trademark Applications disclose patentable subject matters. The
Company has not been notified of any inventorship challenges nor has any
interference been declared or provoked nor is any material fact known by the
Company that would preclude the issuance of patents with respect to the Company
Patent and Trademark Applications or would render such patents, if issued,
invalid or unenforceable.
(gg) Except as
could reasonably be expected not to have a Material Adverse Effect, neither the
Company or any of its Subsidiaries has breached and is currently in breach of
any provision of any license, contract or other agreement governing the use by
the Company or its Subsidiaries of Intellectual Property Rights owned by third
parties (collectively, the “Licenses”) and, except as
described in the Disclosure Package and the Prospectus, no third party has
alleged any such breach and the Company is unaware of any facts that would form
a reasonable basis for such a claim.
9
To the
Company’s knowledge, no other party to the Licenses has breached or is currently
in breach of any provision of the Licenses. Each of the Licenses is
in full force and effect and constitutes a valid and binding agreement between
the parties thereto, enforceable in accordance with its terms, and there has not
occurred any breach or default under any such Licenses or any event that with
the giving of notice or lapse of time would constitute a breach or default
thereunder. Except as could not reasonably be expected to have a
Material Adverse Effect, neither the Company nor any of its Subsidiaries has
been and is currently involved in any disputes regarding the
Licenses. To the Company’s knowledge, all patents licensed to the
Company pursuant to the Licenses are valid, enforceable and being duly
maintained. To the Company’s knowledge, all patent applications
licensed to the Company pursuant to the Licenses are being duly
prosecuted.
(hh) Except as
described in the Registration Statement, the Disclosure Package and the
Prospectus, the Company and its subsidiaries: (A) are and at all times have
been in compliance in all material aspects with all statutes, rules,
regulations, or guidances applicable to the Company and its subsidiaries and the
ownership, testing, development, manufacture, packaging, processing, use,
distribution, marketing, labeling, promotion, sale, offer for sale, storage,
import, export or disposal of any product manufactured or distributed by the
Company (“Applicable
Laws”), except as could not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Change; (B) have not received
any notice of adverse finding, warning letter, untitled letter or other
correspondence or notice from the U.S. Food and Drug Administration or any other
federal, state or foreign governmental authority having authority over the
Company (“Governmental
Authority”) alleging or asserting noncompliance with any Applicable Laws
or any licenses, certificates, approvals, clearances, authorizations, permits
and supplements or amendments thereto required by any such Applicable Laws
(“Authorizations”);
(C) 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; (D) have not received notice of any claim, action, suit,
proceeding, hearing, enforcement, investigation, arbitration or other action
from any Governmental Authority or third party alleging that any product
operation or activity is in violation of any Applicable Laws or Authorizations
and have no knowledge that any such Governmental Authority or third party is
considering any such claim, litigation, arbitration, action, suit, investigation
or proceeding; (E) have not received notice that any Governmental Authority
has taken, is taking or intends to take action to limit, suspend, modify or
revoke any Authorizations and the Company has no knowledge that any such
Governmental Authority is considering such action; and (F) 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 correct in all
material respects on the date filed (or were corrected or supplemented by a
subsequent submission).
(ii) There are
no business relationships or related-party transactions involving the Company or
any Subsidiary or any other person required to be described in the Disclosure
Package and the Prospectus that have not been described as
required.
(jj) Except as
would not, individually or in the aggregate, result in a Material Adverse Effect
(i) neither the Company nor any of its Subsidiaries is in violation of any
federal, state, local or foreign law or regulation relating to pollution or
protection of human health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including without limitation, laws and regulations relating to
emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances,
10
hazardous
substances, petroleum and petroleum products (collectively, “Materials of Environmental
Concern”), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern (collectively, “Environmental Laws”), which
violation includes, but is not limited to, noncompliance with any permits or
other governmental authorizations required for the operation of the business of
the Company under applicable Environmental Laws, or noncompliance with the terms
and conditions thereof, nor has the Company or any of its Subsidiaries received
any written communication, whether from a governmental authority, citizens
group, employee or otherwise, that alleges that the Company or any of its
Subsidiaries is in violation of any Environmental Law; (ii) there is no
claim, action or cause of action filed with a court or governmental authority,
no investigation with respect to which the Company or any of its Subsidiaries
has received written notice, and no written notice by any person or entity
alleging potential liability for investigatory costs, cleanup costs,
governmental responses costs, natural resources damages, property damages,
personal injuries, attorneys’ fees or penalties arising out of, based on or
resulting from the presence, or release into the environment, of any Material of
Environmental Concern at any location owned, leased or operated by the Company
or any of its Subsidiaries, now or in the past (collectively, “Environmental Claims”),
pending or, to the best of the Company’s knowledge, threatened against the
Company, any of its Subsidiaries, or any person or entity whose liability for
any Environmental Claim the Company or any of its Subsidiaries has retained or
assumed either contractually or by operation of law; and (iii) to the
Company’s knowledge, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release, emission, discharge, presence or disposal of any Material of
Environmental Concern, that reasonably could result in a violation of any
Environmental Law or form the basis of a potential Environmental Claim against
the Company, any of its Subsidiaries, or against any person or entity whose
liability for any Environmental Claim the Company or any of its Subsidiaries has
retained or assumed either contractually or by operation of
law.
(kk) The
Company and its subsidiaries (A) are in compliance, in all material
respects, with any and all applicable foreign, federal, state and local laws,
rules, regulations, treaties, statutes and codes promulgated by any and all
governmental authorities (including pursuant to the Occupational Health and
Safety Act) relating to the protection of human health and safety in the
workplace (“Occupational
Laws”); (B) have received all material permits, licenses or other
approvals required of it under applicable Occupational Laws to conduct their
business as currently conducted; and (C) are in compliance, in all material
respects, with all terms and conditions of such permit, license or approval. No
action, proceeding, revocation proceeding, writ, injunction or claim is pending
or, to the Company’s knowledge, threatened against the Company or any of its
subsidiaries relating to Occupational Laws, and the Company does not have
knowledge of any facts, circumstances or developments relating to its operations
or cost accounting practices that could reasonably be expected to form the basis
for or give rise to such actions, suits, investigations or
proceedings.
(ll) The
Company and any “employee benefit plan” (as defined under the Employee
Retirement Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (collectively, “ERISA”)) established or
maintained by the Company, or its “ERISA Affiliates” (as defined below) are in
compliance in all material respects with ERISA. “ERISA Affiliates” means, with
respect to the Company, any member of any group of organizations described in
Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder (the
“Code”) of which the
Company is a member. No “reportable event” (as defined under ERISA)
has occurred or is reasonably expected to
11
occur
with respect to any “employee benefit plan” established or maintained by the
Company, or any of its ERISA Affiliates. No “employee benefit plan”
established or maintained by the Company or any of its ERISA Affiliates, if such
“employee benefit plan” were terminated, would have any “amount of unfunded
benefit liabilities” (as defined under ERISA). Neither the Company,
nor any of its ERISA Affiliates has incurred or reasonably expects to incur any
liability under (i) Title IV of ERISA with respect to termination of,
or withdrawal from, any “employee benefit plan” or (ii) Sections 412,
4971, 4975 or 4980B of the Code. Each “employee benefit plan”
established or maintained by the Company or any of its ERISA Affiliates that is
intended to be qualified under Section 401(a) of the Code is so qualified
and nothing has occurred, whether by action or failure to act, which would cause
the loss of such qualification.
(mm) There are
no outstanding loans, advances (except normal advances for business expenses in
the ordinary course of business) or guarantees or indebtedness by the Company to
or for the benefit of any of the officers or directors of the Company or any of
the members of any of them, except as disclosed in the Disclosure Package and
the Prospectus.
(nn) The
market data and industry forecasts included in the Registration Statement and
the Disclosure Package and the Prospectus were obtained or derived from industry
publications that are and were not at any time under the Company’s control which
the Company reasonably and in good faith believes are reliable and accurate, and
such data agree with the sources from which they are derived.
(oo) Except as
disclosed in the Disclosure Package or the Prospectus, since the date of the
latest audited financial statements included in the Disclosure Package or the
Prospectus there has been no Material Adverse Effect, nor any development or
event involving a prospective Material Adverse Effect.
Any
certificate signed by an officer of the Company and delivered to the
Representative or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
set forth therein.
The
Company acknowledges that the Underwriters and, for purposes of the opinions to
be delivered pursuant to Section 6 hereof, counsels to the Company and
counsel to the Underwriters, will rely upon the accuracy and truthfulness of the
foregoing representations and hereby consents to such reliance.
2. Representations and Warranties of the
Underwriters. Each Underwriter severally represents and agrees
that:
(a) It has
not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the
Securities Act (which term includes use of any written information furnished to
the Commission by the Company and not incorporated by reference into the
Registration Statement and any press release issued by the Company) other than
(i) any Issuer Free Writing Prospectus, or (ii) any other free writing
prospectus that the parties hereto shall hereafter expressly agree in writing to
treat as part of the Disclosure Package.
(b) It will
retain copies of each free writing prospectus used or referred to by it to the
extent required by Rule 433 under the Securities Act.
12
3. Purchase
of the Securities by the Underwriters.
(a) Subject
to the terms and conditions and upon the basis of the representations,
warranties and agreements herein set forth, the Company agrees to issue and sell
to the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase at a price of $________ per Unit (giving effect to a 7%
discount), the number of Firm Securities set forth opposite such Underwriter’s
name in Schedule I hereto, subject to adjustment in accordance with
Section 8 hereof. The Underwriters agree to offer the Firm
Securities to the public as set forth in the Prospectus.
(b) The
Company hereby grants to the Representative and its designees an option to
purchase from the Company, solely for the purpose of covering over-allotments in
connection with the distribution and sale of the Firm Securities, all or any
portion of the Optional Securities for a period of forty-five (45) days from the
date hereof at the purchase price per Share set forth above. Optional
Securities shall be purchased from the Company, severally and not jointly, for
the accounts of the several Underwriters in proportion to the number of Firm
Securities set forth opposite such Underwriter’s name in Schedule I hereto,
except that the respective purchase obligations of each Underwriter shall be
adjusted by the Representative so that no Underwriter shall be obligated to
purchase fractional Optional Securities. No Optional Securities shall
be sold and delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered.
(c) The
Company hereby grants and issues to the Underwriters in the quantities set forth
next to their respective names on Schedule 3(c) hereto
purchase options (“Underwriters’ Purchase
Options”) to purchase an aggregate of 18,000 Units for $____ per Unit
[equal to per-Unit Offering
price], subject to certain anti-dilution adjustments. The
Underwriters’ Purchase Options are evidenced by the form of purchase option
attached hereto as Exhibit
B.
4. Delivery of and Payment for
Securities. Delivery of certificates for the Firm Securities
to be purchased by the Underwriters from the Company against payments for such
securities shall be made at the offices of the Representative (or such other
place as mutually may be agreed upon), on the third full Business Day following
the date hereof or, if the pricing of the Firm Securities occurs after
4:30 p.m., New York City time, on the fourth full Business Day thereafter,
or at such other date as shall be determined by the Representative and the
Company (the “First Closing
Date”).
The
option to purchase Optional Securities granted in Section 3 hereof may be
exercised during the term thereof by written notice to the Company from the
Representative. The option may be exercised in whole or part, and if
in part, the option can be exercised on multiple occasions. Such
notice shall set forth the aggregate number of Optional Securities as to which
the option is being exercised and the time and date, not earlier than either the
First Closing Date or the second Business Day after the date on which the option
shall have been exercised nor later than the fifth Business Day after the date
of such exercise, as determined by the Representative, when the Optional
Securities are to be delivered (the “Option Closing
Date”). Delivery and payment for such Optional Securities is
to be at the offices set forth above for delivery and payment of the Firm
Securities. (The First Closing Date and the Option Closing Date are
herein individually referred to as the “Closing Date” and collectively
referred to as the “Closing
Dates”.)
Delivery
of certificates for the Firm Securities and the Optional Securities shall be
made by or on behalf of the Company to the Representative, for the respective
accounts of the Underwriters, against payment by the Representative, for the
several accounts of the Underwriters, of the purchase price therefor by
13
(i) Federal
funds wire transfer or (ii) certified or official bank check payable in
next day funds to the order of the Company. The certificates for the
Firm Securities and the Optional Securities shall be registered in such names
and denominations as the Representative shall have requested at least two full
Business Days prior to the applicable Closing Date, and shall be made available
for checking and packaging at a location in New York, New York as may be
designated by the Representative at least one full Business Day prior to such
Closing Date. Time shall be of the essence and delivery at the time
and place specified in this Agreement is a further condition to the obligations
of each Underwriter.
5. Covenants. The
Company covenants and agrees with each Underwriter that:
(a) During
such period beginning on the Initial Sale Time and ending on the later of the
Closing Date or such date, as in the opinion of counsel for the Underwriters,
the Prospectus is no longer required by law to be delivered in connection with
sales as contemplated by this Agreement by an Underwriter or dealer, including
in circumstances where such requirement may be satisfied pursuant to Rule 172
(the “Prospectus Delivery
Period”), prior to amending or supplementing the Registration Statement
(including any registration statement filed under Rule 462(b) under the
Securities Act), the Disclosure Package or the Prospectus, the Company shall
furnish to the Representative for review a copy of each such proposed amendment
or supplement, and the Company shall not file any such proposed amendment or
supplement to which the Representative reasonably object.
(b) After the
date of this Agreement, the Company shall promptly advise the Representative in
writing (i) when the Registration Statement, if not effective at the Execution
Time, shall have become effective, (ii) of the receipt of any comments of, or
requests for additional or supplemental information from, the Commission, (iii)
of the time and date of any filing of any post-effective amendment to the
Registration Statement or any amendment or supplement to any preliminary
prospectus or the Prospectus, (iv) of the time and date that any post-effective
amendment to the Registration Statement becomes effective and (v) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or of any order
or notice preventing or suspending the use of the Registration Statement, any
preliminary prospectus or the Prospectus, or of any proceedings to remove,
suspend or terminate from listing or quotation the Common Stock or Warrants from
any securities exchange upon which it is listed (or approved for listing) for
trading or included or designated (or approved for inclusion or designation) for
quotation, or of the threatening or initiation of any proceedings for any of
such purposes. The Company shall use its best efforts to prevent the
issuance of any such stop order or prevention or suspension of such
use. If the Commission shall enter any such stop order or order or
notice of prevention or suspension at any time, the Company will use its best
efforts to obtain the lifting of such order at the earliest possible moment, or
will file a new registration statement and use its best efforts to have such new
registration statement declared effective as soon as
practicable. Additionally, the Company agrees that it shall comply
with the provisions of Rules 424(b) and 434, as applicable, under the Securities
Act, including with respect to the timely filing of documents thereunder, and
will use its reasonable efforts to confirm that any filings made by the Company
under such Rule 424(b) were received in a timely manner by the
Commission.
(c) (i) If
the preliminary prospectus included in the Disclosure Package is being used to
solicit offers to buy the Securities and any event or development shall occur or
condition exist as a result of which it is necessary to amend or supplement the
Disclosure Package in order to make the statements therein, in the light of the
circumstances under which they were made or then prevailing, as the case may be,
not misleading (in which case the Company agrees to
14
notify
the Representative of any such event or condition), or if in the reasonable
opinion of the Representative it is otherwise necessary to amend or supplement
the Disclosure Package to comply with law, the Company agrees to promptly
prepare, file with the Commission and furnish to the Underwriters and to
dealers, at its own expense, amendments or supplements to the Disclosure Package
so that the statements in the Disclosure Package as so amended or supplemented
will not be, in the light of the circumstances under which they were made or
then prevailing, as the case may be, misleading or so that the Disclosure
Package, as amended or supplemented, will comply with law; (ii) if, during the
Prospectus Delivery Period, any event or development shall occur or condition
exist as a result of which it is necessary to amend or supplement the
Registration Statement or the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made or then
prevailing, as the case may be, not misleading (in which case the Company agrees
to notify the Representative of any such event or condition), or if in the
reasonable opinion of the Representative it is otherwise necessary to amend or
supplement the Registration Statement or the Prospectus to comply with law,
including in connection with the delivery of the Prospectus, the Company agrees
to promptly prepare, file with the Commission (and use its best efforts to have
any amendment to the Registration Statement or any new registration statement to
be declared effective) and furnish to the Underwriters and to dealers,
amendments or supplements to the Registration Statement or the Prospectus, or
any new registration statement so that the statements in the Registration
Statement or the Prospectus as so amended or supplemented will not be, in the
light of the circumstances under which they were made or then prevailing, as the
case may be, misleading or so that the Registration Statement or the Prospectus,
as amended or supplemented, will comply with law.
(d) The
Company agrees that, unless it obtains the prior written consent of the
Representative, it will not make any offer relating to the Common Stock that
would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405 of the Securities
Act) required to be filed by the Company with the Commission or retained by the
Company under Rule 433 of the Securities Act; provided that the prior written
consent of the Representative hereto shall be deemed to have been given in
respect of the Free Writing Prospectuses included in Schedule III
hereto. Any such free writing prospectus consented to by the
Representative is hereinafter referred to as a “Permitted Free Writing
Prospectus”. The Company agrees that (i) it has treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the
case may be, with the requirements of Rules 164 and 433 of the Securities Act
applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping.
(e) The
Company shall furnish to the Underwriters, from time to time and without charge,
copies of the Registration Statement of which three shall be signed and shall
include exhibits and all amendments and supplements to any of such Registration
Statement, in each case as soon as available and in such quantities as the
Representative may from time to time reasonably request.
(f) The
Company shall take or cause to be taken all necessary action and furnish to
whomever the Representative may direct such information as may be required in
qualifying the Securities for sale under the laws of such jurisdictions which
the Representative shall designate and to continue such qualifications in effect
for as long as may be necessary for the distribution of the Securities; except
that in no event shall the Company be obligated in connection therewith to
qualify as a foreign corporation, or to execute a general consent for service of
process.
15
(g) The
Company shall make generally available to its securityholders, in the manner
contemplated by Rule 158(b) under the Securities Act, as soon as
practicable but in any event not later than 60 days after the end of its fiscal
quarter in which the first anniversary date of the effective date of the
Registration Statement occurs, an earning statement which will comply with
Section 11(a) of the Securities Act covering a period of at least 12
consecutive months beginning after the effective date of the Registration
Statement.
(h) Except
for the issuance of options to directors, officers, employees and consultants in
the ordinary course under plans approved by the board of directors and disclosed
in the Final Prospectus (and the issuance of stock upon the exercise thereof),
the Company will not, without the prior written consent of the Representative
(which consent may be withheld in the Representative’s sole discretion),
directly or indirectly, issue, sell, offer, agree to sell, contract or grant any
option to sell (including, without limitation, pursuant to any short sale),
pledge, make any short sale of, maintain any short position with respect to,
transfer, establish or maintain an open “put equivalent position” within the
meaning of Rule 16a-1(h) under the Exchange Act, enter into any swap, derivative
transaction or other arrangement (whether such transaction is to be settled by
delivery of common stock, other securities, cash or other consideration) that
transfers to another, in whole or in part, any of the economic consequences of
ownership, or otherwise dispose of any shares of Common Stock, options or
warrants to acquire shares of Common Stock, or securities exchangeable or
exercisable for or convertible into shares of Common Stock, or publicly announce
an intention to do any of the foregoing, for a period commencing on the date
hereof and continuing through the close of trading on the date 90 days after the
date of the Prospectus (the “Lock-Up Period”).
Notwithstanding
the foregoing, for the purpose of allowing the Underwriters to comply with FINRA
Rule 2711(f)(4), if (1) during the last 17 days of the initial Lock-Up Period,
the Company releases earnings results or material news or a material event
relating to us occurs or (2) prior to the expiration of the initial Lock-Up
Period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the initial Lock-Up Period, then in
each case the Lock-Up Period will be extended until the expiration of the 18-day
period beginning on the date of release of the earnings results or material
news, as applicable, unless the Representative waives, in writing, such
extension.
(i) The
Company shall cause each officer and director of the Company and CDS Ventures of
South Florida, LLC or any securities convertible into, or exercisable or
exchangeable for, shares of Common Stock, of which such officers, directors and
shareholders shall constitute holders on an aggregate and fully diluted basis,
to furnish to the Representative, on or prior to the date of this Agreement, a
letter or letters, in form and substance satisfactory to counsel for the
Underwriters, pursuant to which each such person shall agree not to offer for
sale, contract to sell, sell, distribute, grant any option, right or warrant to
purchase, pledge, hypothecate or otherwise dispose of, directly or indirectly,
any shares of Common Stock or any securities convertible into, or exercisable or
exchangeable for, shares of Common Stock during the 180 days (subject to an
additional extension to accommodate for earnings or material news releases)
following the effective date of the Registration Statement, except with the
Representative’s prior written consent.
(j) The
Company shall maintain, at its expense, a registrar and transfer agent for the
Common Stock and for the Warrants.
16
(k) The
Company shall apply the net proceeds of the sale of the Securities substantially
in the manner specified in the Prospectus under the heading “Use of Proceeds”
and shall file such reports with the Commission with respect to the sale of the
Securities and the application of the proceeds therefrom as may be required in
accordance with Rule 463 under the Securities Act.
(l) The
Company will furnish to its securityholders annual reports containing financial
statements audited by independent public accountants and quarterly reports
containing financial statements and financial information which may be
unaudited. During the period of two years from the date hereof, the
Company will deliver to the Representative and, upon request, to each of the
other Underwriters, copies of each annual report of the Company and each other
report furnished by the Company to its securityholders and will deliver to the
Representative, as soon as they are available, copies of any other reports
(financial or otherwise) which the Company shall publish or otherwise make
available to any of its securityholders as such, and as soon as they are
available, copies of any reports and financial statements furnished to or filed
with the Commission or FINRA.
(m) The
Company will use its best efforts to maintain the listing of its Common Stock
and Warrants on the Nasdaq Capital Market.
(n) Whether
or not this Agreement is terminated or the sale of the Securities to the
Underwriters is consummated, the Company shall pay or cause to be paid
(A) all expenses (including stock transfer taxes) incurred in connection
with the delivery to the several Underwriters of the Securities, (B) all
fees and expenses (including, without limitation, fees and expenses of the
Company’s accountants and counsel) in connection with the preparation, printing,
filing, delivery and shipping of the Registration Statement (including the
financial statements therein and all amendments and exhibits thereto), each
preliminary prospectus, the Disclosure Package and the Prospectus as amended or
supplemented and the printing, delivery and shipping of this Agreement, the
Warrant Agreement and other underwriting documents, including Underwriters’
Questionnaires, Underwriters’ Powers of Attorney, Blue Sky Memoranda, the
Agreement Among Underwriters and Selected Dealer Agreements, (C) if
necessary, all filing fees and reasonable fees and disbursements of counsel to
the Underwriters incurred in connection with the qualification of the Securities
for sale under state securities laws as provided in Section 5(f) hereof,
(D) the filing fee of FINRA and any applicable fees and expenses of counsel
for the Underwriters in connection with a review of the offering by FINRA,
(E) any applicable listing fees, (F) the cost of printing certificates
representing the Securities, (G) the cost and charges of any transfer agent
or registrar, and (H) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise provided for in
this Section. If the sale of the Securities provided for herein is
consummated, or if it is not consummated by reason of acts of the Company which
prevent this Agreement from becoming effective, or by reason of any failure,
refusal or inability on the part of the Company to perform any agreement on its
part to be performed or because any other condition of the Underwriters’
obligations hereunder is not fulfilled, unless the failure to perform the
agreement or fulfill the condition is due to the default or omission of any
Underwriter, the Company shall reimburse the several Underwriters for all
reasonable out-of-pocket disbursements (including fees and disbursements of
counsel) incurred by the Underwriters in connection with their investigation,
preparing to market and marketing the Securities or in contemplation of
performing their obligations hereunder. The Company shall not in any
event be liable to any of the Underwriters for loss of anticipated profits from
the transactions covered by this Agreement.
17
6. Conditions of Underwriters’
Obligations. The respective obligations of the several
Underwriters hereunder are subject to the accuracy, at and as of the date hereof
and the First Closing Date (as if made at the First Closing Date) and, with
respect to the Optional Securities, the Option Closing Date (as if made at the
Option Closing Date), of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) The
Registration Statement shall have become effective not later than 4 p.m.,
Eastern time, on the date of this Agreement, or such later time and date as the
Representative shall approve and all filings required by Rules 424, 430A and 433
under the Securities Act shall have been timely made; no stop order suspending
the effectiveness of the Registration Statement or any amendment thereof shall
have been issued; no proceedings for the issuance of such an order shall have
been initiated or threatened; and any request of the Commission for additional
information (to be included in the Registration Statement, the Disclosure
Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall
have been complied with to the Representative’s satisfaction.
(b) No
Underwriter shall have advised the Company that the Registration Statement, the
Disclosure Package or the Prospectus, or any amendment thereof or supplement
thereto, contains an untrue statement of fact which, in the Representative’s
opinion, is material, or omits to state a fact which, in the Representatives
opinion, is material and is required to be stated therein or is necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) On each
Closing Date, the Representative shall have received the favorable opinion of
Xxxxxxxx & Xxxx LLP, counsel for the Company, dated as of such Closing Date,
the form of which is attached as Exhibit C.
(d) On each
Closing Date the Representative shall have received the favorable opinion of
Xxxxxxxx Xxxxxx, counsel for the Underwriters, dated as of such Closing Date, in
form and substance satisfactory to the Representative.
(e) There
shall have been furnished to the Representative a certificate of the Company,
dated as of each Closing Date and addressed to the Representative, signed by the
Chief Executive Officer and by the Chief Financial Officer of the Company to the
effect that:
(i) The
representations and warranties of the Company in this Agreement are true and
correct, as if made at and as of such Closing Date, and the Company has complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date;
(ii) No stop
order suspending the effectiveness of the Registration Statement has been
issued, and no proceedings for that purpose have been initiated or are pending
or, to their knowledge, contemplated;
(iii) Any and
all filings required by Rules 424, 430A, 430B and 430C under the Securities Act
have been timely made;
18
(iv) The
signers of said certificate have carefully examined the Registration Statement
and the Disclosure Package and the Prospectus, and any amendments or supplements
thereto, and such documents contain all statements and information required to
be included therein; the Registration Statement or any amendment thereto does
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Disclosure Package and the Prospectus or any
supplements thereto do not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(v) Since the
effective date of the Registration Statement, there has occurred no event
required to be set forth in an amendment or supplement to the Registration
Statement or the Disclosure Package and the Prospectus which has not been so set
forth; and
(vi) Since the
effective date of the Registration Statement, neither the Company nor any of its
Subsidiaries shall have sustained any loss by strike, fire, flood, accident or
other calamity (whether or not insured), or shall have become a party to or the
subject of any litigation, which is material to the Company or its Subsidiaries
taken as a whole, nor shall there have been a material adverse change in the
general affairs, business, key personnel, capitalization, financial position,
earnings or net worth of the Company and its Subsidiaries, whether or not
arising in the ordinary course of business, which loss, litigation or change, in
the Representative’s judgment, shall render it inadvisable to proceed with the
delivery of the Securities.
(f) On the
date hereof, and on each Closing Date, the Representative shall have received
from Sherb & Co. LLP, independent public or certified public accountants for
the Company, a letter dated the date hereof addressed to the Representative, on
behalf of the several Underwriters, in form and substance satisfactory to the
Representative, containing statements and information of the type ordinarily
included in accountant’s “comfort letters” to underwriters, delivered according
to Statement of Auditing Standards No. 72 (or any successor bulletin), with
respect to the audited and unaudited financial statements and certain financial
information contained in the Registration Statement and the Prospectus (and the
Representative shall have received an additional five conformed copies of such
accountants’ letter for each of the several Underwriters).
(g) The
“lock-up” agreements between the Representatives and the stockholders, officers
and directors of the Company listed on Schedule II,
delivered to the Representative on or before the date hereof, shall be in full
force and effect on each Closing Date.
(h) On or
before each Closing Date, the Representative and counsel for the Underwriters
shall have received such information, certificates, agreements, opinions and
other documents as they may reasonably require.
(i) On or
before the First Closing Date, the Common Stock and Warrants shall have been
approved for listing on the Nasdaq Capital Market.
(j) On or
before the First Closing Date, the Company and the Warrant Agent shall have
executed and delivered counterparts of the Warrant Agreement.
All such
opinions, certificates, letters and documents shall be in compliance with the
provisions hereof only if they are satisfactory in form and substance to the
Representative and to counsel for the Underwriters. The Company shall
furnish the Representative with such conformed copies of such opinions,
certificates, letters and other documents as the Representative shall reasonably
request. If any of the conditions specified in this Section 6
shall not
19
have been
fulfilled when and as required by this Agreement, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the First Closing Date or the Option Closing Date, as the case may be,
by the Representative. Any such cancellation shall be without
liability of the Underwriters to the Company. Notice of such
cancellation shall be given to the Company in writing, or by telegraph or
telephone and confirmed in writing.
7. Indemnification
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter and any
person who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and the respective directors,
officers, employees and agents of each Underwriter from and against any loss,
expense, liability, damage or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or controlling
person may incur under the Securities Act, the Exchange Act or otherwise,
insofar as such loss, expense, liability, damage or claim arises out of or is
based upon (A) any breach of any representation, warranty or covenant of the
Company contained herein, (B) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereof), the Disclosure Package, any Issuer Free Writing Prospectus
or the Prospectus (the term Prospectus for the purpose of this Section being
deemed to include the preliminary prospectus included in the Registration
Statement at the time it became effective, the Prospectus and the Prospectus as
amended or supplemented by the Company), (C) any application or other document,
or any amendment or supplement thereto, executed by the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction (domestic or foreign) in order to qualify the Common Stock under
the securities or blue sky laws thereof or filed with the Commission or any
securities association or securities exchange (each an “Application”), (D) any
omission or alleged omission to state a material fact required to be stated in
any such Registration Statement, or necessary to make the statements made
therein not misleading, (E) any omission or alleged omission from the Disclosure
Package , any Issuer Free Writing Prospectus, Prospectus or any Application of a
material fact necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading; except in the case of
(B), (D) and (E) above only insofar as any such loss, expense, liability, damage
or claim arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in and in
conformity with information furnished in writing by the Underwriters through the
Representative to the Company expressly for use in such Registration Statement,
Disclosure Package, Issuer Free Writing Prospectus, Prospectus or
Application. The indemnity agreement set forth in this Section 7(a) shall
be in addition to any liability which the Company may otherwise
have.
(b) Each
Underwriter agrees, severally and not jointly, to indemnify, defend and hold
harmless the Company, the Company’s directors, the Company’s officers that
signed the Registration Statement, and any person who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any loss, expense, liability, damage or claim
(including the reasonable cost of investigation) which the Company or any such
person may incur under the Securities Act, the Exchange Act or otherwise,
insofar as such loss, expense, liability, damage or claim arises out of or is
based upon (A) any breach of any representation, warranty or covenant of the
Underwriters contained herein, (B) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereof), the Disclosure Package, any Issuer Free Writing
20
Prospectus,
the Prospectus, or any Application, (C) any omission or alleged omission to
state a material fact required to be stated in any such Registration Statement,
or necessary to make the statements made therein not misleading, or (D) any
omission or alleged omission from the Disclosure Package, any such Issuer Free
Writing Prospectus, Prospectus or any Application of a material fact necessary
to make the statements made therein, in the light of the circumstances under
which they were made, not misleading, but in each case only insofar as such
untrue statement or alleged untrue statement or omission or alleged omission was
made in such Registration Statement, Disclosure Package, Issuer Free Writing
Prospectus, Prospectus or Application in reliance upon and in conformity
with information furnished in writing by the Underwriters through the
Representative to the Company expressly for use therein; and to reimburse the
Company, or any such director, officer, employee or controlling person for any
legal and other expense reasonably incurred by the Company, or any such
director, officer, employee or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action. The indemnity agreement set
forth in this Section 7(b) shall be in addition to any liabilities that each
Underwriter may otherwise have.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
claim or the commencement of that action; the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under such subsection. If any such
claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under such subsection for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; except that the
Representative shall have the right to employ counsel to represent it and those
other Underwriters who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Underwriters against the Company
under such subsection if, in the Representative’s reasonable judgment, based
upon the advice of counsel, it is advisable for the Representative and those
Underwriters to be represented by separate counsel, and in that event the fees
and expenses of such separate counsel shall be paid by the Company.
(d) If the
indemnification provided for in this Section 7 is unavailable or insufficient to
hold harmless an indemnified party under subsections (a) and (b) of this Section
7 in respect of any losses, expenses, liabilities, damages or claims referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, expenses, liabilities, damages or
claims (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of the Securities
or (ii) if (but only 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 of the Company and of the Underwriters in connection with the statements
or omissions which resulted in such losses, expenses, liabilities, damages or
claims, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Underwriters shall be deemed
to be in the same proportion as the total proceeds from the offering (net of
underwriting
21
discounts
and commissions but before deducting expenses) received by the Company bear to
the underwriting discounts and commissions received by the Underwriters.
The relative fault of the Company and of the Underwriters shall be determined by
reference to, among other things, whether the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission relates to
information supplied by the Company or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party
as a result of the losses, claims, damages and liabilities referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any claim
or action.
(e) The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in subsection (d)(i) and, if applicable (ii),
above. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the underwriting
discounts and commissions applicable to the Securities purchased by such
Underwriter. 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. The Underwriters’ obligations to contribute pursuant to
this Section 7 are several in proportion to their respective underwriting
commitments and not joint.
8. Substitution of
Underwriters. If any Underwriter defaults in its obligation to
purchase the number of Securities which it has agreed to purchase under this
Agreement, the non-defaulting Underwriters shall be obligated to purchase (in
the respective proportions which the number of Securities set forth opposite the
name of each non-defaulting Underwriter in Schedule I hereto bears to the
total number of Securities set forth opposite the names of all the non-
defaulting Underwriters in Schedule I
hereto) the Securities which the defaulting Underwriter agreed but failed to
purchase; except that the non-defaulting Underwriters shall not be obligated to
purchase any of the Securities if the total number of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase exceeds 10%
of the total number of Firm Securities, and any non-defaulting Underwriter shall
not be obligated to purchase more than 110% of the number of Securities set
forth opposite its name in Schedule I hereto purchasable by it pursuant to
the terms of Section 3 hereof. If the foregoing maximums are
exceeded, (i) the non-defaulting Underwriters, and any other underwriters
satisfactory to the Representative who so agree, shall have the right, but shall
not be obligated, to purchase (in such proportions as may be agreed upon among
them) all the Securities. If the non- defaulting Underwriters or the
other underwriters satisfactory to the Representative do not elect to purchase
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company except for the payment of
expenses to be borne by the Company and the Underwriters as provided in Section
5 hereof and the indemnity and contribution agreements of the Company and the
Underwriters contained in Section 7 hereof.
Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may
have for damages caused by its default. If the other underwriters
satisfactory to the Representative are obligated or agree to purchase the
Securities of a defaulting Underwriter, either the Representative or the Company
may postpone the First Closing Date for up to five full Business Days in order
to effect any changes that may be necessary in the Registration Statement, the
Disclosure Package or the Prospectus or in any other document or agreement, and
to file promptly any amendments or any supplements to the Registration Statement
or the Disclosure Package or the Prospectus which in the Representative’s
opinion may thereby be made necessary.
22
9. Effective
Date and Termination.
(a) This
Agreement shall become effective at 9:00 a.m., New York City time, on the
first full Business Day following the earlier of (i) the date hereof, or
(ii) the day on which the Representative release the initial public
offering of the Firm Securities for sale to the public. The
Representative shall notify the Company immediately after the Representative has
taken any action which causes this Agreement to become
effective. Until this Agreement is effective, it may be terminated by
the Company or by the Representative by giving notice as hereinafter provided to
the Representative or by the Representative by giving notice as hereinafter
provided to the Company, except that the provisions of Sections 5(n) and 7
hereof shall at all times be effective. For the purpose of this
Section, the Securities shall be deemed to have been released for sale to the
public upon release by the Representative of an electronic communication
authorizing commencement of the offering the Securities for sale by the
Underwriters or other securities dealers.
(b) Until the
First Closing Date, this Agreement may be terminated by the Representative by
giving notice as hereinafter provided to the Company, if (i) the Company
shall have failed, refused or been unable, at or prior to the First Closing
Date, to perform any agreement on its part to be performed hereunder unless the
failure to perform any agreement is due to the default or omission by any
Underwriter, (ii) any other condition of the obligations of the
Underwriters hereunder is not fulfilled; (iii) trading in securities
generally on the New York Stock Exchange or Nasdaq shall have been suspended or
minimum or maximum prices shall have been established on either of such
exchanges or such market by the Commission or by such exchange or other
regulatory body or governmental authority having jurisdiction; (iv) trading
or quotation in any of the Company’s securities shall have been suspended or
limited by the Commission or by the NYSE or Nasdaq or other regulatory body of
governmental authority having jurisdiction; (v) a general banking
moratorium shall have been declared by Federal or state authorities; (vi) a
material disruption in securities settlement, payment or clearance services in
the United States shall have occurred; (vii) there shall have been any
material adverse change in general economic, political or financial conditions
or if the effect of international conditions on the financial markets in the
United States shall be such as, in the Representative’s judgment, makes it
inadvisable to proceed with the delivery of the Securities; or (viii) any
attack on, outbreak or escalation of hostilities, declaration of war or act of
terrorism involving the United States or any other national or international
calamity or emergency if, in the Representative’s judgment, the effect of any
such attack, outbreak, escalation, declaration, act, calamity or emergency makes
it impractical or inadvisable to proceed with the completion of the public
offering or the delivery of the Securities. Any termination of this
Agreement pursuant to this Section 9 shall be without liability on the part
of the Company or any Underwriter, except as otherwise provided in Sections 5(n)
or 7 hereof.
Any
notice referred to above may be given at the address specified in
Section 11 hereof in writing or by telegraph or telephone, and if by
telegraph or telephone, shall be immediately confirmed in writing.
(c) This
Agreement may also be terminated as provided in Section 8
hereof.
23
10. Survival of Indemnities,
Contribution, Warranties and Representations. All
representations, warranties, and agreements of the Company and the Underwriting
herein or in certificates delivered pursuant hereto, and the agreements of the
several Underwriters and the Company contained in Section 7 hereof, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or any controlling person thereof, or the
Company or any of its officers, directors, or controlling persons, and shall
survive delivery of, and payment for, the Securities to and by the Underwriters
hereunder.
11. Notices. All
communications hereunder shall be in writing and shall be mailed, hand delivered
or telecopied and confirmed to the parties hereto as follows:
|
|
If
to the Representative:
|
Ladenburg
Xxxxxxxx & Co. Inc.
|
|
|
0000
Xxxxxxxx Xxxx
|
|
|
00xx
Xxxxx
|
|
|
Xxxxx,
Xxxxxxx 00000
|
|
|
Attention: Xxxxxx
Xxxxxx, Managing Director
|
|
|
Facsimile: (000)
000-0000
|
|
|
with
a copy to:
|
Xxxxxxxx
Xxxxxx
|
|
|
000
Xxxxxxxxx Xxxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Attention:
Xxxxx Xxxx Xxxxxx, Esq.
|
|
|
Facsimile:
(000) 000-0000
|
|
|
If
to the Company:
|
|
|
000
XX 0xx Xxxxxx, Xxxxx X
|
|
|
Xxxxxx
Xxxxx, XX 00000
|
|
|
Attention: Jan
Norelid, CFO
|
|
|
Facsimile: (000)
000-0000
|
|
|
with
a copy to:
|
Xxxxxxxx
& Xxxx LLP
|
|
|
000
Xxxx Xxx Xxxx Xxxxxxxxx
|
|
|
Xxxxx
0000
|
|
|
Xxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
|
|
|
Attention: Xxxx
X. Xxxxxxx, Esq.
|
|
|
Facsimile:
(000) 000-0000
|
12. Information Furnished by
Underwriters. The statements set forth under the caption
“Underwriting” in the table in the first paragraph concerning the names of each
Underwriter and the number of shares each Underwriter has agreed to purchase, in
the paragraphs concerning sales by Underwriters to the public at the offering
price and to dealers at such price less a concession and sales by Underwriters
to discretionary accounts in any preliminary prospectus and the Prospectus, and
in the first two paragraph under the caption “Underwriter - Stabilization, short
positions and penalty bids” constitute the only written information furnished by
or on behalf of any Underwriter referred to in paragraphs (b) and (c) of
Section 1 hereof and in paragraphs (a) and (b) of Section 7
hereof.
13. Parties. This
Agreement is made solely for the benefit of the several Underwriters, the
Company, any officer, director or controlling person referred to in
Section 7 hereof, and their respective successors and assigns, and no other
person shall acquire or have any right by virtue of this
Agreement. The term “successors and assigns,” as used in this
Agreement, shall not include any purchaser of any of the Securities from any of
the Underwriters merely by reason of such purchase.
24
14. Definition of “Business Day” and
“Subsidiary”. For purposes of this Agreement,
(a) ”Business Day” means any day on which the New York Stock Exchange, Inc.
is open for trading, and (b) ”Subsidiary” has the meaning set forth in Rule
405 under the Securities Act.
15. Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to the choice of law or conflict of
laws principles thereof.
16. Partial
Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision
hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
17. General
Provisions. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof (including, but not limited to, the letter of intent
between the Company and Ladenburg Xxxxxxxx, dated June 7, 2006, and any
amendment thereto). This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties
hereto, and no condition herein (express or implied) may be waived unless waived
in writing by each party whom the condition is meant to benefit. The
Section headings herein are for the convenience of the parties only and shall
not affect the construction or interpretation of this Agreement.
25
Please
confirm, by signing and returning to us two (2) counterparts of this Agreement,
that the Representative is acting on behalf of itself and the several
Underwriters and that the foregoing correctly sets forth the agreement among the
Company and the several Underwriters.
Very
truly yours,
By: ____________________
Name:
Title:
Confirmed
and accepted as of the date first above mentioned:
LADENBURG
XXXXXXXX & CO. INC.
As
Representative of the Several Underwriters named in Schedule I
hereto
By: _____________________________
Xxxxxx Xxxxxx, Managing
Director
26
SCHEDULE
I
Underwriting
Agreement dated February ____, 2010
|
Underwriter
|
Number
of Firm Securities
to
be Purchased
|
|
Ladenburg
Xxxxxxxx & Co. Inc.
|
|
|
Maxim
Group LLC
|
|
|
900,000
|
27
SCHEDULE
II
Lock-Up
Agreements
28
SCHEDULE
III
Issuer
Free Writing Prospectus
