EXHIBIT 10.3
XXXXXX & XXXXXXX
March 6, 2008
CONFIDENTIAL
------------
EpiCept Corporation
000 Xxx Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx
Senior Vice President & Chief Financial Officer
Dear Xx. Xxxx:
This letter (the "Agreement") constitutes the agreement between Xxxxxx &
Xxxxxxx, LLC ("Xxxxxx" or the "Placement Agent") and EpiCept Corporation (the
"Company"), that Xxxxxx shall serve as the exclusive placement agent for the
Company, on a reasonable "best efforts" basis, in connection with the proposed
placement (the "Placement") of registered securities (the "Securities") of the
Company, including shares (the "Shares") of the Company's common stock, par
value $0.0001 per share (the "Common Stock"), and warrants to purchase shares of
Common Stock (the "Warrants"). The terms of such Placement and the Securities
shall be mutually agreed upon by the Company and the purchasers (each, a
"Purchaser" and collectively, the "Purchasers") and nothing herein constitutes
that Xxxxxx would have the power or authority to bind the Company or any
Purchaser or an obligation for the Company to issue any Securities or complete
the Placement. This Agreement, the Securities Purchase Agreement, the Warrants
and the Prospectus and Prospectus Supplement shall be collectively referred to
herein as the "Transaction Documents." The date of the closing of the Placement
shall be referred to herein as the "Closing Date." The Company expressly
acknowledges and agrees that Xxxxxx'x obligations hereunder are on a reasonable
best efforts basis only and that the execution of this Agreement does not
constitute a commitment by Xxxxxx to purchase the Securities and does not ensure
the successful placement of the Securities or any portion thereof or the success
of Xxxxxx with respect to securing any other financing on behalf of the Company.
SECTION 1. Compensation and other Fees.
As compensation for the services provided by Xxxxxx hereunder, the Company
agrees to pay to Xxxxxx:
(A) Placement Agent's Fee. The Company shall pay to Rodman a cash
placement fee (the "Placement Agent's Fee") equal to 6% of the aggregate
purchase price paid by each purchaser of Securities that are placed in the
Offering.
(B) Warrants. As additional compensation for the Services, the Company
shall issue to Xxxxxx or its designees at the closing of the Offering (the
"Closing"), warrants (the "Xxxxxx Warrants") to purchase that number of
Shares equal to 6% of the aggregate number of Shares placed in the
Offering. The Xxxxxx Warrants shall have the same terms and conditions as
the warrants issued to Purchasers. If no warrants are issued to
Purchasers, the Xxxxxx Warrants shall have an exercise price equal to 120%
of the price at which Shares are issued to Purchasers, an exercise period
of five years and cashless exercise..
0000 XXXXXX XX XXX XXXXXXXX, 00XX XXXXX, XXX XXXX, XX 00000
TEL:: 000 000-0000 FAX:: 000 000 0000
XXX.XXXXXXXXXXXXXXXX.XXX * MEMBER: FINRA, SIPC
EpiCept Corporation
March 6, 2008
Page 2
(C) The Company also agrees to reimburse Xxxxxx'x actual, out-of pocket
expenses incurred (with supporting invoices/receipts) up to a maximum of
$35,000. Such reimbursement shall be payable immediately upon (but only in
the event of) the closing of the Placement.
SECTION 2. REGISTRATION STATEMENT.
The Company represents and warrants to, and agrees with, the Placement Agent
that:
(A) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (Registration File NO.
333-145561) under the Securities Act of 1933, as amended (the "Securities Act"),
which became effective on September 18, 2007, for the registration under the
Securities Act of the Shares and Warrants, as well as other securities of the
Company. At the time of such filing, the Company met the requirements of Form
S-3 under the Securities Act. Such registration statement meets the requirements
set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said
Rule. The Company will file with the Commission pursuant to Rule 424(b) under
the Securities Act, and the rules and regulations (the "Rules and Regulations")
of the Commission promulgated thereunder, a supplement to the form of prospectus
included in such registration statement relating to the placement of the Shares
and the plan of distribution thereof and has advised the Placement Agent of all
further information (financial and other) with respect to the Company required
to be set forth therein. Such registration statement, at any given time,
including the exhibits thereto filed at such time, as amended at such time, is
hereinafter called the "Registration Statement"; such prospectus in the form in
which it appears in the Registration Statement is hereinafter called the "Base
Prospectus"; and the supplemented form of prospectus, in the form in which it
will be filed with the Commission pursuant to Rule 424(b) (including the Base
Prospectus as so supplemented) is hereinafter called the "Prospectus
Supplement." The Registration Statement at the time it originally became
effective is hereinafter called the "Original Registration Statement." Any
reference in this Agreement to the Registration Statement, the Original
Registration Statement, the Base Prospectus or the Prospectus Supplement shall
be deemed to refer to and include the documents incorporated by reference
therein (the "Incorporated Documents") pursuant to Item 12 of Form S-3 which
were or are filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), at any given time, as the case may be; and any reference in
this Agreement to the terms "amend," "amendment" or "supplement" with respect to
the Registration Statement, the Original Registration Statement, the Base
Prospectus or the Prospectus Supplement shall be deemed to refer to and include
the filing of any document under the Exchange Act after the date of this
Agreement, or the issue date of the Base Prospectus or the Prospectus
Supplement, as the case may be, deemed to be incorporated therein by reference.
All references in this Agreement to financial statements and schedules and other
information which is "contained," "included," "described," "referenced," "set
forth" or "stated" in the Registration Statement, the Base Prospectus or the
Prospectus Supplement (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement, the Base Prospectus or the Prospectus Supplement, as the
case may be. The Company has not received any notice that the Commission has
issued or intends to issue a stop order suspending the effectiveness of the
Registration Statement or the use of the Base Prospectus or the Prospectus
Supplement or intends to commence a proceeding for any such purpose. For
purposes of this Agreement, "free writing prospectus" has the meaning set forth
in Rule 405 under the Securities Act and the "Time of Sale Prospectus" means the
Base Prospectus, together with the Prospectus Supplement, if any, and the free
writing prospectuses, if any, used in connection with the Placement, including
any documents incorporated by reference therein.
(B) The Original Registration Statement (and any further documents to be
filed with the Commission) contains all exhibits and schedules as required by
the Securities Act. Each of the Registration Statement and any post-effective
EpiCept Corporation
March 6, 2008
Page 3
amendment thereto, at the time it became effective, complied in all material
respects with the Securities Act and the applicable Rules and Regulations and
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The Base Prospectus, the Time of Sale Prospectus, if
any, and the Prospectus Supplement, each as of its respective date, comply in
all material respects with the Securities Act and the applicable Rules and
Regulations. Each of the Base Prospectus, the Time of Sale Prospectus, if any,
and the Prospectus Supplement, as amended or supplemented, did not and will not
contain as of the date thereof any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
Incorporated Documents, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act and the applicable
rules and regulations promulgated thereunder, and none of such documents, when
they were filed with the Commission, contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein (with respect to Incorporated Documents incorporated by
reference in the Base Prospectus or Prospectus Supplement), in light of the
circumstances under which they were made not misleading. No post-effective
amendment to the Registration Statement reflecting any facts or events arising
after the date thereof which represent, individually or in the aggregate, a
fundamental change in the information set forth therein is required to be filed
with the Commission. There are no documents required to be filed with the
Commission in connection with the transaction contemplated hereby that (x) have
not been filed as required pursuant to the Securities Act or (y) will not be
filed within the requisite time period. There are no contracts or other
documents required to be described in the Base Prospectus, the Time of Sale
Prospectus, if any, or Prospectus Supplement, or to be filed as exhibits or
schedules to the Registration Statement, which have not been described or filed
as required.
(C) The Company is eligible to use free writing prospectuses in
connection with the Placement pursuant to Rules 164 and 433 under the Securities
Act. Any free writing prospectus that the Company is required to file pursuant
to Rule 433(d) under the Securities Act has been, or will be, filed with the
Commission in accordance with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act or that was prepared by or behalf of or used by
the Company complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder. The Company will not, without the prior consent of
the Placement Agent, prepare, use or refer to, any free writing prospectus.
(D) Neither the Company nor any of its directors and officers has
distributed and none of them will distribute, prior to the Closing Date, any
offering material in connection with the offering and sale of the Shares other
than the Base Prospectus, the Time of Sale Prospectus, if any, the Prospectus
Supplement, the Registration Statement, copies of the documents incorporated by
reference therein and any other materials permitted by the Securities Act.
(E) Without the prior written consent of the Company, the Placement
Agent hereby confirms that it has not given and will not give to any prospective
purchaser of the Shares and Warrants any free writing prospectuses other than as
set forth on Schedule A hereto.
(F) The Company and the Placement Agent have agreed that the information
set forth on Schedule B hereto (such information shall be referred to in this
Agreement as the "Scripted Information") shall be orally conveyed by the
Placement Agent to each Purchaser prior to the Placement Agent's confirming
sales of Shares and Warrants.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Except as set forth in the
Registration Statement or the SEC Reports (as defined below), the Company hereby
represents and warrants to the Placement Agent as follows:
EpiCept Corporation
March 6, 2008
Page 4
(A) Organization and Qualification. The Company owns, directly or
indirectly, all of the capital stock or other equity interests of each of its
direct and indirect subsidiaries (individually, a "Subsidiary") Subsidiary free
and clear of any "Liens" (which for purposes of this Agreement shall mean a
lien, charge, security interest, encumbrance, right of first refusal, preemptive
right or other restriction, except for a lien on the Common Stock of the
Company's subsidiaries pursuant to the Loan and Security Agreement dated August
30, 2006, with Hercules Technology Growth Capital Inc.), and all the issued and
outstanding shares of capital stock or other equity interests of each Subsidiary
are validly issued and are fully paid, non-assessable and free of preemptive and
similar rights to subscribe for or purchase securities. The Company and each of
the Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization (as applicable), with the requisite power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. Neither the Company nor any Subsidiary is in violation
or default of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents. Each of the
Company and the Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in
which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, could not have or reasonably be expected to result
in (i) a material adverse effect on the legality, validity or enforceability of
any Transaction Document, (ii) a material adverse effect on the results of
operations, assets, business or financial condition of the Company and the
Subsidiaries, taken as a whole, or (iii) a material adverse effect on the
Company's ability to perform in any material respect on a timely basis its
obligations under any Transaction Document (any of (i), (ii) or (iii), a
"Material Adverse Effect") and no "Proceeding" (which for purposes of this
Agreement shall mean any action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened) has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or
curtail such power and authority or qualification.
(B) Authorization. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each
of the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of each of the Transaction
Documents by the Company and the consummation by it of the transactions
contemplated thereby have been duly authorized by all necessary action on the
part of the Company and no further action is required by the Company, its board
of directors or its stockholders in connection therewith other than in
connection with the "Required Approvals" (as defined in subsection 3(D) below).
Each Transaction Document to which the Company is a party has been (or upon
delivery will have been) duly executed and delivered by the Company and
constitutes the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies, and (iii) that rights to indemnification and
contribution thereunder may be limited by federal or state securities laws or
public policy relating thereto.
(C) No Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company, the issuance and sale of the Shares and
Warrants and the consummation by the Company of the other transactions
contemplated hereby and thereby do not and will not (i) conflict with or violate
any provision of the Company's or any Subsidiary's certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, result in the creation of any Lien
upon any of the properties or assets of the Company or any Subsidiary, or give
to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a Company or Subsidiary debt or
otherwise) or other understanding to which the Company or any Subsidiary is a
party or by which any property or asset of the Company or any Subsidiary is
EpiCept Corporation
March 6, 2008
Page 5
bound or affected, or (iii) subject to the Required Approvals, conflict with or
result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the
Company or a Subsidiary is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Company or a
Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as would not have a Material Adverse Effect.
(D) Filings, Consents and Approvals. The Company is not required to
obtain any consent, waiver, authorization or order of, give any notice to, or
make any filing or registration with, any court or other federal, state, local
or other governmental authority or other "Person" (defined as an individual or
corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an
agency or subdivision thereof) or other entity of any kind) in connection with
the execution, delivery and performance by the Company of the Transaction
Documents, other than such filings as are required to be made under applicable
Federal and state securities laws and by the Trading Market (collectively, the
"Required Approvals").
(E) Issuance of the Shares and Warrants; Registration. The Shares and
Warrants are duly authorized and, when issued and paid for in accordance with
the applicable Transaction Documents, will be duly and validly issued, fully
paid and nonassessable, free and clear of all Liens imposed by the Company other
than any restrictions on transfer provided for in the Transaction Documents. The
Company has reserved from its duly authorized capital stock the maximum number
of shares of Common Stock issuable pursuant to the Transaction Documents. The
issuance by the Company of the Shares and Warrants has been registered under the
Securities Act and all of the Shares and Warrants are freely transferable and
tradable by the Purchasers without restriction (other than any restrictions
arising solely from an act or omission of a Purchaser). The Shares and Warrants
are being issued pursuant to the Registration Statement. The "Plan of
Distribution" section under the Registration Statement contemplates the issuance
and sale of the Shares and Warrants as provided in the Transaction Documents.
Upon receipt of the Shares and Warrants, the Purchasers will have good and
marketable title to such Shares and Warrants and the Shares will be freely
tradable on the "Trading Market" (which, for purposes of this Agreement means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the NASDAQ Capital Market and OMX Nordic
Exchange).
(F) Capitalization. The capitalization of the Company is as described in
the Registration Statement and the SEC Reports. The Company has not issued any
capital stock since the date of the filing of its most recently filed periodic
report under the Exchange Act, other than pursuant to the exercise of employee
stock options under the Company's stock option plans, the issuance of shares of
Common Stock to employees pursuant to the Company's employee stock purchase plan
and pursuant to the conversion or exercise of securities exercisable,
exchangeable or convertible into Common Stock ("Common Stock Equivalents"). No
Person has any right of first refusal, preemptive right, right of participation,
or any similar right to participate in the transactions contemplated by the
Transaction Documents, except for those investors who participated in the
Company's December 2006 Private Placement. Except as a result of the purchase
and sale of the Shares and Warrants and as described in the Registration
Statement, there are no outstanding options, warrants, script rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exercisable or
exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become bound to
issue additional shares of Common Stock or Common Stock Equivalents. The
issuance and sale of the Shares and Warrants will not obligate the Company to
issue shares of Common Stock or other securities to any Person (other than the
Purchasers) and will not result in a right of any holder of Company securities
to adjust the exercise, conversion, exchange or reset price under such
securities. All of the outstanding shares of capital stock of the Company are
validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and none of such outstanding shares
was issued in violation of any preemptive rights or similar rights to subscribe
for or purchase securities. No further approval or authorization of any
stockholder, the Board of Directors of the Company or others is required for the
EpiCept Corporation
March 6, 2008
Page 6
issuance and sale of the Shares and Warrants. Except as described in the
Registration Statement and the SEC Reports, there are no stockholders
agreements, voting agreements or other similar agreements with respect to the
Company's capital stock to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company's stockholders.
(G) SEC Reports; Financial Statements. The Company has complied in all
material respects with requirements to file all reports, schedules, forms,
statements and other documents required to be filed by it under the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof, for one year
preceding the date hereof (or such shorter period as the Company was required by
law or regulation to file such material) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, being
collectively referred to herein as the "SEC Reports") on a timely basis or has
received a valid extension of such time of filing and has filed any such SEC
Reports prior to the expiration of any such extension. As of their respective
dates, the SEC Reports complied in all material respects with the requirements
of the Securities Act and the Exchange Act, as applicable, and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The financial statements of the Company
included in the SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the Commission with
respect thereto as in effect at the time of filing. Such financial statements
have been prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis during the periods involved
("GAAP"), except as may be otherwise specified in such financial statements or
the notes thereto and except that unaudited financial statements may not contain
all footnotes required by GAAP, and fairly present in all material respects the
financial position of the Company and its consolidated subsidiaries as of and
for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
(H) Material Changes; Undisclosed Events, Liabilities or Developments.
Since the date of the latest audited financial statements included within the
SEC Reports or the Registration Statement, except as disclosed in the SEC
Reports, (i) there has been no event, occurrence or development that has had or
would result in a Material Adverse Effect, (ii) the Company has not incurred any
liabilities (contingent or otherwise) other than (A) trade payables and accrued
expenses incurred in the ordinary course of business consistent with past
practice and (B) liabilities not required to be reflected in the Company's
financial statements pursuant to GAAP or required to be disclosed in filings
made with the Commission, (iii) the Company has not altered its method of
accounting, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock and (v) the Company has not issued any equity securities to any officer,
director or "Affiliate" (defined as any Person that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with a Person, as such terms are used in and construed under Rule
144 under the Securities Act), except pursuant to existing Company stock option
plans. The Company does not have pending before the Commission any request for
confidential treatment of information. Except for the issuance of the Shares and
Warrants pursuant to the Transaction Documents, no event, liability or
development has occurred or exists with respect to the Company or its
Subsidiaries or their respective business, properties, operations or financial
condition, that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made that has not
been publicly disclosed prior to the date of this Agreement or in the Time of
Sale Prospectus.
(I) Litigation. Except as disclosed in the SEC Reports or the
Registration Statement, there is no action, suit, inquiry, notice of violation,
Proceeding or investigation pending or, to the knowledge of the Company,
threatened against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state, county, local or
EpiCept Corporation
March 6, 2008
Page 7
foreign) (collectively, an "Action") which (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents or
the Shares or Warrants or (ii) would, if there were an unfavorable decision,
have a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any
director or officer thereof, is or has been the subject of any Action involving
a claim of violation of or liability under federal or state securities laws or a
claim of breach of fiduciary duty. There has not been, and to the knowledge of
the Company, there is not pending or contemplated, any investigation by the
Commission involving the Company or any current or former director or officer of
the Company. The Commission has not issued any stop order or other order
suspending the effectiveness of any registration statement filed by the Company
or any Subsidiary under the Securities Act. No executive officer, to the
knowledge of the Company, is in violation of any material term of any employment
contract, confidentiality, disclosure or proprietary information agreement or
non-competition agreement, or any other contract or agreement or any restrictive
covenant, and, to the Company's knowledge, the continued employment of each such
executive officer does not subject the Company or any of its Subsidiaries to any
liability with respect to any of the foregoing matters. The Company and its
Subsidiaries are in compliance with all U.S. federal, state, local and foreign
laws and regulations relating to employment and employment practices, terms and
conditions of employment and wages and hours, except where the failure to be in
compliance would not, individually or in the aggregate, have a Material Adverse
Effect.
(J) Labor Relations. No material labor dispute exists or, to the
knowledge of the Company, is imminent with respect to any of the employees of
the Company which would have a Material Adverse Effect.
(K) Compliance. Neither the Company nor any Subsidiary (i) is in default
under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the
Company or any Subsidiary under), nor has the Company or any Subsidiary received
notice of a claim that it is in default under or that it is in violation of, any
indenture, loan or credit agreement or any other agreement or instrument to
which it is a party or by which it or any of its properties is bound (whether or
not such default or violation has been waived), (ii) is in violation of any
order of any court, arbitrator or governmental body, or (iii) is or has been in
violation of any statute, rule or regulation of any governmental authority,
including without limitation all foreign, federal, state and local laws
applicable to its business and all such laws that affect the environment, except
in each case as would not have a Material Adverse Effect.
(L) Regulatory Permits. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities required to conduct their
respective businesses as currently conducted, except where the failure to
possess such permits would not have a Material Adverse Effect ("Material
Permits"), and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any Material Permit.
(M) Title to Assets. The Company and the Subsidiaries have good and
marketable title in all personal property owned by them that is material to the
business of the Company and the Subsidiaries, in each case free and clear of all
Liens, except for Liens for the benefit of Hercules Technology Growth Capital,
Inc. ("Hercules") and Liens as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be
made of such property by the Company and the Subsidiaries and Liens for the
payment of federal, state or other taxes, the payment of which is neither
delinquent nor subject to penalties. Any real property and facilities held under
lease by the Company and the Subsidiaries are held by them under valid and
subsisting leases enforceable against the Company of which the Company and the
Subsidiaries are in compliance.
(N) Patents and Trademarks. The Company and the Subsidiaries have, or
have rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights,
licenses and other similar intellectual property rights necessary or material
for use in connection with their respective businesses as described in the SEC
Reports and which the failure to so have would have a Material Adverse Effect
EpiCept Corporation
March 6, 2008
Page 8
(collectively, the "Intellectual Property Rights"). Neither the Company nor any
Subsidiary has received a notice (written or otherwise) that the Intellectual
Property Rights used by the Company or any Subsidiary violates or infringes upon
the rights of any Person. To the knowledge of the Company, all such Intellectual
Property Rights are enforceable and there is no existing infringement by another
Person of any of the Intellectual Property Rights of others. The Company and its
Subsidiaries have taken reasonable measures to protect the secrecy,
confidentiality and value of all of their intellectual properties, except where
failure to do so would not, individually or in the aggregate, have a Material
Adverse Effect.
(O) Insurance. The Company and the Subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which the Company and
the Subsidiaries are engaged, including, but not limited to, directors and
officers insurance coverage. Neither the Company nor any Subsidiary has any
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business without a
significant increase in cost.
(P) Transactions With Affiliates and Employees. Except as disclosed in
the Registration Statement or the SEC Reports, none of the officers or directors
of the Company and, to the knowledge of the Company, none of the employees of
the Company is presently a party to any transaction with the Company or any
Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner, other than (i) for payment of
salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company and (iii) for other employee benefits,
including equity compensation arrangements.
(Q) Xxxxxxxx-Xxxxx. The Company is in material compliance with all
provisions of the Xxxxxxxx-Xxxxx Act of 2002 which are applicable to it as of
the date hereof and of the Closing Date.
(R) Certain Fees. Except as otherwise provided in this Agreement, no
brokerage or finder's fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by the Transaction Documents. The Purchasers shall have no
obligation with respect to any fees or with respect to any claims made by or on
behalf of other Persons for fees of a type contemplated in this Section that may
be due in connection with the offer and sale of the Shares and Warrants
contemplated by the Transaction Documents.
(S) Trading Market Rules. The issuance and sale of Shares and Warrants
hereunder does not contravene the rules and regulations of the Trading Market.
(T) Investment Company. The Company is not, and immediately after
receipt of payment for Shares and Warrants, will not be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(U) Registration Rights. Except as disclosed in the Registration
Statement or the SEC Reports, no Person has any right to cause the Company to
effect the registration under the Securities Act of any securities of the
Company.
(V) Listing and Maintenance Requirements. The Company's Common Stock is
registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the
Company has taken no action designed to, or which to its knowledge will have the
effect of, terminating the registration of the Common Stock under the Exchange
Act nor has the Company received any notification that the Commission is
contemplating terminating such registration. Except as disclosed in the
EpiCept Corporation
March 6, 2008
Page 9
Registration Statement or the SEC Reports, the Company has not, in the 12 months
preceding the date hereof, received notice from any Trading Market on which the
Common Stock is or has been listed or quoted to the effect that the Company is
not in compliance with the listing or maintenance requirements of such Trading
Market. The Company is, and at the Closing Date will be, in compliance with all
such listing and maintenance requirements.
(W) Application of Takeover Protections. The Company and its Board of
Directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company's Certificate of Incorporation (or
similar charter documents) or the laws of its state of incorporation that is or
could become applicable to the Purchasers as a result of the Purchasers and the
Company fulfilling their obligations or exercising their rights under the
Transaction Documents, including without limitation as a result of the Company's
issuance of Shares and Warrants and the Purchasers' ownership of the Shares and
Warrants.
(X) Indebtedness. Other than as set forth or described in the
Registration Statement and SEC Reports, including without limitation, the
Company's independent registered public accounting firm's explanatory paragraph
in its report on the Company's consolidated financial statements for 2006, the
Company has no knowledge of any facts or circumstances which lead it to believe
that it will file for reorganization or liquidation under the bankruptcy or
reorganization laws of any jurisdiction within one year from the Closing Date.
The Registration Statement or SEC Reports set forth, as of the dates thereof,
all outstanding secured and unsecured Indebtedness of the Company or any
Subsidiary, or for which the Company or any Subsidiary has commitments. For the
purposes of this Agreement, "Indebtedness" shall mean (a) any liabilities for
borrowed money or amounts owed in excess of $50,000 (other than trade accounts
payable incurred in the ordinary course of business), (b) all guaranties,
endorsements and other contingent obligations in respect of Indebtedness of
others, whether or not the same are or should be reflected in the Company's
balance sheet (or the notes thereto), except guaranties by endorsement of
negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business; and (c) the present value of any lease payments in
excess of $50,000 due under leases required to be capitalized in accordance with
GAAP. Neither the Company nor any Subsidiary is in default with respect to any
Indebtedness.
(Y) Tax Status. Except for matters that would not, individually or in
the aggregate, have a Material Adverse Effect, the Company and each Subsidiary
has filed all necessary federal, state and foreign income and franchise tax
returns and has paid or accrued all taxes shown as due thereon, and the Company
has no knowledge of a tax deficiency which has been asserted or threatened
against the Company or any Subsidiary.
(Z) Foreign Corrupt Practices. Neither the Company, nor to the knowledge
of the Company, any agent or other person acting on behalf of the Company, has
(i) directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company (or made by any person acting on its behalf of
which the Company is aware) which is in violation of law, or (iv) violated in
any material respect any provision of the Foreign Corrupt Practices Act of 1977,
as amended.
(AA) Accountants. The Company's accountants are Deloitte & Touche LLP. To
the knowledge of the Company, such accountants, who the Company expects will
express their opinion with respect to the financial statements to be included in
the Company's next Annual Report on Form 10-K, are a registered public
accounting firm as required by the Securities Act.
EpiCept Corporation
March 6, 2008
Page 10
(BB) Regulation M Compliance. The Company has not, and to its knowledge
no one acting on its behalf has, (i) taken, directly or indirectly, any action
designed to cause or to result in the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of any of the
Shares and Warrants, (ii) sold, bid for, purchased, or, paid any compensation
for soliciting purchases of, any of the Shares and Warrants (other than for the
placement agent's placement of the Shares and Warrants), or (iii) paid or agreed
to pay to any person any compensation for soliciting another to purchase any
other securities of the Company.
(CC) Approvals. Other than the filing of an additional listing
application, the issuance and listing on the NASDAQ Capital Market of the Shares
requires no further approvals, including but not limited to, the approval of
shareholders.
(DD) NASD Affiliations. To the knowledge of the Company, there are no
affiliations with any Financial Industry Regulatory Authority ("FINRA") member
firm among the Company's officers, directors or any five percent (5%) or greater
stockholder of the Company, except as set forth in the Base Prospectus.
In addition to the representations made in this Section 3 and in Section 4, as
of the Closing Date, the Company hereby makes to Xxxxxx each of the
representations and warranties made by the Company to the Purchasers in the
Securities Purchase Agreement, as though restated in their entirety herein.
SECTION 4. INDEMNIFICATION. The Company agrees to the indemnification and other
agreements set forth in the Indemnification Provisions (the "Indemnification")
attached hereto as Addendum A, the provisions of which are incorporated herein
by reference and shall survive the termination or expiration of this Agreement.
SECTION 5. ENGAGEMENT TERM. Xxxxxx'x engagement hereunder will be for the
period of 30 days. The engagement may be terminated by either the Company or
Xxxxxx at any time upon 10 days' written notice. Notwithstanding anything to the
contrary contained herein, the provisions concerning confidentiality,
indemnification, contribution and the Company's obligations to pay fees and
reimburse expenses contained herein and the Company's obligations contained in
the Indemnification Provisions will survive any expiration or termination of
this Agreement. Xxxxxx agrees not to use any confidential information concerning
the Company provided to it by the Company for any purposes other than those
contemplated under this Agreement.
SECTION 6. Xxxxxx INFORMATION. The Company agrees that any information or
advice rendered by Xxxxxx in connection with this engagement is for the
confidential use of the Company only in their evaluation of the Placement and,
except as otherwise required by law, the Company will not disclose or otherwise
refer to the advice or information in any manner without Xxxxxx'x prior written
consent. Notwithstanding the foregoing, the Company may file this Agreement and
any Transaction Document with the Commission in any filing made by the Company
pursuant to the Securities Act, the Exchange Act of the rules and regulations
thereunder, and may refer to Xxxxxx'x engagement hereunder and the terms of this
Agreement as well in any such filing.
SECTION 7. NO FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall
not be construed as creating rights enforceable by any person or entity not a
party hereto, except those entitled hereto by virtue of the Indemnification
Provisions hereof. The Company acknowledges and agrees that Xxxxxx is not and
shall not be construed as a fiduciary of the Company and shall have no duties or
liabilities to the equity holders or the creditors of the Company or any other
person by virtue of this Agreement or the retention of Xxxxxx hereunder, all of
which are hereby expressly waived.
EpiCept Corporation
March 6, 2008
Page 11
SECTION 8. CLOSING. The obligations of the Placement Agent and the Purchasers,
and the closing of the sale of the Shares and Warrants hereunder are subject to
the accuracy, when made and on the Closing Date, of the representations and
warranties on the part of the Company and its Subsidiaries contained herein, to
the accuracy of the statements of the Company and its Subsidiaries made in any
certificates pursuant to the provisions hereof, to the performance by the
Company and its Subsidiaries of their obligations hereunder, and to each of the
following additional terms and conditions:
(A) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been initiated or threatened by the Commission, and any request for additional
information on the part of the Commission (to be included in the Registration
Statement, the Base Prospectus or the Prospectus Supplement or otherwise) shall
have been complied with to the reasonable satisfaction of the Placement Agent.
Any filings required to be made by the Company in connection with the offer and
sale of the Shares and Warrants shall have been timely filed with the
Commission.
(B) All corporate proceedings and other legal matters incident to the
authorization, form, execution, delivery and validity of each of this Agreement,
the Shares and Warrants, the Registration Statement, the Base Prospectus and the
Prospectus Supplement and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Placement Agent, and the Company shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(C) The Placement Agent shall have received from outside counsel to the
Company such counsel's written opinion, addressed to the Placement Agent and the
Purchasers dated as of the Closing Date, in form and substance reasonably
satisfactory to the Placement Agent.
(D) Neither the Company nor any of its Subsidiaries shall have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Base Prospectus, any loss or interference with
its business from fire, explosion, flood, terrorist act or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth in or
contemplated by the Base Prospectus, the Time of Sale Prospectus, if any, the
Prospectus Supplement or the Incorporated Documents and (ii) since such date
there shall not have been any change in the capital stock or long-term debt of
the Company or any of its Subsidiaries or any change, or any development
involving a prospective change, in or affecting the business, financial
condition, stockholders' equity or results of operations of the Company and its
Subsidiaries, otherwise than as set forth in or contemplated by the Base
Prospectus, the Time of Sale Prospectus, if any, the Prospectus Supplement or
the Incorporated Documents, the effect of which, in any such case described in
clause (i) or (ii), is, in the judgment of the Placement Agent, so material and
adverse as to make it impracticable or inadvisable to proceed with the sale or
delivery of the Shares and Warrants on the terms and in the manner contemplated
by the Base Prospectus, the Time of Sale Prospectus, if any, the Prospectus
Supplement or the Incorporated Documents.
(E) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the NASDAQ Capital Market or trading
in any securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum or maximum prices or maximum ranges
for prices shall have been established on any such exchange or such market by
the Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by federal or state authorities or a material disruption has occurred
in commercial banking or securities settlement or clearance services in the
United States, (iii) the United States shall have become engaged in hostilities
in which it is not currently engaged, the subject of an act of terrorism, there
shall have been an escalation in hostilities involving the United States, or
there shall have been a declaration of a national emergency or war by the United
EpiCept Corporation
March 6, 2008
Page 12
States, or (iv) there shall have occurred any other calamity or crisis or any
change in general economic, political or financial conditions in the United
States or elsewhere, if the effect of any such event in clause (i), (iii) or
(iv) makes it, in the sole judgment of the Placement Agent, impracticable or
inadvisable to proceed with the sale or delivery of the Shares and Warrants on
the terms and in the manner contemplated by the Base Prospectus and the
Prospectus Supplement.
(F) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency or
body which would, as of the Closing Date, prevent the issuance or sale of the
Shares and Warrants or materially and adversely affect or potentially and
adversely affect the business or operations of the Company; and no injunction,
restraining order or order of any other nature by any federal or state court of
competent jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance or sale of the Shares and Warrants or materially and
adversely affect or potentially and adversely affect the business or operations
of the Company.
(G) The Company shall have prepared and filed with the Commission a
Current Report on Form 8-K with respect to the Placement, including this
Agreement as an exhibit thereto.
(H) The Company shall have entered into subscription agreements with
each of the Purchasers and such agreements shall be in full force and effect and
shall contain representations and warranties of the Company as agreed to between
the Company and the Purchasers.
(I) The FINRA shall have raised no objection to the fairness and
reasonableness of the terms and arrangements of this Agreement. In addition, the
Company shall, if requested by the Placement Agent, make or authorize Placement
Agent's counsel to make on the Company's behalf, an Issuer Filing with the FINRA
Corporate Financing Department pursuant to NASD Rule 2710 with respect to the
Registration Statement and pay all filing fees required in connection therewith.
Status?
(J) Prior to the Closing Date, the Company shall have furnished to the
Placement Agent such further information, certificates and documents as the
Placement Agent may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Placement Agent.
SECTION 9. GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York applicable to agreements made
and to be performed entirely in such State. This Agreement may not be assigned
by either party without the prior written consent of the other party. This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective successors and permitted assigns. Any right to trial by
jury with respect to any dispute arising under this Agreement or any transaction
or conduct in connection herewith is waived. Any dispute arising under this
Agreement may be brought into the courts of the State of New York or into the
Federal Court, in either case, located in New York, New York and, by execution
and delivery of this Agreement, the Company hereby accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of
aforesaid courts. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by delivering a copy thereof via overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If either party shall commence an action or proceeding to enforce any provisions
of this Agreement, then the prevailing party in such action or proceeding shall
be reimbursed by the other party for its reasonable attorneys' fees and other
costs and expenses incurred with the investigation, preparation and prosecution
of such action or proceeding.
EpiCept Corporation
March 6, 2008
Page 13
SECTION 10. ENTIRE AGREEMENT/MISC. This Agreement (including the attached
Indemnification Provisions) embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof. If any provision of this
Agreement is determined to be invalid or unenforceable in any respect, such
determination will not affect such provision in any other respect or any other
provision of this Agreement, which will remain in full force and effect. This
Agreement may not be amended or otherwise modified or waived except by an
instrument in writing signed by both Xxxxxx and the Company. The
representations, warranties, agreements and covenants contained herein shall
survive the closing of the Placement and delivery and/or exercise of the Shares
and Warrants, as applicable. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or a .pdf format file, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such facsimile
signature page were an original thereof.
SECTION 11. NOTICES. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (a) the date of transmission, if
such notice or communication is delivered via facsimile or e-mail at the
facsimile number or e-mail address specified on the signature pages attached
hereto prior to 6:30 p.m. (New York City time) on a business day, (b) the next
business day after the date of transmission, if such notice or communication is
delivered via facsimile or e-mail at the facsimile number or e-mail address on
the signature pages attached hereto on a day that is not a business day or later
than 6:30 p.m. (New York City time) on any business day, (c) the business day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
as set forth on the signature pages hereto.
EpiCept Corporation
March 6, 2008
Page 14
Please confirm that the foregoing correctly sets forth our agreement by signing
and returning to Xxxxxx the enclosed copy of this Agreement.
Very truly yours,
XXXXXX & XXXXXXX, LLC
By: ______________________
Name:
Title:
Address for notice:
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX, 00000
Attention: General Counsel
Accepted and Agreed to as of the date first written above:
EPICEPT CORPORATION
By: ______________________
Name:
Title:
Address for notice:
000 Xxx Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx
Senior Vice President & Chief Financial Officer
Epicept Corporation
Indemnification Provisions
December 3, 2007
ADDENDUM A
INDEMNIFICATION PROVISIONS
In connection with the engagement of Xxxxxx & Xxxxxxx, LLC ("Xxxxxx") by
EpiCept Corporation (the "Company") pursuant to a letter agreement dated
February 29, 2008, between the Company and Xxxxxx, as it may be amended from
time to time in writing (the "Agreement"), the Company hereby agrees as follows:
1. To the extent permitted by law, the Company will indemnify Xxxxxx and its
affiliates, stockholders, directors, officers, employees and controlling
persons (within the meaning of Section 15 of the Securities Act of 1933, as
amended, or Section 20 of the Securities Exchange Act of 1934) against all
losses, claims, damages, expenses and liabilities, as the same are incurred
(including the reasonable fees and expenses of counsel), relating to or
arising out of its activities hereunder or pursuant to the Agreement, except
to the extent that any losses, claims, damages, expenses or liabilities (or
actions in respect thereof) are found in a final judgment (not subject to
appeal) by a court of law to have resulted primarily and directly from
Xxxxxx'x willful misconduct or gross negligence in performing the services
described herein
2. Promptly after receipt by an indemnified party of notice of any claim or the
commencement of any action or proceeding with respect to which an indemnified
party is entitled to indemnity hereunder, the indemnified party will notify
the indemnifying party in writing of such claim or of the commencement of
such action or proceeding, and the indemnifying party will assume the defense
of such action or proceeding and will employ counsel reasonably satisfactory
to the indemnified party and will pay the fees and expenses of such counsel;
provided that if an indemnified party fails to provide prompt notice of such
claim or proceeding the indemnifying party shall be relieved of its
obligations set forth in paragraph 1 and 3 if and to the extent the
indemnifying party is materially prejudiced by such failure to so notify.
Notwithstanding the preceding sentence, the indemnified party will be
entitled to employ counsel separate from counsel for the indemnifying party
and from any other party in such action if counsel for the indemnified party
reasonably determines that it would be inappropriate under the applicable
rules of professional responsibility for the same counsel to represent both
the indemnifying party and the indemnified party. In such event, the
reasonable fees and disbursements of no more than one such separate counsel
will be paid by the indemnifying party. The indemnifying party will have the
exclusive right to settle the claim or proceeding provided that the
indemnifying party will not settle any such claim, action or proceeding
without the prior written consent of the indemnified party, which will not be
unreasonably withheld.
3. The Company agrees to notify Xxxxxx promptly of the assertion against it or
any other person of any claim or the commencement of any action or proceeding
relating to the Placement.
4. If for any reason the foregoing indemnity is unavailable to the indemnified
party or insufficient to hold the indemnified party harmless, then the
Company and Xxxxxx agree to contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages or liabilities
in such proportion as is appropriate to reflect not only the relative
benefits received by the Company on the one hand and Xxxxxx on the other, but
also the relative fault of the Company on the one hand and Xxxxxx on the
other that resulted in such losses, claims, damages or liabilities, as well
as any relevant equitable considerations. The amounts paid or payable by a
party in respect of losses, claims, damages and liabilities referred to above
shall be deemed to include any legal or other fees and expenses incurred in
defending any litigation, proceeding or other action or claim.
Notwithstanding the provisions hereof, Xxxxxx'x share of the liability
hereunder shall not be in excess of the amount of fees actually received, or
to be received, by Xxxxxx under the Agreement (excluding any amounts received
Epicept Corporation
December 3, 2007
Indemnification Provisions
as reimbursement of expenses incurred by Xxxxxx). 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.
5. These Indemnification Provisions shall remain in full force and effect
whether or not the transaction contemplated by the Agreement is completed and
shall survive the termination of the Agreement, and shall be in addition to
any liability that the Company might otherwise have to any indemnified party
under the Agreement or otherwise.
XXXXXX & XXXXXXX, LLC
By:
----------------------------
Name:
Title:
Accepted and Agreed to as of
the date first written above:
EPICEPT CORPORATION
By:
----------------------------
Name:
Title:
