CLEVELAND BIOLABS, INC. Common Stock (par value $0.005) PLACEMENT AGENT AGREEMENT
EXHIBIT
10.1
1,400,000
Shares of Common Stock
CLEVELAND
BIOLABS, INC.
Common
Stock (par value $0.005)
December
23, 2010
Dear
Sirs:
1. Introduction. Cleveland
BioLabs, Inc., a Delaware corporation (the “Company”), proposes
to issue and sell to the purchasers, pursuant to the terms and conditions of
this Placement Agent Agreement (this “Agreement”) and the
Subscription Agreements in the form of Exhibit A attached
hereto (the “Subscription
Agreements”) entered into with the purchasers identified therein (each a
“Purchaser”
and, collectively, the “Purchasers”), up to
an aggregate of ONE MILLION FOUR HUNDRED THOUSAND (1,400,000) shares (the “Shares” or “Securities”), par
value $0.005 per share (the “Common Stock”), of
the Company. The Company hereby confirms its agreement that HFP
Capital Markets LLC (the “Placement Agent”) act
as the placement agent in accordance with the terms and conditions
hereof.
2. Agreement to Act as
Placement Agent; Placement of Shares. On the basis of the
representations, warranties and agreements of the Company herein contained, and
subject to all the terms and conditions of this Agreement:
2.1 The
Company has authorized and hereby acknowledges that the Placement Agent has been
engaged to act as its agent to solicit offers for the purchase of all or part of
the Shares from the Company in connection with the proposed offering of the
Shares (the “Offering”). Until
the Closing Date (as defined below) or the date on which this Agreement is
terminated, whichever is earlier, the Company shall not without prior written
consent of the Placement Agent solicit or accept offers for the sale of
Shares.
2.2 The
Placement Agent, as agent of the Company, shall use its best efforts to solicit
offers to purchase the Shares from the Company on the terms and subject to the
conditions set forth in the Prospectus (as defined below). The
Placement Agent shall use commercially reasonable efforts to assist the Company
in obtaining performance by each Purchaser whose offer to purchase Shares was
solicited by the Placement Agent and accepted by the Company, but the Placement
Agent shall not, except as otherwise provided in this Agreement, be obligated to
disclose the identity of any potential purchaser or have any liability to the
Company in the event any such purchase is not consummated for any reason. Under
no circumstances will the Placement Agent be obligated to underwrite or purchase
any Shares for its own account and, in soliciting purchases of Shares, the
Placement Agent acted solely as the Company’s agent and not as
principal. Notwithstanding the foregoing and except as otherwise
provided in Section 2.3, it is understood and agreed that the Placement Agent
(or its affiliates) may, solely at its discretion and without any obligation to
do so, purchase Shares from the Company as principal and any such purchases by
the Placement Agent (or its affiliates) shall be disclosed to the Company
(including the identity of such purchaser).
2.3 Subject
to the provisions of this Section 2, offers for the purchase of Shares may be
solicited by the Placement Agent, as agent for the Company, at such times and in
such amounts as the Placement Agent deems advisable and consistent with the
current market price. The Placement Agent shall communicate to the
Company, orally or in writing, each reasonable offer to purchase Shares received
by it as agent of the Company. The Company shall have the sole right
in its absolute discretion to accept offers to purchase the Shares and to reject
any such offer, in whole or in part. The Placement Agent has the
right, in its discretion reasonably exercised, subject to giving prior notice to
the Company, to reject any offer to purchase Shares received by it, in whole or
in part, and any such rejection shall not be deemed a breach of this
Agreement.
2.4 The
Shares are being sold to the Purchasers at a price of $5.99 per
share. The purchases of the Shares by the Purchasers shall be
evidenced by the execution of the Subscription Agreements by the parties
thereto.
2.5 As
compensation for services rendered, on the Closing Date (as defined in Section 4
hereof), the Company shall pay to the Placement Agent by wire transfer of
immediately available funds to an account or accounts designated by the
Placement Agent, an aggregate amount equal to four percent (4.0%) of the gross
proceeds received by the Company from the sale of the Shares on such Closing
Date (the “Placement
Fee”).
2.6 No
Shares which the Company has agreed to sell pursuant to this Agreement and the
Subscription Agreements shall be deemed to have been purchased and paid for, or
sold by the Company, until such Shares shall have been delivered to the
Purchaser thereof against payment by such Purchaser. If the Company
shall default in its obligations to deliver the Shares to a Purchaser with whom
it has entered into a binding Subscription Agreement, the Company shall
indemnify and hold the Placement Agent harmless against any loss, claim, damage
or expense arising from or as a result of such default by the Company in
accordance with the procedures set forth in Section 8(c) herein.
3. Representations and
Warranties of the Company. The Company represents and warrants
to, and agrees with, the Placement Agent and the Purchasers that:
(a) The
Company has prepared and filed in conformity with the requirements of the
Securities Act of 1933, as amended (the “Securities Act”), and
published rules and regulations thereunder (the “Rules and
Regulations”) adopted by the Securities and Exchange Commission (the
“Commission”) a
“shelf” Registration Statement (as hereinafter defined) on Form S-3 (File No.
333-167258), which became effective as of June 17, 2010 (the “Effective Date”),
including a base prospectus relating to the Shares (the “Base Prospectus”),
and such amendments and supplements thereto as may have been required to the
date of this Agreement. The term “Registration
Statement” as used in this Agreement means the registration statement
(including all exhibits, financial schedules and all documents and information
deemed to be a part of the Registration Statement pursuant to Rule 430A of the
Rules and Regulations), as amended and/or supplemented to the date of this
Agreement, including the Base Prospectus. The Registration Statement
is effective under the Securities Act and no stop order preventing or suspending
the effectiveness of the Registration Statement or suspending or preventing the
use of the Prospectus has been issued by the Commission and no proceedings for
that purpose have been instituted or, to the knowledge of the Company, are
threatened by the Commission. The Company, if required by the Rules
and Regulations of the Commission, will file the Prospectus, with the Commission
pursuant to Rule 424(b) of the Rules and Regulations. The term “Prospectus” as used
in this Agreement means the prospectus, in the form in which it is to be filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations, or, if
the prospectus is not to be filed with the Commission pursuant to Rule 424(b),
the prospectus in the form included as part of the Registration Statement as of
the Effective Date, except that if any revised prospectus or prospectus
supplement shall be provided to the Placement Agent by the Company for use in
connection with the offering and sale of the Shares which differs from the
Prospectus (whether or not such revised prospectus or prospectus supplement is
required to be filed by the Company pursuant to Rule 424(b) of the Rules and
Regulations), the term “Prospectus” shall refer to such revised prospectus or
prospectus supplement, as the case may be, from and after the time it is first
provided to the Placement Agent for such use. Any preliminary
prospectus or prospectus subject to completion included in the Registration
Statement or filed with the Commission pursuant to Rule 424 of the Rules and
Regulations is hereafter called a “Preliminary
Prospectus.” Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”), on or before the last to occur of the Effective Date, the date of
the Preliminary Prospectus, or the date of the Prospectus, and any reference
herein to the terms “amend,” “amendment,” or “supplement” with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include (i) the filing of any document under the Exchange
Act after the Effective Date, the date of such Preliminary Prospectus or the
date of the Prospectus, as the case may be, which is incorporated by reference
and (ii) any such document so filed. If the Company has filed an
abbreviated registration statement to register additional securities pursuant to
Rule 462(b) under the Rules and Regulations (the “462(b) Registration
Statement”), then any reference herein to the Registration Statement
shall also be deemed to include such 462(b) Registration
Statement.
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(b) The
conditions to the use of Form S-3 in connection with the offering and sale of
the Securities as contemplated hereby have been satisfied. The
Registration Statement meets, and the offering and sale of the Securities as
contemplated hereby complies with, in all material respects, the applicable
requirements of Rule 415 under the Securities Act (including, if applicable,
Rule 415(a)(4) and (a)(5) of the Rules and Regulations).
(c) As
of the Applicable Time (as defined below) and as of the Closing Date, neither
(i) any General Use Free Writing Prospectus (as defined below) issued at or
prior to the Applicable Time, and the Pricing Prospectus (as defined below) and
the information included on Schedule A hereto,
all considered together (collectively, the “General Disclosure
Package”), (ii) any individual Limited Use Free Writing Prospectus (as
defined below) issued at or prior to the Applicable Time, when considered
together with the General Disclosure Package, nor (iii) the bona fide electronic
road show (as defined in Rule 433(h)(5) of the Rules and Regulations), if any,
that has been made available without restriction to any person, when considered
together with the General Disclosure Package, included or will include, any
untrue statement of a material fact or omitted or as of the Closing Date will
omit, to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the General Disclosure
Package or any Issuer Free Writing Prospectus, in reliance upon, and in
conformity with, written information furnished to the Company by the Placement
Agent, if any, specifically for inclusion therein, which information the parties
hereto agree is limited to the Placement Agent’s Information (as defined in
Section 17), or the Xxxxxx Information (as defined in Section 17). As
used in this paragraph (b) and elsewhere in this Agreement:
“Applicable Time”
means 3:15 P.M., New York time, on the date of this Agreement.
“General Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is identified
on Schedule A
to this Agreement.
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“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the Rules and Regulations relating to the Shares in the form filed
or required to be filed with the Commission or, if not required to be filed, in
the form retained in the Company’s records pursuant to Rule 433(g) of the Rules
and Regulations.
“Limited Use Free Writing
Prospectuses” means any Issuer Free Writing Prospectus that is not a
General Use Free Writing Prospectus.
“Pricing Prospectus”
means the Preliminary Prospectus, if any, and the Base Prospectus, each as
amended and supplemented immediately prior to the Applicable Time, including any
document incorporated by reference therein and any prospectus supplement deemed
to be a part thereof.
(d) No
order preventing or suspending the use of any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Prospectus relating to the Offering has been
issued by the Commission, and no proceeding for that purpose or pursuant to
Section 8A of the Securities Act has been instituted or, to the knowledge of the
Company, threatened by the Commission, and each Preliminary Prospectus (if any),
at the time of filing thereof, conformed in all material respects to the
requirements of the Securities Act and the Rules and Regulations, and did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties as to
information contained in or omitted from any Preliminary Prospectus, in reliance
upon, and in conformity with, written information furnished to the Company by
the Placement Agent specifically for inclusion therein, which information the
parties hereto agree is limited to the Placement Agent’s Information, or the
Xxxxxx Information.
(e) At
the time the Registration Statement became effective, at the date of this
Agreement and at the Closing Date, the Registration Statement conformed and will
conform in all material respects to the requirements of the Securities Act and
the Rules and Regulations and did not and will not contain 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; the
Prospectus, at the time the Prospectus was issued and at the Closing Date,
conformed and will conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the foregoing
representations and warranties in this paragraph (e) shall not apply to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by the Placement Agent specifically for inclusion
therein, which information the parties hereto agree is limited to the Placement
Agent’s Information, or the Xxxxxx Information.
(f) Each
Issuer Free Writing Prospectus, if any, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the
Shares or until any earlier date that the Company notified or notifies the
Placement Agent as described in Section 5(e), did not, does not and will not
include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, Pricing Prospectus or the
Prospectus, including any document incorporated by reference therein and any
prospectus supplement deemed to be a part thereof that has not been superseded
or modified, or includes an untrue statement of a material fact or omitted or
would omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The foregoing sentence does not
apply to statements in or omissions from any Issuer Free Writing Prospectus in
reliance upon, and in conformity with, written information furnished to the
Company by the Placement Agent specifically for inclusion therein, which
information the parties hereto agree is limited to the Placement Agent’s
Information, or the Xxxxxx Information.
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(g) The
documents incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in
all material respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission thereunder
and none of such documents contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder and will not contain
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
light of the circumstances under which they were made, not
misleading.
(h) The
Company has not, directly or indirectly, distributed and will not distribute any
offering material in connection with the Offering other than any Preliminary
Prospectus, the Prospectus and other materials, if any, permitted under the
Securities Act and consistent with Section 5(b) below. The Company is
not an “ineligible issuer” in connection with the offering pursuant to Rules
164, 405 and 433 under the Securities Act. The Company will file with
the Commission all Issuer Free Writing Prospectuses (other than a “road show,”
as defined in Rule 433(d)(8) of the Rules and Regulations), if any, in the time
and manner required under Rules 163(b)(2) and 433(d) of the Rules and
Regulations.
(i) The
Company and each of its subsidiaries (as defined in Section 15) have been duly
organized and are validly existing as a corporation or a limited liability
company, as the case may be, in good standing (or, if applicable, the foreign
equivalent thereof) under the laws of their respective jurisdictions of
organization. The Company and each of its subsidiaries are duly
qualified to do business and are in good standing as a foreign corporation or a
limited liability company, as the case may be, in each jurisdiction in which
their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification and have all power and
authority (corporate or other) necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except where
the failure to so qualify or have such power or authority (i) would not
reasonably be expected to have, singularly or in the aggregate, a material
adverse effect on the condition (financial or otherwise), results of operations,
assets, or business of the Company and its subsidiaries taken as a whole, or
(ii) impair in any material respect the ability of the Company to perform its
obligations under this Agreement or to consummate any transactions contemplated
by this Agreement, the General Disclosure Package or the Prospectus (any such
effect as described in clauses (i) or (ii), a “Material Adverse
Effect”). Except as set forth on Exhibit D, the Company does
not own or control, directly or indirectly, any corporation, partnership,
limited liability partnership, limited liability company, association or other
entity which is a Significant Subsidiary (as defined in Section 3(ff)
below).
(j) The
Company has all necessary corporate power and authority to enter into this
Agreement and each of the Subscription Agreements and to perform and to
discharge its obligations hereunder and thereunder; and this Agreement and each
of the Subscription Agreements has been duly authorized, executed and delivered
by the Company, and constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforceability may be
limited by (i) (A) applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors’ rights generally, (B) laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies, (C) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and (D) an
implied covenant of good faith and fair dealing, or (ii) the fact that any
rights to indemnity and contribution thereunder may be limited by federal or
state securities laws and public policy concerns.
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(k) The
Shares to be issued and sold by the Company to the Purchasers hereunder and
under the Subscription Agreements have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein and in the
Subscription Agreements will be duly and validly issued, fully paid and
non-assessable and free of any preemptive or similar rights (other than as
disclosed in the General Disclosure Package and the Prospectus) and will conform
to the description thereof contained in the General Disclosure Package and the
Prospectus.
(l) The
Company has an authorized capitalization as set forth in the Pricing Prospectus,
and all of the issued and outstanding shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable, have been issued in compliance in all material respects with
federal and state securities laws, and conform to the description thereof
contained in the General Disclosure Package and the Prospectus. As of
December 20, 2010, there were 27,541,688 shares of Common Stock issued and
outstanding and 12,738,047 shares of Common Stock were issuable upon the
exercise of all options, warrants and convertible securities outstanding as of
such date. As of December 20, 2010, there were no shares of Preferred
Stock issued and outstanding. Since December 20, 2010, the Company has not
issued any securities, other than Common Stock of the Company issued pursuant to
the exercise of stock options previously outstanding under the Company’s stock
option plans, the issuance of Common Stock pursuant to employee stock purchase
plans, or the issuance of shares of Common Stock upon the exercise of
outstanding warrants. All of the Company’s options, warrants and
other rights to purchase or exchange any securities for shares of the Company’s
capital stock have been duly authorized and validly issued and were issued in
compliance in all material respects with U.S. federal and state securities
laws. None of the outstanding shares of Common Stock was issued in
violation of any preemptive rights, rights of first refusal or other similar
rights to subscribe for or purchase securities of the Company, except for such
rights as may have been fully satisfied or waived. There are no
authorized or outstanding shares of capital stock, 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 or any of its subsidiaries other than those described above
or accurately described in the General 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, as described in the General Disclosure Package and the
Prospectus, accurately and fairly present in all material respects the
information required to be shown with respect to such plans, arrangements,
options and rights.
(m) All
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,
except to the extent set forth in the General Disclosure Package or the
Prospectus, are owned by the Company directly or indirectly through one or more
wholly-owned subsidiaries, free and clear of any claim, lien, encumbrance,
security interest, restriction upon voting or transfer or any other claim of any
third party.
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(n) The
execution, delivery and performance of this Agreement and the Subscription
Agreements by the Company, the issue and sale of the Shares by the Company and
the consummation of the transactions contemplated hereby and thereby will not
(with or without notice or lapse of time or both) conflict with or result in a
breach or violation of any of the terms or provisions of, constitute a default
or Debt Repayment Triggering Event (as defined below) under, give rise to any
right of termination or other right or the cancellation or acceleration of any
right or obligation or loss of a benefit under, or give rise to the creation or
imposition of any lien, encumbrance, security interest, claim or charge upon any
property or assets of the Company or any subsidiary pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such actions result
in any violation of the provisions of (A) the charter or by-laws (or analogous
governing instruments, as applicable) of the Company or any of its subsidiaries
or (B) any law, statute, rule, regulation, judgment, order or decree of any
court or governmental agency or body, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their properties or
assets, except, with respect to clause (B), any violation which, singularly or
in the aggregate, would not reasonably be expected to result in a Material
Adverse Effect. A “Debt Repayment Triggering
Event” means any event or condition that gives, or with the giving of
notice or lapse of time would give the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any of its subsidiaries.
(o) Except
for the registration of the Shares under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state or foreign securities laws, the
Financial Industry Regulatory Authority, Inc. (“FINRA”) and the
NASDAQ Capital Market (“NASDAQ”) in
connection with the offering and sale of the Shares by the Company, no consent,
approval, authorization or order of, or filing, qualification or registration
with, any court or governmental agency or body, foreign or domestic, which has
not been made, obtained or taken and is not in full force and effect, is
required for the execution, delivery and performance of this Agreement and the
Subscription Agreements by the Company, the offer or sale of the Shares or the
consummation of the transactions contemplated hereby or thereby.
(p)
Meaden & Xxxxx, Ltd., who has audited certain financial statements and
related schedules included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, is an independent
registered public accounting firm as required by the Securities Act and the
Rules and Regulations and the Public Company Accounting Oversight Board (United
States) (the “PCAOB”). Except
as pre-approved in accordance with the requirements set forth in Section 10A of
the Exchange Act, Meaden & Xxxxx, Ltd. has not been engaged by the Company
to perform any “prohibited activities” (as defined in Section 10A of the
Exchange Act).
(q) The
financial statements, together with the related notes and schedules, included or
incorporated by reference in the General Disclosure Package, the Prospectus and
in the Registration Statement fairly present in all material respects the
financial position and the results of operations and changes in financial
position of the Company and its consolidated subsidiaries and other consolidated
entities at the respective dates or for the respective periods therein
specified. Such statements and related notes and schedules have been
prepared in accordance with the generally accepted accounting principles in the
United States (“GAAP”) applied on a
consistent basis throughout the periods involved except as may be set forth in
the related notes included or incorporated by reference in the General
Disclosure Package, and except that unaudited financial statements may not
contain footnotes or year-end adjustments required by GAAP. The
financial statements, together with the related notes and schedules, included or
incorporated by reference in the General Disclosure Package and the Prospectus
comply in all material respects with the Securities Act, the Exchange Act, and
the Rules and Regulations and the rules and regulations under the Exchange
Act. No other financial statements or supporting schedules or
exhibits are required by the Securities Act or the Rules and Regulations to be
described, or included or incorporated by reference in the Registration
Statement, the General Disclosure Package or the Prospectus. There is
no pro forma or as adjusted financial information which is required to be
included in the Registration Statement, the General Disclosure Package, or the
Prospectus or a document incorporated by reference therein in accordance with
the Securities Act and the Rules and Regulations which has not been included or
incorporated as so required.
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(r) Neither
the Company nor any of its subsidiaries has sustained, since the date of the
latest audited financial statements included or incorporated by reference in the
General Disclosure Package, any material loss or interference with its business
from fire, explosion, flood 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 or contemplated in the General Disclosure
Package; and, since such date, there has not been any change in the capital
stock (other than Common Stock of the Company issued pursuant to the exercise of
stock options previously outstanding under the Company’s stock option plans or
the issuance of Common Stock pursuant to employee stock purchase plans) or
long-term debt of the Company or any of its subsidiaries, or any material
adverse changes, or any development involving a prospective material adverse
change, in or affecting the business, assets, general affairs, management,
financial position, stockholders’ equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the General Disclosure Package.
(s) Except
as set forth in the General Disclosure Package, there is no legal or
governmental action, suit, claim or proceeding pending to which the Company or
any of its subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject which is required to be
described in the Registration Statement, the General Disclosure Package or the
Prospectus or a document incorporated by reference therein and is not described
therein, or which, singularly or in the aggregate, if determined adversely to
the Company or any of its subsidiaries, would reasonably be expected to have a
Material Adverse Effect or prevent or adversely affect the ability of the
Company to perform its obligations under this Agreement or the consummation of
the transactions contemplated hereby; and to the Company’s knowledge, except as
set forth in the General Disclosure Package, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others.
(t) Neither
the Company nor any of its subsidiaries is in (i) violation of its charter or
by-laws (or analogous governing instrument, as applicable), (ii) default in any
respect, and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a party or
by which it is bound or to which any of its property or assets is subject or
(iii) violation in any respect of any statute, law, ordinance, governmental
rule, regulation or court order, decree or judgment to which it or its property
or assets may be subject, except, in the case of clauses (ii) and (iii) of this
paragraph (t), for any violations or defaults which, singularly or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect.
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(u) The
Company and each of its subsidiaries possesses all licenses, certificates,
authorizations and permits issued by, and have made all declarations and filings
with, the appropriate local, state, federal or foreign regulatory agencies or
bodies which are necessary or desirable for the ownership of their respective
properties or the conduct of their respective businesses as described in the
General Disclosure Package and the Prospectus (collectively, the “Governmental
Permits”), except where any failures to possess or make the same,
singularly or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect. The Company and its subsidiaries are in
compliance in all material respects with all such Governmental Permits; all such
Governmental Permits are valid and in full force and effect, except where the
validity or failure to be in full force and effect would not, singularly or in
the aggregate, reasonably be expected to have a Material Adverse
Effect. Neither the Company nor any subsidiary has received
notification of any revocation or modification (or proceedings related thereto)
of any such Governmental Permit and the Company has no reason to believe that
any such Governmental Permit will not be renewed, except as set forth in or
contemplated by the General Disclosure Package or except as would not reasonably
be expected to have a Material Adverse Effect.
(v) Neither
the Company nor any of its subsidiaries is or, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the General Disclosure Package and the Prospectus, will become
an “investment company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
thereunder.
(w) Neither
the Company, its subsidiaries nor, to the Company’s knowledge, any of the
Company’s or its subsidiaries’ officers, directors or affiliates has taken or
will take, directly or indirectly, any action designed or intended to stabilize
or manipulate the price of any security of the Company, or which caused or
resulted in, or which might in the future reasonably be expected to cause or
result in, stabilization or manipulation of the price of any security of the
Company.
(x) The
Company and its subsidiaries own or possess the right to use all material
patents, trademarks, trademark registrations, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, software,
databases, know-how, Internet domain names, trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures, and other intellectual property (collectively, “Intellectual
Property”) necessary to carry on their respective businesses as currently
conducted, and as proposed to be conducted and described in the General
Disclosure Package and the Prospectus, and the Company is not aware of any claim
to the contrary or any challenge by any other person to the rights of the
Company and its subsidiaries with respect to the foregoing, except for those
that would not reasonably be expected to have a Material Adverse
Effect. The Intellectual Property licenses described in the General
Disclosure Package and the Prospectus are valid, binding upon, and enforceable
by or against the parties thereto in accordance with their respective
terms. To the Company’s knowledge, the Company and each of its
subsidiaries have complied in all material respects with, and are not in breach
nor have received any asserted or threatened claim of breach of, any
Intellectual Property license, except for any such breach that would not
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect, and the Company has no knowledge of any breach or anticipated
breach by any other person of any Intellectual Property license. To
the Company’s knowledge, the Company’s and each of its subsidiaries’ businesses,
as now conducted and as proposed to be conducted, do not and will not infringe
or conflict with any valid patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses or other Intellectual Property or franchise
right of any person. To the Company’s knowledge, no claim has been
made against the Company or any of its subsidiaries alleging the infringement by
the Company or any of its subsidiaries of any patent, trademark, service xxxx,
trade name, copyright, trade secret, license in or other intellectual property
right or franchise right of any person, except as would not individually or in
the aggregate reasonably be expected to have a Material Adverse
Effect. The Company and each of its subsidiaries has taken all
reasonable steps to protect, maintain and safeguard its rights in all
Intellectual Property, including the execution of appropriate nondisclosure and
confidentiality agreements, except as would not individually or in the aggregate
reasonably be expected to have a Material Adverse Effect. The
consummation of the transactions contemplated by this Agreement will not result
in the loss or impairment of or payment of any additional amounts with respect
to, nor require the consent of any other person in respect of, the Company’s or
any of its subsidiaries’ right to own, use, or hold for use any of the
Intellectual Property as owned, used or held for use in the conduct of the
businesses as currently conducted, except as would not individually or in the
aggregate reasonably be expected to have a Material Adverse
Effect. To the Company’s knowledge, the Company and each of its
subsidiaries has at all times complied with all applicable laws relating to
privacy, data protection, and the collection and use of personal information
collected, used, or held for use by the Company and any of its subsidiaries in
the conduct of the Company’s and its subsidiaries businesses, except for any
such breach that would not individually or in the aggregate reasonably be
expected to have a Material Adverse Effect. To the Company’s
knowledge, no claims have been asserted or threatened against the Company or any
of its subsidiaries alleging a violation of any person’s privacy or personal
information or data rights and the consummation of the transactions contemplated
hereby will not breach or otherwise cause any violation of any law related to
privacy, data protection, or the collection and use of personal information
collected, used, or held for use by the Company or any of its subsidiaries in
the conduct of the Company’s or any of its subsidiaries’ businesses, except as
would not individually or in the aggregate reasonably be expected to have a
Material Adverse Effect. The Company and each of its subsidiaries
takes reasonable measures to ensure that such information is protected against
unauthorized access, use, modification, or other misuse.
9
(y) The
Company and each of its subsidiaries have good and marketable title in fee
simple to, or have valid rights to lease or otherwise use, all items of real or
personal property, as described in the General Disclosure Package, which are
material to the business of the Company and its subsidiaries taken as a whole,
in each case free and clear of all liens, encumbrances, security interests,
claims and defects that do not, singularly or in the aggregate, materially
affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its subsidiaries,
except for those liens, encumbrances, security interests, claims and defects
that would not reasonably be expected to have a Material Adverse Effect; and all
of the leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or any
of its subsidiaries holds properties described in the General Disclosure Package
and the Prospectus, are in full force and effect, and neither the Company nor
any subsidiary has received any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(z) No
labor disturbance by the employees of the Company or any of its subsidiaries
exists or, to the Company’s knowledge, is threatened or imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or its subsidiaries’ principal suppliers, manufacturers,
customers or contractors, that could reasonably be expected, singularly or in
the aggregate, to have a Material Adverse Effect. The Company is not
aware that any key employee or significant group of employees of the Company or
any subsidiary plans to terminate employment with the Company or any such
subsidiary.
(aa) No
“prohibited transaction” (as defined in Section 406 of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder (“ERISA”), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time (the
“Code”)) or
“accumulated funding deficiency” (as defined in Section 302 of ERISA) or any of
the events set forth in Section 4043(b) of ERISA (other than events with respect
to which the thirty (30)-day notice requirement under Section 4043 of ERISA has
been waived) has occurred or could reasonably be expected to occur with respect
to any employee benefit plan of the Company or any of its subsidiaries which
could reasonably be expected to, singularly or in the aggregate, have a Material
Adverse Effect. Each employee benefit plan of the Company or any of its
subsidiaries is in compliance in all material respects with applicable law,
including ERISA and the Code. The Company and its subsidiaries have
not incurred and could not reasonably be expected to incur liability under Title
IV of ERISA with respect to the termination of, or withdrawal from, any pension
plan (as defined in ERISA). Each pension plan for which the Company
or any of its subsidiaries would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified, and nothing has
occurred, whether by action or by failure to act, which could, singularly or in
the aggregate, cause the loss of such qualification.
10
(bb) The
Company and its subsidiaries are in compliance in all material respects with all
applicable foreign, federal, state and local rules, laws and regulations
relating to the use, treatment, storage and disposal of hazardous or toxic
substances or waste and protection of health and safety or the environment which
are applicable to their businesses (“Environmental Laws”),
except where the failure to comply would not, singularly or in the aggregate,
reasonably be expected to have a Material Adverse Effect. There has
been no storage, generation, transportation, handling, treatment, disposal,
discharge, emission, or other release of any kind of toxic or other wastes or
other hazardous substances by, due to, or caused by the Company or any of its
subsidiaries (or, to the Company’s knowledge, any other entity for whose acts or
omissions the Company or any of its subsidiaries is or may otherwise be liable)
upon any of the property now or previously owned or leased by the Company or any
of its subsidiaries in violation of any law, statute, ordinance, rule,
regulation, order, judgment, decree or permit or which would, under any law,
statute, ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability on the part of the
Company or any of its subsidiaries, except for any violation or liability which
would not reasonably be expected to have, singularly or in the aggregate with
all such violations and liabilities, a Material Adverse Effect; and there has
been no disposal, discharge, emission or other release of any kind onto such
property or into the environment surrounding such property of any toxic or other
wastes or other hazardous substances with respect to which the Company has
knowledge, except for any such disposal, discharge, emission, or other release
of any kind which would not reasonably be expected to have, singularly or in the
aggregate with all such discharges and other releases, a Material Adverse
Effect. In the ordinary course of business, the Company and its
subsidiaries conduct periodic reviews of the effect of Environmental Laws on
their business and assets, in the course of which they identify and evaluate
associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or Governmental Permits issued thereunder,
any related constraints on operating activities and any potential liabilities to
third parties). On the basis of such reviews, the Company and its
subsidiaries have reasonably concluded that such associated costs and
liabilities would not reasonably be expected to have, singularly or in the
aggregate, a Material Adverse Effect.
(cc) The
Company and its subsidiaries, each (i) has timely filed all necessary federal,
state, local and foreign tax returns that are required to be filed or has
requested extensions thereof, and all such returns were true, complete and
correct in all material respects, (ii) has paid all federal, state, local and
foreign taxes, assessments, governmental or other charges due and payable for
which it is liable, including, without limitation, all sales and use taxes and
all taxes which the Company or any of its subsidiaries is obligated to withhold
from amounts owing to employees, creditors and third parties, and (iii) does not
have any tax deficiency or claims outstanding or assessed or, to its knowledge,
proposed against any of them, except those, in each of the cases described in
clauses (i), (ii) and (iii) of this paragraph (cc), that would not, singularly
or in the aggregate, reasonably be expected to have a Material Adverse
Effect. Each of the Company and its subsidiaries has not engaged in
any transaction which is a corporate tax shelter or which could be characterized
as such by the Internal Revenue Service or any other taxing
authority. The accruals and reserves on the books and records of the
Company and its subsidiaries in respect of tax liabilities for any taxable
period not yet finally determined are adequate to meet any assessments and
related liabilities for any such period, and since December 31, 2009 each of the
Company and its subsidiaries has not incurred any liability for taxes other than
in the ordinary course.
11
(dd) The
Company and each of its subsidiaries carries, or is covered by, insurance
provided by recognized and reputable institutions with policies in such amounts
and covering such risks as the Company reasonably considers adequate for the
conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in
similar industries. The Company has no reason to believe that it or
any subsidiary will not be able (i) to renew its existing insurance coverage as
and when such policies expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business as now
conducted and at a cost that would not reasonably be expected to result in a
Material Adverse Effect.
(ee) The
Company maintains a system of internal accounting and other controls sufficient
to provide reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP 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 described in the
General Disclosure Package, since the end of the Company’s most recent audited
fiscal year, (A) to the knowledge of the Company, there has been no material
weakness in the Company’s internal control over financial reporting (whether or
not remediated) and (B) there has been no no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial
reporting.
(ff) The
minute books of the Company and each of its subsidiaries that would be a
“significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X
under the Exchange Act (such a significant subsidiary of the Company, a “Significant
Subsidiary”) have been made available to the Placement Agent and counsel
for the Placement Agent, and such books (i) contain a complete summary of all
meetings and actions of the board of directors (including each board committee)
as of the date hereof and shareholders of the Company (or analogous governing
bodies and interest holders, as applicable), and each of its Significant
Subsidiaries since the time of its respective incorporation or organization
through the date of the latest meeting and action, and (ii) accurately in all
material respects reflect all transactions referred to in such
minutes. There are no material transactions, agreements or other
actions of the Company or of its subsidiaries that are not properly approved
and/or recorded in the minute books of the Company or of its subsidiaries, as
applicable.
(gg) There
is no franchise, lease, contract, agreement or document required by the
Securities Act or by the Rules and Regulations to be described in the General
Disclosure Package and in the Prospectus or a document incorporated by reference
therein or to be filed as an exhibit to the Registration Statement or a document
incorporated by reference therein which is not described or filed therein as
required; and all descriptions of any such franchises, leases, contracts,
agreements or documents contained in the Registration Statement or in a document
incorporated by reference therein are accurate and complete descriptions of such
documents in all material respects. Other than as described in the
General Disclosure Package, no such franchise, lease, contract or agreement has
been suspended or terminated for convenience or default by the Company or any of
its subsidiaries or any of the other parties thereto, and neither the Company
nor any of its subsidiaries has received notice nor does the Company have any
other knowledge of any such pending or threatened suspension, termination or
non-renewal, except for such pending or threatened suspensions, terminations or
non-renewals that would not reasonably be expected to, singularly or in the
aggregate, have a Material Adverse Effect.
12
(hh) No
relationship, direct or indirect, exists between or among the Company and any of
its subsidiaries on the one hand, and the directors, officers, stockholders (or
analogous interest holders), customers or suppliers of the Company or any of its
subsidiaries or any of their affiliates on the other hand, which is required to
be described in the General Disclosure Package and the Prospectus or a document
incorporated by reference therein and which is not so described.
(ii) No
person or entity has the right to require registration of shares of Common Stock
or other securities of the Company or any of its subsidiaries because of the
filing or effectiveness of the Registration Statement, except for persons and
entities who have expressly waived such right in writing or who have been given
timely and proper written notice and have failed to exercise such right within
the time or times required under the terms and conditions of such
right. Except as described in the General Disclosure Package, there
are no persons with registration rights or similar rights to have any securities
registered by the Company or any of its subsidiaries under the Securities
Act.
(jj) Neither
the Company nor any of its subsidiaries own any “margin securities” as that term
is defined in Regulation U of the Board of Governors of the Federal Reserve
System (the “Federal
Reserve Board”), and none of the proceeds of the sale of the Shares will
be used, directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any indebtedness which
was originally incurred to purchase or carry any margin security or for any
other purpose which might cause any of the Shares to be considered a “purpose
credit” within the meanings of Regulation T, U or X of the Federal Reserve
Board.
(kk) Other
than pursuant to the engagement letter with Xxxxxx & Xxxxxxx, LLC, neither
the Company nor any of its subsidiaries is a party to any contract, agreement or
understanding with any person (other than this Agreement and any letter of
understanding between the Company and the Placement Agent) that would give rise
to a valid claim against the Company or the Placement Agent for a brokerage
commission, finder’s fee or like payment in connection with the offering and
sale of the Shares or any transaction contemplated by this Agreement, the
Registration Statement, the General Disclosure Package or the
Prospectus.
(ll) No
forward-looking statement (within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act) contained in either the General
Disclosure Package or the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(mm) The
Company is subject to and in compliance in all material respects with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act. The Common Stock is registered pursuant to Section 12(b) of the
Exchange Act and is listed on NASDAQ, and the Company has taken no action
designed to, or reasonably likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting the Common
Stock from NASDAQ, nor has the Company received any notification that the
Commission or NASDAQ is contemplating terminating such registration or
listing. No consent, approval, authorization or order of, or filing,
notification or registration with, NASDAQ is required for the listing and
trading of the shares of Common Stock on NASDAQ, except (but only to the extent
requested or required to be filed by NASDAQ) for (i) a Notification Form:
Listing of Additional Shares and (ii) a Notification Form: Change in the Number
of Shares Outstanding.
13
(nn) The
Company is in compliance with all applicable provisions of the Xxxxxxxx-Xxxxx
Act of 2002 and all applicable rules and regulations promulgated thereunder or
implementing the provisions thereof (the “Xxxxxxxx-Xxxxx
Act”).
(oo) The
Company has taken all necessary actions to ensure that it is in compliance with
all applicable corporate governance requirements set forth in the NASDAQ Rules
and Company Guide.
(pp) Neither
the Company nor any of its subsidiaries nor, to the best of the Company’s
knowledge, any employee or agent of the Company or any subsidiary, has not made
any contribution or other payment to any official of, or candidate for, any
federal, state, local or foreign office in violation of any law (including the
Foreign Corrupt Practices Act of 1977, as amended) or of the character required
to be disclosed in the Registration Statement, the General Disclosure Package or
the Prospectus or a document incorporated by reference therein.
(qq) There
are no transactions, arrangements or other relationships between and/or among
the Company, any of its affiliates (as such term is defined in Rule 405 of the
Securities Act) and any unconsolidated entity, including, but not limited to,
any structured finance, special purpose or limited purpose entity that could
reasonably be expected to materially and adversely affect the Company’s or any
of its subsidiaries’ liquidity or the availability of or requirements for their
capital resources required to be described in the General Disclosure Package and
the Prospectus or a document incorporated by reference therein which have not
been described as required.
(rr) There
are no outstanding loans, advances (except normal advances for business expenses
in the ordinary course of business) or guarantees of indebtedness by the Company
or any of its subsidiaries to or for the benefit of any of the officers or
directors of the Company, any of its subsidiaries or any of their respective
family members, except as disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus.
(ss) The
statistical and market-related data included in the Registration Statement, the
General Disclosure Package and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate.
(tt) Neither
the Company nor any subsidiary nor any of their affiliates (within the meaning
of FINRA Conduct Rule 2720(b)(1)(a)) directly or indirectly controls, are
controlled by, or is under common control with, or is an associated person
(within the meaning of Article I, Section 1(ee) of the By-laws of FINRA) of, any
member firm of FINRA.
(uu) No
approval of the shareholders of the Company under the rules and regulations of
NASDAQ is required for the Company to issue and deliver to the Purchasers the
Shares.
(vv) The
Company and its subsidiaries maintain an effective system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that
is designed to ensure that information required to be disclosed by the Company
in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the
Commission’s rules and forms, including controls and procedures designed to
ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required
disclosure. The Company and its subsidiaries have carried out evaluations
of the effectiveness of their disclosure controls and procedures as required by
Rule 13a-15 of the Exchange Act.
14
(ww) The
operations of the Company and its subsidiaries are and have been conducted at
all times in compliance in all material respects with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
applicable jurisdictions, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Money Laundering Laws, to the
knowledge of the Company, is pending or threatened.
(xx) None
of the Company, any of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the offering of the
Shares hereunder, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
Any
certificate signed by or on behalf of the Company and delivered to the Placement
Agent or to counsel for the Placement Agent shall be deemed to be a
representation and warranty by the Company to the Placement Agent and the
Purchasers as to the matters covered thereby.
4. The
Closing. The time and date of closing and delivery of the
documents required to be delivered to the Placement Agent pursuant to Sections 5
and 7 hereof shall be at 10:00 A.M., New York time, on the third business day
following the pricing or such other date as shall be specified by the Company
and the Placement Agent that is not later than December 31, 2010 (such specified
date, the “Closing
Date”) at the offices of the Company’s counsel, Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx.
5. Further Agreements of the
Company. The Company agrees with the Placement Agent and the
Purchasers:
(a) To
prepare the Rule 462(b) Registration Statement, if necessary, in a form approved
by the Placement Agent and file such Rule 462(b) Registration Statement with the
Commission on the date hereof; to prepare the Prospectus in a form approved by
the Placement Agent containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on rules 430A, 430B and
430C of the Rules and Regulations and to file such Prospectus pursuant to Rule
424(b) of the Rules and Regulations not later than the second (2nd)
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A of the Rules and
Regulations; to notify the Placement Agent immediately of the Company’s
intention to file or prepare any supplement or amendment to any Registration
Statement or to the Prospectus and to make no amendment or supplement to the
Registration Statement, the General Disclosure Package or to the Prospectus to
which the Placement Agent shall reasonably object by notice to the Company after
a reasonable period to review; to advise the Placement Agent, promptly after it
receives notice thereof, of the time when any amendment to any Registration
Statement has been filed or becomes effective or any supplement to the General
Disclosure Package or the Prospectus or any amended Prospectus has been filed
and to furnish the Placement Agent copies thereof; to file promptly all material
required to be filed by the Company with the Commission pursuant to Rule 433(d)
or 163(b)(2), as the case may be; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) of the Rules and Regulations) is required in connection with the offering
or sale of the Shares; to advise the Placement Agent, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement, the General Disclosure Package or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the Prospectus or suspending any such qualification, and
promptly to use its best efforts to obtain the withdrawal of such
order.
15
(b)
The Company represents and agrees that it has not
made and, unless it obtains the prior consent of the Placement Agent, it will
not, make any offer relating to the Shares that would constitute a “free writing
prospectus” as defined in Rule 405 of the Rules and Regulations unless the prior
written consent of the Placement Agent has been received (each, a “Permitted Free Writing
Prospectus”); provided that the prior written consent of the Placement
Agent hereto shall be deemed to have been given in respect of the Issuer Free
Writing Prospectus(es) included in Schedule A
hereto. The Company represents that it has treated and agrees that it
will treat each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, comply with the requirements of Rules 164 and 433 of the Rules and
Regulations applicable to any Issuer Free Writing Prospectus, including the
requirements relating to timely filing with the Commission, legending and record
keeping and will not take any action that would result in the Placement Agent or
the Company being required to file with the Commission pursuant to Rule 433(d)
of the Rules and Regulations a free writing prospectus prepared by or on behalf
of the Placement Agent that the Placement Agent otherwise would not have been
required to file thereunder.
(c) If
at any time when a Prospectus relating to the Shares is required to be delivered
under the Securities Act, any event occurs or condition exists as a result of
which the Prospectus, as then amended or supplemented, would include 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, or the Registration Statement, as then amended or
supplemented, would include any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not misleading,
or if for any other reason it is necessary at any time to amend or supplement
any Registration Statement or the Prospectus to comply with the Securities Act
or the Exchange Act, the Company will promptly notify the Placement Agent, and
upon the Placement Agent’s request, the Company will promptly prepare and file
with the Commission, at the Company’s expense, an amendment to the Registration
Statement or an amendment or supplement to the Prospectus that corrects such
statement or omission or effects such compliance and will deliver to the
Placement Agent, without charge, such number of copies thereof as the Placement
Agent may reasonably request. The Company consents to the use of the
Prospectus or any amendment or supplement thereto by the Placement
Agent.
16
(d) If
the General Disclosure Package is being used to solicit offers to buy the Shares
at a time when the Prospectus is not yet available to prospective purchasers and
any event shall occur as a result of which, in the judgment of the Company or in
the reasonable opinion of the Placement Agent, it becomes necessary to amend or
supplement the General Disclosure Package in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or to make the statements therein not conflict with the information
contained or incorporated by reference in the Registration Statement then on
file and not superseded or modified, or if it is necessary at any time to amend
or supplement the General Disclosure Package to comply with any applicable law,
the Company promptly will either (i) prepare, file with the Commission (if
required) and furnish to the Placement Agent and any dealers an appropriate
amendment or supplement to the General Disclosure Package or (ii) prepare and
file with the Commission an appropriate filing under the Exchange Act which
shall be incorporated by reference in the General Disclosure Package so that the
General Disclosure Package as so amended or supplemented will not, in the light
of the circumstances under which they were made, be misleading or conflict with
the Registration Statement then on file, or so that the General Disclosure
Package will comply with applicable law.
(e) If
at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free
Writing Prospectus conflicted or will conflict with the information contained in
the Registration Statement, Pricing Prospectus or Prospectus, including any
document incorporated by reference therein and any prospectus supplement deemed
to be a part thereof and not superseded or modified or included or would include
an untrue statement of a material fact or omitted or would omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, the Company has promptly notified or will promptly notify
the Placement Agent so that any use of the Issuer Free Writing Prospectus may
cease until it is amended or supplemented and has promptly amended or will
promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or
omission. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus in reliance upon, and in
conformity with, written information furnished to the Company by the Placement
Agent specifically for inclusion therein, which information the parties hereto
agree is limited to the Placement Agent’s Information, and the Xxxxxx
Information.
(f) To
the extent not available on the Commission’s XXXXX system, to furnish promptly
to the Placement Agent and to counsel for the Placement Agent a signed copy of
the Registration Statement as originally filed with the Commission, and of each
amendment thereto filed with the Commission, including all consents and exhibits
filed therewith.
(g) To
the extent not available on the Commission’s XXXXX system, to deliver promptly
to the Placement Agent in New York City such number of the following documents
as the Placement Agent shall reasonably request: (i) conformed copies of the
Registration Statement as originally filed with the Commission (in each case
excluding exhibits), (ii) each Preliminary Prospectus (if any), (iii) any Issuer
Free Writing Prospectus, (iv) the Prospectus (the delivery of the documents
referred to in clauses (i), (ii), (iii) and (iv) of this paragraph (g) to be
made not later than 10:00 A.M., New York City time, on the business day
following the execution and delivery of this Agreement), (v) conformed copies of
any amendment to the Registration Statement (excluding exhibits), (vi) any
amendment or supplement to the General Disclosure Package or the Prospectus (the
delivery of the documents referred to in clauses (v) and (vi) of this paragraph
(g) to be made not later than 10:00 A.M., New York City time, on the business
day following the date of such amendment or supplement) and (vii) any document
incorporated by reference in the General Disclosure Package or the Prospectus
(excluding exhibits thereto) (the delivery of the documents referred to in
clause (vi) of this paragraph (g) to be made not later than 10:00 A.M., New York
City time, on the business day following the date of such
document).
17
(h) To
make generally available to its shareholders as soon as practicable, but in any
event not later than eighteen (18) months after the “effective date” (as defined
in Rule 158(c) of the Rules and Regulations) of each Registration Statement, an
earnings statement of the Company and its consolidated subsidiaries (which need
not be audited) complying with Section 11(a) of the Securities Act and the Rules
and Regulations (including, at the option of the Company, Rule 158); and to
furnish to its shareholders as soon as practicable after the end of each fiscal
year an annual report (including a balance sheet and statements of income,
shareholders’ equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and as soon as
practicable after each of the first three fiscal quarters of each fiscal year
(beginning with the first fiscal quarter after the effective date of such
Registration Statement), consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail.
(i) To
take promptly from time to time such actions as the Placement Agent may
reasonably request to qualify the Shares for offering and sale under the
securities or Blue Sky laws of such jurisdictions (domestic or foreign) as the
Placement Agent may designate and to continue such qualifications in effect, and
to comply with such laws, for so long as required to permit the offer and sale
of the Securities in such jurisdictions; provided that the Company and its
subsidiaries shall not be obligated to qualify as foreign corporations in any
jurisdiction in which they are not so qualified or to file a general consent to
service of process in any jurisdiction.
(j) To
the extent not available on the Commission’s XXXXX system, upon request, during
the period of two (2) years from the date hereof, to deliver to the Placement
Agent upon request, (i) as soon as they are available, copies of all reports or
other communications furnished to shareholders, and (ii) as soon as they are
available, copies of any reports and financial statements furnished or filed
with the Commission or any national securities exchange or automatic quotation
system on which the Common Stock is listed or quoted.
(k) [Intentionally
omitted]
(l) To
supply the Placement Agent with copies of all correspondence to and from, and
all documents issued to and by, the Commission in connection with the
registration of the Shares under the Securities Act or the Registration
Statement, any Preliminary Prospectus or the Prospectus, or any amendment or
supplement thereto or document incorporated by reference therein.
(m) Prior
to the Closing Date, to furnish to the Placement Agent, as soon as they have
been prepared, copies of any unaudited interim consolidated financial statements
of the Company for any periods subsequent to the periods covered by the
financial statements appearing in or incorporated by reference into the
Registration Statement and the Prospectus.
(n)
Prior to the Closing Date, not to issue any press release or other
communication directly or indirectly or hold any press conference with respect
to the Company, its condition, financial or otherwise, or earnings, business
affairs or business prospects (except for routine oral marketing communications
in the ordinary course of business and consistent with the past practices of the
Company and of which the Placement Agent is notified), without the prior written
consent of the Placement Agent, which shall not be unreasonably withheld or
delayed, unless in the judgment of the Company and its counsel, and after
notification to the Placement Agent, such press release or communication is
required by law.
(o)
Until the Placement Agent shall have notified the Company of the
completion of the offering of the Shares, that the Company will not, and will
cause its affiliated purchasers (as defined in Regulation M under the Exchange
Act) not to, either alone or with one or more other persons, bid for or
purchase, for any account in which it or any of its affiliated purchasers has a
beneficial interest, any Shares, or attempt to induce any person to purchase any
Shares and not to, and to cause its affiliated purchasers not to, make bids or
purchase for the purpose of creating actual, or apparent, active trading in or
of raising the price of the Shares.
18
(p) Not
to take any action prior to the Closing Date which would require the Prospectus
to be amended or supplemented pursuant to Section 5.
(q) To
at all times comply with all applicable provisions of the Xxxxxxxx-Xxxxx Act in
effect from time to time.
(r) To
apply the net proceeds from the sale of the Shares as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus under
the heading “Use of Proceeds.”
(s) To
use its best efforts to list, effect and maintain, subject to notice of
issuance, the Common Stock on NASDAQ.
(t) To
use its best efforts to assist the Placement Agent and its counsel with any
filings with FINRA and obtaining clearance from FINRA as to the amount of
compensation allowable or payable to the Placement Agent.
(u) To
use its best efforts to do and perform all things required to be done or
performed under this Agreement by the Company prior to the Closing Date and to
satisfy all conditions precedent to the delivery of the Shares.
6. Payment of
Expenses. The Company agrees to pay, or reimburse if paid by
the Placement Agent: (a) the costs incident to the authorization, issuance,
sale, preparation and delivery of the Shares to the Purchasers and any taxes
payable in that connection; (b) the costs incident to the Registration of the
Shares under the Securities Act; (c) the costs incident to the preparation,
printing and distribution of the Registration Statement, the Base Prospectus,
any Preliminary Prospectus, any Issuer Free Writing Prospectus, the General
Disclosure Package, the Prospectus, any amendments, supplements and exhibits
thereto or any document incorporated by reference therein and the costs of
printing, reproducing and distributing any transaction document by mail, telex
or other means of communications; (d) if applicable, the fees and expenses
incurred in connection with securing any required review by FINRA of the terms
of the sale of the Shares and any filings made with FINRA; (e) any applicable
listing, quotation or other fees; (f) the reasonable fees and expenses of
qualifying the Shares under the securities laws of the several jurisdictions as
provided in Section 5(i) and of preparing, printing and distributing wrappers,
Blue Sky Memoranda and Legal Investment Surveys; (g) the cost of preparing and
printing stock certificates; (h) all fees and expenses of the registrar and
transfer agent of the Shares; (i) accountable legal fees and related expenses
incurred by the Placement Agent related to the offering and this Agreement, and
(j) any other costs and expenses incident to the offering of the Shares or the
performance of the obligations of the Company under this Agreement which the
Company shall have authorized and agreed to reimburse; provided that, except to
the extent otherwise provided in this Section 6 and in Sections 8 and 10, the
Placement Agent shall pay its own costs and expenses, including the fees and
expenses of its counsel; and provided, further, that the payment and/or
reimbursement of expenses to the Placement Agent (including, without limitation,
the fees and expenses of its counsel) shall be limited to accountable expenses
incurred in connection with the transactions contemplated by this Agreement of
up to $25,000. No expenses shall be payable to the Placement Agent if
the Closing shall not have occurred, other than as may be provided for under
Section 10 of this Agreement.
7. Conditions to the
Obligations of the Placement Agent and the Purchasers, and the Sale of the
Shares. The respective obligations of the Placement Agent
hereunder and the Purchasers under the Subscription Agreements, and the Closing
of the sale of the Shares, are subject to the accuracy, when made and as of the
Applicable Time and on the Closing Date, of the representations and warranties
of the Company contained herein, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
19
(a) No
stop order suspending the effectiveness of the Registration Statement or any
part thereof, preventing or suspending the use of any Base Prospectus, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus
or any part thereof shall have been issued and no proceedings for that purpose
or pursuant to Section 8A under the Securities Act shall have been initiated or
threatened by the Commission, and all requests for additional information on the
part of the Commission (to be included or incorporated by reference in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to the reasonable satisfaction of the Placement Agent; the Rule 462(b)
Registration Statement, if any, each Issuer Free Writing Prospectus, if any, and
the Prospectus shall have been filed with the Commission within the applicable
time period prescribed for such filing by, and in compliance with, the Rules and
Regulations and in accordance with Section 5(a), and the Rule 462(b)
Registration Statement, if any, shall have become effective immediately upon its
filing with the Commission; and FINRA shall have raised no objection to the
fairness and reasonableness of the terms of this Agreement or the transactions
contemplated hereby.
(b) The
Placement Agent shall not have discovered and disclosed to the Company on or
prior to the Closing Date that the Registration Statement or any amendment or
supplement thereto contains an untrue statement of a fact which, in the opinion
of counsel for the Placement Agent, is material or omits to state any fact
which, in the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading, or that
the General Disclosure Package, any Issuer Free Writing Prospectus or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of fact which, in the opinion of such counsel, is material or omits to state any
fact which, in the opinion of such counsel, is material and is necessary in
order to make the statements, in the light of the circumstances in which they
were made, not misleading.
(c) All
corporate proceedings and other legal matters incident to the authorization,
form and validity of each of this Agreement, the Subscription Agreements, the
Shares, the Registration Statement, the General Disclosure Package, each Issuer
Free Writing Prospectus, if any, and the Prospectus 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.
(d) Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C. has furnished to the Placement
Agent such counsel’s written opinion and negative assurances statement, as
counsel to the Company, addressed to the Placement Agent, dated the Closing
Date, in form and substance reasonably satisfactory to the Placement
Agent.
(e) [Intentionally
omitted]
(f) [Intentionally
omitted]
(g) [Intentionally
omitted]
20
(h) The
Company shall have furnished to the Placement Agent a certificate, dated the
Closing Date, of its Chief Financial Officer stating that (i) such officer has
carefully examined the Registration Statement, the General Disclosure Package,
any Permitted Free Writing Prospectus and the Prospectus and, in his opinion,
the Registration Statement and each amendment thereto, at the Applicable Time
and as of the date of this Agreement and as of the Closing Date, did not include
any untrue statement of a material fact and did not omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and the General Disclosure Package, as of the Applicable Time
and as of the Closing Date, any Permitted Free Writing Prospectus (when taken
together with the General Disclosure Package), as of its date and as of the
Closing Date, the Prospectus and each amendment or supplement thereto, as of the
respective date thereof and as of the Closing Date, did not include any untrue
statement of a material fact and did not omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances in
which they were made, not misleading, (ii) since the effective date of the
initial Registration Statement, no event has occurred which should have been set
forth in a supplement or amendment to the Registration Statement, the General
Disclosure Package or the Prospectus, (iii) to the his knowledge, as of the
Closing Date, the representations and warranties of the Company in this
Agreement are true and correct and the Company has complied in all material
respects with all agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date, and (iv) there has not been, subsequent to the date of the most
recent audited financial statements included or incorporated by reference in the
General Disclosure Package, any material adverse change in the financial
position or results of operations of the Company and its subsidiaries taken as a
whole, or any change or development that, singularly or in the aggregate, would
involve a material adverse change or a prospective material adverse change, in
or affecting the condition (financial or otherwise), results of operations,
business or assets of the Company and its subsidiaries taken as a whole, except
as set forth in the Prospectus.
(i) Since
the date of the latest audited financial statements included in the General
Disclosure Package or incorporated by reference in the General Disclosure
Package as of the date hereof, (a) neither the Company nor any of its
subsidiaries shall have sustained any loss or interference with its business
from fire, explosion, flood 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 the General Disclosure Package, and (b)
there shall not have been any change in the capital stock (other than Common
Stock of the Company issued pursuant to the exercise of stock options previously
outstanding under the Company’s stock option plans or the issuance of Common
Stock pursuant to employee stock purchase plans) or long-term debt of the
Company nor any of its subsidiaries, or any change, or any development involving
a prospective change, in or affecting the business, general affairs, management,
financial position, stockholders’ equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth in the
General Disclosure Package, the effect of which, in any such case described in
clause (a) or (b) of this paragraph (i), 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 on the terms and in the manner
contemplated in the General Disclosure Package.
(j) No
action shall have been taken and no law, statute, rule, regulation or order
shall have been enacted, adopted or issued by any governmental agency or body
which would prevent the issuance or sale of the Shares or materially and
adversely affect, or reasonably be expected to materially and adversely affect,
the business or operations of the Company and its subsidiaries taken as a whole;
and no injunction, restraining order or order of any other nature by any federal
or state court of competent jurisdiction shall have been issued which would
prevent the issuance or sale of the Shares or materially and adversely affect or
potentially materially and adversely affect the business or operations of the
Company and its subsidiaries taken as a whole.
21
(k) 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, Amex or NASDAQ, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or
materially limited, or minimum or maximum prices or maximum range for prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or market 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, or the subject of an act of terrorism, or there shall have been an
outbreak of or escalation in hostilities involving the United States, or there
shall have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States shall be
such) as to make it, in the judgment of the Placement Agent, impracticable or
inadvisable to proceed with the sale or delivery of the Shares on the terms and
in the manner contemplated in the General Disclosure Package and the
Prospectus.
(l) To
the extent required or requested by NASDAQ, the Company shall have filed a
Notification Form: Listing of Additional Shares with NASDAQ and shall have
received no objection thereto from NASDAQ.
(m) The
Company shall have entered into Subscription Agreements with each of the
Purchasers and such agreements shall be in full force and effect.
(n)
The Placement Agent shall have received clearance from
FINRA as to the amount of compensation allowable or payable to the Placement
Agent as described in the Pricing Prospectus.
(o)
Prior to the Closing Date, the Company shall have furnished to
the Placement Agent such further information, opinions, certificates (including
a Secretary’s Certificate or, instead thereof, a certificate of an authorized
officer knowledgeable in respect of such matters typically covered by a
Secretary’s Certificate), letters or documents as the Placement Agent shall have
reasonably requested.
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.
22
8. Indemnification and
Contribution.
(a) The
Company shall indemnify and hold harmless the Placement Agent, its affiliates
and each of its and their respective directors, officers, members, employees,
representatives, agents, and any sub-placement agent engaged and identified by
the Placement Agent to, and approved as such by, the Company and each
person, if any, who controls the Placement Agent within the meaning of Section
15 of the Securities Act of or Section 20 of the Exchange Act (collectively, the
“Placement Agent
Indemnified Parties,” and each a “Placement Agent Indemnified
Party”) against any loss, claim, damage, expense or liability whatsoever
(or any action, investigation or proceeding in respect thereof), joint or
several, to which such Placement Agent Indemnified Party may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
expense, liability, action, investigation or proceeding arises out of or is
based upon (A) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any Issuer Free Writing
Prospectus, any “issuer information” filed or required to be filed pursuant to
Rule 433(d) of the Rules and Regulations, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto or document incorporated
by reference therein, (B) the omission or alleged omission to state in any
Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer
information” filed or required to be filed pursuant to Rule 433(d) of the Rules
and Regulations, any Registration Statement or the Prospectus, or in any
amendment or supplement thereto or document incorporated by reference therein, a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in light of the circumstances in which they were made or
(C) any breach of the representations and warranties of the Company contained
herein, or the failure of the Company to perform its obligations hereunder or
pursuant to any law, and shall reimburse the Placement Agent Indemnified Party
promptly upon demand for any legal fees or other expenses reasonably incurred by
that Placement Agent Indemnified Party in connection with investigating, or
preparing to defend, or defending against, or appearing as a third party witness
in respect of, or otherwise incurred in connection with, any such loss, claim,
damage, expense, liability, action, investigation or proceeding, as such fees
and expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage, expense
or liability arises out of or is based upon an untrue statement or alleged
untrue statement in, or omission or alleged omission from any Preliminary
Prospectus, any Registration Statement or the Prospectus, or any such amendment
or supplement thereto, or any Issuer Free Writing Prospectus made in reliance
upon and in conformity with written information furnished to the Company by the
Placement Agent specifically for use therein, which information the parties
hereto agree is limited to the Placement Agent’s Information (as defined in
Section 17). This indemnity agreement is not exclusive and will be in addition
to any liability, which the Company might otherwise have and shall not limit any
rights or remedies which may otherwise be available at law or in equity to each
Placement Agent Indemnified Party.
(b) The
Placement Agent (and any sub-placement agent engaged and identified by the
Placement Agent to, and approved as such by, the Company) shall indemnify and
hold harmless the Company and its directors, its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act (collectively, the “Company Indemnified
Parties,” and each a “Company Indemnified
Party”) against any loss, claim, damage, expense or liability whatsoever
(or any action, investigation or proceeding in respect thereof), joint or
several, to which such Company Indemnified Party may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, expense,
liability, action, investigation or proceeding arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any
“issuer information” filed or required to be filed pursuant to Rule 433(d) of
the Rules and Regulations, any Registration Statement or the Prospectus, or in
any amendment or supplement thereto, or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any
“issuer information” filed or required to be filed pursuant to Rule 433(d) of
the Rules and Regulations, any Registration Statement or the Prospectus, or in
any amendment or supplement thereto, a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, but in each case only to
the extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by the Placement Agent specifically for use
therein, which information the parties hereto agree is limited to the Placement
Agent’s Information as defined in Section 17, and shall reimburse the Company
for any legal or other expenses reasonably incurred by such party in connection
with investigating or preparing to defend or defending against or appearing as
third party witness in connection with any such loss, claim, damage, liability,
action, investigation or proceeding, as such fees and expenses are
incurred. This indemnity agreement is not exclusive and will be in
addition to any liability, which the Placement Agent might otherwise have and
shall not limit any rights or remedies which may otherwise be available at law
or in equity to each Company Indemnified Party. Notwithstanding the provisions
of this Section 8(b), in no event shall any indemnity by the Placement Agent
under this Section 8(b) exceed the total compensation received by the Placement
Agent in accordance with Section 2.5.
23
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8, notify
such indemnifying party in writing of the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 8 except to the extent
it has been materially prejudiced by such failure; and, provided, further, that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such 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 of such action with counsel reasonably satisfactory to the
indemnified party (which counsel shall not, except with the written consent of
the indemnified party, be counsel to the indemnifying party). After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such action, except as provided herein, the indemnifying
party shall not be liable to the indemnified party under Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense of such action other than reasonable costs of investigation;
provided, however, that any indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense of such
action but the fees and expenses of such counsel (other than reasonable costs of
investigation) shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized in writing by the Company in
the case of a claim for indemnification under Section 8(a) or Section 2.6 or the
Placement Agent in the case of a claim for indemnification under Section 8(b),
(ii) such indemnified party shall have been advised by its counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party within a reasonable
period of time after notice of the commencement of the action or the
indemnifying party does not diligently defend the action after assumption of the
defense, in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of (or, in the case of a failure to diligently defend the action
after assumption of the defense, to continue to defend) such action on behalf of
such indemnified party and the indemnifying party shall be responsible for legal
or other expenses subsequently reasonably incurred by such indemnified party in
connection with the defense of such action; provided, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys at any time for all such
indemnified parties (in addition to any local counsel), which firm shall be
designated in writing by the Placement Agent if the indemnified parties under
this Section 8 consist of any Placement Agent Indemnified Party or by the
Company if the indemnified parties under this Section 8 consist of any Company
Indemnified Parties. Subject to this Section 8(c), the amount payable by an
indemnifying party under Section 8 shall include, but not be limited to, (x)
reasonable legal fees and expenses of counsel to the indemnified party and any
other reasonable expenses in investigating, or preparing to defend or defending
against, or appearing as a third party witness in respect of, or otherwise
incurred in connection with, any action, investigation, proceeding or claim, and
(y) all amounts paid in settlement of any of the foregoing. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of judgment with respect to any
pending or threatened action or any claim whatsoever, in respect of which
indemnification or contribution could be sought under this Section 8 (whether or
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party in form and substance reasonably satisfactory to such
indemnified party from all liability arising out of such action or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party. Subject to the
provisions of the following sentence, no indemnifying party shall be liable for
settlement of any pending or threatened action or any claim whatsoever that is
effected without its written consent (which consent shall not be unreasonably
withheld or delayed), but if settled with its written consent, if its consent
has been unreasonably withheld or delayed or if there be a judgment for the
plaintiff in any such matter, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. In addition, if at any time an
indemnified party shall have requested that an indemnifying party reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated
herein effected without its written consent if (i) such settlement is entered
into more than forty-five (45) days after receipt by such indemnifying party of
the request for reimbursement, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least thirty (30) days prior to such
settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
24
(d) If
the indemnification provided for in this Section 8 is unavailable or
insufficient to hold harmless an indemnified party under Section 8(a) or Section
8(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid, payable or otherwise incurred
by such indemnified party as a result of such loss, claim, damage, expense or
liability (or any action, investigation or proceeding in respect thereof), as
incurred, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Placement Agent on the
other hand from the offering of the Shares, or (ii) if the allocation provided
by clause (i) of this Section 8(d) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) of this Section 8(d) but also the relative fault of the Company
on the one hand and the Placement Agent on the other with respect to the
statements, omissions, acts or failures to act which resulted in such loss,
claim, damage, expense or liability (or any action, investigation or proceeding
in respect thereof) as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Placement Agent on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Shares purchased under this Agreement (before deducting
expenses) received by the Company bear to the total Placement Fee received by
the Placement Agent in connection with the Offering, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault
of the Company on the one hand and the Placement Agent on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Placement Agent on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement, omission, act or failure to act; provided that the
parties hereto agree that the written information furnished to the Company by
the Placement Agent for use in any Preliminary Prospectus, any Registration
Statement or the Prospectus, or in any amendment or supplement thereto, consists
solely of the Placement Agent’s Information as defined in Section
17. The Company and the Placement Agent agree that it would not be
just and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage, expense, liability, action, investigation or
proceeding referred to above in this Section 8(d) shall be deemed to include,
for purposes of this Section 8(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating, preparing
to defend or defending against or appearing as a third party witness in respect
of, or otherwise incurred in connection with, any such loss, claim, damage,
expense, liability, action, investigation or
proceeding. Notwithstanding the provisions of this Section 8(d), the
Placement Agent shall not be required to contribute any amount in excess of the
total compensation received by the Placement Agent in accordance with Section
2.5 less the amount of any damages which the Placement Agent has otherwise paid
or become liable to pay by reason of any untrue or alleged untrue statement,
omission or alleged omission, act or alleged act or failure to act or alleged
failure to act. 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.
25
9. Termination. The
obligations of the Placement Agent and the Purchasers hereunder and under the
Subscription Agreements may be terminated by the Placement Agent, in its
absolute discretion by notice given to the Company prior to delivery of and
payment for the Shares if, prior to that time, any of the events described in
Sections 7(i), 7(j) or 7(k) have occurred or if the Purchasers shall decline to
purchase the Shares for any reason permitted under this Agreement or the
Subscription Agreements.
10. Reimbursement of Placement
Agent’s Expenses. Notwithstanding anything to the contrary in
this Agreement, if this Agreement shall have been terminated and the
sale of the Shares is not consummated because of the refusal, inability or
failure on the part of the Company to perform any material agreement herein or
to satisfy any material condition, then the Company shall reimburse the
Placement Agent for its reasonable fees and expenses and for such other
out-of-pocket expenses as shall have been approved by the Company in connection
with this Agreement and the proposed purchase of the Shares, and upon demand the
Company shall pay the full amount thereof to the Placement Agent.
11. Absence of Fiduciary
Relationship. The Company acknowledges and agrees
that:
(a) the
Placement Agent’s responsibility to the Company is solely contractual in nature,
the Placement Agent has been retained solely to act as Placement Agent in
connection with the Offering and no fiduciary, advisory or agency relationship
between the Company and the Placement Agent has been created in respect of any
of the transactions contemplated by this Agreement, irrespective of whether the
Placement Agent has advised or is advising the Company on other
matters;
(b) the
price of the Shares set forth in this Agreement was established by the Company
following discussions and arms-length negotiations with the Placement Agent, and
the Company is capable of evaluating and understanding, and understands and
accepts, the terms, risks and conditions of the transactions contemplated by
this Agreement;
(c) it
has been advised that the Placement Agent and its affiliates are engaged in a
broad range of transactions which may involve interests that differ from those
of the Company and that the Placement Agent has no obligation to disclose such
interests and transactions to the Company by virtue of any fiduciary, advisory
or agency relationship; and
(d) it
waives, to the fullest extent permitted by law, any claims it may have against
the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary
duty and agrees that the Placement Agent shall have no liability (whether direct
or indirect) to the Company in respect of such a fiduciary duty claim or to any
person asserting a fiduciary duty claim on behalf of or in right of the Company,
including stockholders, employees or creditors of the Company.
26
12. Successors; Persons Entitled
to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the Placement Agent, the Company, and their
respective successors and assigns. This Agreement shall also inure to
the benefit of the Purchasers, and each of their respective successors and
assigns and any sub-placement agent engaged and identified by
the Placement Agent to, and approved as such by, the Company which
shall be third party beneficiaries hereof. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, other than the persons mentioned in the preceding sentences, any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; except that the
representations, warranties, covenants, agreements and indemnities of the
Company contained in this Agreement shall also be for the benefit of the
Placement Agent Indemnified Parties and the indemnities of the Placement Agent
shall be for the benefit of the Company Indemnified Parties. It is
understood that the Placement Agent’s responsibility to the Company is solely
contractual in nature and the Placement Agent does not owe the Company, or any
other party, any fiduciary duty as a result of this Agreement.
13. Survival of Indemnities,
Representations, Warranties, etc. The respective indemnities,
covenants, agreements, representations, warranties and other statements of the
Company and the Placement Agent, as set forth in this Agreement or made by them
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Placement Agent, the
Company, the Purchasers or any person controlling any of them and shall survive
delivery of and payment for the Shares. Notwithstanding any
termination of this Agreement, including without limitation any termination
pursuant to Section 9, the indemnity and contribution agreements contained in
Section 8 and the covenants, representations, warranties set forth in this
Agreement shall not terminate and shall remain in full force and effect at all
times.
14. Notices. All
statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if
to the Placement Agent, shall be delivered or sent by mail, telex, or facsimile
transmission to HFP Capital Markets LLC 000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx Xxxxxx, Managing Partner;
and
if to the
Company, shall be delivered or sent by mail, telex, or facsimile transmission to
Cleveland BioLabs, Inc., 00 Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000, Inc.,
Attention: Xx. Xxxxxxx Xxxxxxxx, Facsimile: (000) 000-0000, with a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 000 Xxxxx Xxxxxx, Xxx Xxxx,
XX 00000, Attention: Xxxxxxx Xxxxxxx, Esq. Facsimile: (000)
000-0000.
provided,
however, that any notice to the Placement Agent pursuant to Section 8 shall be
delivered or sent by mail, telex or facsimile transmission to the Placement
Agent at its address set forth above, which address will be supplied to any
other party hereto by the Placement Agent upon request. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof, except that any such statement, request, notice or agreement
delivered or sent by email shall take effect at the time of confirmation of
receipt thereof by the recipient thereof.
15. Definition of Certain
Terms. 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 of the Rules and
Regulations.
27
16. Governing Law, Agent for
Service and Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, including
without limitation Section 5-1401 of the New York General Obligations
Law. No legal proceeding may be commenced, prosecuted or continued in
any court other than the courts of the State of New York located in the City and
County of New York or in the United States District Court for the Southern
District of New York, which courts shall have jurisdiction over the adjudication
of such matters, and the Company and the Placement Agent each hereby consent to
the jurisdiction of such courts and personal service with respect
thereto. The Company and the Placement Agent each hereby consent to
personal jurisdiction, service and venue in any court in which any legal
proceeding arising out of or in any way relating to this Agreement is brought by
any third party against the Company or the Placement Agent. The
Company and the Placement Agent each hereby waive all right to trial by jury in
any legal proceeding (whether based upon contract, tort or otherwise) in any way
arising out of or relating to this Agreement. The Company agrees that
a final judgment in any such legal proceeding brought in any such court shall be
conclusive and binding upon the Company and the Placement Agent and may be
enforced in any other courts in the jurisdiction of which the Company is or may
be subject, by suit upon such judgment.
17. Placement Agent’s
Information and Xxxxxx Information. (a) The parties hereto
acknowledge and agree that, for all purposes of this Agreement, the “Placement
Agent’s Information” consists solely of the following information in the
Prospectus: the statements concerning the Placement Agent contained in the first
paragraph under the heading “Plan of Distribution.”
(b) The
parties hereto acknowledge and agree that, for all purposes of this Agreement,
the “Xxxxxx Information” consists solely of the following information in the
Prospectus: the statements concerning Xxxxxx contained in the first paragraph
under the heading “Plan of Distribution.”
18. Partial
Unenforceability. The invalidity or unenforceability of any
section, paragraph, clause or provision of this Agreement shall not affect the
validity or enforceability of any other section, paragraph, clause or provision
hereof. If any section, paragraph, clause 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.
19. General. 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. In
this Agreement, the masculine, feminine and neuter genders and the singular and
the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may
be amended or modified, and the observance of any term of this Agreement may be
waived, only by a writing signed by the Company and the Placement
Agent.
20. Counterparts. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument and such signatures may be delivered by
facsimile.
[Signature Page
Follows]
28
If the foregoing is in accordance with
your understanding of the agreement between the Company and the Placement Agent,
kindly indicate your acceptance in the space provided for that purpose
below.
Very
truly yours,
|
|||
CLEVELAND
BIOLABS, INC.
|
|||
By:
|
/s/ Xxxx X. Xxxxxxxx, Xx.
|
||
Name:
Xxxx X. Xxxxxxxx, Xx.
|
|||
Title:
Chief Financial Officer
|
[Signature Page – Placement Agent
Agreement]
Accepted
as of the date
|
||
first
above written:
|
||
HFP
CAPITAL MARKETS LLC
|
||
By:
|
/s/ Xxxxxx Xxxxxxxxx
|
|
Name: Xxxxxx
Xxxxxxxxx
|
||
Title:
Managing Director – Investment Banking
|
[Signature Page – Placement Agent
Agreement]
SCHEDULE
A
General
Use Free Writing Prospectuses
None.
EXHIBIT
A
Form of
Subscription Agreement
EXHIBIT
B
List of
Subsidiaries of Cleveland BioLabs, Inc.
Incuron,
LLC