Agreement to Act as Placement Agents. The Company hereby confirms its agreement with you as follows: (a) On the basis of the representations, warranties and agreements of the Company contained herein, and subject to all the terms and conditions of this Agreement, Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and Chardan Capital Markets, LLC shall be the Company’s exclusive placement agents (each a “Placement Agent” and collectively the “Placement Agents”), acting on a reasonable best efforts basis, in connection with the sale by the Company of the Securities to the Investors in a proposed offering pursuant to the Registration Statement, with the terms of the offering to be subject to market conditions and negotiations among the Company and the prospective Investors (such offering shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in Section 1(c) hereof) of the Offering, the Company shall pay to the Placement Agents a cash fee equal to six percent (6.0%) of the aggregate gross proceeds raised in the Offering at the Closing other than with respect to proceeds raised from Investors who are directors or officers of the Company and their affiliates (the “Placement Fee”). The sale of the Securities shall be made pursuant to subscription agreements in the form included as Exhibit A hereto (the “Purchase Agreement”) on the terms described on Exhibit B hereto. Each Placement Agent shall communicate to the Company, orally or in writing, each offer to purchase Securities received by such Placement Agent. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. (b) This Agreement shall not give rise to any commitment by the Placement Agents to purchase any of the Securities, and the Placement Agents shall have no authority to bind the Company to accept offers to purchase the Securities. Each Placement Agent represents and agrees that, without the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute a Free Writing Prospectus that would be required to be filed with the Commission. Each Placement Agent may, with the prior consent of the Company (such consent not to be unreasonably withheld), retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of such Placement Agent’s portion of the Placement Fee. (c) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) by email exchange of documentation at 10:00 a.m., New York City time, on or before July 28, 2021, or at such time on such other date as may be agreed upon in writing by the Placement Agents and the Company (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to the Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefor by such Investor. If the Company shall default in its obligations to deliver the Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agents harmless against any loss, claim or damage incurred by the Placement Agents arising from or as a result of such default by the Company. (d) On the Closing Date, (i) the Company shall deliver, or cause to be delivered, the Securities to the Investors or their designees, and the Investors shall deliver, or cause to be delivered, the purchase price for their respective Securities to the Company pursuant to the terms of the Purchase Agreement, “delivery versus payment” through the facilities of The Depository Trust Company (“DTC”) and (ii) the Company shall wire the amounts owed to the Placement Agents as provided in this Agreement. (e) The Securities shall be registered in such names and in such denominations as each Investor shall request by written notice to the Company. (f) The Company acknowledges and agrees that the Placement Agents are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the Offering contemplated hereby (including in connection with determining the terms of the Offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, the Placement Agents are not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agents shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agents of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Placement Agents and shall not be on behalf of the Company.
Appears in 1 contract
Agreement to Act as Placement Agents. The Company hereby confirms its agreement with you as follows:
(a) On the basis of the representations, warranties and agreements of the Company contained hereinin, and subject to all the terms and conditions of this Agreement, Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and Chardan Capital Markets, LLC shall be :
(a) The Company hereby authorizes the Company’s Placement Agents to act as its exclusive placement agents (each a “Placement Agent” and collectively to solicit offers for the “Placement Agents”), acting on a reasonable best efforts basis, purchase of all or part of the Class A Interests from the Company in connection with the sale by the Company proposed public offering of the Securities to the Investors in a proposed offering pursuant to the Registration Statement, with the terms of the offering to be subject to market conditions and negotiations among the Company and the prospective Investors Class A Interests (such offering shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on Until the Closing Date (as defined in below) or earlier upon termination of this Agreement pursuant to Section 1(c) hereof) of the Offering7, the Company shall pay not, without the prior written consent of the Placement Agents, solicit or accept offers to purchase the Class A Interests otherwise than through the Placement Agents. Notwithstanding the foregoing, nothing herein shall prevent the Company from offering and selling its Class A Interests in private placements that are contingent upon, and are scheduled to close immediately subsequent to, the closing of this Offering (the “Private Placements”).
(b) The Company hereby acknowledges that the Placement Agents a cash fee equal to six percent (6.0%) have agreed, as agents of the aggregate gross proceeds raised in Company, to use their reasonable “best efforts” to solicit offers to purchase the Offering at the Closing other than with respect to proceeds raised Class A Interests from Investors who are directors or officers of the Company and their affiliates (the “Placement Fee”). The sale of the Securities shall be made pursuant to subscription agreements in the form included as Exhibit A hereto (the “Purchase Agreement”) on the terms described on Exhibit B heretoand subject to the conditions set forth herein. Each The Placement Agent Agents shall use commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Class A Interests has been solicited by the Placement Agents and accepted by the Company, but the Placement Agents 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 Agents be obligated to underwrite or purchase any Class A Interests for their own accounts and, in soliciting purchases of the Class A Interests, the Placement Agents shall act solely as the Company’s agents and not as principals.
(c) Subject to the provisions of this Section 1, offers for the purchase of the Class A Interests may be solicited by the Placement Agents as agents for the Company at such times and in such amounts as the Placement Agents deem advisable. The Placement Agents shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities Class A Interests received by such Placement Agentthem as agents of the Company. The Company shall have the sole right to accept offers to purchase the Securities Class A Interests and may reject any such offer offer, in whole or in part.
(b) This Agreement shall not give rise to any commitment by the Placement Agents to purchase any of the Securities, and the . The Placement Agents shall have the right, in their discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Class A Interests received by them, in whole or in part, and any such rejection shall not be deemed a breach of this Agreement.
(d) Each Class A-1 Interest is being sold to Purchasers at a price of $250.00. Each Class A-2 Interest is being sold to Purchasers at a price of $2,500.00. Each Class A-3 Interest is being sold to Purchasers at a price of $5,000.00. Each Class A-4 Interest is being sold to Purchasers at a price of $25,000.00. There shall be no authority minimum purchase requirements for each investor and no minimum number of Class A Interests to bind be sold or minimum aggregate offering proceeds for this Offering to close. The purchases of Class A Interests by the Purchasers shall be evidenced by the execution of the Subscription Agreements between each of the Purchasers and the Company.
(e) It is anticipated that $[●] of the Class A Interests will be privately placed primarily with institutional investors, qualified institutional investors, and accredited investors as each are defined under the Rules. Such privately placed Class A Interests shall be placed pursuant to a separate private placement agreement.
(f) For each Class A-1 Interest sold to the Purchasers, B▇▇▇▇’s Chicago Holding Company, LLC (“HoldCo”) will issue $24,750 of subordinated loans (such loans, the “A-1 Subordinated Loans”). For each Class A-2 Interest sold to the Purchasers, the Parent will issue $22,500 of subordinated loans (such loans, the “A-2 Subordinated Loans”). For each Class A-3 Interest sold to the Purchasers, the Parent will issue $20,000 of subordinated loans (such loans, the “A-3 Subordinated Loans” and, together with the Class A-1 Subordinated Loans and Class A-2 Subordinated Loans, the “Subordinated Loans”). The issuances of the Subordinated Loans shall be evidenced by the execution of a separate subordinated loan agreement by HoldCo and the Company.
(g) As compensation for services rendered, on the Closing Date, the Company shall pay or cause to be paid to the Placement Agents in the manner set forth below, a placement fee (the “Placement Fee”) of 5.75% of the gross cash proceeds from the sale of Class A Interests, which fee shall be paid by the Company to accept offers to purchase the Securities. Each Placement Agent represents and agrees that, without the prior written consent on behalf of the Company, it has not made and will not make any offer relating to syndicate in cash upon the Securities that would constitute a Free Writing Prospectus that would be required to be filed with Closing Date as set forth opposite the Commission. Each Placement Agent may, with the prior consent names of the Company (such consent not Placement Agents in Schedule II hereto, in cash upon the Closing Date. The Placement Fee, in addition to any fees, discounts or commissions that may be unreasonably withheld), retain other brokers or dealers to act as sub-agents on its behalf earned by Loop from participating in connection with any concurrent private placement that is separate from the Offering, will not exceed $4 million (the fees of which shall “Cap”), provided that for each additional underwriter, placement agent or financial advisor that participates in the Placement, the Cap will be paid out of such Placement Agent’s portion of the Placement Feeincreased by $500,000.
(ch) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) by email exchange of documentation at 10:00 a.m., New York City time, on or before July 28, 2021, or at such time on such other date as may be agreed upon in writing by the Placement Agents and the Company (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities Class A Interests which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities Class A Interests shall have been delivered to the Investor Purchaser thereof against payment therefor by such InvestorPurchaser. If the Company shall default in its obligations to deliver the Securities Class A Interests to an Investor a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agents harmless against any loss, claim claim, damage or damage incurred by the Placement Agents expense arising from or as a result of such default by the CompanyCompany in accordance with the procedures set forth in Section 5(c) herein.
(d) On the Closing Date, (i) The time and date of closing and delivery of the Company shall deliver, or cause documents required to be delivered, the Securities to the Investors or their designees, and the Investors shall deliver, or cause to be delivered, the purchase price for their respective Securities to the Company pursuant to the terms of the Purchase Agreement, “delivery versus payment” through the facilities of The Depository Trust Company (“DTC”) and (ii) the Company shall wire the amounts owed delivered to the Placement Agents as provided in this Agreement.
pursuant to Sections 3 and 4 hereof (ethe “Closing”) The Securities shall be registered in at 10:00 a.m. (Eastern Time) on [_], 2025 (the “Closing Date”) at the office of Winston & S▇▇▇▇▇ LLP, 3▇ ▇. ▇▇▇▇▇▇ Drive, Chicago IL 60601, or at such names other time and in such denominations location as each Investor shall request by written notice to the Company.
(f) The Company acknowledges and agrees that the Placement Agents are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the Offering contemplated hereby (including in connection with determining the terms of the Offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, the Placement Agents are not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agents shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agents of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Placement Agents and shall not be on behalf of the Companyotherwise agree.
Appears in 1 contract
Agreement to Act as Placement Agents. The Company hereby confirms its agreement with you as follows:
(a) On the basis of the representations, warranties and agreements of the Company contained hereinin, and subject to all the terms and conditions of this Agreement, Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and Chardan Capital Markets, LLC shall be :
(a) The Company hereby authorizes the Company’s Placement Agents to act as its exclusive placement agents (each a “Placement Agent” and collectively to solicit offers for the “Placement Agents”), acting on a reasonable best efforts basis, purchase of all or part of the Class A Interests from the Company in connection with the sale by the Company proposed public offering of the Securities to the Investors in a proposed offering pursuant to the Registration Statement, with the terms of the offering to be subject to market conditions and negotiations among the Company and the prospective Investors Class A Interests (such offering shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on Until the Closing Date (as defined in below) or earlier upon termination of this Agreement pursuant to Section 1(c) hereof) of the Offering7, the Company shall pay not, without the prior written consent of the Placement Agents, solicit or accept offers to purchase the Class A Interests otherwise than through the Placement Agents. Notwithstanding the foregoing, nothing herein shall prevent the Company from offering and selling its Class A Interests in private placements that are contingent upon, and are scheduled to close immediately subsequent to, the closing of this Offering (the “Private Placements”).
(b) The Company hereby acknowledges that the Placement Agents a cash fee equal to six percent (6.0%) have agreed, as agents of the aggregate gross proceeds raised in Company, to use their reasonable “best efforts” to solicit offers to purchase the Offering at the Closing other than with respect to proceeds raised Class A Interests from Investors who are directors or officers of the Company and their affiliates (the “Placement Fee”). The sale of the Securities shall be made pursuant to subscription agreements in the form included as Exhibit A hereto (the “Purchase Agreement”) on the terms described on Exhibit B heretoand subject to the conditions set forth herein. Each The Placement Agent Agents shall use commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Class A Interests has been solicited by the Placement Agents and accepted by the Company, but the Placement Agents 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 Agents be obligated to underwrite or purchase any Class A Interests for their own accounts and, in soliciting purchases of the Class A Interests, the Placement Agents shall act solely as the Company’s agents and not as principals.
(c) Subject to the provisions of this Section 1, offers for the purchase of the Class A Interests may be solicited by the Placement Agents as agents for the Company at such times and in such amounts as the Placement Agents deem advisable. The Placement Agents shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities Class A Interests received by such Placement Agentthem as agents of the Company. The Company shall have the sole right to accept offers to purchase the Securities Class A Interests and may reject any such offer offer, in whole or in part.
(b) This Agreement shall not give rise to any commitment by the Placement Agents to purchase any of the Securities, and the . The Placement Agents shall have no authority to bind the Company to accept offers to purchase the Securities. Each Placement Agent represents and agrees thatright, in their discretion reasonably exercised, without the prior written consent of notice to the Company, it has not made and will not make to reject any offer relating to purchase Class A Interests received by them, in whole or in part, and any such rejection shall not be deemed a breach of this Agreement.
(d) Each Class A-1 Interest is being sold to Purchasers at a price of $250.00. Each Class A-2 Interest is being sold to Purchasers at a price of $2,500.00. Each Class A-3 Interest is being sold to Purchasers at a price of $5,000.00. Each Class A-4 Interest is being sold to Purchasers at a price of $25,000.00. There shall be no minimum purchase requirements for each investor and no minimum number of Class A Interests to be sold or minimum aggregate offering proceeds for this Offering to close. The purchases of Class A Interests by the Purchasers shall be evidenced by the execution of the Subscription Agreements between each of the Purchasers and the Company.
(e) [It is anticipated that $[●] of the Class A Interests will be privately placed primarily with institutional investors, qualified institutional investors, and accredited investors as each are defined under the Rules. Such privately placed Class A Interests shall be placed pursuant to a separate private placement agreement.]
(f) [For each Class A-1 Interest sold to the Securities that would constitute Purchasers, B▇▇▇▇’s Chicago OpCo (“OpCo”) will issue $24,750 of subordinated loans (such loans, the “A-1 Subordinated Loans”). For each Class A-2 Interest sold to the Purchasers, the Parent will issue $22,500 of subordinated loans (such loans, the “A-2 Subordinated Loans”). For each Class A-3 Interest sold to the Purchasers, the Parent will issue $20,000 of subordinated loans (such loans, the “A-3 Subordinated Loans” and, together with the Class A-1 Subordinated Loans and Class A-2 Subordinated Loans, the “Subordinated Loans”). The issuances of the Subordinated Loans shall be evidenced by the execution of a Free Writing Prospectus that would be required separate subordinated loan agreement by OpCo and the Company.]
(g) [As compensation for services rendered, on the Closing Date, the Company shall pay or cause to be filed with paid to the Commission. Each Placement Agent mayAgents in the manner set forth below, with a placement fee (the prior consent of the Company (such consent not to be unreasonably withheld“Placement Fee”), retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees aggregate amount of which shall be equal to six percent (6.0%) of the gross cash proceeds raised from the sale of Class A Interests [and placement of the Subordinated Loans by the Company on such Closing Date, comprised of (i) six percent (6.0%) of the gross cash proceeds from the sale (including private placement) of Class A Interests, which fee shall be paid out by the Company to the Placement Agent on behalf of such Placement Agent’s portion the syndicate in cash upon the Closing Date, and (ii) six percent (6.0%) of the gross proceeds raised from the placement of the Subordinated Loans,] which fee shall be paid by OpCo to [Loop Capital Markets LLC on behalf of the syndicate, as set forth opposite the names of the Placement Agents in Schedule II hereto,] in cash upon the Closing Date. The Placement Fee.
(c) Payment of , in addition to any fees, discounts or commissions that may be earned by Loop from participating in any concurrent private placement that is separate from the purchase price forOffering, and delivery of, the Securities shall be made at a closing will not exceed $3 million (the “Closing”) by email exchange of documentation at 10:00 a.m., New York City time, on or before July 28, 2021, or at such time on such other date as may be agreed upon in writing by the Placement Agents and the Company (such date of payment and delivery being herein called the “Closing DateCap”). All such actions taken at , provided that for each additional underwriter that participates in the Closing shall Placement, the Cap will be deemed to have occurred simultaneously. increased by $500,000.]
(h) No Securities Class A Interests which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities Class A Interests shall have been delivered to the Investor Purchaser thereof against payment therefor by such InvestorPurchaser. If the Company shall default in its obligations to deliver the Securities Class A Interests to an Investor a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agents harmless against any loss, claim claim, damage or damage incurred by the Placement Agents expense arising from or as a result of such default by the CompanyCompany in accordance with the procedures set forth in Section 5(c) herein.
(d) On the Closing Date, (i) [The time and date of closing and delivery of the Company shall deliver, or cause documents required to be delivered, the Securities to the Investors or their designees, and the Investors shall deliver, or cause to be delivered, the purchase price for their respective Securities to the Company pursuant to the terms of the Purchase Agreement, “delivery versus payment” through the facilities of The Depository Trust Company (“DTC”) and (ii) the Company shall wire the amounts owed delivered to the Placement Agents as provided in this Agreement.
pursuant to Sections 3 and 4 hereof (ethe “Closing”) The Securities shall be registered in at 10:00 a.m. (Eastern Time) on [__] [_], 2025 (the “Closing Date”) at the office of Winston & S▇▇▇▇▇ LLP, 3▇ ▇. ▇▇▇▇▇▇ Drive, Chicago IL 60601, or at such names other time and in such denominations location as each Investor shall request by written notice to the Company.
(f) The Company acknowledges and agrees that the Placement Agents are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the Offering contemplated hereby (including in connection with determining the terms of the Offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, the Placement Agents are not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agents shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agents of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Placement Agents and shall not be on behalf of the Companyotherwise agree.]
Appears in 1 contract
Agreement to Act as Placement Agents. The Company hereby confirms its agreement with you as follows:
(a) On the basis of the representations, warranties and agreements of the Company contained herein, and subject to all the terms and conditions of this Agreementset forth herein, Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and Chardan Capital Marketsthe Company engages the Placement Agents, LLC shall be the Company’s on a commercially reasonable efforts basis, to act as its exclusive placement agents (each a “and the Representative, as the representative of the Placement Agent” and collectively the “Placement Agents”), acting on a reasonable best efforts basis, Agents in connection with the sale offer and sale, by the Company Company, of the Securities to the Investors in a proposed offering Purchasers, and each of the Placement Agents and the Representative accept such engagement. The Securities are being sold to the Purchasers pursuant to the Registration Statement, Subscription Agreements on the terms described on Schedule A hereto. The Placement Agents may retain other brokers or dealers to act as sub-agents on their respective behalf in connection with the terms offering and sale of the offering to be subject to market conditions and negotiations among Securities. Until the Company and the prospective Investors (such offering shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any earlier of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in Section 1(c) 4 hereof) or the termination of the Offeringthis Agreement, the Company shall pay not, without the prior consent of the Representative on behalf of the Placement Agents, solicit or accept offers to purchase the Securities otherwise than through the Placement Agents.
(b) The Company expressly acknowledges and agrees that the Placement Agents’ obligations hereunder are on a best efforts basis, and this Agreement shall not give rise to any commitment by the Placement Agents a cash fee equal or any of their affiliates to six percent (6.0%) underwrite or purchase any of the aggregate gross proceeds raised Securities or otherwise provide any financing. No Placement Agent shall have authority to bind the Company in the Offering at the Closing other than with respect to proceeds raised from Investors who are directors or officers of the Company and their affiliates (the “Placement Fee”)sale of any Securities. The sale of the Securities shall be made pursuant to subscription agreements the Subscription Agreements.
(c) Each Placement Agent shall make best efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Securities has been solicited by such Placement Agent and accepted by the Company, but the Placement Agents 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 form included event any such purchase is not consummated for any reason. Under no circumstances will any Placement Agent be obligated to purchase any Securities for its own account and, in soliciting purchases of Securities, the Placement Agents shall act solely as Exhibit A hereto the Company’s agent and not as a principal. Notwithstanding the foregoing and except as otherwise provided in Section 3(d), it is understood and agreed that each Placement Agent (or its affiliates) may, solely at its discretion and without any obligation to do so, purchase Securities as a principal; provided, however, that any such purchases by such Placement Agent (or its affiliates) shall be fully disclosed to the “Purchase Agreement”Company (including the identity of such Investors) on and approved by the terms described on Exhibit B heretoCompany in accordance with Section 3(d).
(d) Subject to the provisions of this Section 3, offers for the purchase of Securities may be solicited by any Placement Agent as agent for the Company at such times and in such amounts as such Placement Agent deems advisable. Each Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities received by such Placement Agentit as agent of the Company. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part.
(b) This Agreement shall not give rise to any commitment by the Placement Agents to purchase any of the Securities, and the Placement Agents shall have no authority to bind the Company to accept offers to purchase the Securities. Each Placement Agent represents and agrees thatshall have the right, without the in its discretion, subject to providing prior written consent of notice to the Company, it has not made and will not make to reject any offer relating to purchase Securities received by it, in whole or in part, and any such rejection shall not be deemed a breach of its agreement contained herein.
(e) As compensation for services rendered, on the Closing Date, the Company shall pay to the Placement Agents by wire transfer of immediately available funds to an account or accounts designated by the Representative, an aggregate amount equal to 7% of the gross proceeds received by the Company from the sale of Securities that would constitute a Free Writing Prospectus that would be required to be filed with on the CommissionClosing Date as set forth on Schedule A hereto (the “Agency Fee”). Each Placement Agent mayagrees that the foregoing compensation, with the prior consent constitutes all of the Company (compensation that such consent not Placement Agent shall be entitled to be unreasonably withheld), retain other brokers or dealers to act as sub-agents on its behalf receive in connection with the Offeringoffering contemplated hereby; such compensation shall supersede, the fees of which shall in all respects, any and all prior agreements or understandings relating to compensation to be paid out of received by such Placement Agent’s portion of Agent from the Placement FeeCompany in connection with the offering contemplated hereby.
(cf) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) by email exchange of documentation at 10:00 a.m., New York City time, on or before July 28, 2021, or at such time on such other date as may be agreed upon in writing by the Placement Agents and the Company (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to the Purchase this Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor Purchaser thereof against payment therefor by such InvestorPurchaser. If the Company shall default in its obligations to deliver the Securities to an Investor a Purchaser whose offer it has acceptedaccepted and from whom subscription proceeds have been received, the Company shall indemnify and hold the Placement Agents harmless against any loss, claim or damage incurred by the Placement Agents arising from or as a result of such default by the Company.
(d) On the Closing Date, (i) the Company shall deliver, or cause to be delivered, the Securities to the Investors or their designees, and the Investors shall deliver, or cause to be delivered, the purchase price for their respective Securities to the Company pursuant to the terms of the Purchase Agreement, “delivery versus payment” through the facilities of The Depository Trust Company (“DTC”) and (ii) the Company shall wire the amounts owed to the Placement Agents as provided in this Agreement.
(e) The Securities shall be registered in such names and in such denominations as each Investor shall request by written notice to the Company.
(f) The Company acknowledges and agrees that the Placement Agents are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the Offering contemplated hereby (including in connection with determining the terms of the Offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, the Placement Agents are not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agents shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agents of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Placement Agents and shall not be on behalf of the Company.
Appears in 1 contract
Agreement to Act as Placement Agents. The Company hereby confirms its agreement with you as follows:
(a) On the basis of the representations, warranties and agreements of the Company contained herein, and subject to all the terms and conditions of this Agreementset forth herein, Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and Chardan Capital Marketsthe Company engages the Placement Agents, LLC shall be the Company’s on a commercially reasonable efforts basis, to act as its exclusive placement agents (each a “and the Representative, as the representative of the Placement Agent” and collectively the “Placement Agents”), acting on a reasonable best efforts basis, Agents in connection with the sale offer and sale, by the Company Company, of the Securities to the Investors Purchasers. The Placement Agents may retain other brokers or dealers to act as sub-agents on their respective behalf in a proposed offering pursuant to the Registration Statement, connection with the terms offering and sale of the offering to be subject to market conditions and negotiations among Securities. Until the Company and the prospective Investors (such offering shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any earlier of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in Section 1(c) 4 hereof) or the termination of the Offeringthis Agreement, the Company shall pay not, without the prior consent of the Representative on behalf of the Placement Agents, solicit or accept offers to purchase the Securities otherwise than through the Placement Agents.
(b) The Company expressly acknowledges and agrees that the Placement Agents’ obligations hereunder are on a commercially reasonable efforts basis, and this Agreement shall not give rise to any commitment by the Placement Agents a cash fee equal or any of their affiliates to six percent (6.0%) underwrite or purchase any of the aggregate gross proceeds raised Securities or otherwise provide any financing. No Placement Agent shall have authority to bind the Company in the Offering at the Closing other than with respect to proceeds raised from Investors who are directors or officers of the Company and their affiliates (the “Placement Fee”)sale of any Securities. The sale of the Securities shall may be made pursuant to subscription agreements the Subscription Agreements or Final Prospectus.
(c) Each Placement Agent shall make commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Securities has been solicited by such Placement Agent and accepted by the Company, but the Placement Agents 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 form included event any such purchase is not consummated for any reason. Under no circumstances will any Placement Agent be obligated to purchase any Securities for its own account and, in soliciting purchases of Securities, the Placement Agents shall act solely as Exhibit A hereto the Company’s agent and not as a principal. Notwithstanding the foregoing and except as otherwise provided in Section 3(d), it is understood and agreed that each Placement Agent (or its affiliates) may, solely at its discretion and without any obligation to do so, purchase Securities as a principal; provided, however, that any such purchases by such Placement Agent (or its affiliates) shall be fully disclosed to the “Purchase Agreement”Company (including the identity of such Investors) on and approved by the terms described on Exhibit B heretoCompany in accordance with Section 3(d).
(d) Subject to the provisions of this Section 3, offers for the purchase of Securities may be solicited by any Placement Agent as agent for the Company at such times and in such amounts as such Placement Agent deems advisable. Each Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities received by such Placement Agentit as agent of the Company. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part.
(b) This Agreement shall not give rise to any commitment by the Placement Agents to purchase any of the Securities, and the Placement Agents shall have no authority to bind the Company to accept offers to purchase the Securities. Each Placement Agent represents and agrees thatshall have the right, without the in its discretion, subject to providing prior written consent of notice to the Company, it has not made and will not make to reject any offer relating to purchase Securities received by it, in whole or in part, and any such rejection shall not be deemed a breach of its agreement contained herein.
(e) As compensation for services rendered, on the Closing Date, the Company shall pay to the Placement Agents by wire transfer of immediately available funds to an account or accounts designated by the Placement Agents, an aggregate amount based on a certain percentage of the gross proceeds received by the Company from the sale of Securities that would constitute a Free Writing Prospectus that would be required to be filed with on the CommissionClosing Date as set forth on Schedule A hereto (the “Agency Fee”). Each Placement Agent mayagrees that the foregoing compensation, together with the prior consent any expense reimbursement payable hereunder, constitutes all of the Company (compensation that such consent not Placement Agent shall be entitled to be unreasonably withheld), retain other brokers or dealers to act as sub-agents on its behalf receive in connection with the Offeringoffering contemplated hereby; such compensation shall supersede, the fees of which shall in all respects, any and all prior agreements or understandings relating to compensation to be paid out of received by such Placement Agent’s portion of Agent from the Placement FeeCompany in connection with the offering contemplated hereby.
(cf) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) by email exchange of documentation at 10:00 a.m., New York City time, on or before July 28, 2021, or at such time on such other date as may be agreed upon in writing by the Placement Agents and the Company (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to the Purchase this Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor Purchaser thereof against payment therefor by such InvestorPurchaser. If the Company shall default in its obligations to deliver the Securities to an Investor a Purchaser whose offer it has acceptedaccepted and from whom subscription proceeds have been received, the Company shall indemnify and hold the Placement Agents harmless against any loss, claim or damage incurred by the Placement Agents arising from or as a result of such default by the Company.
(d) On the Closing Date, (i) the Company shall deliver, or cause to be delivered, the Securities to the Investors or their designees, and the Investors shall deliver, or cause to be delivered, the purchase price for their respective Securities to the Company pursuant to the terms of the Purchase Agreement, “delivery versus payment” through the facilities of The Depository Trust Company (“DTC”) and (ii) the Company shall wire the amounts owed to the Placement Agents as provided in this Agreement.
(e) The Securities shall be registered in such names and in such denominations as each Investor shall request by written notice to the Company.
(f) The Company acknowledges and agrees that the Placement Agents are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the Offering contemplated hereby (including in connection with determining the terms of the Offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, the Placement Agents are not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agents shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agents of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Placement Agents and shall not be on behalf of the Company.
Appears in 1 contract
Agreement to Act as Placement Agents. The Company hereby confirms its agreement with you as follows:
(a) On the basis of the representations, warranties and agreements of the Company contained hereinherein contained, and subject to all the terms and conditions of this Agreement, Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and Chardan Capital Markets, LLC the Placement Agents (together with any sub-agents) shall be the Company’s exclusive placement agents (each a “Placement Agent” and collectively the “Placement Agents”), acting on a reasonable best efforts basis, in connection with the offering and sale by the Company of the Securities to the Investors in a proposed offering Shares pursuant to the Registration Statement, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations among between the Company and the prospective Investors (such offering shall be referred to herein as Investors. The Company agrees and acknowledges that there is no guarantee of the “successful placement of the Shares, or any portion thereof, in the prospective Offering”). As compensation for services rendered, and provided that Under no circumstances will the Placement Agents or any of the Securities are sold to Investors in the Offering, on the Closing Date their “Affiliates” (as defined in Section 1(cbelow) hereof) of the Offering, the Company shall pay be obligated to the Placement Agents a cash fee equal to six percent (6.0%) of the aggregate gross proceeds raised in the Offering at the Closing other than with respect to proceeds raised from Investors who are directors underwrite or officers of the Company and their affiliates (the “Placement Fee”). The sale of the Securities shall be made pursuant to subscription agreements in the form included as Exhibit A hereto (the “Purchase Agreement”) on the terms described on Exhibit B hereto. Each Placement Agent shall communicate to the Company, orally or in writing, each offer to purchase Securities received by such Placement Agent. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part.
(b) This Agreement shall not give rise to any commitment by the Placement Agents to purchase any of the Securities, and the Placement Agents shall have no authority to bind the Company to accept offers to purchase the Securities. Each Placement Agent represents and agrees that, without the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute a Free Writing Prospectus that would be required to be filed with the Commission. Each Placement Agent may, with the prior consent of the Company (such consent not to be unreasonably withheld), retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of such Placement Agent’s portion of the Placement Fee.
(c) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) by email exchange of documentation at 10:00 a.m., New York City time, on or before July 28, 2021, or at such time on such other date as may be agreed upon in writing by the Placement Agents and the Company (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to the Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefor by such Investor. If the Company shall default in its obligations to deliver the Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agents harmless against any loss, claim or damage incurred by the Placement Agents arising from or as a result of such default by the Company.
(d) On the Closing Date, (i) the Company shall deliver, or cause to be delivered, the Securities to the Investors or their designees, and the Investors shall deliver, or cause to be delivered, the purchase price Shares for their respective Securities to the Company pursuant to the terms of the Purchase Agreement, “delivery versus payment” through the facilities of The Depository Trust Company (“DTC”) and (ii) the Company shall wire the amounts owed to the Placement Agents as provided in this Agreement.
(e) The Securities shall be registered in such names and in such denominations as each Investor shall request by written notice to the Company.
(f) own account or otherwise provide any financing. The Company acknowledges and agrees that the Representative and the other Placement Agents are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the Offering offering of Shares contemplated hereby (including in connection with determining the terms of the Offeringoffering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representative nor any other Placement Agents are not Agent is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor the other Placement Agents shall have no any responsibility or liability to the Company with respect thereto. Any review by the Representative and the other Placement Agents of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Placement Agents and shall not be on behalf of the Company. The Placement Agents shall have no authority to bind the Company with respect to any prospective offer to purchase Shares and the Company shall have the sole right to accept offers to purchase Shares and may reject any such offer, in whole or in part. Subject to the terms and conditions hereof, payment of the purchase price for, and delivery of, the Shares shall be made at one or more closings (each a “Closing” and the date on which each Closing occurs a “Closing Date”). The Company acknowledges and agrees that the Placement Agents may offer and sell Shares to or through any affiliate of a Placement Agent. As compensation for services rendered, on each Closing Date, the Company shall pay to the Placement Agents the fees and expenses set forth below: A cash fee (the “Cash Fee”) equal to 7% of the gross proceeds received by the Company from the sale of the Shares at each Closing with the percentage of such fees to be paid to each Placement Agent set forth on Schedule 1.
(b) The term of the Placement Agents’ exclusive engagement will be until the completion of the Offering; provided, however, that a party hereto may terminate the engagement with respect to itself at any time upon 10 days written notice to the other parties. Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 2, will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability in investment banking, financial advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
Appears in 1 contract
Sources: Placement Agency Agreement (Presto Automation Inc.)
Agreement to Act as Placement Agents. The Company hereby confirms its agreement with you as follows:
(a) On the basis of the representations, representations and warranties and agreements of the Company contained herein, and subject to all the terms and conditions of set forth in this Agreement, Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and Chardan Capital Markets, LLC shall be the Company’s exclusive placement agents (Company engages each a “Placement Agent” and collectively of the “Placement Agents”), acting on a reasonable best efforts basis, to act as its co-exclusive placement agent in connection with the sale offer and sale, by the Company Company, of the Securities Shares to the Investors in a proposed offering pursuant to the Registration Statement, with the terms of the offering to be subject to market conditions and negotiations among the Company and the prospective Investors (such offering shall be referred to herein as the “Offering”)Investors. As compensation for services rendered, and provided that any of the Securities The Shares are being sold to Investors at a price of $10.25 per share. The Placement Agents may retain other brokers or dealers to act as sub-agents on their behalf in connection with the Offering, on offering and sale of the Shares. Until the earlier of the Closing Date (as defined in Section 1(c) 2 hereof) or the termination of the Offeringthis Agreement, the Company shall pay not, without the prior consent of the Placement Agents, solicit or accept offers to purchase Shares otherwise than through the Placement Agents.
(b) The Company expressly acknowledges and agrees that the Placement Agents’ obligations hereunder are on a reasonable efforts basis, and this Agreement shall not give rise to any commitment by either of the Placement Agents a cash fee equal or any of their respective affiliates to six percent (6.0%) underwrite or purchase any of the aggregate gross proceeds raised Shares or otherwise provide any financing. The Placement Agents shall have no authority to bind the Company in the Offering at the Closing other than with respect to proceeds raised from Investors who are directors or officers of the Company and their affiliates (the “Placement Fee”)sale of any Shares. The sale of the Securities Shares shall be made pursuant to subscription agreements in the form included as Exhibit A hereto (the “Purchase Subscription Agreements”).
(c) The Placement Agents shall make commercially reasonable efforts to assist the Company in obtaining performance by each Investor whose offer to purchase Shares has been solicited by the Placement Agents and accepted by the Company, but the Placement Agents shall not, except as otherwise provided in this Agreement”, be obligated to disclose the identity of any potential Investor 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 Agents be obligated to purchase any Shares for their own accounts and, in soliciting purchases of Shares, the Placement Agents shall act solely as the Company’s agents and not as principals. Notwithstanding the foregoing and except as otherwise provided in Section 1(c), it is understood and agreed that the Placement Agents (or their affiliates) on may, solely at their discretion and without any obligation to do so, purchase Shares as principals; provided, however, that any such purchases by the terms described on Exhibit B heretoPlacement Agents (or their affiliates) shall be fully disclosed to the Company (including the identity of such Investors) and approved by the Company in accordance with Section 1(d).
(d) Subject to the provisions of this Section 1, offers for the purchase of Shares may be solicited by the Placement Agents as agents for the Company at such times and in such amounts as the Placement Agents deem advisable. Each Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities Shares received by such Placement Agentit as agent of the Company. The Company shall have the sole right to accept offers to purchase the Securities Shares and may reject any such offer offer, in whole or in part. Each Placement Agent shall have the right, in its discretion reasonably exercised, subject to providing 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 its agreement contained herein.
(be) This Agreement The purchases of Shares by the Investors shall not give rise be evidenced by the execution of the Subscription Agreements by each of the parties thereto in the form attached hereto as Exhibit A.
(f) As compensation for services rendered, on the Closing Date, the Company shall pay to the Placement Agents by wire transfer of immediately available funds to an account or accounts designated by the Placement Agents, an aggregate amount equal to five and one-half percent (5.5%) of the gross proceeds received by the Company from the sale of Shares on such Closing Date (the “Agency Fee”). The Placement Agents agree that the foregoing compensation, together with any commitment expense reimbursement payable hereunder, constitutes all of the compensation that the Placement Agents shall be entitled to receive in connection with the offering contemplated hereby; such compensation shall supersede, in all respects, any and all prior agreements or understandings relating to compensation to be received by the Placement Agents to purchase any of the Securities, and the Placement Agents shall have no authority to bind from the Company to accept offers to purchase the Securities. Each Placement Agent represents and agrees that, without the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute a Free Writing Prospectus that would be required to be filed with the Commission. Each Placement Agent may, with the prior consent of the Company (such consent not to be unreasonably withheld), retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of such Placement Agent’s portion of the Placement Feeoffering contemplated hereby.
(cg) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) by email exchange of documentation at 10:00 a.m., New York City time, on or before July 28, 2021, or at such time on such other date as may be agreed upon in writing by the Placement Agents and the Company (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities Shares which the Company has agreed to sell pursuant to the Purchase this Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities Shares shall have been delivered to the Investor thereof against payment therefor by such Investor. If the Company shall default in its obligations to deliver the Securities Shares to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agents harmless against any loss, claim or damage incurred by the Placement Agents arising from or as a result of such default by the Company.
(d) On the Closing Date, (i) the Company shall deliver, or cause to be delivered, the Securities to the Investors or their designees, and the Investors shall deliver, or cause to be delivered, the purchase price for their respective Securities to the Company pursuant to the terms of the Purchase Agreement, “delivery versus payment” through the facilities of The Depository Trust Company (“DTC”) and (ii) the Company shall wire the amounts owed to the Placement Agents as provided in this Agreement.
(eh) The Securities shall be registered in such names and in such denominations as each Investor shall request by written notice to the Company.
(f) The Company acknowledges and agrees that the Placement Agents are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the Offering contemplated hereby (including in connection with determining the terms of the Offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, the Placement Agents are not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agents shall make commercially reasonable efforts to obtain a letter from the National Association of Securities Dealers, Inc. (“NASD”) indicating that the NASD shall have raised no responsibility or liability objection to the Company with respect thereto. Any review by the Placement Agents fairness and reasonableness of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Placement Agents placement agent terms and shall not be on behalf of the Companyarrangements.
Appears in 1 contract
Agreement to Act as Placement Agents. The Company hereby confirms its agreement with you as follows:
(a) On the basis of the representations, representations and warranties and agreements of the Company contained herein, and subject to all the terms and conditions of set forth in this Agreement, Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and Chardan Capital Marketsthe Company engages the Placement Agents, LLC shall be the Company’s on a reasonable efforts basis, to act as its exclusive placement agents (each a “Placement Agent” and collectively the “Placement Agents”), acting on a reasonable best efforts basis, Representative as the representative of the other placement agents in connection with the sale offer and sale, by the Company Company, of the Securities to the Investors in a proposed offering pursuant to the Registration Statement, with the terms of the offering to be subject to market conditions and negotiations among the Company and the prospective Investors (such offering shall be referred to herein as the “Offering”)Investors. As compensation for services rendered, and provided that any of the The Securities are being sold to Investors at a price of $1.90 per Security. The Placement Agents may retain other brokers or dealers to act as sub-agents on their respective behalf in connection with the Offering, on offering and sale of the Securities. Until the earlier of the Closing Date (as defined in Section 1(c) 3 hereof) or the termination of the Offeringthis Agreement, the Company shall pay not, without the prior consent of the Representative on behalf of the Placement Agents, solicit or accept offers to purchase shares of Common Stock otherwise than through the Placement Agents.
(b) The Company expressly acknowledges and agrees that the Placement Agents’ obligations hereunder are on a commercially reasonable efforts basis, and this Agreement shall not give rise to any commitment by the Placement Agents a cash fee equal or any of their affiliates to six percent (6.0%) underwrite or purchase any of the aggregate gross proceeds raised Securities or otherwise provide any financing. No Placement Agent shall have authority to bind the Company in the Offering at the Closing other than with respect to proceeds raised from Investors who are directors or officers of the Company and their affiliates (the “Placement Fee”)sale of any Securities. The sale of the Securities shall be made pursuant to subscription agreements in the form included as Exhibit A B hereto (the “Purchase Subscription Agreements”).
(c) Each Placement Agent shall make commercially reasonable efforts to assist the Company in obtaining performance by each Investor whose offer to purchase Securities has been solicited by such Placement Agent and accepted by the Company, but the Placement Agents shall not, except as otherwise provided in this Agreement”, be obligated to disclose the identity of any potential Investor or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will any Placement Agent be obligated to purchase any Securities for its own account and, in soliciting purchases of Securities, the Placement Agents shall act solely as the Company’s agent and not as a principal. Notwithstanding the foregoing and except as otherwise provided in Section 2(c), it is understood and agreed that each Placement Agent (or its affiliates) on may, solely at its discretion and without any obligation to do so, purchase Securities as a principal; provided, however, that any such purchases by such Placement Agent (or its affiliates) shall be fully disclosed to the terms described on Exhibit B heretoCompany (including the identity of such Investors) and approved by the Company in accordance with Section 2(d).
(d) Subject to the provisions of this Section 2, offers for the purchase of Securities may be solicited by any Placement Agent as agent for the Company at such times and in such amounts as such Placement Agent deems advisable. Each Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities received by such Placement Agentit as agent of the Company. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part.
(b) This Agreement shall not give rise to any commitment by the Placement Agents to purchase any of the Securities, and the Placement Agents shall have no authority to bind the Company to accept offers to purchase the Securities. Each Placement Agent represents and agrees thatshall have the right, without the in its discretion, subject to providing prior written consent of notice to the Company, it has not made and will not make to reject any offer relating to purchase Securities received by it, in whole or in part, and any such rejection shall not be deemed a breach of its agreement contained herein.
(e) As compensation for services rendered, on the Closing Date, the Company shall pay to the Placement Agents by wire transfer of immediately available funds to an account or accounts designated by the Placement Agents, an aggregate amount based on a certain percentage of the gross proceeds received by the Company from the sale of Securities that would constitute a Free Writing Prospectus that would be required to be filed with on such Closing Date as set forth on Schedule I hereto (the Commission“Agency Fee”). Each Placement Agent mayagrees that the foregoing compensation, together with the prior consent any expense reimbursement payable hereunder, constitutes all of the Company (compensation that such consent not Placement Agent shall be entitled to be unreasonably withheld), retain other brokers or dealers to act as sub-agents on its behalf receive in connection with the Offeringoffering contemplated hereby; such compensation shall supersede, the fees of which shall in all respects, any and all prior agreements or understandings relating to compensation to be paid out of received by such Placement Agent’s portion of Agent from the Placement FeeCompany in connection with the offering contemplated hereby.
(cf) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) by email exchange of documentation at 10:00 a.m., New York City time, on or before July 28, 2021, or at such time on such other date as may be agreed upon in writing by the Placement Agents and the Company (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to the Purchase this Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefor by such Investor. If the Company shall default in its obligations to deliver the Securities to an Investor whose offer it has acceptedaccepted and from whom subscription proceeds have been received, the Company shall indemnify and hold the Placement Agents harmless against any loss, claim or damage incurred by the Placement Agents arising from or as a result of such default by the Company.
(d) On the Closing Date, (i) the Company shall deliver, or cause to be delivered, the Securities to the Investors or their designees, and the Investors shall deliver, or cause to be delivered, the purchase price for their respective Securities to the Company pursuant to the terms of the Purchase Agreement, “delivery versus payment” through the facilities of The Depository Trust Company (“DTC”) and (ii) the Company shall wire the amounts owed to the Placement Agents as provided in this Agreement.
(e) The Securities shall be registered in such names and in such denominations as each Investor shall request by written notice to the Company.
(f) The Company acknowledges and agrees that the Placement Agents are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the Offering contemplated hereby (including in connection with determining the terms of the Offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, the Placement Agents are not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agents shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agents of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Placement Agents and shall not be on behalf of the Company.
Appears in 1 contract
Agreement to Act as Placement Agents. The Company hereby confirms its agreement with you as follows:
(a) On the basis of the representations, warranties and agreements of the Company contained herein, and subject to all the terms and conditions of this Agreementset forth herein, Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and Chardan Capital Marketsthe Company engages the Placement Agents, LLC shall be the Company’s on a commercially reasonable efforts basis, to act as its exclusive placement agents (each a “and the Representative, as the representative of the Placement Agent” and collectively the “Placement Agents”), acting on a reasonable best efforts basis, Agents in connection with the sale offer and sale, by the Company Company, of the Securities to the Investors Purchasers. The Placement Agents may retain other brokers or dealers to act as sub-agents on their respective behalf in a proposed offering pursuant to the Registration Statement, connection with the terms offering and sale of the offering to be subject to market conditions and negotiations among Securities. Until the Company and the prospective Investors (such offering shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any earlier of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in Section 1(c) 4 hereof) or the termination of the Offeringthis Agreement, the Company shall pay not, without the prior consent of the Representative on behalf of the Placement Agents, solicit or accept offers to purchase the Securities otherwise than through the Placement Agents.
(b) The Company expressly acknowledges and agrees that the Placement Agents’ obligations hereunder are on a commercially reasonable efforts basis, and this Agreement shall not give rise to any commitment by the Placement Agents a cash fee equal or any of their affiliates to six percent (6.0%) underwrite or purchase any of the aggregate gross proceeds raised Securities or otherwise provide any financing. No Placement Agent shall have authority to bind the Company in the Offering at the Closing other than with respect to proceeds raised from Investors who are directors or officers of the Company and their affiliates (the “Placement Fee”)sale of any Securities. The sale of the Securities shall may be made pursuant to subscription agreements the Subscription Agreements or Final Prospectus.
(c) Each Placement Agent shall make commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Securities has been solicited by such Placement Agent and accepted by the Company, but the Placement Agents 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 form included event any such purchase is not consummated for any reason. Under no circumstances will any Placement Agent be obligated to purchase any Securities for its own account and, in soliciting purchases of Securities, the Placement Agents shall act solely as Exhibit A hereto the Company’s agent and not as a principal. Notwithstanding the foregoing and except as otherwise provided in Section 3(d), it is understood and agreed that each Placement Agent (or its affiliates) may, solely at its discretion and without any obligation to do so, purchase Securities as a principal; provided, however, that any such purchases by such Placement Agent (or its affiliates) shall be fully disclosed to the “Purchase Agreement”Company (including the identity of such Investors) on and approved by the terms described on Exhibit B heretoCompany in accordance with Section 3(d). 15
(d) Subject to the provisions of this Section 3, offers for the purchase of Securities may be solicited by any Placement Agent as agent for the Company at such times and in such amounts as such Placement Agent deems advisable. Each Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities received by such Placement Agentit as agent of the Company. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part.
(b) This Agreement shall not give rise to any commitment by the Placement Agents to purchase any of the Securities, and the Placement Agents shall have no authority to bind the Company to accept offers to purchase the Securities. Each Placement Agent represents and agrees thatshall have the right, without the in its discretion, subject to providing prior written consent of notice to the Company, it has not made and will not make to reject any offer relating to purchase Securities received by it, in whole or in part, and any such rejection shall not be deemed a breach of its agreement contained herein.
(e) As compensation for services rendered, on the Closing Date, the Company shall pay to the Placement Agents by wire transfer of immediately available funds to an account or accounts designated by the Placement Agents, an aggregate amount based on a certain percentage of the gross proceeds received by the Company from the sale of Securities that would constitute a Free Writing Prospectus that would be required to be filed with on the CommissionClosing Date as set forth on Schedule A hereto (the “Agency Fee”). Each Placement Agent mayagrees that the foregoing compensation, together with the prior consent any expense reimbursement payable hereunder, constitutes all of the Company (compensation that such consent not Placement Agent shall be entitled to be unreasonably withheld), retain other brokers or dealers to act as sub-agents on its behalf receive in connection with the Offeringoffering contemplated hereby; such compensation shall supersede, the fees of which shall in all respects, any and all prior agreements or understandings relating to compensation to be paid out of received by such Placement Agent’s portion of Agent from the Placement FeeCompany in connection with the offering contemplated hereby.
(cf) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) by email exchange of documentation at 10:00 a.m., New York City time, on or before July 28, 2021, or at such time on such other date as may be agreed upon in writing by the Placement Agents and the Company (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to the Purchase this Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor Purchaser thereof against payment therefor by such InvestorPurchaser. If the Company shall default in its obligations to deliver the Securities to an Investor a Purchaser whose offer it has acceptedaccepted and from whom subscription proceeds have been received, the Company shall indemnify and hold the Placement Agents harmless against any loss, claim or damage incurred by the Placement Agents arising from or as a result of such default by the Company.
(d) On the Closing Date, (i) the Company shall deliver, or cause to be delivered, the Securities to the Investors or their designees, and the Investors shall deliver, or cause to be delivered, the purchase price for their respective Securities to the Company pursuant to the terms of the Purchase Agreement, “delivery versus payment” through the facilities of The Depository Trust Company (“DTC”) and (ii) the Company shall wire the amounts owed to the Placement Agents as provided in this Agreement.
(e) The Securities shall be registered in such names and in such denominations as each Investor shall request by written notice to the Company.
(f) The Company acknowledges and agrees that the Placement Agents are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the Offering contemplated hereby (including in connection with determining the terms of the Offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, the Placement Agents are not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agents shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agents of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Placement Agents and shall not be on behalf of the Company.
Appears in 1 contract
Sources: Placement Agency Agreement
Agreement to Act as Placement Agents. The Company hereby confirms its agreement with you as follows:
(a) On the basis of the representations, representations and warranties and agreements of the Company contained herein, and subject to all the terms and conditions of set forth in this Agreement, Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and Chardan Capital Marketsthe Company engages the Placement Agents, LLC shall be the Company’s on a reasonable efforts basis, to act as its exclusive placement agents (each a “Placement Agent” and collectively the “Placement Agents”), acting on a reasonable best efforts basis, in connection with the sale offer and sale, by the Company Company, of the Securities Shares to the Investors in a proposed offering pursuant to the Registration Statement, with the terms of the offering to be subject to market conditions and negotiations among the Company and the prospective Investors (such offering shall be referred to herein as the “Offering”)Investors. As compensation for services rendered, and provided that any of the Securities The Shares are being sold to Investors at a price of $8.50 per share. Each Placement Agent may retain other brokers or dealers to act as sub-agents on their respective behalf in connection with the Offering, on offering and sale of the Shares. Until the earlier of the Closing Date (as defined in Section 1(c) 2 hereof) or the termination of the Offeringthis Agreement, the Company shall pay to not, without the prior consent of the Placement Agents Agents, solicit or accept offers to purchase Shares otherwise than through the Placement Agents.
(b) The Company expressly acknowledges and agrees that each Placement Agent’s obligations hereunder are on a cash fee equal reasonable efforts basis, and this Agreement shall not give rise to six percent (6.0%) any commitment by such Placement Agent or any of its affiliates to underwrite or purchase any of the aggregate gross proceeds raised Shares or otherwise provide any financing. No Placement Agent shall have authority to bind the Company in the Offering at the Closing other than with respect to proceeds raised from Investors who are directors or officers of the Company and their affiliates (the “Placement Fee”)sale of any Shares. The sale of the Securities Shares shall be made pursuant to subscription agreements in the form included as Exhibit A hereto (the “Purchase Subscription Agreements”).
(c) Each Placement Agent shall make commercially reasonable efforts to assist the Company in obtaining performance by each Investor whose offer to purchase Shares has been solicited by such Placement Agent and accepted by the Company, but the Placement Agents shall not, except as otherwise provided in this Agreement”, be obligated to disclose the identity of any potential Investor or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will any Placement Agent be obligated to purchase any Shares for its own accounts and, in soliciting purchases of Shares, the Placement Agents shall act solely as the Company’s agent and not as a principal. Notwithstanding the foregoing and except as otherwise provided in Section 1(c), it is understood and agreed that each Placement Agent (or its affiliates) on may, solely at its discretion and without any obligation to do so, purchase Shares as a principal; provided, however, that any such purchases by such Placement Agent (or its affiliates) shall be fully disclosed to the terms described on Exhibit B heretoCompany (including the identity of such Investors) and approved by the Company in accordance with Section 1(d).
(d) Subject to the provisions of this Section 1, offers for the purchase of Shares may be solicited by any Placement Agent as agent for the Company at such times and in such amounts as such Placement Agent deems advisable. Each Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities Shares received by such Placement Agentit as agent of the Company. The Company shall have the sole right to accept offers to purchase the Securities Shares and may reject any such offer offer, in whole or in part.
(b) This Agreement shall not give rise to any commitment by the Placement Agents to purchase any of the Securities, and the Placement Agents shall have no authority to bind the Company to accept offers to purchase the Securities. Each Placement Agent represents and agrees thatshall have the right, without the in its discretion reasonably exercised, subject to providing prior written consent of notice to the Company, it has not made and will not make to reject any offer relating to purchase Shares received by it, in whole or in part, and any such rejection shall not be deemed a breach of its agreement contained herein.
(e) The purchases of Shares by the Investors shall be evidenced by the execution of the Subscription Agreements by each of the parties thereto in the form attached hereto as Exhibit A.
(f) As compensation for services rendered, on the Closing Date, the Company shall pay to the Securities that would constitute Placement Agents by wire transfer of immediately available funds to an account or accounts designated by the Placement Agents, an aggregate amount based on a Free Writing Prospectus that would be required to be filed with certain percentage of the Commissiongross proceeds received by the Company from the sale of Shares on such Closing Date as set forth on Annex I hereto (the “Agency Fee”). Each Placement Agent mayagrees that the foregoing compensation, together with the prior consent any expense reimbursement payable hereunder, constitutes all of the Company (compensation that such consent not Placement Agent shall be entitled to be unreasonably withheld), retain other brokers or dealers to act as sub-agents on its behalf receive in connection with the Offeringoffering contemplated hereby; such compensation shall supersede, the fees of which shall in all respects, any and all prior agreements or understandings relating to compensation to be paid out of received by such Placement Agent’s portion of Agent from the Placement FeeCompany in connection with the offering contemplated hereby.
(cg) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) by email exchange of documentation at 10:00 a.m., New York City time, on or before July 28, 2021, or at such time on such other date as may be agreed upon in writing by the Placement Agents and the Company (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities Shares which the Company has agreed to sell pursuant to the Purchase this Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities Shares shall have been delivered to the Investor thereof against payment therefor by such Investor. If the Company shall default in its obligations to deliver the Securities Shares to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agents harmless against any loss, claim or damage incurred by the Placement Agents arising from or as a result of such default by the Company.
(d) On the Closing Date, (i) the Company shall deliver, or cause to be delivered, the Securities to the Investors or their designees, and the Investors shall deliver, or cause to be delivered, the purchase price for their respective Securities to the Company pursuant to the terms of the Purchase Agreement, “delivery versus payment” through the facilities of The Depository Trust Company (“DTC”) and (ii) the Company shall wire the amounts owed to the Placement Agents as provided in this Agreement.
(e) The Securities shall be registered in such names and in such denominations as each Investor shall request by written notice to the Company.
(f) The Company acknowledges and agrees that the Placement Agents are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the Offering contemplated hereby (including in connection with determining the terms of the Offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, the Placement Agents are not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agents shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agents of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Placement Agents and shall not be on behalf of the Company.
Appears in 1 contract
Sources: Placement Agency Agreement (Auxilium Pharmaceuticals Inc)
Agreement to Act as Placement Agents. The Company hereby confirms its agreement with you as follows:
(a) On the basis of the representations, warranties and agreements of the Company contained hereinherein contained, and subject to all the terms and conditions of this Agreement, Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and Chardan Capital Markets, LLC the Placement Agents shall be act as the Company’s exclusive co-lead placement agents (each a “Placement Agent” and collectively the “Placement Agents”), acting on a reasonable best efforts basis, in connection with the offering and sale by the Company of the Securities to the Investors in a proposed offering pursuant to the Registration StatementSecurities, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations among between the Company Company, the Placement Agents and the prospective Investors (such offering Investors. The Placement Agents will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. The Placement Agents shall consult with each other and the Company regarding the conduct of the Offering, including the timing, manner, and terms of the Offering, and shall cooperate in good faith to coordinate their activities in connection with the Offering. Notwithstanding anything to the contrary herein, neither Placement Agent shall have the authority to act for, represent, bind, or obligate the other Placement Agent in any respect, it being understood that each Placement Agent shall act on a several and not joint basis. The Company shall be referred entitled to herein rely upon any written instructions, notices, or other communications jointly provided by the Placement Agents with respect to matters requiring the consent or direction of the Placement Agents under this Agreement. Under no circumstances will the Placement Agents or any of their “Affiliates” (as the “Offering”). As compensation for services rendered, and provided that defined below) be obligated to underwrite or purchase any of the Securities are sold for their own accounts or otherwise provide any financing. The Placement Agents shall act solely as the Company’s agents and not as principals. The Placement Agents shall have no authority to Investors in the Offering, on the Closing Date (as defined in Section 1(c) hereof) of the Offering, bind the Company shall pay to the Placement Agents a cash fee equal to six percent (6.0%) of the aggregate gross proceeds raised in the Offering at the Closing other than with respect to proceeds raised from Investors who are directors or officers of the Company and their affiliates (the “Placement Fee”). The sale of the Securities shall be made pursuant to subscription agreements in the form included as Exhibit A hereto (the “Purchase Agreement”) on the terms described on Exhibit B hereto. Each Placement Agent shall communicate to the Company, orally or in writing, each any prospective offer to purchase Securities received by such Placement Agent. The and the Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part.
(b) This Agreement shall not give rise to any commitment by the Placement Agents to purchase any of the Securities, and the Placement Agents shall have no authority to bind the Company to accept offers to purchase the Securities. Each Placement Agent represents and agrees that, without the prior written consent of the Company, it has not made and will not make any offer relating Subject to the Securities that would constitute a Free Writing Prospectus that would be required to be filed with the Commission. Each Placement Agent mayterms and conditions hereof, with the prior consent of the Company (such consent not to be unreasonably withheld), retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of such Placement Agent’s portion of the Placement Fee.
(c) Payment payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a closing (the “Closing”) by email exchange of documentation at 10:00 a.m., New York City time, on or before July 28, 2021, or at such time on such other date as may be agreed upon in writing by the Placement Agents ” and the Company (such date of payment and delivery being herein called the on which each Closing occurs, a “Closing Date”). All such actions taken at the As compensation for services rendered, on each Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to the Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefor by such Investor. If the Company shall default in its obligations to deliver the Securities to an Investor whose offer it has acceptedDate, the Company shall indemnify and hold pay to the Placement Agents harmless against any lossAgents, claim or damage incurred their designees, the fees and expenses set forth below:
(i) A cash fee equal to 6.0% of the sum of a) the aggregate maximum gross proceeds actually received by the Company from the sale of the Securities placed by the Placement Agents arising (the “Gross Proceeds”) at the Closing of the Offering plus b) any non-cash consideration paid in the form of digital assets; however, such cash fee shall be reduced by 50.0% (i.e., to 3.0%) with respect to all amounts raised by investors set forth on the “President’s List,” attached hereto as Exhibit A.
(ii) Of the cash fee, each of C▇▇▇▇▇ and R▇▇▇ will receive 50% of the total cash fees, unless otherwise agreed to in writing by the Company and both of the Placement Agents; and the Placement Agents shall be paid such cash fee directly from the Gross Proceeds at Closing, via “funds flow”.
(iii) No fee shall be payable to the Placement Agents for a) any issuance or exercise of restricted stock units, advisory warrants or restricted stock units, restricted stock or options subject to an equity incentive plan or b) any in-kind or other contributions received from the Story Foundation, Pen Technology, Inc. (a/k/a Story Protocol), S▇▇▇▇ ▇▇▇▇ ▇▇▇, B▇▇ ▇▇▇▇▇▇▇▇▇, S▇▇▇▇ S▇▇ ▇▇▇ or J▇▇▇▇▇ ▇▇▇▇▇▇▇.
(iv) Warrants (“Placement Agent Warrants”) to purchase a number of shares of Common Stock (the “Placement Agent Warrant Shares”) equal to 3.0% of the Securities sold at Closing, excluding any Shares (i) issued to Story Foundation, Pen Technology, Inc. (a/k/a Story Protocol), S▇▇▇▇ ▇▇▇▇ ▇▇▇, B▇▇ ▇▇▇▇▇▇▇▇▇, S▇▇▇▇ S▇▇ ▇▇▇ or J▇▇▇▇▇ ▇▇▇▇▇▇▇ or (ii) issued in exchange for digital assets other than stablecoin, such as $IPTokens, in each case notwithstanding the terms in the Cantor Engagement Letter (as defined below). The Placement Agent Warrants, in the form attached hereto as Exhibit B, shall be exercisable, in whole or in part, from the date of issuance until the five-year anniversary of the issuance date of the Placement Agent Warrants at an initial exercise price per share equal to $0.01 per share. The same registration rights granted to the Investors for the Securities shall also apply to the Placement Agent Warrant Shares. The Placement Agent Warrants shall be allocated as follows: 65% to R▇▇▇ and 35% to Cantor, with no other party entitled to receive any portion of the Placement Agent Warrants.
(v) The Company also agrees to reimburse each Placement Agent’s expenses (with supporting invoices/receipts), without limitation of Section 7 hereof, up to a result maximum of $300,000.00 (the “Reimbursable Expenses”). Such Reimbursable Expenses shall be payable, immediately upon (but only in the event of) the Closing, to the Placement Agents and their legal counsel directly from the Gross Proceeds via “funds flow”. Any expenses proposed by the Placement Agents to be incurred above this amount shall be approved in writing by the Company first. In the event Closing does not occur, Open World, Inc. (“Open World”), on behalf of the Company, shall directly pay such default by Reimbursable Expenses to the Placement Agents and their counsel; and such legal counsel shall be a third-party beneficiary of the expense reimbursement obligations set forth herein. In the event that Open World does not pay such Reimbursable Expenses, then the Company shall be liable therefor. The Placement Agent shall (subject to their reasonable privilege and confidentially requirements) detail the expenses to the satisfaction of Open World and the Company.
(db) On The term of the Closing Dateeach Placement Agent’s exclusive engagement will be until the completion of the Offering (the “Exclusive Term”); provided, however, that any party hereto may terminate the engagement with respect to itself with written notice to the other parties, provided that such termination shall not affect the rights and obligations of the other Placement Agent or the Company. Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(f)(2)(D)(i), will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agents or their Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) the Company shall deliver“Persons” means an individual or corporation, partnership, trust, incorporated or cause to be deliveredunincorporated association, the Securities to the Investors joint venture, limited liability company, joint stock company, government (or their designees, and the Investors shall deliver, an agency or cause to be delivered, the purchase price for their respective Securities to the Company pursuant to the terms subdivision thereof) or other entity of the Purchase Agreement, “delivery versus payment” through the facilities of The Depository Trust Company (“DTC”) any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Company shall wire Securities Act of 1933, as amended (the amounts owed to the Placement Agents as provided in this Agreement“Securities Act”).
(e) The Securities shall be registered in such names and in such denominations as each Investor shall request by written notice to the Company.
(f) The Company acknowledges and agrees that the Placement Agents are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the Offering contemplated hereby (including in connection with determining the terms of the Offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, the Placement Agents are not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agents shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agents of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Placement Agents and shall not be on behalf of the Company.
Appears in 1 contract
Sources: Placement Agency Agreement (Heritage Distilling Holding Company, Inc.)