•] Shares Crexendo, Inc. Common Stock, par value $0.001 per share UNDERWRITING AGREEMENT
Exhibit 1.1
[•] Shares
Common Stock, par value $0.001 per share
[•], 2020
▇.
▇▇▇▇▇ Securities,
Inc.
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As
Representative of the several Underwriters named in Schedule I
hereto
Ladies
and Gentlemen:
Crexendo, Inc., a
Nevada corporation (the “Company”),
proposes, subject to the terms and conditions stated herein, to
issue and sell to the several Underwriters named in Schedule I
hereto (the “Underwriters”)
an aggregate of [•] shares of common stock, par value $0.001
per share (the “Common
Stock”), of the Company, and certain stockholders of
the Company (the “Selling
Stockholders”) named in Schedule II hereto severally
propose to sell to the several Underwriters, an aggregate of
[●] shares of outstanding Common Stock (all such Common Stock
to be sold to the Underwriters by the Company and Selling
Stockholders, the “Firm Shares”).
The Company also proposes to grant to the several Underwriters an
option to purchase up to [•] additional shares of Common
Stock on the terms and for the purposes set forth in Section 4
hereof (the “Option
Shares”). The Firm Shares and any Option Shares
purchased pursuant to this Underwriting Agreement (this
“Agreement”)
are herein collectively called the “Securities.”
The Company and the Selling Stockholders are hereinafter sometimes
collectively referred to as the “Sellers.”
The
Company and the several Underwriters hereby confirm their agreement
as follows with respect to the sale of the Securities to the
several Underwriters, for whom ▇. ▇▇▇▇▇ Securities, Inc. is acting
as representative (“you” or
the “Representative”).
1. Registration Statement and
Prospectus. A registration statement on Form S-1 (File No.
333-248767) with respect to the Securities, including a preliminary
form of prospectus, has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended
(the “Securities
Act”), and the rules and regulations (the “Rules and
Regulations”) of the U.S. Securities and Exchange
Commission (the “Commission”)
thereunder and has been filed with the Commission. Such
registration statement, including the amendments, exhibits and
schedules thereto, as of the time it became effective, including
the Rule 430A Information (as defined below), is referred to herein
as the “Registration
Statement.” The Company will prepare and file a
prospectus pursuant to Rule 424(b) of the Rules and Regulations
that discloses the information previously omitted from the
prospectus in the Registration Statement in reliance upon Rule 430A
of the Rules and Regulations, which information will be deemed
retroactively to be a part of the Registration Statement in
accordance with Rule 430A of the Rules and Regulations
(“Rule
430A Information”). If the Company has elected to rely
upon Rule 462(b) of the Rules and Regulations to increase the size
of the offering registered under the Securities Act, the Company
will prepare and file with the Commission a registration statement
with respect to such increase pursuant to Rule 462(b) of the Rules
and Regulations (such registration statement, including the
contents of the Registration Statement incorporated by reference
therein, is the “Rule 462(b)
Registration Statement”). References herein to the
“Registration
Statement” will be deemed to include the Rule 462(b)
Registration Statement at and after the time of filing of the Rule
462(b) Registration Statement. “Preliminary
Prospectus” means any prospectus included in the
Registration Statement prior to the effective time of the
Registration Statement, any prospectus filed with the Commission
pursuant to Rule 424(a) under the Rules and Regulations and each
prospectus that omits Rule 430A Information used after the
effective time of the Registration Statement. “Prospectus”
means the prospectus that discloses the public offering price and
other final terms of the Securities and the offering and otherwise
satisfies Section 10(a) of the Securities Act. All references
in this Agreement to the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement to any of
the foregoing, is deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System or any successor system thereto (“▇▇▇▇▇”).
All
references in this Agreement to financial statements and schedules
and other information which is “described,”
“contained,” “included” or
“stated” in the Registration Statement, the Preliminary
Prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in or otherwise deemed by the Rules and Regulations to be
a part of or included in the Registration Statement, the
Preliminary Prospectus or the Prospectus, as the case may be, and
all references in this Agreement to amendments or supplements to
the Registration Statement, the Preliminary Prospectus or the
Prospectus shall be deemed to mean and include the subsequent
filing of any document under the Securities Exchange Act of 1934,
as amended (the “Exchange
Act”), and which is deemed to be incorporated by
reference therein or otherwise deemed by the Rules and Regulations
to be a part thereof.
2. Representations and
Warranties of the Company.
(a) Representations
and Warranties of the Company. The Company represents and
warrants to, and agrees with, the several Underwriters as
follows:
(i) Registration
Statement and Prospectuses. No order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus
(or any supplement thereto) has been issued by the Commission and
no proceeding for that purpose has been initiated or is pending or,
to the knowledge of the Company, threatened by the Commission. As
of the time each part of the Registration Statement (or any
post-effective amendment thereto) became or becomes effective, such
part conformed or will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations.
Upon the filing or first use within the meaning of the Rules and
Regulations, each Preliminary Prospectus and the Prospectus (or any
supplement to either) conformed or will conform in all material
respects to the requirements of the Securities Act and the Rules
and Regulations. The Registration Statement and any post-effective
amendment thereto has become effective under the Securities Act.
The Company has complied to the Commission’s satisfaction
with all requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the
Registration Statement, or any part thereto or any post-effective
amendment thereto has been issued, and no proceedings for such
purpose have been instituted or are pending or, to the knowledge of
the Company, are threatened by the Commission.
(ii) Accurate
Disclosure. Each Preliminary Prospectus, at the time of
filing thereof or the time of first use within the meaning of the
Rules and Regulations, did not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. Neither the Registration Statement nor any amendment
thereto, at the effective time of each part thereof, at the First
Closing Date (as defined below) or at the Second Closing Date (as
defined below), contained, contains or will contain an untrue
statement of a material fact or omitted, omits or will omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. As of the Time of Sale
(as defined below), neither (A) the Time of Sale Disclosure Package
(as defined below) nor (B) any issuer free writing prospectus, when
considered together with the Time of Sale Disclosure Package,
included an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading. Neither the Prospectus nor any supplement thereto, as
of its issue date, at the time of any filing with the Commission
pursuant to Rule 424(b) of the Rules and Regulations, at the First
Closing Date or at the Second Closing Date, included, includes or
will include an untrue statement of a material fact or omitted,
omits or will omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading. The representations and
warranties in this Section 2(a)(ii) shall not apply to
statements in or omissions from any Preliminary Prospectus, the
Registration Statement (or any amendment thereto), the Time of Sale
Disclosure Package or the Prospectus (or any supplement thereto)
made in reliance upon, and in conformity with, written information
furnished to the Company by you, or by any Underwriter through you,
specifically for use in the preparation of such document, it being
understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in
Section 8(f), or information relating to any Selling Stockholder
furnished in writing by or on behalf of such Selling stockholder
expressly for use therein.
“Time of Sale
Disclosure Package” means the Preliminary Prospectus
dated [●], 2020 and the information on Schedule III, all
considered together.
Each
reference to a “free writing
prospectus” herein means a free writing prospectus as
defined in Rule 405 of the Rules and Regulations.
“Time of
Sale” means [•]:00 p.m. (New York City time) on
the date of this Agreement.
(iii) No
Other Offering Materials. The Company has not distributed
and will not distribute any prospectus or other offering material
in connection with the offering and sale of the Securities other
than any Preliminary Prospectus, the Time of Sale Disclosure
Package or the Prospectus or other materials permitted by the
Securities Act to be distributed by the Company; provided, further, that the Company has not made and
will not make any offer relating to the Securities that would
constitute a free writing prospectus and, except as set forth on
Schedule IV, the Company has not made and will not make any
communication relating to the Securities that would constitute a
Testing-the-Water Communication (as defined below), except in
accordance with the provisions of Section 2(a)(iv) of this
Agreement.
(iv) Smaller
Reporting Company. From the time of initial filing of the
Registration Statement to the Commission through the date hereof,
the Company has been and is a “smaller reporting
company,” as defined in Rule 12b-2 under the Exchange
Act.
(v) Testing-the-Waters
Materials. The Company
(i) has not alone engaged in any Testing-the-Waters
Communications, other than Testing-the-Waters Communications with
the prior consent of the Representative with entities that are
qualified institutional buyers within the meaning of Rule 144A
under the Securities Act or institutions that are accredited
investors within the meaning of Rule 501 under the Securities
Act and (ii) has not authorized anyone other than the
Representative to engage in Testing-the-Waters Communications. The
Company has not distributed any Written Testing-the-Waters
Communications (as defined below) other than those listed on
Schedule IV hereto. “Testing-the-Waters
Communication” means any oral or written communication
with potential investors undertaken in reliance on Section 5(d)
under the Exchange Act.
“Written Testing-the-Waters
Communication” means any
Testing-the-Waters Communication that is a written communication
within the meaning of Rule 405 under the Securities Act. Any
individual Written Testing-the-Waters Communication does not
conflict with the information contained in the Registration
Statement or the Time of Sale Disclosure Package, complied in all
material respects with the Securities Act, and when taken together
with the Time of Sale Disclosure Package as of the Time of Sale,
did not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(vi) Financial
Statements. The financial statements of the Company,
together with the related notes and schedules, set forth or
incorporated by reference in the Registration Statement, the Time
of Sale Disclosure Package and the Prospectus comply in all
material respects with the requirements of the Securities Act, the
Rules and Regulations and the Exchange Act and fairly present the
financial condition of the Company and its consolidated
subsidiaries as of the dates indicated and the results of
operations and cash flows and changes in stockholders’ equity
for the periods therein specified. The financial statements of the
Company, together with the related notes, set forth or incorporated
by reference in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus are in conformity with
generally accepted accounting principles in the United States
(“GAAP”)
consistently applied throughout the periods involved; the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to
be stated therein; all non-GAAP financial information included in
the Registration Statement, the Time of Sale Disclosure Package and
the Prospectus complies with the requirements of Regulation G and
Item 10 of Regulation S-K under the Securities Act; and, except as
disclosed in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus, there are no material
off-balance sheet arrangements (as defined in Regulation S-K under
the Securities Act, Item 303(a)(4)(ii)) or any other relationships
with unconsolidated entities or other persons, that may have a
material current or, to the Company’s knowledge, material
future effect on the Company’s financial condition, results
of operations, liquidity, capital expenditures, capital resources
or significant components of revenue or expenses. No other
financial statements or schedules are required to be included in
the Registration Statement, the Time of Sale Disclosure Package or
the Prospectus. ▇▇▇▇▇ ▇▇▇▇▇▇ & Co., LLC, which has expressed
its opinion with respect to the financial statements and schedules
filed as a part of the Registration Statement and included in the
Registration Statement, the Time of Sale Disclosure Package and the
Prospectus, is (x) an independent
public accounting firm within the meaning of the Securities Act and
the Rules and Regulations, (y) a registered public accounting firm
(as defined in Section 2(a)(12) of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of
2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”)) and (z) not in
violation of the auditor independence requirements of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(vii) Organization
and Good Standing. Each of the Company and its
subsidiaries has been duly organized and is validly existing as an
entity in good standing under the laws of its jurisdiction of
organization. Each of the Company and its subsidiaries has full
corporate power and authority to own its properties and conduct its
business as currently being carried on and as described in the
Registration Statement, the Time of Sale Disclosure Package and the
Prospectus, and is duly qualified to do business as a foreign
entity in good standing in each jurisdiction in which it owns or
leases real property or in which the conduct of its business makes
such qualification necessary and in which the failure to so qualify
would have a material adverse effect upon the business, prospects,
management, properties, operations, condition (financial or
otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole (“Material Adverse
Effect”).
(viii) Absence
of Certain Events. Except as contemplated in the
Registration Statement, the Time of Sale Disclosure Package and the
Prospectus, subsequent to the respective dates as of which
information is given in the Time of Sale Disclosure Package,
neither the Company nor any of its subsidiaries has incurred any
material liabilities or obligations, direct or contingent, or
entered into any material transactions, or declared or paid any
dividends or made any distribution of any kind with respect to its
capital stock; and there has not been any change in the capital
stock (other than a change in the number of outstanding shares of
Common Stock due to the issuance of shares upon the exercise of
outstanding options or warrants or conversion of convertible
securities), or any material change in the short-term or long-term
debt (other than as a result of the conversion of convertible
securities), or any issuance of options, warrants, convertible
securities or other rights to purchase the capital stock of the
Company or any of its subsidiaries, or any material adverse change
in the general affairs, condition (financial or otherwise),
business, prospects, management, properties, operations or results
of operations of the Company and its subsidiaries, taken as a whole
(“Material Adverse
Change”), or any development which could reasonably be
expected to result in any Material Adverse Change.
(ix) Absence
of Proceedings.
Except as set forth in the Time of Sale Disclosure Package and in
the Prospectus, there is not pending or, to the knowledge of the
Company, threatened or contemplated, any action, suit or proceeding
(a) to which the Company or any of its subsidiaries is a party or
(b) which has as the subject thereof any officer or director of the
Company or any subsidiary, any employee benefit plan sponsored by
the Company or any subsidiary or any property or assets owned or
leased by the Company or any subsidiary before or by any court or
Governmental Authority (as defined below), or any arbitrator,
which, individually or in the aggregate, might result in any
Material Adverse Change, or would materially and adversely affect
the ability of the Company to perform its obligations under this
Agreement or which are otherwise material in the context of the
sale of the Securities. There are no current or, to the knowledge
of the Company, pending, legal, governmental or regulatory actions,
suits or proceedings (x) to which the Company or any of its
subsidiaries is subject or (y) which has as the subject thereof any
officer or director of the Company or any subsidiary, any employee
plan sponsored by the Company or any subsidiary or any property or
assets owned or leased by the Company or any subsidiary, that are
required to be described in the Registration Statement, the Time of
Sale Disclosure Package and the Prospectus by the Securities Act or
by the Rules and Regulations and that have not been so
described.
(x) Disclosure of
Legal Matters. There are no statutes, regulations, legal or
governmental proceedings, contracts or documents that are required
to be described in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus or required to be filed as
exhibits to the Registration Statement by the Securities Act or by
the Rules and Regulations that have not been so described or
filed.
(xi) Authorization;
No Conflicts; Authority. This Agreement has been duly
authorized, executed and delivered by the Company, and constitutes
a valid, legal and binding obligation of the Company, enforceable
in accordance with its terms, except as rights to indemnity
hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity.
The execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated will not (A)
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries
pursuant to any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (B) result in
any violation of the provisions of the Company’s charter or
by-laws or (C) result in the violation of any law or statute or any
judgment, order, rule, regulation or decree of any court or
arbitrator supranational, international, national, federal, state,
provincial, municipal, or local government or any political
subdivision thereof (wherever located and whether foreign or
domestic), any governmental, regulatory or administrative
authority, agency, body, branch, instrumentality or commission, or
other non-governmental regulatory authority or quasi-governmental
authority (to the extent that the rules, regulations or orders of
such organization or authority have the force of law), or any
arbitrator, court, tribunal or other judicial or arbitral body of
competent jurisdiction having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets (each, a
“Governmental
Authority”), except in the case of clauses (A) and (C)
as would not result in a Material Adverse Effect. No consent,
approval, authorization or order of, or registration or filing with
any Governmental Authority is required for the execution, delivery
and performance of this Agreement or for the consummation of the
transactions contemplated hereby, including the issuance or sale of
the Securities by the Company, except such as may be required under
the Securities Act, the rules of the Financial Industry Regulatory
Authority, Inc. (“FINRA”),
the Nasdaq Capital Market or state securities or blue sky laws; and
the Company has full power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby,
including the authorization, issuance and sale of the Securities as
contemplated by this Agreement.
(xii) Capitalization;
the Securities; Registration Rights. All of the issued and
outstanding shares of capital stock of the Company, including the
outstanding shares of Common Stock and the shares of Common Stock
to be sold by the Selling Stockholders, are duly authorized and
validly issued, fully paid and nonassessable, and were not issued
in violation of or subject to any preemptive rights or other rights
to subscribe for or purchase securities that have not been waived
in writing (a copy of which, if any, has been delivered to counsel
for the Underwriters); the Securities which may be sold hereunder
by the Company have been duly authorized and, when issued,
delivered and paid for in accordance with the terms of this
Agreement, will have been validly issued and will be fully paid and
nonassessable; and the capital stock of the Company, including the
Common Stock and the Securities to be purchased pursuant to this
Agreement, conforms to the description thereof in the Registration
Statement, the Time of Sale Disclosure Package and the Prospectus.
Except as otherwise stated in the Registration Statement, the Time
of Sale Disclosure Package and the Prospectus, (A) there are no
preemptive rights or other rights to subscribe for or to purchase,
or any restriction upon the voting or transfer of, any shares of
Common Stock pursuant to the Company’s charter, by-laws or
any agreement or other instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound; (B) none of the filing of the
Registration Statement, the offering or the sale of the Securities
as contemplated by this Agreement gives rise to any rights for or
relating to the registration of any shares of Common Stock or other
securities of the Company (collectively “Registration
Rights”); and (C) any person to whom the Company
has granted Registration Rights has agreed not to exercise such
rights until after expiration of the Lock-Up Period (as defined
below). All of the issued and outstanding equity interests of each
of the Company’s subsidiaries have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise described in the Registration Statement, the
Time of Sale Disclosure Package and the Prospectus, the Company
owns of record and beneficially, free and clear of any security
interests, claims, liens, proxies, equities or other encumbrances,
all of the issued and outstanding equity interests of such
subsidiaries. The Company has an authorized and outstanding
capitalization as set forth in the Registration Statement, the Time
of Sale Disclosure Package and the Prospectus under the caption
“Capitalization.” The Common Stock (including the
Securities) conforms in all material respects to the description
thereof contained in the Time of Sale Disclosure Package and the
Prospectus.
(xiii) Stock
Options. The description of the Company’s stock
option, stock bonus and other stock plans or arrangements (the
“Company
Stock Plans”), and the options or other rights granted
thereunder (collectively, the “Awards”), set forth in the
Time of Sale Disclosure Package and the Prospectus accurately and
fairly presents the information required to be shown with respect
to such plans, arrangements and Awards. Each grant of an Award (A)
was duly authorized no later than the date on which the grant of
such Award was by its terms to be effective by all necessary
corporate action, including, as applicable, approval by the board
of directors of the Company (or a duly constituted and authorized
committee thereof) and any required stockholder approval by the
necessary number of votes or written consents, and the award
agreement governing such grant (if any) was duly executed and
delivered by each party thereto and (B) was made in accordance
with the terms of the applicable Company Stock Plan, and all
applicable laws and regulatory rules or requirements, including all
applicable federal securities laws.
(xiv) Compliance
with Laws. (i) The Company and each of its subsidiaries
holds, and is operating in compliance with, all franchises, grants,
authorizations, licenses, permits, easements, consents,
certificates and orders of any Governmental Authority or
self-regulatory body required for the conduct of its business and
all such franchises, grants, authorizations, licenses, permits,
easements, consents, certifications and orders are valid and in
full force and effect; and (ii) neither the Company nor any of its
subsidiaries has received notice of any revocation or modification
of any such franchise, grant, authorization, license, permit,
easement, consent, certification or order or has reason to believe
that any such franchise, grant, authorization, license, permit,
easement, consent, certification or order will not be renewed in
the ordinary course; and (iii) the Company and each of its
subsidiaries is in compliance with all applicable federal, state,
local and foreign laws, regulations, orders and decrees, except where, in the case of clauses
(i), (ii) and (iii), the failure to comply with such clauses would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(xv) Ownership
of Assets. The Company and its subsidiaries have good and
marketable title to, or have valid rights to lease or otherwise
use, all property (whether real or personal) described in the
Registration Statement, the Time of Sale Disclosure Package and the
Prospectus as being owned, leased or used by them, in each case
free and clear of all liens, claims, security interests, other
encumbrances or defects except (i) such as are described in the
Registration Statement, the Time of Sale Disclosure Package and the
Prospectus or (ii) do not interfere in any material respect with
the conduct of the business of the Company or its subsidiaries. The
property held under lease by the Company and its subsidiaries is
held by them under valid, subsisting and enforceable leases with
only such exceptions with respect to any particular lease as do not
interfere in any material respect with the conduct of the business
of the Company or its subsidiaries.
(xvi) Intellectual
Property.
(A) The
Company and each of its subsidiaries owns or has the right to use
pursuant to a valid and enforceable written license or other
legally enforceable right, all Intellectual Property (as defined
below) necessary for the conduct of the Company’s and its
subsidiaries’ businesses as now conducted or as described in
the Registration Statement, the Time of Sale Disclosure Package and
the Prospectus to be conducted, expect as such failure to own or
right to use such rights would not result in a Material Adverse
Effect (the “Company
IP”). “Intellectual
Property” means all patents, patent applications,
trade and service marks, trade and service ▇▇▇▇ registrations,
trade names, copyrights, licenses, inventions, trade secrets,
domain names, technology, know-how and other intellectual
property.
(B) To
the knowledge of the Company, there is no infringement,
misappropriation or violation by third parties of any Company IP.
There is no pending or, to the knowledge of the Company,
threatened, action, suit, proceeding or claim by others challenging
the Company’s or its subsidiaries’ rights in or to any
Company IP, and the Company is unaware of any facts which would
form a reasonable basis for any such claim. The Intellectual
Property owned by the Company and its subsidiaries, and to the
knowledge of the Company, the Intellectual Property licensed to the
Company and its subsidiaries, has not been adjudged invalid or
unenforceable, in whole or in part, and there is no pending or, to
the knowledge of the Company, threatened action, suit, proceeding
or claim by others challenging the validity or scope of any Company
IP, and the Company is unaware of any facts which would form a
reasonable basis for any such claim. There is no pending or, to the
knowledge of the Company, threatened action, suit, proceeding or
claim by others that the Company or its subsidiaries infringe,
misappropriate or otherwise violate any Intellectual Property or
other proprietary rights of others, and neither the Company nor any
of its subsidiaries has received any written notice of such claim
and the Company is unaware of any other fact which would form a
reasonable basis for any such claim.
(C) To
the Company’s knowledge, no employee of the Company or any of
its subsidiaries is in or has ever been in material violation of
any term of any employment contract, patent disclosure agreement,
invention assignment agreement, non-competition agreement,
non-solicitation agreement, nondisclosure agreement or any
restrictive covenant to or with a former employer where the basis
of such violation relates to such employee’s employment with
the Company or any of its subsidiaries or actions undertaken by the
employee while employed with the Company or any of its
subsidiaries.
(D) The
Company and its subsidiaries have taken reasonable security
measures to protect the secrecy, confidentiality and value of all
of their material Intellectual Property.
(E) All
patent applications owned by the Company or its subsidiaries and
filed with the U.S. Patent and Trademark Office (the “PTO”)
or any foreign or international patent authority that have resulted
in patents or currently pending applications that describe
inventions necessary to conduct the business of the Company or its
subsidiaries as now conducted or as described in the Registration
Statement, the Time of Sale Disclosure Package and the Prospectus
to be conducted (collectively, the “Company Patent
Applications”) have been or were duly and properly
filed.
(F) The
Company and its subsidiaries have complied with their duty of
candor and disclosure to the PTO for the Company Patent
Applications. To the Company’s knowledge, there are no facts
required to be disclosed to the PTO that were not disclosed to the
PTO and which would preclude the grant of a patent for the Company
Patent Applications. The Company has no knowledge of any facts
which would preclude it or its applicable subsidiary from having
clear title to the Company Patent Applications that have been
identified by the Company as being exclusively owned by the Company
or one of its subsidiaries.
(xvii) No
Violations or Defaults. Neither the Company nor any of its
subsidiaries is (i) in violation of its respective charter, by-laws
or other organizational documents, or (ii) in breach of or
otherwise in default, and no event has occurred which, with notice
or lapse of time or both, would constitute such a default in the
performance of any obligation, agreement or condition contained in
any bond, debenture, note, indenture, loan agreement or any other
contract, lease or other instrument to which it is subject or by
which any of them may be bound, or to which any of the property or
assets of the Company or any of its subsidiaries is subject
except, in the case of
clause (ii) above, for any such default or violation that would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(xviii) Taxes.
The Company and its subsidiaries have timely filed all federal,
state, local and foreign income and franchise tax returns required
to be filed (taking into account valid extensions of time to file)
and are not in default in the payment of any taxes which were
payable pursuant to said returns or any assessments with respect
thereto, other than any which the Company or any of its
subsidiaries is contesting in good faith. There is no pending
dispute with any taxing authority relating to any of such returns,
and the Company has no knowledge of any proposed liability for any
tax to be imposed upon the properties or assets of the Company or
any of its subsidiaries for which there is not an adequate reserve
reflected in the Company’s financial statements included in
the Registration Statement, the Time of Sale Disclosure Package and
the Prospectus.
(xix) Exchange
Listing and Exchange Act Registration. The Common Stock is
registered pursuant to Section 12(b) of the Exchange Act and
is included or approved for listing on the Nasdaq Capital Market
and the Company has not taken any action designed to, or likely to
have the effect of, terminating the registration of the Common
Stock under the Exchange Act or delisting the Common Stock from the
Nasdaq Capital Market, and the Company has not received any
notification that the Commission or the Nasdaq Capital Market is
contemplating terminating such registration or listing. The Company
has complied in all material respects with the applicable
requirements of the Nasdaq Capital Market for maintenance of
inclusion of the Common Stock thereon. The Company has filed an
application to include the Securities on the Nasdaq Capital Market.
Except as previously disclosed to counsel for the Underwriters or
as set forth in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus, to the knowledge of the
Company, no beneficial owners of the Company’s capital stock
who, together with their associated persons and affiliates, hold in
the aggregate 10% or more of such capital stock, have any direct or
indirect association or affiliate with a FINRA member.
(xx) Ownership
of Other Entities. Other than the subsidiaries of the
Company listed in Exhibit 21.1 to the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2019,
the Company, directly or indirectly, owns no capital stock or other
equity or ownership or proprietary interest in any corporation,
partnership, association, trust or other entity.
(xxi) Internal
Controls. The Company and its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance
with management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
Except as disclosed in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus, the Company’s internal
control over financial reporting is effective and none of the
Company, its board of directors and its audit committee is aware of
any “significant deficiencies” or “material
weaknesses” (each as defined by the Public Company Accounting
Oversight Board) in its internal control over financial reporting,
or any fraud, whether or not material, that involves management or
other employees of the Company or its subsidiaries who have a
significant role in the Company’s internal controls; and
since the end of the latest audited fiscal year, there has been no
change in the Company’s internal control over financial
reporting (whether or not remediated) that has materially affected,
or is reasonably likely to materially affect, the Company’s
internal control over financial reporting. The Company’s
board of directors has, subject to the exceptions, cure periods and
the phase in periods specified in the rules of the Nasdaq Capital
Market (the “Exchange
Rules”), validly appointed an audit committee to
oversee internal accounting controls whose composition satisfies
the applicable requirements of the Exchange Rules and the
Company’s board of directors and/or the audit committee has
adopted a charter that satisfies the requirements of the Exchange
Rules.
(xxii) No
Brokers or Finders. Other than as contemplated by this
Agreement, the Company has not incurred and will not incur any
liability for any finder’s or broker’s fee or
agent’s commission in connection with the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xxiii) Insurance.
The Company and each of its subsidiaries carries, or is covered by,
insurance from reputable insurers in such amounts and covering such
risks as is adequate for the conduct of its business and the value
of its properties and the properties of its subsidiaries and as is
customary for companies engaged in similar businesses in similar
industries; all policies of insurance and any fidelity or surety
bonds insuring the Company or any of its subsidiaries or its
business, assets, employees, officers and directors are in full
force and effect; the Company and its subsidiaries are in
compliance with the terms of such policies and instruments in all
material respects; there are no claims by the Company or any of its
subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a
reservation of rights clause; neither the Company nor any of its
subsidiaries has been refused any insurance coverage sought or
applied for; and neither the Company nor any of its subsidiaries
has reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not have a Material
Adverse Effect.
(xxiv) Investment
Company Act. The Company is not and, after giving effect to
the offering and sale of the Securities, will not be an
“investment company,” as such term is defined in the
Investment Company Act of 1940, as amended.
(xxv) Incorporated
Documents. The documents incorporated by reference in the
Registration Statement, the Time of Sale Disclosure Package and the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and were filed on a timely basis with the Commission
and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; any further documents so
filed and incorporated by reference in the Registration Statement,
the Time of Sale Disclosure Package or the Prospectus, when such
documents are filed with the Commission, will conform in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and will not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
Company meets the requirements under Form S-1 necessary for
incorporation by reference of its Exchange Act
reports.
(xxvi) ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act. The Company is in compliance with all applicable
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations
of the Commission thereunder.
(xxvii) Disclosure
Controls. The Company has established and maintains
disclosure controls and procedures (as defined in Rules 13a-14 and
15d-14 under the Exchange Act) and such controls and procedures are
effective in ensuring that material information relating to the
Company, including its subsidiaries, is made known to the principal
executive officer and the principal financial officer and such
controls and procedures are effective to perform the functions for
which they were established. The Company has utilized such controls
and procedures in preparing and evaluating the disclosures in the
Registration Statement, the Time of Sale Disclosure Package and the
Prospectus.
(xxviii) Anti-Bribery
and Anti-Money Laundering Laws. Each of the Company, its
subsidiaries, its affiliates and any of their respective officers,
directors, supervisors, managers, agents or employees has not
violated, its participation in the offering will not violate and
the Company and each of its subsidiaries has instituted and
maintains policies and procedures designed to ensure continued
compliance with each of the following laws: (A) anti-bribery laws,
including but not limited to, any applicable law, rule, or
regulation of any locality, including but not limited to any law,
rule, or regulation promulgated to implement the OECD Convention on
Combating Bribery of Foreign Public Officials in International
Business Transactions, signed December 17, 1997, including the
U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K.
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, or any other law, rule or regulation of similar
purposes and scope, or (B) anti-money laundering laws, including
but not limited to, applicable federal, state, international,
foreign or other laws, regulations or government guidance regarding
anti-money laundering, including, without limitation, Title 18 U.S.
Code Section 1956 and 1957, the Patriot Act, the Bank Secrecy Act,
and international anti-money laundering principles or procedures by
an intergovernmental group or organization, such as the Financial
Action Task Force on Money Laundering, of which the United States
is a member and with which designation the United States
representative to the group or organization continues to concur,
all as amended, and any executive order, directive, or regulation
pursuant to the authority of any of the foregoing, or any orders or
licenses issued thereunder. The Company has instituted, maintains
and enforces policies and procedures designed to ensure compliance
with anti-bribery laws.
(xxix) OFAC.
(A) Neither
the Company nor any of its subsidiaries, nor any of their
directors, officers or employees, nor, to the Company’s
knowledge, any agent, affiliate or representative of the Company or
its subsidiaries, is an individual or entity that is, or is owned
or controlled by an individual or entity that is:
(1) the
subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control,
the United Nations Security Council, the European Union, Her
Majesty’s Treasury, or other relevant sanctions authority
(collectively, “Sanctions”),
nor
(2) located,
organized or resident in a country or territory that is the subject
of Sanctions (including, without limitation, the Crimea Region of
the Ukraine, Cuba, Iran, North Korea, Sudan and
Syria).
(B) Neither
the Company nor any of its subsidiaries will, directly or
indirectly, use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint
venture partner or other individual or entity:
(1) to
fund or facilitate any activities or business of or with any
individual or entity that, at the time of such funding or
facilitation, is the subject of Sanctions; or
(2) in
any other manner that will result in a violation of Sanctions by
any individual or entity (including any individual or entity
participating in the offering, whether as underwriter, advisor,
investor or otherwise).
(C) For
the past five years, neither the Company nor any of its
subsidiaries has knowingly engaged in, and is not now knowingly
engaged in, any dealings or transactions with any individual or
entity that at the time of the dealing or transaction is or was the
subject of Sanctions.
(xxx) Compliance
with Environmental Laws. Except as disclosed in the
Registration Statement, the Time of Sale Disclosure Package and the
Prospectus, neither the Company nor any of its subsidiaries is in
violation of any statute, rule, regulation, decision or order of
any Governmental Authority or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, “Environmental
Laws”), owns or operates any real property
contaminated with any substance that is subject to any
Environmental Laws, is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, or is subject to
any claim relating to any Environmental Laws, which violation,
contamination, liability or claim would individually or in the
aggregate, have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a
claim. Neither the Company nor any of its subsidiaries anticipates
incurring any material capital expenditures relating to compliance
with Environmental Laws.
(xxxi) Compliance
with Occupational Laws. The Company and each of its
subsidiaries (A) is in compliance, in all material respects, with
any and all applicable foreign, federal, state and local laws,
rules, regulations, treaties, statutes and codes promulgated by any
and all Governmental Authorities (including pursuant to the
Occupational Health and Safety Act) relating to the protection of
human health and safety in the workplace (“Occupational
Laws”); (B) has received all material permits,
licenses or other approvals required of it under applicable
Occupational Laws to conduct its business as currently conducted;
and (C) is in compliance, in all material respects, with all terms
and conditions of such permits, licenses or approvals. No action,
proceeding, revocation proceeding, writ, injunction or claim is
pending or, to the Company’s knowledge, threatened against
the Company or any of its subsidiaries relating to Occupational
Laws, and the Company does not have knowledge of any facts,
circumstances or developments relating to its operations or cost
accounting practices that could reasonably be expected to form the
basis for or give rise to such actions, suits, investigations or
proceedings.
(xxxii) ERISA
and Employee Benefits Matters. (A) To the knowledge of the
Company, no “prohibited transaction” as defined under
Section 406 of ERISA (as defined below) or Section 4975 of the Code
(as defined below) and not exempt under ERISA Section 408 and the
regulations and published interpretations thereunder has occurred
with respect to any Employee Benefit Plan (as defined below). At no
time has the Company or any ERISA Affiliate (as defined below)
maintained, sponsored, participated in, contributed to or has or
had any liability or obligation in respect of any Employee Benefit
Plan subject to Part 3 of Subtitle B of Title I of ERISA, Title IV
of ERISA, or Section 412 of the Code or any “multiemployer
plan” as defined in Section 3(37) of ERISA or any multiple
employer plan for which the Company or any ERISA Affiliate has
incurred or could incur liability under Section 4063 or 4064 of
ERISA. No Employee Benefit Plan provides or promises, or at any
time provided or promised, retiree health, life insurance, or other
retiree welfare benefits except as may be required by the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended,
or similar state law. Each Employee Benefit Plan is and has been
operated in material compliance with its terms and all applicable
laws, including but not limited to ERISA and the Code and, to the
knowledge of the Company, no event has occurred (including a
“reportable event” as such term is defined in Section
4043 of ERISA) and no condition exists that would subject the
Company or any ERISA Affiliate to any material tax, fine, lien,
penalty or liability imposed by ERISA, the Code or other applicable
law. Each Employee Benefit Plan intended to be qualified under Code
Section 401(a) is so qualified and has a favorable determination or
opinion letter from the IRS upon which it can rely, and any such
determination or opinion letter remains in effect and has not been
revoked; to the knowledge of the Company, nothing has occurred
since the date of any such determination or opinion letter that is
reasonably likely to adversely affect such qualification; and (B)
neither the Company nor any of its subsidiaries has any obligations
under any collective bargaining agreement with any union and no
organization efforts are underway with respect to employees of the
Company or any of its subsidiaries. As used in this Agreement,
“Code”
means the Internal Revenue Code of 1986, as amended; “Employee Benefit
Plan” means any “employee benefit plan”
within the meaning of Section 3(3) of ERISA, including, without
limitation, all stock purchase, stock option, stock-based
severance, employment, change-in-control, medical, disability,
fringe benefit, bonus, incentive, deferred compensation, employee
loan and all other employee benefit plans, agreements, programs,
policies or other arrangements, whether or not subject to ERISA,
under which (1) any current or former employee, director or
independent contractor of the Company or its subsidiaries has any
present or future right to benefits and which are contributed to,
sponsored by or maintained by the Company or any of its respective
subsidiaries or (2) the Company or any of its subsidiaries has
had or has any present or future obligation or liability;
“ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended; and “ERISA
Affiliate” means any member of the Company’s
controlled group as defined in Code Section 414(b), (c), (m) or
(o).
(xxxiii) Business
Arrangements. Except as disclosed in the Registration
Statement, the Time of Sale Disclosure Package and the Prospectus,
neither the Company nor any of its subsidiaries has granted rights
to develop, manufacture, produce, assemble, distribute, license,
market or sell its products to any other person and is not bound by
any agreement that affects the exclusive right of the Company or
such subsidiary to develop, manufacture, produce, assemble,
distribute, license, market or sell its products.
(xxxiv) Labor
Matters. No labor problem or dispute with the employees of
the Company or any of its subsidiaries exists or is threatened or
imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or its
subsidiaries’ principal suppliers, contractors or customers,
that could have a Material Adverse Effect.
(xxxv) Restrictions
on Subsidiary Payments to the Company. No subsidiary of the
Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other
distribution on such subsidiary’s equity interests, from
repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated
by the Registration Statement, the Time of Sale Disclosure Package
and the Prospectus.
(xxxvi) Statistical
Information. Any third-party statistical and market-related
data included in the Registration Statement, the Time of Sale
Disclosure Package and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate in
all material respects and the disclosures relating to such data are
consistent with the sources from which they are
derived.
(xxxvii) Forward-looking
Statements. No forward-looking statement (within the meaning
of Section 27A of the Securities Act and Section 21E of
the Exchange Act) contained in the Registration Statement, the Time
of Sale Disclosure Package or the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other
than in good faith.
(xxxviii) eXtensible
Business Reporting Language. The interactive data in eXtensible
Business Reporting Language included or incorporated by reference
in the Registration Statement fairly presents the information
called for in all material respects and has been prepared in
accordance with the Commission’s rules and guidelines
applicable thereto.
(xxxix) No
Ratings. There are no debt securities or preferred stock
issued or guaranteed by the Company or any of its subsidiaries that
are rated by a “nationally recognized statistical rating
organization,” as such term is defined in Section 3(a)(62)
under the Exchange Act.
(xl) Related-Party
Transactions. To the
Company’s knowledge, no transaction has occurred between or
among the Company, on the one hand, and any of the Company’s
officers, directors or five percent or greater stockholders or any
affiliate or affiliates of any such officer, director or five
percent or greater stockholders that is required to be described
that is not so described in the Registration Statement, the Time of
Sale Disclosure Package and the Prospectus. The Company has not,
directly or indirectly, extended or maintained credit, or arranged
for the extension of credit, or renewed an extension of credit, in
the form of a personal loan to or for any of its directors or
executive officers in violation of applicable laws, including
Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(xli) Cybersecurity.
There has been no security breach or other compromise of or
relating to any of the information technology and computer systems,
networks, hardware, software, data (including the data of its
customers, employees, suppliers, vendors and any third party data
maintained by or on behalf of the Company or any of its
subsidiaries), equipment or technology owned, held or used by or
for the Company or any of its subsidiaries (collectively, the
“IT
Systems and Data”), except for those that have been
remedied without material cost or liability or the duty to notify
any other person, nor are there any incidents under internal review
or investigations relating to the same and (A) the Company has not
been notified of, and has no knowledge of any event or condition
that would reasonably be expected to result in, any security breach
or other compromise to the IT Systems and Data; (B) the Company and
its subsidiaries are presently in material compliance with all
applicable laws or statutes and all judgments, orders, rules and
regulations of any court or arbitrator or Governmental Authority or
other regulatory authority, internal policies and contractual
obligations relating to (x) the collection, use, transfer, storage,
protection, disposal and/or disclosure of personally identifiable
information collected from or provided by third parties, (y) the
privacy and security of the IT Systems and Data and (z) the
protection of the IT Systems and Data from unauthorized use,
access, misappropriation or modification, except as would not, in
the case of this clause (B), individually or in the aggregate, have
a Material Adverse Effect; and (C) the Company and its subsidiaries
have taken commercially reasonable steps to protect the IT Systems
and Data, including by implementing backup, security and disaster
recovery plans, procedures and technology consistent with industry
standards and practices.
(xlii) Effect
of Certificates. Any certificate signed by any officer of
the Company and delivered to you or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
3. Representations and
Warranties of the Selling Stockholders. Each Selling
Stockholder, severally and not jointly, represents and warrants to
and agrees with each of the Underwriters that:
(a) This Agreement has
been duly authorized, executed and delivered by or on behalf of
such Selling Stockholder for the sale and delivery of the
Securities to be sold by such Selling Stockholder hereunder; and
such Selling Stockholder has full power and authority to enter into
this Agreement and to sell, assign, transfer and deliver the
Securities to be sold by such Selling Stockholder
hereunder.
(b) The sale of the
Securities to be sold by such Selling Stockholder hereunder and the
compliance by such Selling Stockholder with this Agreement and the
consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound or to which any
of the property or assets of such Selling Stockholder is subject,
nor will such action result in any violation of the provisions of
the constitutional documents of such Selling Stockholder or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Selling
Stockholder or any of its subsidiaries or any property or assets of
such Selling Stockholder; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental body or agency is required for the performance by such
Selling Stockholder of its obligations under this Agreement and the
consummation by such Selling Stockholder of the transactions
contemplated by this Agreement, except the registration of the
Securities under the Securities Act, such consents, approvals,
authorizations, orders, registrations or qualifications as may be
required under state securities or blue sky laws in connection with
the purchase and distribution of the Securities by the
Underwriters, and where the failure to obtain such consent,
approval, authorization or order or to make such filing or
registration would not reasonably be expected to (1) have a
Material Adverse Effect or (2) materially and adversely affect the
ability of such Selling Stockholder to perform its obligations
under this Agreement or to consummate the transactions contemplated
by the Registration Statement, the Time of Sale Disclosure Package
and the Prospectus.
(c) The
execution and delivery by such Selling Stockholder of, and the
performance by such Selling Stockholder of its obligations under,
this Agreement and the Irrevocable Power of Attorney and Custody
Agreement signed by such Selling Stockholder, the Company and
Issuer Direct Corporation, as Custodian, relating to the deposit of
the Securities to be sold by such Selling Stockholder (the
“Custody
Agreement”), will not contravene any provision of
applicable law, or the articles of incorporation or bylaws (or
similar organizational document) of such Selling Stockholder, or
any agreement or other instrument binding upon such Selling
Stockholder or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over such Selling
Stockholder, and no consent, approval, authorization, order, or
qualification of or with any governmental body or agency is
required for the performance by such Selling Stockholder of its
obligations under this Agreement or the Custody Agreement, except
such as may be required under state securities or blue sky laws in
connection with the offer and sale of the Securities, and where the
failure to obtain such consent, approval, authorization or order
would not reasonably be expected to (i) have a Material
Adverse Effect or (ii) materially and adversely affect the
ability of such Selling Stockholder to perform its obligations
under this Agreement or to consummate the transactions contemplated
by the Registration Statement, the Time of Sale Disclosure Package
and the Prospectus.
(d) The Custody
Agreement has been duly authorized, executed and delivered by such
Selling Stockholder and is a valid and binding agreement of such
Selling Stockholder.
(e) Such Selling
Stockholder has, and immediately prior to each Closing such Selling
Stockholder will have, valid title to, or a valid “security
entitlement” within the meaning of Section 8-501 of the
New York Uniform Commercial Code in respect of, the Shares to be
sold by such Selling Stockholder hereunder at such Time of
Delivery, free and clear of all liens, encumbrances, equities or
claims.
(f) Upon payment for
the Securities to be sold by such Selling Stockholder pursuant to
this Agreement, delivery of such Securities, as directed by the
Underwriters, to Cede & Co. (“Cede”) or such
other nominee as may be designated by the Depository Trust Company
(“DTC”),
registration of such Securities in the name of Cede or such other
nominee and the crediting of such Securities on the books of DTC to
securities accounts of the Underwriters (assuming that neither DTC
nor any such Underwriter has notice of any adverse claim (within
the meaning of Section 8-105 of the New York Uniform
Commercial Code (the “UCC”)) to such
Securities), (i) DTC shall be a “protected
purchaser” of such Securities within the meaning of
Section 8-303 of the UCC, (ii) under Section 8-501
of the UCC, the Underwriters will acquire a valid security
entitlement in respect of such Securities and
(iii) no action based on any “adverse claim,”
within the meaning of Section 8-102 of the UCC, to such
Securities may be successfully asserted against the Underwriters
with respect to such security entitlement; for purposes of this
representation, such Selling Stockholder may assume that when such
payment, delivery and crediting occur, (x) such Securities
will have been registered in the name of Cede or another nominee
designated by DTC, in each case on the Company’s share
registry in accordance with its articles of incorporation, bylaws
and applicable law, (y) DTC will be registered as a
“clearing corporation” within the meaning of
Section 8-102 of the UCC and (z) appropriate entries to
the accounts of the several Underwriters on the records of DTC will
have been made pursuant to the UCC.
(g) Such Selling
Stockholder has not taken and will not take, directly or
indirectly, any action that is designed to or that has constituted
or could reasonably be expected to cause or result in stabilization
or manipulation of the price of the Securities.
(h) To the extent that
any statements or omissions made in the Registration Statement, the
Time of Sale Disclosure Package and the Prospectus are made in
reliance upon and in conformity with written information furnished
to the Company by such Selling Stockholder expressly for use
therein, which information with respect to each Selling Stockholder
is limited to the name of such Selling Stockholder, the number of
offered shares of Securities and the address and other information
with respect to such Selling Stockholder included in the
“Principal and Selling Stockholders” section of the
Registration Statement, the Time of Sale Disclosure Package and the
Prospectus (the “Selling Stockholder
Information”), such Registration Statement, Time of
Sale Disclosure Package and Prospectus did conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and did not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(i) Neither such
Selling Stockholder nor, to the knowledge of such Selling
Stockholder, any agent or affiliate or other person associated with
or acting on behalf of such Selling Stockholder is currently the
subject or the target of any Sanctions, nor is such Selling
Stockholder located, organized or resident in a country, region or
territory that is the subject or the target of comprehensive
Sanctions. For the past five years, such Selling Stockholder has
not knowingly engaged in and is not now knowingly engaged in
dealings or transactions with any individual or entity that at the
time of the dealing or transaction is or was the subject of
Sanctions.
4. Purchase, Sale and Delivery
of Securities.
(a) Firm
Shares. On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and
conditions herein set forth, each Seller agrees to issue and sell
the Firm Shares to the several Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from (i) the Company
the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto and (ii) each Selling Stockholder
the number of Firm Shares set forth opposite the name of such
Selling Stockholder in Schedule II hereto, each as adjusted by the
Representative in such manner as the Representative deems advisable
to avoid fractional shares. The purchase price for each Firm Share
shall be $[•] per share. In making this Agreement, each
Underwriter is contracting severally and not jointly. Except as
provided in paragraph (d) of this Section 4, the
agreement of each Underwriter is to purchase only the respective
number of Firm Shares specified in Schedule I with respect to
the Company and Schedule II with respect to the Selling
Stockholders.
(b) Option
Shares. On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and
conditions herein set forth, the Company hereby grants to the
several Underwriters an option to purchase all or any portion of
the Option Shares at the same purchase price as the Firm Shares,
for use solely in covering any over-allotments, if any, made by the
Underwriters in the sale and distribution of the Firm Shares. The
option granted hereunder may be exercised in whole or in part at
any time and from time to time within 30 days after the effective
date of this Agreement upon notice (confirmed in writing) by the
Representative to the Company setting forth the aggregate number of
Option Shares as to which the several Underwriters are exercising
the option and the date and time, as determined by you, when the
Option Shares are to be delivered, but in no event earlier than the
First Closing Date (as defined below) nor (unless otherwise agreed
by you and the Company) earlier than the second business day or
later than the tenth business day after the date on which the
option shall have been exercised. The number of Option Shares to be
purchased by each Underwriter shall be the same percentage of the
total number of Option Shares to be purchased by the several
Underwriters as the number of Firm Shares to be purchased by such
Underwriter is of the total number of Firm Shares to be purchased
by the several Underwriters, as adjusted by the Representative in
such manner as the Representative deems advisable to avoid
fractional shares. No Option Shares shall be sold and delivered
unless the Firm Shares previously have been, or simultaneously are,
sold and delivered.
(c) Payment and
Delivery.
(i) The
Securities to be purchased by each Underwriter hereunder, in
book-entry form in such authorized denominations and registered in
such names as you may request upon at least forty-eight
hours’ prior notice to the Company, shall be delivered by or
on behalf of the Company to you, through the facilities of the
Depository Trust Company (“DTC”),
for the account of such Underwriter, with any transfer taxes
payable in connection with the transfer of the Securities to the
Underwriters duly paid, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by each
respective Seller to you at least forty-eight hours in advance. The
time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York City time, on
[●], 2020, or such other time and date as you and the Company
may agree upon in writing, and, with respect to the Option Shares,
9:30 a.m., New York City time, on the date specified by you in
each written notice given by you of the election to purchase such
Option Shares, or such other time and date as you and the Company
may agree upon in writing. Such time and date for delivery of the
Firm Shares is herein called the “First Closing
Date,” each such time and date for delivery of the
Option Shares, if not the First Closing Date, is herein called a
“Second
Closing Date,” and each such time and date for
delivery is herein called a “Closing”
or a “Closing
Date.”
(ii) The
documents to be delivered at each Closing by or on behalf of the
parties hereto pursuant to Section 7 hereof,
including the cross receipt for the Securities and any additional
documents requested by the Underwriters pursuant to Section 7(n) hereof, will
be delivered at the offices of the Company, and the Securities will
be delivered to you, through the facilities of the DTC, for the
account of such Underwriter, all at such Closing.
(d) Purchase by
Representative on Behalf of Underwriters. It is understood
that you, individually and not as Representative of the several
Underwriters, may (but shall not be obligated to) make payment of
the purchase price to the Company or any Selling Stockholder, as
applicable, on behalf of any Underwriter for the Securities to be
purchased by such Underwriter. Any such payment by you shall not
relieve any such Underwriter of any of its obligations hereunder.
Nothing herein contained shall constitute any of the Underwriters
an unincorporated association or partner with the
Company.
5. Covenants. The
Company covenants and agrees with the several Underwriters as
follows:
(a) Required
Filings. The Company will prepare and file a Prospectus with
the Commission containing the Rule 430A Information omitted from
the Preliminary Prospectus within the time period required by, and
otherwise in accordance with the provisions of, Rules 424(b) and
430A of the Rules and Regulations. If the Company has elected to
rely upon Rule 462(b) of the Rules and Regulations to increase the
size of the offering registered under the Securities Act and the
Rule 462(b) Registration Statement has not yet been filed and
become effective, the Company will prepare and file the Rule 462(b)
Registration Statement with the Commission within the time period
required by, and otherwise in accordance with the provisions of,
Rule 462(b) of the Rules and Regulations and the Securities Act.
The Company will prepare and file with the Commission, promptly
upon your request, any amendments or supplements to the
Registration Statement or Prospectus that, in your opinion, may be
necessary or advisable in connection with the distribution of the
Securities by the Underwriters; and the Company will furnish you
and counsel for the Underwriters a copy of any proposed amendment
or supplement to the Registration Statement or Prospectus and will
not file any amendment or supplement to the Registration Statement
or Prospectus to which you shall reasonably object by notice to the
Company after having been furnished a copy a reasonable time prior
to the filing.
(b) Notification of
Certain Commission Actions. The Company will advise you,
promptly after it shall receive notice or obtain knowledge thereof,
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, or any post-effective
amendment thereto, or preventing or suspending the use of any
Preliminary Prospectus, the Time of Sale Disclosure Package, the
Prospectus or any issuer free writing prospectus, of the suspension
of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding
for any such purpose; and the Company will promptly use its best
efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued.
(c) Continued
Compliance with Securities Laws.
(i) Within
the time during which a prospectus (assuming the absence of Rule
172) relating to the Securities is required to be delivered under
the Securities Act by any Underwriter or any dealer, the Company
will comply with all requirements imposed upon it by the Securities
Act, as now and hereafter amended, and by the Rules and
Regulations, as from time to time in force, so far as necessary to
permit the continuance of sales of or dealings in the Securities as
contemplated by the provisions hereof, the Time of Sale Disclosure
Package and the Prospectus. If during such period any event occurs
as a result of which the Prospectus (or if the Prospectus is not
yet available to prospective purchasers, the Time of Sale
Disclosure Package) would include an untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary
to amend the Registration Statement or supplement the Prospectus
(or, if the Prospectus is not yet available to prospective
purchasers, the Time of Sale Disclosure Package) to comply with the
Securities Act, the Company promptly will (x) notify you of
such untrue statement or omission, (y) amend the Registration
Statement or supplement the Prospectus (or, if the Prospectus is
not yet available to prospective purchasers, the Time of Sale
Disclosure Package) (at the expense of the Company) so as to
correct such statement or omission or effect such compliance and
(z) notify you when any amendment to the Registration Statement is
filed or becomes effective or when any supplement to the Prospectus
(or, if the Prospectus is not yet available to prospective
purchasers, the Time of Sale Disclosure Package) is
filed.
(ii) If
at any time following issuance of a Written Testing-the-Waters
Communication there occurred or occurs an event or development as a
result of which such Written Testing-the-Waters Communication
conflicted or would conflict with the information contained in the
Registration Statement, any Preliminary Prospectus or the
Prospectus relating to the Securities or included or would include
an untrue statement of a material fact or omitted or would omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, the Company (x) has promptly
notified or promptly will notify the Representative of such
conflict, untrue statement or omission, (y) has promptly
amended or will promptly amend or supplement, at its own expense,
such Written Testing-the-Waters Communication to eliminate or
correct such conflict, untrue statement or omission and
(z) has notified or promptly will notify you when such
amendment or supplement was or is filed with the Commission to the
extent required to be filed by the Rules and
Regulations.
(d) Blue Sky
Qualifications. The Company shall take or cause to be taken
all necessary action to qualify the Securities for sale under the
securities laws of such jurisdictions as you reasonably designate
and to continue such qualifications in effect so long as required
for the distribution of the Securities, except that the Company
shall not be required in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of
process in any state.
(e) Provision of
Documents. The Company will furnish, at its own expense, to
the Underwriters and counsel for the Underwriters copies of the
Registration Statement, and to the Underwriters and any dealer each
Preliminary Prospectus, the Time of Sale Disclosure Package, the
Prospectus, and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as you may
from time to time reasonably request.
(f) Rule 158.
The Company will make generally available to its security holders
as soon as practicable, but in no event later than 15 months after
the end of the Company’s current fiscal quarter, an earnings
statement (which need not be audited) covering a 12-month period
beginning after the effective date of the Registration Statement
(which, for purposes of this paragraph, will be deemed to be the
effective date of the Rule 462(b) Registration Statement, if
applicable) that shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 of the Rules and
Regulations.
(g) Payment and
Reimbursement of Expenses. The Company, whether or not the
transactions contemplated hereunder are consummated or this
Agreement is terminated, will pay or cause to be paid for itself
and on behalf of the Selling Stockholders (A) all expenses
(including stock or other transfer taxes and any stamp or other
duties payable upon the delivery of the Securities to the
Underwriters) incurred in connection with the delivery to the
Underwriters of the Securities by the Company and the Selling
Stockholders, (B) all expenses and fees (including, without
limitation, fees and expenses of the Company’s and the
Selling Stockholders’ accountants and counsel) in connection
with the preparation, printing, filing, delivery, and shipping of
the Registration Statement (including the financial statements
therein and all amendments, schedules, and exhibits thereto), the
Securities, each Preliminary Prospectus, the Time of Sale
Disclosure Package, the Prospectus, and any amendment thereof or
supplement thereto, and the printing, delivery, and shipping of
this Agreement and other underwriting documents, including blue sky
memoranda (covering the states and other applicable jurisdictions),
(C) all fees, expenses and disbursements and fees and disbursements
of the Underwriters’ counsel incurred in connection with the
registration, qualification or exemption of the Securities for
offering and sale by the Underwriters or by dealers under the
securities or blue sky laws of the states and foreign jurisdictions
designated by the Representative, (D) the filing fees and expenses
and disbursements of the Underwriters’ counsel incident to
any required review and approval by FINRA of the terms of the sale
of the Securities, (E) the fees and expenses of any transfer agent,
registrar or custodian, (F) the reasonable out-of-pocket
accountable fees and disbursements incurred by the Underwriters in
connection with the offer, sale or marketing of the Securities and
performance of the Underwriters’ obligations hereunder,
including all reasonable out-of-pocket accountable fees and
disbursements of Underwriters’ counsel, (G) listing
fees, if any, (H) fees, expenses and
disbursements relating to background checks of the Company’s
officers and directors in an amount not to exceed $10,000,
(I) the cost and expenses of the Company relating to investor
presentations or any “road show” undertaken in
connection with marketing of the Securities, including, without
limitation, expenses associated with the preparation or
dissemination of any electronic road show, expenses associated with
the production of road show slides and graphics, fees and expenses
of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company
and any such consultants, and the cost of any aircraft chartered in
connection with the road show, (J) the cost of Underwriters’
use of Ipreo’s book-building, prospectus tracking and
compliance software for the offering, (K) the costs associated with
receiving commemorative mementos and lucite tombstones, and
(L) all other costs and
expenses of the Company and the Selling Stockholders incident to
the performance of their respective obligations hereunder that are
not otherwise specifically provided for herein. The expenses to be
paid by the Company and reimbursed to the Underwriters under this
Section 5(g) shall
not exceed $150,000 without the prior approval of the Company, it
being understood that any expenses associated with clause (H) of
this Section 5(g)
shall be included in such limit. If this Agreement is terminated by
the Representative pursuant to Section 10 hereof or if the
sale of the Securities provided for herein is not consummated by
reason of any failure, refusal or inability on the part of the
Company or any Selling Stockholder to perform any agreement on its
part to be performed, or because any other condition of the
Underwriters’ obligations hereunder required to be fulfilled
by the Company or the Selling Stockholders is not fulfilled, the
Company will reimburse the several Underwriters for all
out-of-pocket accountable disbursements (including but not limited
to fees and disbursements of counsel, printing expenses, travel
expenses, postage, facsimile and telephone charges) incurred by the
Underwriters in connection with their investigation, preparing to
market and marketing the Securities or in contemplation of
performing their obligations hereunder.
(h) Use of
Proceeds. The Company will apply the net proceeds from the
sale of the Securities to be sold by it hereunder for the purposes
set forth in the Time of Sale Disclosure Package and in the
Prospectus and will file such reports with the Commission with
respect to the sale of the Securities and the application of the
proceeds therefrom as may be required in accordance with Rule 463
of the Rules and Regulations.
(i) Company Lock
Up. The Company will not, without the prior written consent
of the Representative, from the date of execution of this Agreement
and continuing to and including the date 90 days after the date of
the Prospectus (the “Lock-Up
Period”), (A) offer, pledge, announce the intention to
sell, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for
Common Stock or (B) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such transaction
described in clause (A) or (B) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise,
except for (w) the issuance, exercise of options and sale of shares
of Common Stock contemplated by this Agreement, (x) the use of
options, warrants and/or shares of Common Stock as consideration in
one or more strategic transactions of the Company; provided,
however, that the total shares of Common Stock underlying such
consideration shall not exceed, in the aggregate, 50,000 shares of
Common Stock, (y) grants of options, shares of Common Stock and
other awards to purchase or receive shares of Common Stock under
the Company Stock Plans that are in effect as of or prior to the
date hereof, or (z) issuances of shares of Common Stock upon the
exercise of options or other awards granted under such Company
Stock Plans. The Company agrees not to accelerate the vesting of
any option or warrant or exercise any repurchase or expiry right in
respect of any option, warrant or convertible promissory note prior
to the expiration of the Lock-Up Period.
(j) Stockholder
Lock-Ups. The Company has caused to be delivered to you
prior to the date of this Agreement a letter, in the form of
Exhibit A hereto
(the “Lock-Up
Agreement”), from each individual or entity listed on
Schedule V. The Company will enforce the terms of each Lock-Up
Agreement and issue stop-transfer instructions to the transfer
agent and registrar for the Common Stock with respect to any
transaction or contemplated transaction that would constitute a
breach of or default under the applicable Lock-Up
Agreement.
(k) No Market
Stabilization or Manipulation. The Company has not taken and
will not take, directly or indirectly, any action designed to or
which might reasonably be expected to cause or result in, or which
has constituted, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities, and has not effected any sales of securities which are
required to be disclosed in response to Item 701 of Regulation S-K
under the Securities Act which have not been so disclosed in the
Registration Statement.
(l) SEC
Reports. The Company will file on a timely basis with the
Commission such periodic and special reports as required by the
Rules and Regulations.
(m) Internal
Controls. The Company and its subsidiaries will maintain such controls and
other procedures, including without limitation those required by
Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the applicable
regulations thereunder, that are designed to ensure that
information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods
specified in the Commission’s rules and forms, including
without limitation, controls and procedures designed to ensure that
information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is accumulated and
communicated to the Company's management, including its principal
executive officer and its principal financial officer, or persons
performing similar functions, as appropriate to allow timely
decisions regarding required disclosure, to ensure that material
information relating to Company, including its subsidiaries, is
made known to them by others within those entities.
(n) ▇▇▇▇▇▇▇▇-▇▇▇▇▇.
The Company and its subsidiaries will comply with all applicable
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations
adopted thereunder.
(o) Free
Writing Prospectuses. The Company and each Selling
Stockholder, individually and not jointly, represents and agrees
that, unless it obtains the prior written consent of the
Representative, and each Underwriter severally represents and
agrees that, unless it obtains the prior written consent of the
Company, the Selling Stockholders and the Representative, it has
not made and will not make any offer relating to the Securities
that would constitute an issuer free writing prospectus or that
would otherwise constitute a free writing prospectus. Each
Underwriter severally represents and agrees that (i) unless it
obtains the prior written consent of the Company, the Selling
Stockholders and the Representative, it has not distributed, and
will not distribute, any Written Testing-the-Waters Communication
other than those listed on Schedule IV, and (ii) any
Testing-the-Waters Communication undertaken by it was with entities
that are qualified institutional buyers within the meaning of Rule
144A under the Securities Act or institutions that are accredited
investors within the meaning of Rule 501 under the Securities
Act.
6. Covenants of the Selling Stockholders.
Each Selling Stockholder, severally and not jointly, covenants with
the several Underwriters as follows:
(a) Such Selling
Stockholder will advise you promptly, and if requested by you, will
confirm such advice in writing, during the period when a prospectus
relating to the Securities is required by the Exchange Act to be
delivered (whether physically or through compliance with Rule 172
under the Exchange Act or any similar rule), of any change in the
Selling Stockholder Information in the Registration Statement, the
Time of Sale Disclosure Package or the Prospectus relating to such
Selling Stockholder.
(b) Such Selling
Stockholder will not take, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result
in any stabilization or manipulation of the price of the
Stock.
(c) If any Selling
Stockholder is a U.S. person for U.S. federal income tax purposes,
such Selling Stockholder will deliver to the Representative (or its
agent), prior to or at the First Closing Date, a properly completed
and executed IRS Form W-9 or an IRS Form W-8, as appropriate,
together with all required attachments to such form.
7. Conditions of
Underwriters’ Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy, as of
the date hereof and at each of the First Closing Date and the
Second Closing Date (as if made at such Closing Date), of and
compliance with all representations, warranties and agreements of
the Company and the Selling Stockholders contained herein, to the
performance by the Company and the Selling Stockholders of their
respective obligations hereunder and to the following additional
conditions:
(a) Required Filings;
Absence of Certain Commission Actions. The Registration
Statement shall have become effective not later than 5:30 p.m., New
York City time, on the date of this Agreement, or such later time
and date as you, as Representative of the several Underwriters,
shall approve, and all filings required by Rules 424, 430A and 433
of the Rules and Regulations shall have been timely made (without
reliance on Rule 424(b)(8) or Rule 164(b)); no stop order
suspending the effectiveness of the Registration Statement or any
part thereof, any Rule 462(b) Registration Statement, or any
amendment thereof, nor suspending or preventing the use of the Time
of Sale Disclosure Package or the Prospectus shall have been
issued; no proceedings for the issuance of such an order shall have
been initiated or threatened; and any request of the Commission for
additional information (to be included in the Registration
Statement, the Time of Sale Disclosure Package, the Prospectus, or
otherwise) shall have been complied with to your
satisfaction.
(b) Continued
Compliance with Securities Laws. No Underwriter shall have
advised the Company that (i) the Registration Statement or any
amendment thereof or supplement thereto contains an untrue
statement of a material fact which, in your opinion, is material or
omits to state a material fact which, in your opinion, is required
to be stated therein or necessary to make the statements therein
not misleading, or (ii) the Time of Sale Disclosure Package or the
Prospectus, or any amendment thereof or supplement thereto,
contains an untrue statement of fact which, in your opinion, is
material, or omits to state a fact which, in your opinion, is
material and is required to be stated therein, or necessary to make
the statements therein, in light of the circumstances under which
they are made, not misleading.
(c) Absence of Certain
Events. Except as contemplated in the Time of Sale
Disclosure Package and the Prospectus, subsequent to the respective
dates as of which information is given in the Time of Sale
Disclosure Package and the Prospectus, neither the Company nor any
of its subsidiaries shall have incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, or declared or paid any dividends or made any
distribution of any kind with respect to its capital stock; and
there shall not have been any change in the capital stock (subject
to the requirements of Section 5(i) hereof, other than
a change in the number of outstanding shares of Common Stock due to
the issuance of shares upon the exercise of outstanding options or
warrants or conversion of convertible securities), or any material
change in the short-term or long-term debt of the Company (other
than as a result of the conversion of convertible securities), or
any issuance of options, warrants, convertible securities or other
rights to purchase the capital stock of the Company or any of its
subsidiaries, or any Material Adverse Change or any development
involving a prospective Material Adverse Change (whether or not
arising in the ordinary course of business), or any loss by strike,
fire, flood, earthquake, accident or other calamity, whether or not
covered by insurance, incurred by the Company or any subsidiary,
the effect of which, in any such case described above, in your
judgment, makes it impractical or inadvisable to offer or deliver
the Securities on the terms and in the manner contemplated in the
Time of Sale Disclosure Package and the Prospectus.
(d) Opinion and 10b-5
Statement of Counsel to the Company and the Selling
Stockholders. On each Closing Date, there shall have been
furnished to you, as Representative of the several Underwriters,
(i) the Nevada law opinion of [●], Nevada corporate counsel
for the Company, and (ii) the opinion and negative assurance
statement of Squire ▇▇▇▇▇▇ ▇▇▇▇▇ (US) LLP, both as counsel for the
Company and the Selling Stockholders, dated such Closing Date and
addressed to you, in the form and substance reasonably satisfactory
to you.
(e) Opinion and 10b-5
Statement of Underwriters’ Counsel. On each Closing
Date, there shall have been furnished to you, as Representative of
the several Underwriters, such opinion and negative assurance
statement of Faegre Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the
several Underwriters, dated such Closing Date and addressed to you,
with respect to such matters as you reasonably may request, and
such counsel shall have received such papers and information as
they request to enable them to pass upon such matters.
(f) Opinion
of Company’s Intellectual Property
Counsel. On
each Closing Date, there shall have been furnished to you, as
Representative of the several Underwriters, the opinion of K&L
Gates LLP, intellectual property counsel for the Company, dated as
of such Closing Date and addressed to you, in the form and
substance reasonably satisfactory to you.
(g)
Comfort
Letter. On the date hereof, on the effective date of any
post-effective amendment to the Registration Statement filed after
the date hereof and on each Closing Date you, as Representative of
the several Underwriters, shall have received an accountant’s
“comfort” letter of ▇▇▇▇▇ ▇▇▇▇▇▇ & Co., LLC, dated
such date and addressed to you, in form and substance satisfactory
to you.
(h) Officers’
Certificates. On each Closing Date there shall have been
furnished to you, as Representative of the several Underwriters, in
form and substance reasonably satisfactory to the
Underwriters:
(i) a
certificate, dated as of such Closing Date and addressed to you,
signed by the chief executive officer and by the chief financial
officer of the Company, to the effect that: (A) the representations
and warranties of the Company in this Agreement are true and
correct as if made at and as of such Closing Date, and the Company
has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to
such Closing Date, (B) no stop order or other order suspending the
effectiveness of the Registration Statement or any part thereof or
any amendment thereof or the qualification of the Securities for
offering or sale nor suspending or preventing the use of the Time
of Sale Disclosure Package, the Prospectus or any issuer free
writing prospectus, has been issued, and no proceeding for that
purpose has been instituted or, to the best of their knowledge, is
contemplated by the Commission or any state or regulatory body, and
(C) affirms the accuracy of the matters set forth in subsection (c)
of this Section 7; and
(ii) a
certificate of each of the Selling Stockholders, dated as of such
Closing Date confirming that each of the representations of such
Selling Stockholder are true and correct as if made at and as of
such Closing Date and that such Selling Stockholder has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing
Date.
(i) Lock-Up
Agreement. The Representative shall have received all of the
Lock-Up Agreements referenced in Section 5 and the Lock-Up
Agreements shall remain in full force and effect.
(j) FINRA No
Objections. FINRA shall have raised no objection to the
fairness and reasonableness of the underwriting terms and
arrangements.
(k) [CFO
Certificate. On the date hereof and on each Closing Date,
the Company shall have furnished to you, as Representative of the
several Underwriters, a certificate, dated as of such date, signed
on behalf of the Company by its chief financial officer, regarding
certain financial information in the Preliminary Prospectus and the
Prospectus, respectively, in form and substance satisfactory to
you.]
(l) Other
Documents. The Company shall have furnished to you and
counsel for the Underwriters such additional documents,
certificates and evidence as you or they may have reasonably
requested.
(m) Exchange
Listing. The Securities to be delivered on such Closing Date
have been approved for listing on the Nasdaq Capital Market,
subject to official notice of issuance.
All
such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory
in form and substance to you, as Representative for the several
Underwriters, and counsel for the Underwriters. The Company will
furnish you with such conformed copies of such opinions,
certificates, letters and other documents as you shall reasonably
request.
8. Indemnification and
Contribution.
(a) Indemnification by
the Company. The Company agrees to indemnify and hold
harmless each Underwriter, its affiliates, directors and officers
and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may
become subject, under the Securities Act or otherwise (including in
settlement of any litigation if such settlement is effected with
the written consent of the Company), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon: (i) an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, including the 430A Information and any other information
deemed to be a part of the Registration Statement at the time of
effectiveness and at any subsequent time pursuant to the Rules and
Regulations, if applicable, any Preliminary Prospectus, the Time of
Sale Disclosure Package, the Prospectus, or any amendment or
supplement thereto, any issuer free writing prospectus, any issuer
information that the Company has filed or is required to file
pursuant to Rule 433(d) of the Rules and Regulations, any Written
Testing-the-Waters Communication, or any road show as defined in
Rule 433(h) under the Securities Act (a “roadshow”),
or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by
it in connection with investigating or defending against such loss,
claim, damage, liability or action as such expenses are incurred;
provided, however, that the
Company will not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is
based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by you
or by any Underwriter through you specifically for use in the
preparation thereof; it being understood and agreed that the only
such information furnished by an Underwriter consists of the
information described as such in Section 8(f).
(b) Indemnification by
the Selling Stockholders. Each of the Selling Stockholders,
severally and not jointly, agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each
person, if any, who controls such Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Securities Act or otherwise (including in
settlement of any litigation if such settlement is effected with
the written consent of such Selling Stockholder), insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon: (i) an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, including the 430A Information and any
other information deemed to be a part of the Registration Statement
at the time of effectiveness and at any subsequent time pursuant to
the Rules and Regulations, if applicable, any Preliminary
Prospectus, the Time of Sale Disclosure Package, the Prospectus, or
any amendment or supplement thereto, any issuer free writing
prospectus, any issuer information that the Company has filed or is
required to file pursuant to Rule 433(d) of the Rules and
Regulations, any Written Testing-the-Waters Communication, or any
roadshow, or (ii) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by
it in connection with investigating or defending against such loss,
claim, damage, liability or action as such expenses are incurred;
in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in conformity with written information furnished
to the Company by such Selling Stockholder specifically for use in
the preparation thereof. The aggregate liability of each Selling
Stockholder under this Section 8(b) hereof shall be limited to
an amount equal to the sum of the aggregate purchase price of the
shares of Common Stock sold by such Selling Stockholder under this
Agreement.
(c) Indemnification by
the Underwriters. Each Underwriter will, severally and not
jointly, indemnify and hold harmless each Selling Stockholder and
the Company, its affiliates, directors and officers and each
person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act and Section 20 of the
Exchange Act, from and against any losses, claims, damages or
liabilities to which the Company may become subject, under the
Securities Act or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent
of such Underwriter), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (i) arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any
Preliminary Prospectus, the Time of Sale Disclosure Package, the
Prospectus, or any amendment or supplement thereto, any issuer free
writing prospectus, any issuer information that the Company has
filed or is required to file pursuant to Rule 433(d) of the Rules
and Regulations, any Written Testing-the-Waters Communication, or
any road show, or (ii) arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission
or alleged omission was made in conformity with written information
furnished to the Company by you, or by such Underwriter through
you, specifically for use in the preparation thereof (it being
understood and agreed that the only information furnished by an
Underwriter consists of the information described as such in
Section 8(f)), and will reimburse the Company and Selling
Stockholders for any legal or other expenses reasonably incurred
and documented by the Company or such Selling Stockholders in
connection with investigating or defending against any such loss,
claim, damage, liability or action as such expenses are
incurred.
(d) Notice and
Procedures. Promptly after receipt by an indemnified party
under subsection (a), (b) or (c) above of notice of the
commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve the indemnifying party
from any liability that it may have to any indemnified party except
to the extent such indemnifying party has been materially
prejudiced by such failure (through the forfeiture of substantive
rights or defenses). In case any such action shall be brought
against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to
such indemnified party of the indemnifying party’s election
so to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party under such subsection for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable
costs of investigation; provided,
however, that if, in the sole judgment of the
Representative, it is advisable for the Underwriters to be
represented as a group by separate counsel, the Representative
shall have the right to employ a single counsel (in addition to
local counsel) to represent the Representative and all Underwriters
who may be subject to liability arising from any claim in respect
of which indemnity may be sought by the Underwriters under
subsection (a) or (b) of this Section 8, in which event the
reasonable fees and expenses of such separate counsel (and local
counsel) shall be borne by the indemnifying party or parties and
reimbursed to the Underwriters as incurred. An indemnifying party
shall not be obligated under any settlement agreement, consent to
judgment or other compromise relating to any action under this
Section 8 to which it has not agreed in writing. In addition, no
indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld
or delayed), effect any settlement of any pending or threatened
proceeding unless such settlement includes an unconditional release
of such indemnified party for all liability on claims that are the
subject matter of such proceeding and does not include a statement
as to, or an admission of, fault, culpability or a failure to act
by or on behalf of an indemnified party. Notwithstanding the
foregoing, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel pursuant to this Section 8(d), such
indemnifying party agrees that it shall be liable for any
settlement effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such
settlement.
(e) Contribution;
Limitations on Liability; Non-Exclusive Remedy. If the
indemnification provided for in this Section 8 is unavailable or
insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities
referred to in subsection (a), (b) or (c) above, (1) in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities or (2) if the
allocation provided by clause (1) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (1) above but
also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company or the Underwriters and the parties’ relevant
intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company, Selling
Stockholders and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subsection (e)
were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the
equitable considerations referred to in the first sentence of this
subsection (e). The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
against any action or claim which is the subject of this
subsection (e). Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter with respect
to the Securities purchased by it hereunder exceeds the amount of
any damages that such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations in this subsection (e) to
contribute are several in proportion to their respective
underwriting obligations and not joint. The remedies provided for
in this Section 8 are not exclusive and shall not limit any rights
or remedies that might otherwise be available to any indemnified
party at law or in equity.
(f) Information
Provided by the Underwriters. The Underwriters severally
confirm and the Company and Selling Stockholders acknowledge and
agree that the statements with respect to the public offering of
the Securities by the Underwriters set forth in the second, tenth
and eleventh paragraphs under the caption
“Underwriting” in the Time of Sale Disclosure Package
and the Prospectus are correct and constitute the only information
concerning such Underwriters furnished in writing to the Company by
or on behalf of the Underwriters specifically for use or inclusion
in the Registration Statement, any Preliminary Prospectus, the Time
of Sale Disclosure Package, the Prospectus or any issuer free
writing prospectus.
9. Representations and
Agreements to Survive Delivery. All representations,
warranties, and agreements of the Company or Selling Stockholders
herein or in certificates delivered pursuant hereto, including but
not limited to the agreements of the several Underwriters and the
Company and Selling Stockholders contained in Section 8 hereof,
shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any Underwriter or any
controlling person thereof, or the Company or any of its officers,
directors, or controlling persons, and shall survive delivery of,
and payment for, the Securities to and by the Underwriters
hereunder and any termination of this Agreement.
10. Termination
of this Agreement.
(a) Right to
Terminate. You, as Representative of the several
Underwriters, shall have the right to terminate this Agreement by
giving notice to the Company and the Selling Stockholders as
hereinafter specified at any time at or prior to the First Closing
Date, and the option referred to in Section 4(b), if
exercised, may be cancelled at any time prior to the Second Closing
Date, if (i) the Company shall have failed, refused or been
unable, at or prior to such Closing Date, to perform any agreement
on its part to be performed hereunder, (ii) any condition of
the Underwriters’ obligations hereunder is not fulfilled,
(iii) trading on the Nasdaq Stock Market or the New York Stock
Exchange shall have been suspended, (iv) minimum or maximum
prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, on the Nasdaq Stock
Market or the New York Stock Exchange, by such exchange or by order
of the Commission or any other Governmental Authority having
jurisdiction, (v) a banking moratorium shall have been
declared by federal or state authorities or a material disruption
in commercial banking or securities settlement or clearance
services in the United States, or (vi) there shall have
occurred any attack on, outbreak or escalation of hostilities or
act of terrorism involving the United States, any declaration by
the United States of a national emergency or war, any change in
financial markets, any substantial change or development involving
a prospective substantial change in United States or international
political, financial or economic conditions, or any other calamity
or crisis that, in your judgment, is material and adverse and makes
it impractical or inadvisable to proceed with the completion of the
sale of and payment for the Securities. Any such termination shall
be without liability of any party to any other party except that
the provisions of Section 5(g) and Section 8 hereof shall at
all times be effective and shall survive such
termination.
(b) Notice of
Termination. If you elect to terminate this Agreement as
provided in this Section, the Company shall be notified promptly by
you by telephone, confirmed by letter.
11. Default by the
Company.
(a) Default by the
Company. If the Company or any Selling Stockholder shall
fail at the First Closing Date to sell and deliver the Securities
which it is obligated to sell hereunder, then this Agreement shall
terminate without any liability on the part of any
Underwriter.
(b) No Relief from
Liability. No action taken pursuant to this Section 11 shall relieve the
Company or a Selling Stockholder from liability, if any, in respect
of any default hereunder.
12. Notices. Except as
otherwise provided herein, all communications hereunder shall be in
writing and, if to the Underwriters, shall be mailed via overnight
delivery service or hand delivered via courier to the
Representative, c/o ▇. ▇▇▇▇▇ Securities, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, with a
copy (which shall not constitute notice) to Faegre Drinker ▇▇▇▇▇▇
& ▇▇▇▇▇ LLP, 2200 ▇▇▇▇▇ Fargo Center, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇. ▇▇▇▇▇▇; if to the
Company, shall be mailed or delivered to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer,
with a copy (which shall not constitute notice) to Squire ▇▇▇▇▇▇
▇▇▇▇▇ (US) LLP, ▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ #▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; or in each case to such other
address as the person to be notified may have requested in writing.
Any party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new
address for such purpose.
13. Persons Entitled to Benefit
of Agreement. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and
directors referred to in Section 8. Nothing in this Agreement is
intended or shall be construed to give to any other person, firm or
corporation any legal or equitable remedy or claim under or in
respect of this Agreement or any provision herein contained. The
term “successors and assigns” as herein used shall not
include any purchaser, as such purchaser, of any of the Securities
from any of the several Underwriters.
14. Absence of Fiduciary
Relationship. The Company and each Selling Stockholder
acknowledge and agree that: (a) the Underwriters have been retained
solely to act as underwriters in connection with the sale of the
Securities and that no fiduciary, advisory or agency relationship
between the Underwriters and the Company or any Selling Stockholder
has been created in respect of any of the transactions contemplated
by this Agreement, irrespective of whether the Underwriters have
advised or are advising the Company or any Selling Stockholder on
other matters; (b) the price and other terms of the Securities set
forth in this Agreement were established by the Company and the
Selling Stockholders following discussions and arms-length
negotiations with the Underwriters and the Company and the Selling
Stockholders are capable of evaluating and understanding and
understand and accept the terms, risks and conditions of the
transactions contemplated by this Agreement; (c) each has been
advised that the Underwriters and their affiliates are engaged in a
broad range of transactions which may involve interests that differ
from those of the Company or Selling Stockholders and that the
Underwriters have no obligation to disclose such interest and
transactions to the Company or Selling Stockholders by virtue of
any fiduciary, advisory or agency relationship; (d) each has been
advised that the Underwriters are acting, in respect of the
transactions contemplated by this Agreement, solely for the benefit
of the Underwriters, and not on behalf of the Company or the
Selling Stockholders; and (e) each waives to the fullest extent
permitted by law, any claims each may have against the Underwriters
for breach of fiduciary duty or alleged breach of fiduciary duty in
respect of any of the transactions contemplated by this Agreement
and agrees that the Underwriters shall have no liability (whether
direct or indirect) to the Company or any Selling Stockholder in
respect of such a fiduciary duty claim on behalf of or in right of
the Company, including stockholders, employees or creditors of the
Company, or any Selling Stockholder.
15. Governing Law; Waiver of
Jury Trial. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Each Selling Stockholder, the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders
and affiliates) and each of the Underwriters hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of
or relating to this Agreement or the transactions contemplated
hereby.
16. Counterparts. This
Agreement may be executed and delivered (including by electronic
mail attaching a portable document file (.pdf)) in one or more
counterparts and, if executed in more than one counterpart, the
executed counterparts shall each be deemed to be an original and
all such counterparts shall together constitute one and the same
instrument.
17. General
Provisions. This Agreement constitutes the entire agreement
of the parties to this Agreement and supersedes all prior written
or oral and all contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof. This
Agreement may not be amended or modified unless in writing by all
of the parties hereto, and no condition herein (express or implied)
may be waived unless waived in writing by each party whom the
condition is meant to benefit. The Section headings herein are for
the convenience of the parties only and shall not affect the
construction or interpretation of this Agreement. The invalidity or
unenforceability of any Section, paragraph or provision of this
Agreement shall not affect the validity or enforceability of any
other Section, paragraph or provision hereof. If any Section,
paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to
be made such minor changes (and only such minor changes) as are
necessary to make it valid and enforceable.
[Signature
Page Follows]
Please
sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement
between the Company, the Selling Stockholders and the several
Underwriters in accordance with its terms.
Very
truly yours,
By:
Name:
Title:
The
Selling Stockholders named in Schedule II hereto, acting
severally
By:
Attorney-in-Fact
Name:
Confirmed
as of the date first
above
mentioned, on behalf of
itself
and the other several
Underwriters
named in Schedule I
hereto.
▇. ▇▇▇▇▇ Securities,
Inc.
By:
Name:
Title:
SCHEDULE I
Underwriters
|
Underwriter
|
Number
of Firm Shares (1)
|
|
▇.
▇▇▇▇▇ Securities, Inc.
|
[●]
|
|
Colliers
Securities LLC
|
[●]
|
|
|
_______________
|
|
Total.
.. . . . . . . . . . . . . . . . . . . . . . . . .
|
________[●]_______
|
|
|
|
_________________
(1)
The Underwriters
may purchase up to an additional [•] Option Shares, to the
extent the option described in Section 4(b) of the Agreement
is exercised, in the proportions and in the manner described in the
Agreement.
SCHEDULE II
Selling Stockholders
|
Selling
Stockholder
|
Number
of Firm Shares
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
[●]
|
|
The
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ Children’s Trust (fbo ▇▇▇▇▇
▇▇▇▇▇▇▇)
|
[●]
|
|
The
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ Children’s Trust (fbo ▇▇▇▇▇
▇▇▇▇▇▇▇)
▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
|
[●]
[●]
[●]
[●]
[●]
|
SCHEDULE III
Pricing Information
Firm
Shares: [●] shares
Option
Shares: [●] shares
Price
to the Public: $[●] per share
Price
to the Underwriters: $[●] per share
SCHEDULE IV
Written Testing-the Waters Communications
None.
SCHEDULE V
List of Individuals and Entities Executing Lock-Up
Agreements
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
The
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ Children’s Trust (fbo ▇▇▇▇▇
▇▇▇▇▇▇▇)
The
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ Children’s Trust (fbo ▇▇▇▇▇
▇▇▇▇▇▇▇)
EXHIBIT A
Form of Lock-Up Agreement