OPEN MARKET SALE AGREEMENTSM May 14, 2021 JEFFERIES LLC
Exhibit
1.1
May 14,
2021
JEFFERIES
LLC
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
VistaGen
Therapeutics, Inc., a Nevada corporation (the “Company”), proposes, subject to
the terms and conditions stated herein, to issue and sell from time
to time through ▇▇▇▇▇▇▇▇▇ LLC, as sales agent and/or principal (the
“Agent”), shares
of the Company’s common stock, par value $0.001 per share
(the “Common
Shares”), on the terms set forth in this agreement
(this “Agreement”).
Section
1. DEFINITIONS
(a) Certain Definitions. For
purposes of this Agreement, capitalized terms used herein and not
otherwise defined shall have the following respective
meanings:
“Affiliate” of a Person means
another Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common
control with, such first- mentioned Person. The term
“control” (including the terms
“controlling,” “controlled by” and
“under common control with”) means the possession,
direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the
ownership of voting securities, by contract or
otherwise.
“Agency Period” means the period
commencing on the date of this Agreement and expiring on the
earliest to occur of (x) the date on which the Agent shall have
placed the Maximum Program Amount pursuant to this Agreement and
(y) the date this Agreement is terminated pursuant to Section 7.
“Commission” means the U.S.
Securities and Exchange Commission.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder.
“Floor Price” means the minimum
price set by the Company in the Issuance Notice below which the
Agent shall not sell Shares during the applicable period set forth
in the Issuance Notice, which may be adjusted by the Company at any
time during the period set forth in the Issuance Notice by
delivering written notice of such change to the Agent and which in
no event shall be less than $1.00 without the prior written consent
of the Agent, which may be withheld in the Agent’s sole
discretion.
“Issuance Amount” means the
aggregate Sales Price of the Shares to be sold by the Agent
pursuant to any Issuance Notice.
“Issuance Notice” means a written
notice delivered to the Agent by the Company in accordance with
this Agreement in the form attached hereto as Exhibit A that is
executed by its Chief Executive Officer or Chief Financial
Officer.
SM “Open Market
Sale Agreement” is a service ▇▇▇▇ of ▇▇▇▇▇▇▇▇▇
LLC
“Issuance Notice Date” means any
Trading Day during the Agency Period that an Issuance Notice is
delivered pursuant to Section 3(b)(i).
“Issuance
Price” means the Sales Price less the Selling
Commission.
“Maximum Program Amount” means
Common Shares with an aggregate Sales Price of the lesser of (a)
the number or dollar amount of Common Shares registered under the
effective Registration Statement (defined below) pursuant to which
the offering is being made, (b) the number of authorized but
unissued Common Shares (less Common Shares issuable upon exercise,
conversion or exchange of any outstanding securities of the Company
or otherwise reserved from the Company’s authorized capital
stock), (c) the number or dollar amount of Common Shares permitted
to be sold under Form S-3 (including General Instruction I.B.6
thereof, if applicable), or (d) the number or dollar amount of
Common Shares for which the Company has filed a Prospectus (defined
below).
“Person” means an individual or a
corporation, partnership, limited liability company, trust,
incorporated or unincorporated association, joint venture, joint
stock company, governmental authority or other entity of any
kind.
“Principal Market” means the Nasdaq
Capital Market or such other national securities exchange on which
the Common Shares, including any Shares, are then
listed.
“Sales Price” means the actual sale
execution price of each Share placed by the Agent pursuant to this
Agreement.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder.
“Selling Commission” means three
percent (3.0%) of the gross proceeds of Shares sold pursuant to
this Agreement.
“Settlement
Date” means the second business day following each
Trading Day during the period set forth in the Issuance Notice on
which Shares are sold pursuant to this Agreement, when the Company
shall deliver to the Agent the amount of Shares sold on such
Trading Day and the Agent shall deliver to the Company the Issuance
Price received on such sales.
“Shares” shall mean the
Company’s Common Shares issued or issuable pursuant to this
Agreement.
“Trading Day” means any day on
which the Principal Market is open for trading.
The
Company represents and warrants to, and agrees with, the Agent that
as of (1) the date of this Agreement, (2) each Issuance Notice
Date, (3) each Settlement Date, (4) each Triggering Event Date and
(5) as of each Time of Sale (each of the times referenced above is
referred to herein as a “Representation Date”), except as
may be disclosed in the Prospectus (including any documents
incorporated by reference therein and any supplements thereto) on
or before a Representation Date:
(a) Registration Statement. The
Company has prepared and filed with the Commission a shelf
registration statement on Form S-3 (File No. 333-254299) that
contains a base prospectus (the “Base Prospectus”). Such
registration statement registers the issuance and sale by the
Company of the Shares under the Securities Act. The Company may
file one or more additional registration statements from time to
time that will contain a base prospectus and related prospectus or
prospectus supplement, if applicable, with respect to the Shares.
Except where the context otherwise requires, such registration
statement(s), including any information deemed to be a part thereof
pursuant to Rule 430B under the Securities Act, including all
financial statements, exhibits and schedules thereto and all
documents incorporated or deemed to be incorporated therein by
reference pursuant to Item 12 of Form S-3 under the Securities Act
as from time to time amended or supplemented, is herein referred to
as the “Registration
Statement,” and the prospectus constituting a part of
such registration statement(s), together with any prospectus
supplement filed with the Commission pursuant to Rule 424(b) under
the Securities Act relating to a particular issuance of the Shares,
including all documents incorporated or deemed to be incorporated
therein by reference pursuant to Item 12 of Form S-3 under the
Securities Act, in each case, as from time to time amended or
supplemented, is referred to herein as the “Prospectus,” except that if any
revised prospectus is provided to the Agent by the Company for use
in connection with the offering of the Shares that is not required
to be filed by the Company pursuant to Rule 424(b) under the
Securities Act, the term “Prospectus” shall refer to such
revised prospectus from and after the time it is first provided to
the Agent for such use. The Registration Statement at the time it
originally became effective is herein called the
“Original Registration
Statement.” As used in this Agreement, the terms
“amendment” or “supplement” when applied to
the Registration Statement or the Prospectus shall be deemed to
include the filing by the Company with the Commission of any
document under the Exchange Act after the date hereof that is or is
deemed to be incorporated therein by reference.
All
references in this Agreement to financial statements and schedules
and other information which is “contained,”
“included” or “stated” in the Registration
Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial
statements and schedules and other information which is or is
deemed to be incorporated by reference in or otherwise deemed under
the Securities Act to be a part of or included in the Registration
Statement or the Prospectus, as the case may be, as of any
specified date; and all references in this Agreement to amendments
or supplements to the Registration Statement or the Prospectus
shall be deemed to mean and include, without limitation, the filing
of any document under the Exchange Act which is or is deemed to be
incorporated by reference in or otherwise deemed under the
Securities Act to be a part of or included in the Registration
Statement or the Prospectus, as the case may be, as of any
specified date. The Company’s obligations under this
Agreement to furnish, provide, deliver or make available (and all
other references of like import) copies of any report or statement
shall be deemed satisfied if the same is filed with the Commission
through its Electronic Data Gathering, Analysis, and Retrieval
system (“▇▇▇▇▇”).
At the
time the Original Registration Statement was declared effective and
at the time the Company’s most recent annual report on Form
10-K was filed with the Commission, if later, the Company met the
then-applicable requirements for use of Form S-3 under the
Securities Act. During the Agency Period, each time the Company
files an annual report on Form 10-K the Company will meet the
then-applicable requirements for use of Form S-3 under the
Securities Act.
(b) Compliance with Registration
Requirements. The Original Registration Statement and any
Rule 462(b) Registration Statement have been declared effective by
the Commission under the Securities Act. The Company has complied
to the Commission’s satisfaction with all requests of the
Commission for additional or supplemental information. No stop
order suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement is in effect and no
proceedings for such purpose have been instituted or are pending
or, to the best knowledge of the Company, are contemplated or
threatened by the Commission.
The
Prospectus when filed complied or will comply in all material
respects with the Securities Act and, if filed with the Commission
through ▇▇▇▇▇ (except as may be permitted by Regulation S T under
the Securities Act), was identical to the copy thereof delivered to
the Agent for use in connection with the issuance and sale of the
Shares. Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto, at
the time it became or becomes effective and at each Representation
Date, complied and will comply in all material respects with the
Securities Act and did not and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. As of the date of this Agreement, the
Prospectus and any Free Writing Prospectus (as defined below)
considered together (collectively, the “Time of Sale Information”) did not
contain any 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 Prospectus, as amended or supplemented, as of its
date and at each Representation Date, did not and will not contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The representations and warranties set forth in the
three immediately preceding sentences do not apply to statements in
or omissions from the Registration Statement, any Rule 462(b)
Registration Statement, or any post-effective amendment thereto, or
the Prospectus, or any amendments or supplements thereto, made in
reliance upon and in conformity with information relating to the
Agent furnished to the Company in writing by the Agent expressly
for use therein, it being understood and agreed that the only such
information furnished by the Agent to the Company consists of the
information described in Section 6 below. There are no
contracts or other documents required to be described in the
Prospectus or to be filed as exhibits to the Registration Statement
which have not been described or filed as required. The
Registration Statement and the offer and sale of the Shares as
contemplated hereby meet the requirements of Rule 415 under the
Securities Act and comply in all material respects with said
rule.
(c) Ineligible Issuer Status. The
Company is not an “ineligible issuer” in connection
with the offering of the Shares pursuant to Rules 164, 405 and 433
under the Securities Act. Any Free Writing Prospectus that the
Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act. Each Free
Writing Prospectus that the Company has filed, or is required to
file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company
complies or will comply in all material respects with the
requirements of Rule 433 under the Securities Act including timely
filing with the Commission or retention where required and
legending, and each such Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the
issuance and sale of the Shares did not, does not and will not
include any information that conflicted, conflicts with or will
conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by
reference therein. Except for the Free Writing Prospectuses, if
any, and electronic road shows, if any, furnished to the Agent
before first use, the Company has not prepared, used or referred
to, and will not, without the Agent’s prior consent, prepare,
use or refer to, any Free Writing Prospectus.
(d) Incorporated Documents. The
documents incorporated or deemed to be incorporated by reference in
the Registration Statement and the Prospectus, at the time they
were filed with the Commission, complied in all material respects
with the requirements of the Exchange Act, as applicable, and, when
read together with the other information in the Prospectus, do 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 light of the circumstances under which
they were made, not misleading.
(e) Exchange Act Compliance. The
documents incorporated or deemed to be incorporated by reference in
the Prospectus, at the time they were or hereafter are filed with
the Commission, and any Free Writing Prospectus or amendment or
supplement thereto complied and will comply in all material
respects with the requirements of the Exchange Act, and, when read
together with the other information in the Prospectus, at the time
the Registration Statement and any amendments thereto become
effective and at each Time of Sale (as defined below), as the case
may be, will 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 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.
(f) This Agreement. This Agreement
has been duly authorized, executed and delivered by the
Company.
(g) Authorization of the Shares.
The Shares have been duly authorized
by the Company for issuance and sale pursuant to this Agreement
and, when issued and delivered by the Company against payment for
the Shares pursuant to this Agreement, will be validly issued,
fully paid and nonassessable, and the issuance and sale of the
Shares will not be subject to any preemptive rights, rights of
first refusal or other similar rights to subscribe for or purchase
the Shares.
(h) No Applicable Registration or Other
Similar Rights. There are no
persons with registration or other similar rights to have any
equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by
this Agreement, except for such rights as have been duly
waived.
(i) No Material Adverse Change.
Except as otherwise disclosed in the
Registration Statement and the Prospectus, subsequent to the
respective dates as of which information is given in the
Registration Statement and the Prospectus: (i) there has been
no material adverse change, or any development that could be
expected to result in a material adverse change, in (A) the
condition, financial or otherwise, or in the earnings, business,
properties, operations, operating results, assets, liabilities or
prospects, whether or not arising from transactions in the ordinary
course of business, of the Company and its subsidiaries, considered
as one entity or (B) the ability of the Company to consummate the
transactions contemplated by this Agreement or perform its
obligations hereunder (any such change being referred to herein as
a “Material Adverse
Change”); (ii) the
Company and its subsidiaries, considered as one entity, have not
incurred any material liability or obligation, indirect, direct or
contingent, including without limitation any losses or interference
with their business from fire, explosion, flood, earthquakes,
accident or other calamity, whether or not covered by insurance, or
from any strike, labor dispute or court or governmental action,
order or decree, that are material, individually or in the
aggregate, to the Company and its subsidiaries, considered as one
entity, and have not entered into any material transactions not in
the ordinary course of business; and (iii) there has not been
any material decrease in the capital stock or any material increase
in any short-term or long-term indebtedness of the Company or its
subsidiaries and there has been no dividend or distribution of any
kind declared, paid or made by the Company or, except for dividends
paid to the Company or other subsidiaries, by any of the
Company’s subsidiaries on any class of capital stock, or any
repurchase or redemption by the Company or any of its subsidiaries
of any class of capital stock.
(j) Independent Accountants.
OUM & Co. LLP, which has expressed
its opinion with respect to the consolidated financial statements
(which term as used in this Agreement includes the related notes
thereto) filed with the Commission as a part of the Registration
Statement and the Prospectus, is (i) an independent registered
public accounting firm as required by the Securities Act, the
Exchange Act, and the rules of the Public Company Accounting
Oversight Board (“PCAOB”), (ii) in compliance with the applicable
requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X under the Securities Act and (iii) a
registered public accounting firm as defined by the PCAOB whose
registration has not been suspended or revoked and who has not
requested such registration to be withdrawn.
(k) Financial Statements.
The financial statements filed with
the Commission as a part of the Registration Statement and the
Prospectus present fairly, in all material respects, the
consolidated financial position of the Company and its subsidiaries
as of the dates indicated and the results of their operations,
changes in stockholders’ equity and cash flows for the
periods specified. The supporting schedules included in the
Registration Statement present fairly the information required to
be stated therein. Such financial statements and supporting
schedules have been prepared in conformity with generally accepted
accounting principles as applied in the United States applied on a
consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto. 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. No other financial statements or
supporting schedules are required to be included in the
Registration Statement or the Prospectus. The financial data set
forth in each of the Registration Statement and the Prospectus
fairly present, in all material respects, the information set forth
therein on a basis consistent with that of the audited financial
statements contained in the Registration Statement and the
Prospectus. All disclosures contained in the Registration
Statement, any preliminary prospectus, the Prospectus and any free
writing prospectus that constitute non-GAAP financial measures (as
defined by the rules and regulations under the Securities Act and
the Exchange Act) comply with Regulation G under the Exchange Act
and Item 10 of Regulation S-K under the Securities Act, as
applicable. To the Company’s knowledge, no person who has
been suspended or barred from being associated with a registered
public accounting firm, or who has failed to comply with any
sanction pursuant to Rule 5300 promulgated by the PCAOB, has
participated in or otherwise aided the preparation of, or audited,
the financial statements, supporting schedules or other financial
data filed with the Commission as a part of the Registration
Statement and the Prospectus.
(l) Company’s Accounting
System. The Company and each of
its subsidiaries make and keep books and records that are accurate,
in all material respects, and maintain a system of internal
accounting controls sufficient to provide reasonable assurance
that: (i) transactions are executed in accordance with
management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles as applied in the United States and
to maintain accountability for assets; (iii) access to assets
is permitted only in accordance with management’s general or
specific authorization; (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and
(v) the interactive data in eXtensible Business Reporting Language
included or incorporated by reference in the Registration Statement
and the Prospectus fairly presents the information called for in
all material respects and is prepared in accordance with the
Commission's rules and guidelines applicable
thereto.
(m) Disclosure
Controls and Procedures; Deficiencies in or Changes to Internal
Control Over Financial Reporting. The Company has established and maintains
disclosure controls and procedures (as defined in Rules 13a-15
and 15d-15 under the Exchange Act), which (i) are designed to
ensure that material information relating to the Company, including
its consolidated subsidiaries, is made known to the Company’s
principal executive officer and its principal financial officer by
others within those entities, particularly during the periods in
which the periodic reports required under the Exchange Act are
being prepared; (ii) have been evaluated by management of the
Company for effectiveness as of the end of the Company’s most
recent fiscal quarter; and (iii) are effective in all material
respects to perform the functions for which they were established.
Other than as disclosed in the Registration Statement and the
Prospectus, since the end of the Company’s most recent
audited fiscal year, there have been no significant deficiencies or
material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and no change in
the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting (as defined in Rule 13a-15(f) under the Exchange Act).
The Company is not aware of any change in its internal control over
financial reporting that has occurred during its most recent fiscal
quarter that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over
financial reporting.
(n) Incorporation and Good Standing of the
Company. The Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation
and has the corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and the Prospectus and to enter into and
perform its obligations under this Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in
good standing in the State of jurisdiction of its principal place
of business and each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
qualify would not reasonably be expected to result in a Material
Adverse Change.
(o) Subsidiaries. Each of the Company’s
“subsidiaries” (for purposes of this Agreement, as
defined in Rule 405 under the Securities Act) has been duly
incorporated or organized, as the case may be, and is validly
existing as a corporation, partnership or limited liability
company, as applicable, in good standing under the laws of the
jurisdiction of its incorporation or organization and has the power
and authority (corporate or other) to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus. Each of the
Company’s subsidiaries is duly qualified as a foreign
corporation, partnership or limited liability company, as
applicable, to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to qualify would not reasonably
be expected to result in a Material Adverse Change. All of the
issued and outstanding capital stock or other equity or ownership
interests of each of the Company’s subsidiaries have been
duly authorized and validly issued, are fully paid and
nonassessable and are owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or adverse
claim. None
of the outstanding capital stock or equity interest in any
subsidiary was issued in violation of preemptive or similar rights
of any security holder of such subsidiary. The constitutive or
organizational documents of each of the subsidiaries comply, in all
material respects, with the requirements of applicable laws of its
jurisdiction of incorporation or organization and are in full force
and effect. The Company
does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed on
Exhibit B hereto or in Exhibit 21 to the Company’s most
recent Annual Report on Form 10-K.
(p) Capitalization and Other Capital Stock
Matters. The authorized, issued
and outstanding capital stock of the Company is as set forth in the
Registration Statement and the Prospectus under the caption
“Capitalization” (other than for subsequent issuances,
if any, pursuant to employee benefit plans, or upon the exercise of
outstanding options or warrants, in each case described in the
Registration Statement and the Prospectus). The share capital of
the Company conforms, in all material respects, to the description
thereof contained in the Prospectus. All of the issued and
outstanding securities of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and have been
issued in compliance with all federal and state securities laws.
None of the outstanding securities was issued in violation of any
preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase securities of the Company. There are
no authorized or outstanding options, warrants, preemptive rights,
rights of first refusal or other rights to purchase, or equity or
debt securities convertible into or exchangeable or exercisable
for, any capital stock of the Company or any of its subsidiaries
other than those described in the Registration Statement and the
Prospectus. The descriptions of the Company’s stock option,
stock bonus and other stock plans or arrangements, and the options
or other rights granted thereunder, set forth in the Registration
Statement and the Prospectus accurately and fairly presents, in all
material respects, the information required to be shown with
respect to such plans, arrangements, options and
rights.
(q) Stock Exchange Listing.
The Common Shares are registered
pursuant to Section 12(b) or 12(g) of the Exchange Act and are
listed on the Principal Market, and the Company has taken no action
designed to, or likely to have the effect of, terminating the
registration of the Common Shares under the Exchange Act or
delisting the Common Shares from the Principal Market, nor, except
as otherwise disclosed in the Registration Statement and the
Prospectus, has the Company received any notification that the
Commission or the Principal Market is contemplating terminating
such registration or listing. Except as otherwise disclosed in the
Registration Statement and the Prospectus, to the Company’s
knowledge, it is in compliance with all applicable listing
requirements of the Principal Market.
(r) Non-Contravention of Existing
Instruments; No Further Authorizations or Approvals
Required. Neither the Company
nor any of its subsidiaries is in violation of its charter or
by-laws, partnership agreement or operating agreement or similar
organizational documents, as applicable, or is in default (or, with
the giving of notice or lapse of time, would be in default)
(“Default”) under any indenture, loan, credit
agreement, note, lease, license agreement, contract, franchise or
other instrument (including, without limitation, any pledge
agreement, security agreement, mortgage or other instrument or
agreement evidencing, guaranteeing, securing or relating to
indebtedness) to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any
of their respective properties or assets are subject (each, an
“Existing
Instrument”), except for
such Defaults as would not be reasonably expected, individually or
in the aggregate, to result in a Material Adverse Change. The
Company’s execution, delivery and performance of this
Agreement, consummation of the transactions contemplated hereby and
by the Registration Statement and the Prospectus and the issuance
and sale of the Shares (including the use of proceeds from the sale
of the Shares as described in the Registration Statement and the
Prospectus under the caption “Use of Proceeds”)
(i) have been duly authorized by all necessary corporate
action and will not result in any violation of the provisions of
the charter or by-laws, partnership agreement or operating
agreement or similar organizational documents, as applicable, of
the Company or any subsidiary (ii) will not conflict with or
constitute a breach of, or Default or a Debt Repayment Triggering
Event (as defined below) 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, or
require the consent of any other party to, any Existing Instrument
and (iii) will not result in any violation of any law,
administrative regulation or administrative or court decree
applicable to the Company or any of its subsidiaries, except for
such conflicts, breaches or violations specified in subsection (ii)
and (iii) above that would not reasonably be expected to result in
a Material Adverse Change. Except as otherwise disclosed in the
Registration Statement and the Prospectus, no consent, approval,
authorization or other order of, or registration or filing with,
any court or other governmental or regulatory authority or agency,
is required for the Company’s execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated hereby and by the Registration Statement and the
Prospectus, except such as have been obtained or made by the
Company and are in full force and effect under the Securities Act
and such as may be required under applicable state securities or
blue sky laws or the Financial Industry Regulatory Authority, Inc.
(“FINRA”). As used herein, a
“Debt
Repayment Triggering Event” means any event or condition which gives,
or with the giving of notice or lapse of time would give, the
holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any of its
subsidiaries.
(s) Compliance with Laws. The
Company and its subsidiaries have been, during the past three (3)
years, and are in compliance with all applicable laws, rules and
regulations, except where failure to be so in compliance would not
reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Change.
(t) No Material Actions or
Proceedings. There is no
action, suit, proceeding, inquiry or investigation brought by or
before any legal or governmental entity now pending or, to the
knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, that would reasonably be
expected, individually or in the aggregate, to result in a Material
Adverse Change. No labor dispute with the employees of the Company
or any of its subsidiaries, or with the employees of any principal
supplier, manufacturer, customer or contractor of the Company,
exists or, to the knowledge of the Company, is threatened or
imminent, except as would not reasonably be expected to result in a
Material Adverse Change.
(u) Intellectual Property Rights.
The Company and its subsidiaries own,
or have obtained valid and enforceable licenses for, the
inventions, patent applications, patents, trademarks, trade names,
service names, copyrights, trade secrets and other intellectual
property described in the Registration Statement and the Prospectus
as being owned or licensed by them or used in the conduct of their
respective businesses as currently conducted or as currently
proposed to be conducted (collectively, “Intellectual
Property”). To the
Company’s knowledge, the conduct of their respective
businesses does not and will not infringe, misappropriate or
otherwise conflict in any respect with any intellectual property
rights of others, except as would not be reasonably be expected,
individually or in the aggregate, to result in a Material Adverse
Change. The Intellectual Property of the Company has not been
adjudged by a court of competent jurisdiction to be invalid or
unenforceable, in whole or in part, and the Company is unaware of
any facts which, in the Company’s opinion, would form a
reasonable basis for any such adjudication. To the Company’s
knowledge, except as otherwise described in the Registration
Statement and the Prospectus: (i) there are no third parties who
have rights to any Intellectual Property, except for customary
reversionary rights of third-party licensors with respect to
Intellectual Property that is disclosed in the Registration
Statement and the Prospectus as licensed to the Company or one or
more of its subsidiaries; and (ii) there is no infringement by
third parties of any Intellectual Property, except, for each of (i)
and (ii), as would not be reasonably be expected, individually or
in the aggregate, to result in a Material Adverse Change. There is
no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by third parties: (A) challenging
the Company’s and its subsidiaries’ rights in or to any
Intellectual Property, and the Company is unaware of any facts
which, in the Company’s opinion, would form a reasonable
basis for any such action, suit, proceeding or claim; (B)
challenging the validity, enforceability or scope of any
Intellectual Property, and the Company is unaware of any facts
which, in the Company’s opinion, would form a reasonable
basis for any such action, suit, proceeding or claim; or (C)
asserting that the Company or any of its subsidiaries infringes or
otherwise violates, or would, upon the commercialization of any
product or service described in the Registration Statement the
Prospectus as under development, infringe or violate, any patent,
trademark, trade name, service name, copyright, trade secret or
other proprietary rights of third parties, and the Company is
unaware of any facts which, in the Company’s opinion, would
form a reasonable basis for any such action, suit, proceeding or
claim; in each case of (A), (B) and (C), except as would not
reasonably be expected to result in a Material Adverse Change. The
Company and its subsidiaries have complied with the terms of each
agreement pursuant to which Intellectual Property has been licensed
to the Company or any subsidiary, and all such agreements are in
full force and effect, except when the failure to be in compliance
would not reasonably be expected to result in a Material Adverse
Change. To the Company’s knowledge, there are no defects in
any of the patents or patent applications included in the
Intellectual Property, except as would not reasonably be expected
to result in a Material Adverse Change. To the Company’s
knowledge, the Company and its subsidiaries have taken all
reasonable steps to protect, maintain and safeguard the
Intellectual Property, including the execution of appropriate
nondisclosure or confidentiality agreements and invention
assignment agreements with their employees, and to the
Company’s knowledge, no current employee of the Company
involved in the development of Intellectual Property is in or has
been in 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, in each case except
when the failure to be in compliance would not reasonably be
expected to result in a Material Adverse Change. To the
Company’s knowledge, the duty of candor and good faith as
required by the United States Patent and Trademark Office during
the prosecution of the United States patents and patent
applications included in the Intellectual Property has been
complied with in all respects; and in all foreign offices having
similar requirements, all such requirements have been complied with
in all respects, in each case except when the failure to be in
compliance would not reasonably be expected to result in a Material
Adverse Change. To the knowledge of the Company, none of the
Company owned Intellectual Property or technology (including
information technology and outsourced arrangements) employed by the
Company or its subsidiaries in the conduct of their respective
businesses has been obtained or is being used by the Company or its
subsidiaries in violation of any contractual obligation binding on
the Company or its subsidiaries or any of their respective
officers, directors or employees or otherwise in violation of the
rights of any persons. The product candidates described in the
Registration Statement and the Prospectus as under development by
the Company or any subsidiary fall within the scope of the claims
of one or more patents and/or pending patent applications owned by,
or exclusively licensed to, the Company or its
subsidiaries.
(v) All Necessary Permits, etc.
The Company and its subsidiaries
possess such valid and current certificates, authorizations or
permits required by state, federal or foreign regulatory agencies
or bodies to conduct their respective businesses as currently
conducted and as described in the Registration Statement or the
Prospectus (“Permits”), except where the failure to so possess
would not reasonably be expected to result in a Material Adverse
Change. Neither the Company nor any of its subsidiaries is in
violation of, or in default under, any of the Permits or has
received any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such certificate,
authorization or permit, that, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
reasonably be expected to result in a Material Adverse
Change.
(w) Title to Properties.
Except as otherwise disclosed in the
Registration Statement and the Prospectus, the Company and its
subsidiaries have good and marketable title to all of the real and
personal property and other assets reflected as owned in the
financial statements referred to in Section 2(k) above (or
elsewhere in the Registration Statement or the Prospectus), in each
case free and clear of any security interests, mortgages, liens,
encumbrances, equities, adverse claims and other defects that would
reasonably be expected to result in a Material Adverse Change. The
real property, improvements, equipment and personal property held
under lease by the Company or any of its subsidiaries are held
under valid and enforceable leases, with such exceptions as are not
material and do not materially interfere with the use made or
proposed to be made of such real property, improvements, equipment
or personal property by the Company or such
subsidiary.
(x) Tax Law Compliance.
Except as (i) disclosed in the
Registration Statement and the Prospectus or (ii) would not
reasonably be expected to result in a Material Adverse Change, the
Company and its subsidiaries have filed all necessary federal,
state and foreign income and franchise tax returns or have properly
requested extensions thereof and have paid all taxes required to be
paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them except as
may be being contested in good faith and by appropriate
proceedings. The Company has made adequate charges, accruals and
reserves in the applicable financial statements referred to in
Section 2(k) above in respect of all material federal, state and
foreign income and franchise taxes applicable to the Company for
all periods as to which the tax liability of the Company or any of
its subsidiaries has not been finally
determined.
(y) Insurance. Each of the Company and its subsidiaries are
insured by recognized, financially sound and reputable institutions
with policies in such amounts and with such deductibles and
covering such risks as are generally deemed adequate and customary
for their businesses including, but not limited to, policies
covering real and personal property owned or leased by the Company
and its subsidiaries against theft, damage, destruction, acts of
vandalism and policies covering the Company and its subsidiaries
for product liability claims and clinical trial liability claims.
The Company has no reason to believe that it or any of its
subsidiaries will not be able (i) to renew its existing
insurance coverage as and when such policies expire or (ii) to
obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted
and at a cost that would not reasonably be expected to result in a
Material Adverse Change. Neither the Company nor any of its
subsidiaries has been denied any insurance coverage which it has
sought or for which it has applied.
(z) Compliance
with Environmental Laws. Except as would not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse
Change: (i) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively,
“Hazardous
Materials”) or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials
(collectively, “Environmental
Laws”); (ii) the Company
and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements; (iii) there are no pending or,
to the knowledge of the Company, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries; and (iv) to the knowledge of
the Company, there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(aa) ERISA
Compliance. The Company and its subsidiaries and any
“employee benefit plan” (as defined under the Employee
Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively,
“ERISA”))
established or maintained by the Company, its subsidiaries or their
“ERISA Affiliates” (as defined below) are in compliance
in all material respects with ERISA. “ERISA Affiliate” means, with
respect to the Company or any of its subsidiaries, any member of
any group of organizations described in Sections 414(b), (c),
(m) or (o) of the Internal Revenue Code of 1986, as amended, and
the regulations and published interpretations thereunder (the
“Code”) of which
the Company or such subsidiary is a member. Except as would not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Change: (i) no “reportable event”
(as defined under ERISA) has occurred or is reasonably expected to
occur with respect to any “employee benefit plan”
established or maintained by the Company, its subsidiaries or any
of their ERISA Affiliates; (ii) no “employee benefit
plan” established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates, if such
“employee benefit plan” were terminated, would have any
“amount of unfunded benefit liabilities” (as defined
under ERISA); (iii) neither the Company, its subsidiaries nor any
of their ERISA Affiliates has incurred or reasonably expects to
incur (a) any liability under Title IV of ERISA with
respect to termination of, or withdrawal from, any “employee
benefit plan” or (b) any material liability
under Sections 412, 4971, 4975 or 4980B of the Code; and
(iv) each employee benefit plan established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates that is
intended to be qualified under Section 401(a) of the Code is
so qualified and, to the Company’s knowledge, nothing has
occurred, whether by action or failure to act, which would cause
the loss of such qualification.
(bb) Company
Not an “Investment Company.” The Company is not, and will not be,
either after receipt of payment for the Shares or after the
application of the proceeds therefrom as described under “Use
of Proceeds” in the Registration Statement or the Prospectus,
required to register as an “investment company” under
the Investment Company Act of 1940, as amended
(the “Investment Company
Act”).
(cc) No
Price Stabilization or Manipulation; Compliance with Regulation
M. Neither the Company nor any
of its subsidiaries has taken, directly or indirectly, any action
designed to or that might cause or result in stabilization or
manipulation of the price of the Shares or of any “reference
security” (as defined in Rule 100 of Regulation M under the
Exchange Act (“Regulation
M”)) with respect to the
Shares, whether to facilitate the sale or resale of the Shares or
otherwise, and has taken no action which would directly or
indirectly violate Regulation M.
(dd) Related
Party Transactions. There are
no business relationships or related-party transactions involving
the Company or any of its subsidiaries or any other person required
to be described in the Registration Statement or the Prospectus
that have not been described as required.
(ee) FINRA
Matters. All of the information
provided to the Agent or to counsel for the Agent by the Company,
its counsel, its officers and directors and the holders of any
securities (debt or equity) or options to acquire any securities of
the Company in connection with the offering of the Shares is true,
complete, correct and compliant with FINRA’s rules, in all
material respects, and any letters, filings or other supplemental
information provided to FINRA pursuant to FINRA Rules or NASD
Conduct Rules is true, complete and correct, in all material
respects. The Company meets the definition of the term
“experienced issuer” specified in FINRA Rule
5110(j)(6).
(ff) Statistical
and Market-Related Data. All statistical, demographic and
market-related data included in the Registration Statement or the
Prospectus are based on or derived from sources that the Company
believes, after reasonable inquiry, to be reliable and accurate or
represent the Company’s good faith estimates that are made on
the basis of data derived from such sources. To the extent
required, the Company has obtained the written consent to the use
of such data from such sources.
(gg) ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act. There is, and has
been, no failure on the part of the Company or, to the
Company’s knowledge, any of the Company’s directors or
officers, in their capacities as such, to comply in all material
respects with any applicable provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of
2002, as amended and the rules and regulations promulgated in
connection therewith, including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(hh) No
Unlawful Contributions or Other Payments. Neither the Company nor any of its subsidiaries
nor, to the Company’s knowledge, any employee or agent of the
Company or any subsidiary, has made any contribution or other
payment to any official of, or candidate for, any federal, state or
foreign office in violation of any law or of the character required
to be disclosed in the Registration Statement or the
Prospectus.
(ii) Anti-Corruption
and Anti-Bribery Laws. Neither the Company nor any of
its subsidiaries nor any director, officer, or employee of the
Company or any of its subsidiaries, nor to the knowledge of the
Company, any agent, affiliate or other person acting on behalf of
the Company or any of its subsidiaries has, in the course of its
actions for, or on behalf of, the Company or any of its
subsidiaries (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses
relating to political activity; (ii) made or taken any act in
furtherance of an offer, promise, or authorization of any direct or
indirect unlawful payment or benefit to any foreign or domestic
government official or employee, including of any government-owned
or controlled entity or public international organization, or any
political party, party official, or candidate for political office;
(iii) violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977, as amended (the
“FCPA”), the UK
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, or any other applicable anti-bribery or
anti-corruption law; or (iv) made, offered, authorized,
requested, or taken an act in furtherance of any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment or benefit . The Company and its subsidiaries and, to the
knowledge of the Company, the Company’s affiliates have
conducted their respective businesses in compliance with the FCPA
and have instituted and maintain policies and procedures designed
to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(jj) Money
Laundering Laws. The operations of the Company and its
subsidiaries are, and have been conducted at all times, in
compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and
any related or similar applicable rules, regulations or guidelines,
issued, administered or enforced by any governmental agency
(collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by
or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries
with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(kk) Sanctions. Neither
the Company nor any of its subsidiaries, directors, officers, or
employees, nor, to the knowledge of the Company, after due inquiry,
any agent, affiliate or other person acting on behalf of the
Company or any of its subsidiaries is currently the subject or the
target of any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Department of the Treasury
(“OFAC”) or the
U.S. Department of State, the United Nations Security Council, the
European Union, Her Majesty’s Treasury of the United Kingdom,
or other relevant sanctions authority (collectively,
“Sanctions”);
nor is the Company or any of its subsidiaries located, organized or
resident in a country or territory that is the subject or the
target of Sanctions, including, without limitation, Crimea, Cuba,
Iran, North Korea, and Syria; and the Company will not directly or
indirectly use the proceeds of this offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, or any
joint venture partner or other person or entity, for the purpose of
financing the activities of or business with any person, or in any
country or territory, that at the time of such financing, is the
subject or the target of Sanctions or in any other manner that will
result in a violation by any person (including any person
participating in the transaction whether as underwriter, advisor,
investor or otherwise) of applicable Sanctions. For the past five
years, the Company and its subsidiaries have not knowingly engaged
in and are not now knowingly engaged in any dealings or
transactions with any person that at the time of the dealing or
transaction is or was the subject or the target of Sanctions or
with any Sanctioned Country.
(ll) Brokers.
Except pursuant to this Agreement,
there is no broker, finder or other party that is entitled to
receive from the Company any brokerage or finder’s fee or
other fee or commission as a result of any transactions
contemplated by this Agreement.
(mm) Forward-Looking
Statements. Each financial
or operational projection or other “forward-looking
statement” (as defined by Section 27A of the Securities Act
or Section 21E of the Exchange Act) contained in the Registration
Statement or the Prospectus (i) was so included by the Company
in good faith and with reasonable basis after due consideration by
the Company of the underlying assumptions, estimates and other
applicable facts and circumstances and (ii) is accompanied by
meaningful cautionary statements identifying those factors that
could cause actual results to differ materially from those in such
forward-looking statement. No such statement was made with the
knowledge of an executive officer or director of the Company that
it was false or misleading.
(nn) No
Outstanding Loans or Other Extensions of Credit.
The Company does not have any
outstanding extension of credit, in the form of a personal loan, to
or for any director or executive officer (or equivalent thereof) of
the Company except for such extensions of credit as are expressly
permitted by Section 13(k) of the Exchange Act.
(oo) Cybersecurity.
Except as would not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Change; (i) the Company
and its subsidiaries’ information technology assets and
equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively,
“IT Systems”)
are adequate for, and operate and perform in all material respects
as required in connection with the operation of the business of the
Company and its subsidiaries as currently conducted, and to the
Company’s knowledge, are free and clear of malware or any malicious software program, such as
spyware or adware, viruses, vulnerable applications and
similar corruptants; (ii) the Company and its subsidiaries have
implemented and maintained commercially reasonable physical,
technical and administrative controls, policies, procedures, and
safeguards to maintain and protect their material confidential
information and the integrity, continuous operation, redundancy and
security of all IT Systems and data, all personal, personally
identifiable, sensitive, confidential or regulated data
(“Personal
Data”) used in connection with their businesses. To
the Company’s knowledge, there have been no material
breaches, violations, outages or unauthorized uses of or accesses
to same, except for those that have been remedied without material
cost or liability or the duty to notify any other person, nor any
incidents under internal review or investigations relating to the
same. The Company and its subsidiaries are presently in compliance
with all applicable laws or statutes and all applicable judgments,
orders, rules and regulations of any court or arbitrator or
governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of IT
Systems and Personal Data and to the protection of such IT Systems
and Personal Data from unauthorized use, access, misappropriation
or modification, except as would not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse
Change.
(pp) Compliance
with Data Privacy Laws. Except as would not reasonably be
expected, individually or in the aggregate, to result in a Material
Adverse Change, the Company and its subsidiaries are, and for the
past three (3) years have been, in compliance with all applicable
state and federal data privacy and security laws and regulations,
including, to the extent applicable, HIPAA (collectively, the
“Privacy Laws”).
To ensure compliance with the Privacy Laws, the Company and its
subsidiaries have in place, comply with, and take appropriate steps
reasonably designed to ensure compliance, in all material respects,
with their policies and procedures relating to data privacy and
security and the collection, storage, use, disclosure, handling,
and analysis of Personal Data (the “Policies”). Except as would not
reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Change, the Company and its subsidiaries have
at all times made all disclosures to users or customers required by
applicable laws, Privacy Laws and regulatory rules or requirements,
and none of such disclosures made or contained in any Policy have,
to the knowledge of the Company, been inaccurate, misleading,
deceptive or in violation of any applicable laws, Privacy Laws,
Policies, and regulatory rules or requirements in any material
respect. Neither the Company nor any subsidiary: (i) has received
written notice of any actual or potential liability under or
relating to, or actual or potential violation of, any of the
Privacy Laws, and has no knowledge of any event or condition that
would reasonably be expected to result in any such notice; (ii) is
currently conducting or paying for, in whole or in part, any
investigation, remediation, or other corrective action pursuant to
any Privacy Law; (iii) is a party to any order, decree, or
agreement that imposes any obligation or liability by any
governmental or regulatory authority under any Privacy
Laws.
(qq) Clinical
Data and Regulatory Compliance. The
preclinical tests and clinical trials, and other studies
(collectively, “studies”) that are described in, or the
results of which are referred to in, the Registration Statement or
the Prospectus were and, if still pending, are being conducted in
all material respects in accordance with applicable Health Care
Laws, each description of the results of such studies is accurate
and complete in all material respects and fairly presents the data
derived from such studies, and the Company and its subsidiaries
have no knowledge of any other studies the results of which are
materially inconsistent with, or otherwise materially call into
question, the results described or referred to in the Registration
Statement or the Prospectus; the Company and its subsidiaries have
made all such filings and obtained all such approvals as may be
required by the Food and Drug Administration of the U.S. Department
of Health and Human Services or any committee thereof or from any
other U.S. or foreign government or drug or medical device
regulatory agency, or health care facility Institutional Review
Board (collectively, the “Regulatory Agencies”), except for
such failure which would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Change; and
neither the Company nor any of its subsidiaries has received any
notice of, or correspondence from, any Regulatory Agency requiring
the termination, suspension or material adverse modification of any
clinical trials that are described or referred to in the
Registration Statement or the Prospectus, other than any suspension
that was subsequently lifted prior to January 1, 2018.
(rr) Compliance
with Health Care Laws. The Company and its subsidiaries are,
and at all times have been, in compliance with all Health Care
Laws, except for such noncompliance which would not, individually
or in the aggregate, reasonably be expected to result in a Material
Adverse Change. For purposes of this Agreement, “Health Care
Laws” means: (i) the Federal Food, Drug, and Cosmetic Act (21
U.S.C. Section 301 et seq.), the Public Health Service Act (42
U.S.C. Section 201 et seq.), and the regulations promulgated
thereunder; (ii) all applicable federal, state, local and foreign
health care fraud and abuse laws, including, without limitation,
the Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the
Civil False Claims Act (31 U.S.C. Section 3729 et seq.), the
criminal false statements law (42 U.S.C. Section 1320a-7b(a)), 18
U.S.C. Sections 286 and 287, the health care fraud criminal
provisions under the U.S. Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”) (42 U.S.C. Section 1320d
et seq.), the civil monetary penalties law (42 U.S.C. Section
1320a-7a), the exclusion law (42 U.S.C. Section 1320a-7), the
Physician Payments Sunshine Act (42 U.S.C. Section 1320-7h), and
applicable laws governing government funded or sponsored healthcare
programs; (iii) HIPAA, as amended by the Health Information
Technology for Economic and Clinical Health Act (42 U.S.C. Section
17921 et seq.); (iv) all other local, state, federal, national,
supranational and foreign laws, relating to the regulation of the
Company or its subsidiaries, and (v) the directives and regulations
promulgated pursuant to such statutes and any state or non-U.S.
counterpart thereof. Neither the Company nor any of its
subsidiaries has received written notice of any claim, action,
suit, proceeding, hearing, enforcement, investigation, arbitration
or other action from any court or arbitrator or governmental or
regulatory authority or third party alleging that any product
operation or activity is in material violation of any Health Care
Laws nor, to the Company’s knowledge, is any such claim,
action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action threatened. The Company and its
subsidiaries have filed, maintained or submitted all reports,
documents, forms, notices, applications, records, claims,
submissions and supplements or amendments as required by any Health
Care Laws, and all such reports, documents, forms, notices,
applications, records, claims, submissions and supplements or
amendments were complete and accurate on the date filed in all
respects (or were corrected or supplemented by a subsequent
submission), except as would not reasonably be expected to result
in a Material Adverse Change. Neither the Company nor any of its
subsidiaries is a party to any corporate integrity agreements,
monitoring agreements, consent decrees, settlement orders, or
similar agreements with or imposed by any governmental or
regulatory authority. Additionally, neither the Company, any of its
subsidiaries nor, to the knowledge of the Company and its
subsidiaries, any of their respective employees, officers,
directors, or agents has been excluded, suspended or debarred from
participation in any U.S. federal health care program or human
clinical research or, to the knowledge of the Company, is subject
to a governmental inquiry, investigation, proceeding, or other
similar action that could reasonably be expected to result in
debarment, suspension, or exclusion.
(ss) No
Contract Terminations. Neither the
Company nor any of its subsidiaries has sent or received any
communication regarding termination of, or intent not to renew, any
of the contracts or agreements referred to or described in any
preliminary prospectus, the Prospectus or any free writing
prospectus, or referred to or described in, or filed as an exhibit
to, the Registration Statement, or any document incorporated by
reference therein, and no such termination or non-renewal has been
threatened by the Company or any of its subsidiaries or, to the
Company’s knowledge, any other party to any such contract or
agreement, which threat of termination or non-renewal has not been
rescinded as of the date hereof, in each case except as would not
reasonably be expected to result in a Material Adverse
Change.
(tt) Dividend
Restrictions. Except as disclosed in the Prospectus, no
subsidiary of the Company is prohibited or restricted, directly or
indirectly, from paying dividends to the Company, or from making
any other distribution with respect to such subsidiary’s
equity securities or from repaying to the Company or any other
subsidiary of the Company any amounts that may from time to time
become due under any loans or advances to such subsidiary from the
Company or from transferring any property or assets to the Company
or to any other subsidiary.
(uu) Duties,
Transfer Taxes, Etc. No stamp or other issuance or transfer
taxes or duties and no capital gains, income, withholding or other
taxes are payable by the Agent in the United States or any
political subdivision or taxing authority thereof or therein in
connection with the execution, delivery or performance of this
Agreement by the Company or the sale and delivery by the Company of
the Shares.
(vv) Other
Underwriting Agreements. Except for the Purchase Agreement
with Lincoln Park Capital Fund, LLC, dated March 24, 2020, the
Company is not a party to any agreement with an agent or
underwriter for any other “at the market” or continuous
equity transaction.
Any
certificate signed by any officer or representative of the Company
or any of its subsidiaries and delivered to the Agent or counsel
for the Agent in connection with an issuance of Shares shall be
deemed a representation and warranty by the Company to the Agent as
to the matters covered thereby on the date of such
certificate.
The
Company acknowledges that the Agent and, for purposes of the
opinions to be delivered pursuant to Section 4(o) hereof, counsel to
the Company and counsel to the Agent, will rely upon the accuracy
and truthfulness of the foregoing representations and hereby
consents to such reliance.
Section
3. ISSUANCE
AND SALE OF COMMON SHARES
(a) Sale of Securities. On the
basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set
forth, the Company and the Agent agree that the Company may from
time to time seek to sell Shares through the Agent, acting as sales
agent, or directly to the Agent, acting as principal, as follows,
with an aggregate Sales Price of up to the Maximum Program Amount,
based on and in accordance with Issuance Notices as the Company may
deliver, during the Agency Period.
(b) Mechanics of
Issuances.
(i) Issuance Notice. Upon the terms
and subject to the conditions set forth herein, on any Trading Day
during the Agency Period on which the conditions set forth in
Section 5(a)
and Section 5(b)
shall have been satisfied, the Company may exercise its right to
request an issuance of Shares by delivering to the Agent an
Issuance Notice; provided, however, that (A) in no event may the
Company deliver an Issuance Notice to the extent that (I) the sum
of (x) the aggregate Sales Price of the requested Issuance Amount,
plus (y) the aggregate Sales Price of all Shares issued under all
previous Issuance Notices effected pursuant to this Agreement,
would exceed the Maximum Program Amount; and (B) prior to delivery
of any Issuance Notice, the period set forth for any previous
Issuance Notice shall have expired or been terminated. An Issuance
Notice shall be considered delivered on the Trading Day that it is
received by e mail to the persons set forth in Schedule A hereto
and confirmed by the Company by telephone (including a voicemail
message to the persons so identified), with the understanding that,
with adequate prior written notice, the Agent may modify the list
of such persons from time to time.
(ii) Agent
Efforts. Upon the terms and subject to the conditions set
forth in this Agreement, upon the receipt of an Issuance Notice,
the Agent will use its commercially reasonable efforts consistent
with its normal sales and trading practices to place the Shares
with respect to which the Agent has agreed to act as sales agent,
subject to, and in accordance with the information specified in,
the Issuance Notice, unless the sale of the Shares described
therein has been suspended, cancelled or otherwise terminated in
accordance with the terms of this Agreement. For the avoidance of
doubt, the parties to this Agreement may modify an Issuance Notice
at any time provided they both agree in writing to any such
modification.
(iii) Method
of Offer and Sale. The Shares may be offered and sold (A) in
negotiated transactions with the consent of the Company or (B) by
any other method permitted by law deemed to be an
“at the market
offering” as defined in Rule 415(a)(4) under the
Securities Act, including block transactions, sales made directly
on the Principal Market or sales made into any other existing
trading market of the Common Shares. Nothing in this Agreement
shall be deemed to require either party to agree to the method of
offer and sale specified in the preceding sentence, and (except as
specified in clause (A) above) the method of placement of any
Shares by the Agent shall be at the Agent’s
discretion.
(iv) Confirmation
to the Company. If acting as sales agent hereunder, the
Agent will provide written confirmation to the Company no later
than the opening of the Trading Day next following the Trading Day
on which it has placed Shares hereunder setting forth the number of
shares sold on such Trading Day, the corresponding Sales Price and
the Issuance Price payable to the Company in respect
thereof.
(v) Settlement. Each issuance of
Shares will be settled on the applicable Settlement Date for such
issuance of Shares and, subject to the provisions of
Section 5,
on or before each Settlement Date, the Company will, or will cause
its transfer agent to, electronically transfer the Shares being
sold by crediting the Agent or its designee’s account at The
Depository Trust Company through its Deposit/Withdrawal At
Custodian (DWAC) System, or by such other means of delivery as may
be mutually agreed upon by the parties hereto and, upon receipt of
such Shares, which in all cases shall be freely tradable,
transferable, registered shares in good deliverable form, the Agent
will deliver, by wire transfer of immediately available funds, the
related Issuance Price in same day funds delivered to an account
designated by the Company prior to the Settlement Date. The Company
may sell Shares to the Agent as principal at a price agreed upon at
each relevant time Shares are sold pursuant to this Agreement
(each, a “Time of
Sale”).
(vi) Suspension or Termination of
Sales. Consistent with standard market settlement practices,
the Company or the Agent may, upon notice to the other party hereto
in writing (including by email) or by telephone (confirmed promptly
by verifiable email), suspend any sale of Shares, and the period
set forth in an Issuance Notice shall immediately terminate;
provided, however, that (A) such suspension and termination shall
not affect or impair either party’s obligations with respect
to any Shares placed or sold hereunder prior to the receipt of such
notice; (B) if the Company suspends or terminates any sale of
Shares after the Agent confirms such sale to the Company, the
Company shall still be obligated to comply with Section 3(b)(v) with respect to
such Shares; and (C) if the Company defaults in its obligation to
deliver Shares on a Settlement Date, the Company agrees that it
will hold the Agent harmless against any loss, claim, damage or
expense (including, without limitation, penalties, interest and
reasonable and documented legal fees and expenses), as incurred,
arising out of or in connection with such default by the Company.
The parties hereto acknowledge and agree that, in performing its
obligations under this Agreement, the Agent may borrow Common
Shares from stock lenders in the event that the Company has not
delivered Shares to settle sales as required by subsection (v)
above, and may use the Shares to settle or close out such
borrowings. The Company agrees that no such notice shall be
effective against the Agent unless it is made to the persons
identified in writing by the Agent pursuant to Section 3(b)(i). While a
suspension is in effect, any obligation under Sections 4(o), 4(p) and 4(r) with respect to delivery
of certificates, opinions or comfort letters to the Agent shall be
deemed waived.
(vii) No
Guarantee of Placement, Etc. The Company acknowledges and
agrees that (A) there can be no assurance that the Agent will be
successful in placing Shares; (B) the Agent will incur no liability
or obligation to the Company or any other Person if it does not
sell Shares; and (C) the Agent shall be under no obligation to
purchase Shares on a principal basis pursuant to this Agreement,
except as otherwise specifically agreed by the Agent and the
Company.
(viii) Material
Non-Public Information. Notwithstanding any other provision
of this Agreement, the Company and the Agent agree that the Company
shall not deliver any Issuance Notice to the Agent, and the Agent
shall not be obligated to place any Shares, during any period in
which the Company is in possession of material non-public
information.
(c) Fees. As compensation for
services rendered, the Company shall pay to the Agent, on the
applicable Settlement Date, the Selling Commission for the
applicable Issuance Amount (including with respect to any suspended
or terminated sale pursuant to Section 3(b)(vi) but only for Shares actually sold by
the Agent) by the Agent deducting the Selling Commission
from the applicable Issuance Amount.
(d) Expenses. The Company agrees to
pay all costs, fees and expenses incurred in connection with the
performance of its obligations hereunder and in connection with the
transactions contemplated hereby, including without limitation (i)
all expenses incident to the issuance and delivery of the Shares
(including all printing and engraving costs); (ii) all fees and
expenses of the registrar and transfer agent of the Shares; (iii)
all necessary issue, transfer and other stamp taxes in connection
with the issuance and sale of the Shares; (iv) all fees and
expenses of the Company’s counsel, independent public or
certified public accountants and other advisors; (v) all costs and
expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement
(including financial statements, exhibits, schedules, consents and
certificates of experts), the Prospectus, any Free Writing
Prospectus (as defined below) prepared by or on behalf of, used by,
or referred to by the Company, and all amendments and supplements
thereto, and this Agreement; (vi) all filing fees, attorneys’
fees and expenses incurred by the Company or the Agent in
connection with qualifying or registering (or obtaining exemptions
from the qualification or registration of) all or any part of the
Shares for offer and sale under the state securities or blue sky
laws or the provincial securities laws of Canada, and, if requested
by the Agent, preparing and printing a “Blue Sky Survey” or memorandum and
a “Canadian wrapper”, and any supplements thereto,
advising the Agent of such qualifications, registrations,
determinations and exemptions; (vii) the reasonable fees and
disbursements of the Agent’s counsel, including the
reasonable fees and expenses of counsel for the Agent in connection
with, FINRA review, if any, and approval of the Agent’s
participation in the offering and distribution of the Shares;
(viii) the filing fees incident to FINRA review, if any; (ix) and
the fees and expenses associated with listing the Shares on the
Principal Market. The fees and disbursements of Agent’s
counsel pursuant to subsections (vi) and (vii) above shall not
exceed (A) $50,000 in connection with execution of this Agreement
and (B) $15,000 in connection with each Triggering Event Date (as
defined below) on which the Company is required to provide a
certificate pursuant to Section 4(o).
The
Company covenants and agrees with the Agent as follows, in addition
to any other covenants and agreements made elsewhere in this
Agreement:
(a) Exchange Act Compliance. During
the Agency Period, the Company shall file, on a timely basis, with
the Commission all reports and documents required to be filed under
Section 13, 14 or 15 of the Exchange Act in the manner and within
the time periods required by the Exchange Act; and either include
in its quarterly reports on Form 10-Q and its annual reports on
Form 10-K, a summary detailing, for the relevant reporting period,
(1) the number of Shares sold through the Agent pursuant to this
Agreement and (2) the net proceeds received by the Company from
such sales or
prepare a prospectus supplement containing, or
include in such other filing permitted by the Securities Act or
Exchange Act (each an “Interim Prospectus Supplement”),
such summary information and, if the option in this clause (B) is
elected by the Company, at least once a quarter and subject to this
Section 4, file
such Interim Prospectus Supplement pursuant to Rule 424(b) under
the Securities Act (and within the time periods required by Rule
424(b) and Rule 430B under the Securities Act)).
(b) Securities Act Compliance.
After the date of this Agreement, the Company shall promptly advise
the Agent in writing (i) of the receipt of any comments of, or
requests for additional or supplemental information from, the
Commission; (ii) of the time and date of any filing of any
post-effective amendment to the Registration Statement, any Rule
462(b) Registration Statement or any amendment or supplement to the
Prospectus, any Free Writing Prospectus; (iii) of the time and date
that any post-effective amendment to the Registration Statement or
any Rule 462(b) Registration Statement becomes effective; and (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective
amendment thereto, any Rule 462(b) Registration Statement or any
amendment or supplement to the Prospectus or of any order
preventing or suspending the use of any Free Writing Prospectus or
the Prospectus, or of any proceedings to remove, suspend or
terminate from listing or quotation the Common Shares from any
securities exchange upon which they are listed for trading or
included or designated for quotation, or, the knowledge of the
Company, of the threatening or initiation of any proceedings for
any of such purposes. If the Commission shall enter any such stop
order at any time, the Company will use reasonable best efforts to
obtain the lifting of such order as soon as practicable.
Additionally, the Company agrees that it shall comply with the
provisions of Rule 424(b) and Rule 433, as applicable, under the
Securities Act and will use its reasonable efforts to confirm that
any filings made by the Company under such Rule 424(b) or Rule 433
were received in a timely manner by the Commission.
(c) Amendments and Supplements to the
Prospectus and Other Securities Act Matters. During any
period when the delivery of a prospectus relating to the Shares is
required (including in circumstances where such requirement may be
satisfied pursuant to Rule 172) to be delivered under the
Securities Act, if any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the
Prospectus so that the Prospectus does not include an 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 when the Prospectus is delivered to a purchaser,
not misleading, or if in the opinion of the Agent or counsel for
the Agent it is otherwise necessary to amend or supplement the
Prospectus to comply with applicable law, including the Securities
Act, the Company agrees (subject to Section 4(d) and Section 4(f)) to promptly
prepare, file with the Commission and furnish at its own expense to
the Agent, amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not
include an 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 when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with applicable law including the
Securities Act. Neither the Agent’s consent to, or delivery
of, any such amendment or supplement shall constitute a waiver of
any of the Company’s obligations under Section 4(d) and Section 4(f). Notwithstanding
the foregoing, in the alternative, the Company can suspend or
terminate the Issuance Notice upon written notice to the Agent and
delay the filing of any such amendment or supplement, if in the
judgment of the Company, it is in the best interest of the
Company.
(d) Agent’s Review of Proposed
Amendments and Supplements. Prior to amending or
supplementing the Registration Statement (including any
registration statement filed under Rule 462(b) under the Securities
Act) or the Prospectus (excluding any amendment or supplement
through incorporation of any report filed under the Exchange Act),
the Company shall furnish to the Agent for review, a reasonable
amount of time prior to the proposed time of filing or use thereof,
a copy of each such proposed amendment or supplement, and the
Company shall not file or use any such proposed amendment or
supplement without the Agent’s prior consent, which shall not
be unreasonably withheld, conditioned or delayed, and shall file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(e) Use of Free Writing Prospectus.
Neither the Company nor the Agent has prepared, used, referred to
or distributed, or will prepare, use, refer to or distribute,
without the other party’s prior written consent, any
“written communication” that constitutes a “free
writing prospectus” as such terms are defined in Rule 405
under the Securities Act with respect to the offering contemplated
by this Agreement (any such free writing prospectus being referred
to herein as a “Free Writing
Prospectus”).
(f) Free Writing Prospectuses. The
Company shall furnish to the Agent for review, a reasonable amount
of time prior to the proposed time of filing or use thereof, a copy
of each proposed free writing prospectus or any amendment or
supplement thereto to be prepared by or on behalf of, used by, or
referred to by the Company and the Company shall not file, use or
refer to any proposed free writing prospectus or any amendment or
supplement thereto without the Agent’s consent, which shall
not be unreasonably withheld, conditioned or delayed. The Company
shall furnish to the Agent, without charge, as many copies of any
free writing prospectus prepared by or on behalf of, or used by the
Company, as the Agent may reasonably request. If at any time when a
prospectus is required by the Securities Act (including, without
limitation, pursuant to Rule 173(d)) to be delivered in connection
with sales of the Shares (but in any event if at any time through
and including the date of this Agreement) there occurred or occurs
an event or development as a result of which any free writing
prospectus prepared by or on behalf of, used by, or referred to by
the Company conflicted or would conflict with the information
contained in the Registration Statement or, taken together with the
information in the Prospectus (and any amendment or supplement
thereto), 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 shall promptly amend or supplement such
free writing prospectus to eliminate or correct such conflict or so
that the statements in such free writing prospectus as so amended
or supplemented will not include an 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
prevailing at such subsequent time, not misleading, as the case may
be; provided, however, that prior to amending or supplementing any
such free writing prospectus, the Company shall furnish to the
Agent for review, a reasonable amount of time prior to the proposed
time of filing or use thereof, a copy of such proposed amended or
supplemented free writing prospectus and the Company shall not
file, use or refer to any such amended or supplemented free writing
prospectus without the Agent’s consent, which shall not be
unreasonably withheld, conditioned or delayed.
(g) Filing of Agent Free Writing
Prospectuses. The Company shall not take any action that
would result in the Agent or the Company being required to file
with the Commission pursuant to Rule 433(d) under the Securities
Act a free writing prospectus prepared by or on behalf of the Agent
that the Agent otherwise would not have been required to file
thereunder.
(h) Copies of Registration Statement and
Prospectus. After the date of this Agreement through the
last time that a prospectus is required by the Securities Act
(including, without limitation, pursuant to Rule 173(d)) to be
delivered in connection with sales of the Shares, the Company
agrees to furnish the Agent with copies (which may be electronic
copies) of the Registration Statement and each amendment thereto,
and with copies of the Prospectus and each amendment or supplement
thereto, excluding, in each case, any amendment or supplement
through incorporation of any report filed under the Exchange Act,
in the form in which it is filed with the Commission pursuant to
the Securities Act or Rule 424(b) under the Securities Act, both in
such quantities as the Agent may reasonably request from time to
time; and, if the delivery of a prospectus is required under the
Securities Act or under the blue sky or securities laws of any
jurisdiction at any time on or prior to the applicable Settlement
Date for any period set forth in an Issuance Notice in connection
with the offering or sale of the Shares and if at such time any
event has occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it is necessary during such
same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Securities Act or the
Exchange Act, to notify the Agent and to request that the Agent
suspend offers to sell Shares (and, if so notified, the Agent shall
cease such offers as soon as practicable); and if the Company
decides to amend or supplement the Registration Statement or the
Prospectus as then amended or supplemented, to advise the Agent
promptly by telephone (with confirmation in writing) and to prepare
and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or the Prospectus as then
amended or supplemented that will correct such statement or
omission or effect such compliance (it being acknowledged that the
Company may delay the filing of any amendment or supplement, if, in
the judgment of the Company, it is in the best interest of the
Company); provided, however, that if during such same period the
Agent is required to deliver a prospectus in respect of
transactions in the Shares, the Company shall promptly prepare and
file with the Commission such an amendment or
supplement.
(i) Blue Sky Compliance. The
Company shall cooperate with the Agent and counsel for the Agent to
qualify or register the Shares for sale under (or obtain exemptions
from the application of) the state securities or blue sky laws or
Canadian provincial securities laws of those jurisdictions
designated by the Agent, shall comply with such laws and shall
continue such qualifications, registrations and exemptions in
effect so long as required for the distribution of the Shares. The
Company shall not be required to qualify as a foreign corporation
or to take any action that would subject it to general service of
process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign
corporation. The Company will advise the Agent promptly of the
suspension of the qualification or registration of (or any such
exemption relating to) the Shares for offering, sale or trading in
any jurisdiction or any initiation or threat of any proceeding for
any such purpose, and in the event of the issuance of any order
suspending such qualification, registration or exemption, the
Company shall use reasonable best efforts to obtain the withdrawal
thereof.
(j) Earnings Statement. As soon as
practicable, the Company will make generally available to its
security holders and to the Agent an earnings statement (which need
not be audited), which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 under the Securities Act;
provided that the Company will be deemed to have furnished such
statement to its security holders and the Agent to the extent it is
available on ▇▇▇▇▇ or any successor system.
(k) Listing; Reservation of Shares.
(a) The Company will use its reasonable best efforts to cause the
Shares to be listed on the Principal Market; and (b) the Company
will reserve and keep available at all times, free of preemptive
rights, Shares for the purpose of enabling the Company to satisfy
its obligations under this Agreement.
(l) Transfer Agent. The Company
shall engage and maintain, at its expense, a registrar and transfer
agent for the Shares.
(m) Due Diligence. During the term
of this Agreement, the Company will reasonably cooperate with any
reasonable due diligence review conducted by the Agent in
connection with the transactions contemplated hereby, including,
without limitation, providing information and, upon reasonable
notice, making available documents and senior corporate officers,
during normal business hours and at the Company’s principal
offices, as the Agent may reasonably request from time to
time.
(n) Representations and Warranties.
The Company acknowledges that each delivery of an Issuance Notice
and each delivery of Shares on a Settlement Date shall be deemed to
be (i) an affirmation to the Agent that the representations and
warranties of the Company contained in or made pursuant to this
Agreement are true and correct as of the date of such Issuance
Notice or of such Settlement Date, as the case may be, as though
made at and as of each such date, except as may be disclosed in the
Prospectus (including any documents incorporated by reference
therein and any supplements thereto); and (ii) an undertaking that
the Company will advise the Agent if any of such representations
and warranties will not be true and correct as of the Settlement
Date for the Shares relating to such Issuance Notice, as though
made at and as of each such date (except that such representations
and warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented relating
to such Shares).
(o) Deliverables at Triggering Event
Dates; Certificate. The Company agrees that on or prior to
the date of the first Issuance Notice and, during the term of this
Agreement after the date of the first Issuance Notice,
upon:
(A) the filing of the
Prospectus or the amendment or supplement of any Registration
Statement or Prospectus (other than a prospectus supplement
relating solely to an offering of securities other than the Shares
or a prospectus filed pursuant to Section 4(a)(ii)(B)), by means
of a post-effective amendment, sticker or supplement, but not by
means of incorporation of documents by reference into the
Registration Statement or Prospectus;
(B) the filing with the
Commission of an annual report on Form 10-K or a quarterly report
on Form 10-Q (including any Form 10-K/A or Form 10-Q/A containing
amended financial information or a material amendment to the
previously filed annual report on Form 10-K or quarterly report on
Form 10-Q), in each case, of the Company; or
(C) the filing with the
Commission of a current report on Form 8-K of the Company
containing amended financial information (other than information
“furnished” pursuant to Item 2.02 or 7.01 (or related
Item 9.01) of Form 8-K or to provide disclosure pursuant to Item
8.01 of Form 8-K relating to reclassification of certain properties
as discontinued operations in accordance with Statement of
Financial Accounting Standards No. 144) that is material to the
offering of securities of the Company in the Agent’s
reasonable discretion;
(any
such event, a “Triggering
Event Date”), the Company shall furnish the Agent (but
in the case of clause (C) above only if the Agent reasonably
determines that the information contained in such current report on
Form 8-K of the Company is material) with a certificate as of the
Triggering Event Date, in substantially the form set forth on
Exhibit C hereto. The requirement to provide a certificate under
this Section 4(o)
shall be automatically waived for any Triggering Event Date
occurring at a time when no Issuance Notice is pending or a
suspension is in effect, which waiver shall continue until the
earlier to occur of the date the Company delivers instructions for
the sale of Shares hereunder (which for such calendar quarter shall
be considered a Triggering Event Date) and the next occurring
Triggering Event Date. Notwithstanding the foregoing, if the
Company subsequently decides to sell Shares following a Triggering
Event Date when a suspension was in effect and did not provide the
Agent with a certificate under this Section 4(o), then before the
Company delivers the instructions for the sale of Shares or the
Agent sells any Shares pursuant to such instructions, the Company
shall provide the Agent with a certificate in conformity with this
Section 4(o) dated
as of the date that the instructions for the sale of Shares are
issued.
(p) Legal Opinions. On or prior to
the date of the first Issuance Notice and on or prior to each
Triggering Event Date with respect to which the Company is
obligated to deliver a certificate pursuant to Section 4(o) for which no
waiver is applicable and excluding the date of this Agreement, a
negative assurance letter and the written legal opinion of ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP, counsel to the Company, ▇▇▇▇▇▇▇▇ & Wedge,
Nevada counsel the Company, and Capital Technology Law Group,
intellectual property counsel to the Company, each dated the date
of delivery, in form and substance reasonably satisfactory to Agent
and its counsel, substantially similar to the form previously
provided to the Agent and its counsel, modified, as necessary, to
relate to the Registration Statement and the Prospectus as then
amended or supplemented. In lieu of such opinions for subsequent
periodic filings, in the discretion of the Agent, the Company may
furnish a reliance letter from such counsel to the Agent,
permitting the Agent to rely on a previously delivered opinion
letter, modified as appropriate for any passage of time or
Triggering Event Date (except that statements in such prior opinion
shall be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented as of such Triggering Event
Date).
(q) Comfort Letter. On or prior to
the date of the first Issuance Notice and on or prior to each
Triggering Event Date with respect to which the Company is
obligated to deliver a certificate pursuant to Section 4(o) for which no
waiver is applicable and excluding the date of this Agreement, the
Company shall cause OUM & Co. LLP, the independent registered
public accounting firm who has audited the financial statements
included or incorporated by reference in the Registration
Statement, to furnish the Agent a comfort letter, dated the date of
delivery, in form and substance reasonably satisfactory to the
Agent and its counsel, substantially similar to the form previously
provided to the Agent and its counsel; provided, however, that any
such comfort letter will only be required on the Triggering Event
Date specified to the extent that it contains financial statements
filed with the Commission under the Exchange Act and incorporated
or deemed to be incorporated by reference into a Prospectus that
have not previously been covered by a comfort letter delivered
pursuant to this Section
4(q). If requested by the Agent, the Company shall also
cause a comfort letter to be furnished to the Agent within ten (10)
Trading Days of the date of occurrence of any material transaction
or event requiring the filing of a current report on Form 8-K
containing material amended financial information of the Company,
including the restatement of the Company’s financial
statements. The Company shall be required to furnish no more than
one comfort letter hereunder per each filing of an annual report on
Form 10-K or a quarterly report on Form 10-Q.
(r) Secretary’s Certificate.
On or prior to the date of the first Issuance Notice and on or
prior to each Triggering Event Date with respect to which the
Company is obligated to deliver a certificate pursuant to Section
4(o) for which no waiver is applicable and excluding the date of
this Agreement, the Company shall furnish the Agent a certificate
executed by the Secretary of the Company, signing in such capacity,
dated the date of delivery (i) certifying that attached thereto are
true and complete copies of the resolutions duly adopted by the
Board of Directors of the Company authorizing the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby (including, without limitation, the issuance of
the Shares pursuant to this Agreement), which authorization shall
be in full force and effect on and as of the date of such
certificate, (ii) certifying and attesting to the office,
incumbency, due authority and specimen signatures of each Person
who executed this Agreement for or on behalf of the Company, and
(iii) containing any other certification that the Agent shall
reasonably request.
(s) Agent’s Own Account;
Clients’ Account. The Company consents to the Agent
trading, in compliance with applicable law, in the Common Shares
for the Agent’s own account and for the account of its
clients at the same time as sales of the Shares occur pursuant to
this Agreement.
(t) Investment Limitation. The
Company shall not invest, or otherwise use the proceeds received by
the Company from its sale of the Shares in such a manner as would
require the Company or any of its subsidiaries to register as an
investment company under the Investment Company Act.
(u) Market Activities. The Company
will not take, directly or indirectly, any action designed to or
that might be reasonably expected to cause or result in
stabilization or manipulation of the price of the Shares or any
other reference security, whether to facilitate the sale or resale
of the Shares or otherwise, and the Company will, and shall cause
each of its affiliates to, comply with all applicable provisions of
Regulation M. If the limitations of Rule 102 of Regulation M
(“Rule 102”) do
not apply with respect to the Shares or any other reference
security pursuant to any exception set forth in Section (d) of Rule
102, then promptly upon notice from the Agent (or, if later, at the
time stated in the notice), the Company will, and shall cause each
of its affiliates to, comply with Rule 102 as though such exception
were not available but the other provisions of Rule 102 (as
interpreted by the Commission) did apply. The Company shall
promptly notify the Agent if it no longer meets the requirements
set forth in Section (d) of Rule 102.
(v) Notice of Other Sale. Without
the written consent of the Agent, the Company will not, directly or
indirectly, offer to sell, sell, contract to sell, grant any option
to sell or otherwise dispose of any Common Shares or securities
convertible into or exchangeable for Common Shares (other than
Shares hereunder), warrants or any rights to purchase or acquire
Common Shares, or effect a reverse stock split, recapitalization,
share consolidation, reclassification or similar transaction
affecting the outstanding Common Shares, during the period
beginning on the third Trading Day immediately prior to the date on
which any Issuance Notice is delivered to the Agent hereunder and
ending on the third Trading Day immediately following the earlier
of (x) the Settlement Date with respect to Shares sold pursuant to
such Issuance Notice and (y) the termination or suspension by the
Company of such Issuance Notice; and will not directly or
indirectly enter into any other “at the market” or
continuous equity transaction offer to sell, sell, contract to
sell, grant any option to sell or otherwise dispose of any Common
Shares (other than the Shares offered pursuant to this Agreement)
or securities convertible into or exchangeable for Common Shares,
warrants or any rights to purchase or acquire, Common Shares prior
to the termination of this Agreement; provided, however, that such
restrictions will not be required in connection with the
Company’s (i) issuance or sale of Common Shares, options to
purchase Common Shares or Common Shares issuable upon the exercise
of options or other equity awards pursuant to any employee or
director share option, incentive or benefit plan, share purchase or
ownership plan, long-term incentive plan, dividend reinvestment
plan, inducement award under Nasdaq rules or other compensation
plan of the Company or its subsidiaries, as in effect on the date
of this Agreement, (ii) issuance or sale of Common Shares issuable
upon exchange, conversion or redemption of securities or the
exercise or vesting of warrants, options or other equity awards
outstanding at the date of this Agreement or disclosed in filings
by the Company available on ▇▇▇▇▇ or otherwise in writing to the
Agent, (iii) issuance or sale of Common Shares or securities
convertible into or exchangeable for Common Shares as consideration
for mergers, acquisitions, other business combinations or strategic
alliances, joint ventures, marketing or distribution arrangements,
collaboration agreements, co-promotion agreements, or intellectual
property license agreements occurring after the date of this
Agreement, which are not used for capital raising purposes and
which aggregate number of Common Shares issued or sold under this
subsection (iii), on an as-converted basis, if applicable, shall
not exceed 7.5% of the number of Common Shares outstanding
immediately prior to giving effect to such sale or issuance and
(iv) modification of any outstanding options, warrants of any
rights to purchase or acquire Common Shares.
(a) Conditions
Precedent to the Right of
the Company to Deliver an Issuance Notice and the Obligation of the
Agent to Sell Shares. The right of the Company to deliver an
Issuance Notice hereunder is subject to the satisfaction, on the
date of delivery of such Issuance Notice, and the obligation of the
Agent to use its commercially reasonable efforts to place Shares
during the applicable period set forth in the Issuance Notice is
subject to the satisfaction, on each Trading Day during the
applicable period set forth in the Issuance Notice, of each of the
following conditions:
(i)
Accuracy of the Company’s
Representations and Warranties; Performance by the Company.
The Company shall have delivered the certificate required to be
delivered pursuant to Section 4(o) on or before the
date on which delivery of such certificate is required pursuant to
Section 4(o). The
Company shall have performed, satisfied and complied with all
covenants, agreements and conditions required by this Agreement to
be performed, satisfied or complied with by the Company at or prior
to such date, including, but not limited to, the covenants
contained in Section 4(p), Section 4(q) and Section 4(r).
(ii)
No Injunction. No statute,
rule, regulation, executive order, decree, ruling or injunction
shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters
contemplated hereby that prohibits or directly and materially
adversely affects any of the transactions contemplated by this
Agreement, and no proceeding shall have been commenced that may
have the effect of prohibiting or materially adversely affecting
any of the transactions contemplated by this
Agreement.
(iii)
Material Adverse Changes.
Except as disclosed in the Prospectus and the Time of Sale
Information, (a) in the judgment of the Agent there shall not have
occurred any Material Adverse Change; and (b) there shall not have
occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any securities of the
Company or any of its subsidiaries by any “nationally
recognized statistical rating organization” as such term is
defined for purposes of Section 3(a)(62) of the Exchange
Act.
(iv)
No Suspension of Trading in or
Delisting of Common Shares; Other Events. The trading of the
Common Shares (including without limitation the Shares) shall not
have been suspended by the Commission, the Principal Market or
FINRA and the Common Shares (including without limitation the
Shares) shall have been approved for listing or quotation on and
shall not have been delisted from the Nasdaq Stock Market, the New
York Stock Exchange or any of their constituent markets. There
shall not have occurred (and be continuing in the case of
occurrences under clauses (i) and (ii) below) any of the following:
(i) trading or quotation in any of the Company’s securities
shall have been suspended or limited by the Commission or by the
Principal Market or trading in securities generally on either the
Principal Market shall have been suspended or limited, or minimum
or maximum prices shall have been generally established on any of
such stock exchanges by the Commission or the FINRA; (ii) a general
banking moratorium shall have been declared by any of federal or
New York, authorities; or (iii) there shall have occurred any
outbreak or escalation of national or international hostilities or
any crisis or calamity, or any change in the United States or
international financial markets, or any substantial change or
development involving a prospective substantial change in United
States’ or international political, financial or economic
conditions, as in the judgment of the Agent is material and adverse
and makes it impracticable to market the Shares in the manner and
on the terms described in the Prospectus or to enforce contracts
for the sale of securities.
(b) Documents Required to be Delivered on
each Issuance Notice Date. The Agent’s obligation to
use its commercially reasonable efforts to place Shares hereunder
shall additionally be conditioned upon the delivery to the Agent on
or before the applicable Issuance Notice Date, but excluding the
date of this Agreement, of a certificate in form and substance
reasonably satisfactory to the Agent, executed by the Chief
Executive Officer, President or Chief Financial Officer of the
Company, to the effect that all conditions to the delivery of such
Issuance Notice shall have been satisfied as at the date of such
certificate (which certificate shall not be required if the
foregoing representations shall be set forth in the Issuance
Notice).
(c) No Misstatement or Material
Omission. Agent shall not have advised the Company that the
Registration Statement, the Prospectus or the Time of Sale
Information, or any amendment or supplement thereto, contains an
untrue statement of fact that in the Agent’s reasonable
opinion is material, or omits to state a fact that in the
Agent’s reasonable opinion is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
(d) Agent Counsel Legal Opinion.
Agent shall have received from ▇▇▇▇▇▇ LLP, counsel for Agent, such
opinion or opinions, on or before the date on which the delivery of
the Company counsel legal opinion is required pursuant to
Section 4(p), with
respect to such matters as Agent may reasonably require, and the
Company shall have furnished to such counsel such documents as they
request for enabling them to pass upon such matters.
(a) Indemnification of the Agent.
The Company agrees to indemnify and hold harmless the Agent, its
officers and employees, and each person, if any, who controls the
Agent within the meaning of the Securities Act or the Exchange Act
against any loss, claim, damage, liability or expense, as incurred,
to which the Agent or such officer, employee or controlling person
may become subject, under the Securities Act, the Exchange Act,
other federal or state statutory law or regulation, or the laws or
regulations of foreign jurisdictions where Shares have been offered
or sold or at common law or otherwise (including in settlement of
any litigation), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below)
arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, or any amendment thereto, including any information
deemed to be a part thereof pursuant to Rule 430B under the
Securities Act, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
the statements therein not misleading; or (ii) any untrue statement
or alleged untrue statement of a material fact contained in any
Free Writing Prospectus that the Company has used, referred to or
filed, or is required to file, pursuant to Rule 433(d) of the
Securities Act or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading and to reimburse the Agent and each such officer,
employee and controlling person for any and all reasonable and
documented expenses (including the reasonable and documented fees
and disbursements of counsel chosen by the Agent) as such expenses
are reasonably incurred by the Agent or such officer, employee or
controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising
out of or based upon any 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
the Agent expressly for use in the Registration Statement, any such
Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto), it being understood and agreed that the only
such information furnished by the Agent to the Company consists of
the information described in subsection (b) below. The indemnity
agreement set forth in this Section 6(a) shall be in
addition to any liabilities that the Company may otherwise
have.
(b) Indemnification of the Company, its
Directors and Officers. The Agent agrees to indemnify and
hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement and each person, if
any, who controls the Company within the meaning of the Securities
Act or the Exchange Act against any loss, claim, damage, liability
or expense, as incurred, to which the Company or any such director,
officer or controlling person may become subject, under the
Securities Act, the Exchange Act, or other federal or state
statutory law or regulation, or the laws or regulations of foreign
jurisdictions where Shares have been offered or sold or at common
law or otherwise (including in settlement of any litigation),
arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, or any amendment thereto, including any information
deemed to be a part thereof pursuant to Rule 430B under the
Securities Act, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
the statements therein not misleading; or (ii) any untrue statement
or alleged untrue statement of a material fact contained in any
Free Writing Prospectus that the Company has used, referred to or
filed, or is required to file, pursuant to Rule 433(d) of the
Securities Act or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; but, for each of (i) and (ii) above, only to the extent
arising out of or based upon any 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
the Agent expressly for use in the Registration Statement, any such
Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto), it being understood and agreed that the only
such information furnished by the Agent to the Company consists of
the information set forth in the first sentence of the ninth
paragraph under the caption “Plan of Distribution” in
the Prospectus, and to reimburse the Company and each such
director, officer and controlling person for any and all reasonable
and documented expenses (including the reasonable and documented
fees and disbursements of one counsel chosen by the Company) as
such expenses are reasonably incurred by the Company or such
officer, director or controlling person in connection with
investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action. The indemnity
agreement set forth in this Section 6(b) shall be in
addition to any liabilities that the Agent or the Company may
otherwise have.
(c) Notifications and Other
Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 6 of notice of the
commencement of any action, such indemnified party will, if a claim
in respect thereof is to be made against an indemnifying party
under this Section
6, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability which it
may have to any indemnified party for contribution or otherwise
than under the indemnity agreement contained in this
Section 6 or
to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled
to participate in, and, to the extent that it shall elect, jointly
with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such
action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying
party and the indemnified party in conducting the defense of any
such action or that there may be legal defenses available to it
and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select
separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying
party’s election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 6 for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in
accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be
liable for the fees and expenses of more than one separate counsel
(together with local counsel), representing the indemnified parties
who are parties to such action), which counsel (together with any
local counsel) for the indemnified parties shall be selected by the
indemnified party (in the case of counsel for the indemnified
parties referred to in Section 6(a) and Section 6(b) above), (ii) the
indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or (iii)
the indemnifying party has authorized in writing the employment of
counsel for the indemnified party at the expense of the
indemnifying party, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying party and shall
be paid as they are incurred.
(d) Settlements. The indemnifying
party under this Section 6 shall not be liable
for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by Section
6(c) hereof, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding 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
the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any
pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent
includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action,
suit or proceeding.
(e) Contribution. If the
indemnification provided for in this Section 6 is for any reason
held to be unavailable to or otherwise insufficient to hold
harmless an indemnified party in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or
payable by such indemnified party, as incurred, as a result of any
losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the
Agent, on the other hand, from the offering of the Shares pursuant
to this Agreement; or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company, on
the one hand, and the Agent, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the
Company, on the one hand, and the Agent, on the other hand, in
connection with the offering of the Shares pursuant to this
Agreement shall be deemed to be in the same respective proportions
as the total gross proceeds from the offering of the Shares (before
deducting expenses) received by the Company bear to the total
commissions received by the Agent. The relative fault of the
Company, on the one hand, and the Agent, on the other hand, shall
be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or the Agent, on the
other hand, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
The
amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in
Section
6(c), any reasonable and documented legal or other fees or
expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set
forth in Section
6(c) with respect to notice of commencement of any action
shall apply if a claim for contribution is to be made under this
Section 6(e); provided,
however, that no additional notice shall be required with respect
to any action for which notice has been given under
Section 6(c)
for purposes of indemnification.
The
Company and the Agent agree that it would not be just and equitable
if contribution pursuant to this Section 6(e) were determined by
pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in
this Section 6(e).
Notwithstanding the
provisions of this Section 6(e), the Agent shall
not be required to contribute any amount in excess of the Selling
Commission received by the Agent in connection with the offering
contemplated hereby. 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. For
purposes of this Section 6(e), each officer and
employee of the Agent and each person, if any, who controls the
Agent within the meaning of the Securities Act or the Exchange Act
shall have the same rights to contribution as the Agent, and each
director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of the Securities Act and the Exchange
Act shall have the same rights to contribution as the
Company.
(a) Term. Subject to the provisions
of this Section
7, the term of this Agreement shall continue from the date
of this Agreement until the end of the Agency Period, unless
earlier terminated by the parties to this Agreement pursuant to
this Section
7.
(b) Termination; Survival Following
Termination.
(i) Either party may
terminate this Agreement prior to the end of the Agency Period, by
giving written notice as required by this Agreement, upon ten (10)
Trading Days’ notice to the other party; provided that, (A)
if the Company terminates this Agreement after the Agent confirms
to the Company any sale of Shares, the Company shall remain
obligated to comply with Section 3(b)(v) with respect to
such Shares and (B) Section 2, Section 3(d), Section 6, Section 7 and Section 8 shall survive
termination of this Agreement. If termination shall occur prior to
the Settlement Date for any sale of Shares, such sale shall
nevertheless settle in accordance with the terms of this Agreement.
Upon termination of this Agreement, the Company shall not have any
liability to the Agent for any discount, commission or other
compensation with respect to any Shares not otherwise sold by the
Agent under this Agreement.
(ii) In
addition to the survival provision of Section 7(b)(i), the respective
indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the Agent set
forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on
behalf of the Agent or the Company or any of its or their partners,
officers or directors or any controlling person, as the case may
be, and, anything herein to the contrary notwithstanding, will
survive delivery of and payment for the Shares sold hereunder and
any termination of this Agreement.
(a) Press Releases and Disclosure.
The Company may issue a press release describing the material terms
of the transactions contemplated hereby as soon as practicable
following the date of this Agreement, and may file with the
Commission a Current Report on Form 8 K, with this Agreement
attached as an exhibit thereto, describing the material terms of
the transactions contemplated hereby, and the Company shall consult
with the Agent prior to making such disclosures, and the parties
hereto shall use all commercially reasonable efforts, acting in
good faith, to agree upon a text for such disclosures that is
reasonably satisfactory to all parties hereto. No party hereto
shall issue thereafter any press release or like public statement
(including, without limitation, any disclosure required in reports
filed with the Commission pursuant to the Exchange Act (other than
disclosure related to periodic sales pursuant to this Agreement as
required to be included in any reports filed with the Commission
pursuant to the Securities Act or the Exchange Act) related to this
Agreement or any of the transactions contemplated hereby without
the prior written approval of the other party hereto, except as may
be necessary or appropriate in the reasonable opinion of the party
seeking to make disclosure to comply with the requirements of
applicable law or stock exchange rules. If any such press release
or like public statement is so required, the party making such
disclosure shall consult with the other party prior to making such
disclosure, and the parties shall use all commercially reasonable
efforts, acting in good faith, to agree upon a text for such
disclosure that is reasonably satisfactory to all parties
hereto.
(b) No Advisory or Fiduciary
Relationship. The Company acknowledges and agrees that (i)
the transactions contemplated by this Agreement, including the
determination of any fees, are arm’s-length commercial
transactions between the Company and the Agent, (ii) when acting as
a principal under this Agreement, the Agent is and has been acting
solely as a principal is not the agent or fiduciary of the Company,
or its stockholders, creditors, employees or any other party, (iii)
the Agent has not assumed nor will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the
transactions contemplated hereby or the process leading thereto
(irrespective of whether the Agent has advised or is currently
advising the Company on other matters) and the Agent does not have
any obligation to the Company with respect to the transactions
contemplated hereby except the obligations expressly set forth in
this Agreement, (iv) the Agent and its affiliates may be engaged in
a broad range of transactions that involve interests that differ
from those of the Company, and (v) the Agent has not provided any
legal, accounting, regulatory or tax advice with respect to the
transactions contemplated hereby and the Company has consulted its
own legal, accounting, regulatory and tax advisors to the extent it
deemed appropriate.
(c) Research Analyst Independence.
The Company acknowledges that the Agent’s research analysts
and research departments are required to and should be independent
from their respective investment banking divisions and are subject
to certain regulations and internal policies, and as such the
Agent’s research analysts may hold views and make statements
or investment recommendations and/or publish research reports with
respect to the Company or the offering that differ from the views
of their respective investment banking divisions. The Company
understands that the Agent is a full service securities firm and as
such from time to time, subject to applicable securities laws, may
effect transactions for its own account or the account of its
customers and hold long or short positions in debt or equity
securities of the companies that may be the subject of the
transactions contemplated by this Agreement.
(d) Notices. All communications
hereunder shall be in writing and shall be mailed, hand delivered
or telecopied and confirmed to the parties hereto as
follows:
If to
the Agent:
Jefferies
LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: General
Counsel
with a
copy (which shall not constitute notice) to:
▇▇▇▇▇▇
LLP
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
If to
the Company:
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇, CEO.
with a
copy (which shall not constitute notice) to:
▇▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
Any
party hereto may change the address for receipt of communications
by giving written notice to the others in accordance with this
Section
8(d).
(e) Successors. This Agreement will
inure to the benefit of and be binding upon the parties hereto, and
to the benefit of the employees, officers and directors and
controlling persons referred to in Section 6, and in each case
their respective successors, and no other person will have any
right or obligation hereunder. The term “successors”
shall not include any purchaser of the Shares as such from the
Agent merely by reason of such purchase.
(f) Partial Unenforceability. The
invalidity or unenforceability of any Article, Section, paragraph
or provision of this Agreement shall not affect the validity or
enforceability of any other Article, Section, paragraph or
provision hereof. If any Article, 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.
(g) Governing Law Provisions. This
Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York applicable to agreements
made and to be performed in such state. Any legal suit, action or
proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in the federal
courts of the United States of America located in the Borough of
Manhattan in the City of New York or the courts of the State of New
York in each case located in the Borough of Manhattan in the City
of New York (collectively, the “Specified Courts”), and each party
irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment
of any such court, as to which such jurisdiction is non-exclusive)
of such courts in any such suit, action or proceeding. Service of
any process, summons, notice or document by mail to such
party’s address set forth above shall be effective service of
process for any suit, action or other proceeding brought in any
such court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action or other
proceeding in the Specified Courts and irrevocably and
unconditionally waive and agree not to plead or claim in any such
court that any such suit, action or other proceeding brought in any
such court has been brought in an inconvenient forum.
(h) 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 be
executed in two or more counterparts, each one of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument, and may be delivered by
facsimile transmission or by electronic delivery of a portable
document format (PDF) file (including any electronic signature
covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic
Transactions Act, the Electronic Signatures and Records Act or
other applicable law, e.g., ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇). 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 Article and Section headings herein are for the
convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.
[Signature
Page Immediately Follows]
If the
foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed
copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance
with its terms
Very
truly yours,
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
Title:
Chief Executive Officer
The
foregoing Agreement is hereby confirmed and accepted by the Agent
in New York, New York as of the date first above
written.
▇▇▇▇▇▇▇▇▇ LLC
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Managing Director
EXHIBIT A
ISSUANCE
NOTICE
[Date]
Jefferies
LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
[__________]
Reference
is made to the Open Market Sale AgreementSM between VistaGen
Therapeutics, Inc. (the “Company”) and ▇▇▇▇▇▇▇▇▇ LLC (the
“Agent”) dated
as of May 14, 2021. The Company confirms that all conditions to the
delivery of this Issuance Notice are satisfied as of the date
hereof.
Date of
Delivery of Issuance Notice (determined pursuant to Section 3(b)(i)):
_______________________
Issuance
Amount (equal to the total Sales Price for such
Shares):
$
Number of days in
selling
period:
First date of
selling
period:
Last date of
selling
period:
Settlement
Date(s) if other than standard T+2 settlement:
Floor
Price Limitation (in no event less than $1.00 without the prior
written consent of the Agent, which consent may be withheld in the
Agent’s sole discretion): $ ____ per share
Comments:
By:
Name:
Title:
EXHIBIT B
SUBSIDIARIES
OF THE COMPANY
VistaGen
Therapeutics, Inc. d/b/a VistaStem, a California
corporation
Artemis
Neuroscience, Inc., a Maryland corporation
VistaStem
Canada, Inc., a corporation organized under the laws of Ontario,
Canada
EXHIBIT C
Form of
Officer’s Certificate Pursuant to Section 4(o)
The
undersigned, the duly qualified and elected [●] of VistaGen
Therapeutics, Inc., a Nevada corporation (the “Company”), does hereby certify in
such capacity and on behalf of the Company, pursuant to
Section 4(o) of the
Open Market Sale AgreementSM, dated May 14,
2021, between the Company and ▇▇▇▇▇▇▇▇▇ LLC (the
“Sale
Agreement”), that to the knowledge of the
undersigned:
(i) The
representations and warranties of the Company in Section 2 of the Sale Agreement
are true and correct on and as of the date hereof with the same
force and effect as if expressly made on and as of the date hereof;
provided, however that such representations and warranties are
qualified by the disclosure included or incorporated by reference
in the Registration Statement and Prospectus (including any
documents incorporated by reference therein and any supplements
thereto); and
(ii)
The Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied pursuant to the
Sale Agreement at or prior to the date hereof.
▇▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇ LLP are entitled to rely on this
certificate in connection with the respective opinions such firms
are rendering pursuant to the Sale Agreement. Capitalized terms
used herein without definition shall have the meanings given to
such terms in the Sale Agreement.
By:
Name:
Title:
Date:
[●]
Schedule A
Notice Parties
The Company
▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
The Agent
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇