AT THE MARKET OFFERING AGREEMENT May 26, 2021
Exhibit 1.2
May 26,
2021
▇.▇.
▇▇▇▇▇▇▇▇▇▇ & Co., LLC
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
AzurRx
BioPharma, Inc., a corporation organized under the laws of Delaware
(the “Company”), confirms its
agreement (this “Agreement”) with ▇.▇.
▇▇▇▇▇▇▇▇▇▇ & Co., LLC (the “Manager”) as
follows:
1. Definitions.
The terms that follow, when used in this Agreement and any Terms
Agreement, shall have the meanings indicated.
“Accountants” shall
have the meaning ascribed to such term in Section
4(m).
“Act” shall mean the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Action” shall have the
meaning ascribed to such term in Section 3(q).
“Affiliate” shall have the
meaning ascribed to such term in Section 3(p).
“Applicable Time” shall
mean, with respect to any Shares, the time of sale of such Shares
pursuant to this Agreement or any relevant Terms
Agreement.
“Base Prospectus” shall
mean the base prospectus contained in the Registration Statement at
the Effective Time.
“Board” shall have the
meaning ascribed to such term in Section 2(b)(iii).
“Broker Fee” shall have
the meaning ascribed to such term in Section 2(b)(v).
“Business Day” shall mean
any day other than Saturday, Sunday or other day on which
commercial banks in The City of New York are authorized or required
by law to remain closed; provided, however, that, for purposes of
clarity, commercial banks shall not be deemed to be authorized or
required by law to remain closed due to “stay at home”,
“shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions
or the closure of any physical branch locations at the direction of
any governmental authority so long as the electronic funds transfer
systems (including for wire transfers) of commercial banks in The
City of New York generally are open for use by customers on such
day.
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“Commission” shall mean
the United States Securities and Exchange Commission.
“Common Stock” shall have
the meaning ascribed to such term in Section 2.
“Common Stock Equivalents”
shall have the meaning ascribed to such term in Section
3(g).
“Company Counsel” shall
have the meaning ascribed to such term in Section
4(l).
“DTC” shall have the
meaning ascribed to such term in Section 2(b)(vii).
“Effective Date” shall
mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes
effective.
“Effective Time” shall
mean the first date and time that the Registration Statement
becomes effective.
“Exchange Act” shall mean
the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Execution Time” shall
mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“Filing Date” shall have
the meaning ascribed to such term in Section 4(w).
“Free Writing Prospectus”
shall mean a free writing prospectus, as defined in
Rule 405.
“GAAP” shall have the
meaning ascribed to such term in Section 3(n).
“Incorporated Documents”
shall mean the documents or portions thereof filed with the
Commission on or prior to the Effective Date that are incorporated
by reference in the Registration Statement or the Prospectus and
any documents or portions thereof filed with the Commission after
the Effective Date that are deemed to be incorporated by reference
in the Registration Statement or the Prospectus.
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“Intellectual Property
Rights” shall have
the meaning ascribed to such term in Section 3(v).
“Issuer Free Writing
Prospectus” shall mean an issuer free writing
prospectus, as defined in Rule 433.
“Losses” shall have the
meaning ascribed to such term in Section 7(d).
“Material Adverse Effect”
shall have the meaning ascribed to such term in Section
3(b).
“Material Permits” shall
have the meaning ascribed to such term in Section
3(t).
“Net Proceeds” shall have
the meaning ascribed to such term in Section 2(b)(v).
“Permitted Free Writing
Prospectus” shall have the meaning ascribed to such
term in Section 4(g).
“Placement” shall have the
meaning ascribed to such term in Section 2(c).
“Proceeding” shall have
the meaning ascribed to such term in Section 3(b).
“Prospectus” shall mean
the Base Prospectus, as supplemented by the Prospectus Supplement
in the Registration Statement at the Effective Time and any
subsequently filed Prospectus Supplement.
“Prospectus Supplement”
shall mean the prospectus supplement relating to the Shares
contained in the Registration Statement at the Effective Time and
any prospectus supplement relating to the Shares prepared and filed
pursuant to Rule 424(b) from time to time.
“Registration Statement”
shall mean the shelf registration statement on Form S-3
registering $150,000,000 of securities of the Company to be filed
on or after the Execution Date, including exhibits and financial
statements and any prospectus supplement relating to the Shares
that is filed with the Commission pursuant to Rule 424(b) and
deemed part of such registration statement pursuant to
Rule 430B, as amended on each Effective Date and, in the event
any post-effective amendment thereto becomes effective, shall also
mean such registration statement as so amended.
“Representation Date”
shall have the meaning ascribed to such term in Section
4(k).
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“Required Approvals” shall
have the meaning ascribed to such term in Section
3(e).
“Rule 158”,
“Rule 164”,
“Rule 172”,
“Rule 173”,
“Rule 405”,
“Rule 415”,
“Rule 424”,
“Rule 430B” and
“Rule 433” refer to
such rules under the Act.
“Sales Notice” shall have
the meaning ascribed to such term in Section 2(b)(i).
“SEC Reports” shall have
the meaning ascribed to such term in Section 3(m).
“Settlement Date” shall
have the meaning ascribed to such term in Section
2(b)(vii).
“Subsidiary” shall have
the meaning ascribed to such term in Section 3(a).
“Terms Agreement” shall
have the meaning ascribed to such term in Section
2(a).
“Time of Delivery” shall
have the meaning ascribed to such term in Section
2(c).
“Trading Day” means a day
on which the Trading Market is open for trading.
“Trading Market” means The
Nasdaq Capital Market.
2. Sale
and Delivery of Shares. The Company proposes to issue and
sell through or to the Manager, as sales agent and/or principal,
from time to time during the term of this Agreement and on the
terms set forth herein, up to the lesser of such number of shares
(the “Shares”) of the
Company’s common stock, $0.0001 par value per share
(“Common
Stock”), that does not exceed (a) the number or dollar
amount of shares of Common Stock registered on the Registration
Statement, pursuant to which the offering is being made, (b) the
number of authorized but unissued shares of Common Stock (less the
number of shares of Common Stock issuable upon exercise, conversion
or exchange of any outstanding securities of the Company or
otherwise reserved from the Company’s authorized capital
stock), or (c) the number or dollar amount of shares of Common
Stock that would cause the Company or the offering of the Shares to
not satisfy the eligibility and transaction requirements for use of
Form S-3, including, if applicable, General Instruction I.B.6 of
Registration Statement on Form S-3 (the lesser of (a), (b) and (c),
the “Maximum
Amount”). Notwithstanding anything to the contrary
contained herein, the parties hereto agree that compliance with the
limitations set forth in this Section 2 on the number and aggregate
sales price of Shares issued and sold under this Agreement shall be
the sole responsibility of the Company and that the Manager shall
have no obligation in connection with such compliance.
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(a) Appointment
of Manager as Selling Agent; Terms Agreement. For purposes
of selling the Shares through the Manager, the Company hereby
appoints the Manager as exclusive agent of the Company for the
purpose of selling the Shares of the Company pursuant to this
Agreement and the Manager agrees to use its commercially reasonable
efforts to sell the Shares on the terms and subject to the
conditions stated herein. The Company agrees that, whenever it
determines to sell the Shares directly to the Manager as principal,
it will enter into a separate agreement (each, a
“Terms
Agreement”) in substantially the form of Annex I hereto, relating to
such sale in accordance with Section 2 of this
Agreement.
(b) Agent
Sales. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, following
the effectiveness of the Registration Statement, the Company will
issue and agrees to sell Shares from time to time through the
Manager, acting as sales agent, and the Manager agrees to use its
commercially reasonable efforts to sell, as sales agent for the
Company, on the following terms:
(i) The
Shares are to be sold on a daily basis or otherwise as shall be
agreed to by the Company and the Manager on any day that
(A) is a Trading Day, (B) the Company has instructed the
Manager by telephone (confirmed promptly by electronic mail) to
make such sales (“Sales Notice”) and (C)
the Company has satisfied its obligations under Section 6 of this
Agreement. The Company will designate the maximum amount of the
Shares to be sold by the Manager daily (subject to the limitations
set forth in Section 2(d)) and the minimum price per Share at which
such Shares may be sold. Subject to the terms and conditions
hereof, the Manager shall use its commercially reasonable efforts
to sell on a particular day all of the Shares designated for the
sale by the Company on such day. The gross sales price of the
Shares sold under this Section 2(b) shall be the market price
for the shares of Common Stock sold by the Manager under this
Section 2(b) on the Trading Market at the time of sale of such
Shares.
(ii) The
Company acknowledges and agrees that (A) there can be no
assurance that the Manager will be successful in selling the
Shares, (B) the Manager will incur no liability or obligation
to the Company or any other person or entity if it does not sell
the Shares for any reason other than a failure by the Manager to
use its commercially reasonable efforts consistent with its normal
trading and sales practices and applicable law and regulations to
sell such Shares as required under this Agreement, and (C) the
Manager shall be under no obligation to purchase Shares on a
principal basis pursuant to this Agreement, except as otherwise
specifically agreed by the Manager and the Company pursuant to a
Terms Agreement.
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(iii) The
Company shall not authorize the issuance and sale of, and the
Manager shall not be obligated to use its commercially reasonable
efforts to sell, any Share at a price lower than the minimum price
therefor designated from time to time by the Company’s Board
of Directors (the “Board”), or a duly
authorized committee thereof, or such duly authorized officers of
the Company, and notified to the Manager in writing. The Company or
the Manager may, upon notice to the other party hereto by telephone
(confirmed promptly by electronic mail), suspend the offering of
the Shares for any reason and at any time; provided, however, that such suspension
or termination shall not affect or impair the parties’
respective obligations with respect to the Shares sold hereunder
prior to the giving of such notice.
(iv) The
Manager may sell Shares by any method permitted by law deemed to be
an “at the market offering” as defined in Rule 415
under the Act, including without limitation sales made directly on
the Trading Market, on any other existing trading market for the
Common Stock or to or through a market maker. The Manager may also
sell Shares in privately negotiated transactions, provided that the
Manager receives the Company’s prior written approval for any
sales in privately negotiated transactions and if so provided in
the “Plan of Distribution” section of the Prospectus
Supplement or a supplement to the Prospectus Supplement or a new
Prospectus Supplement disclosing the terms of such privately
negotiated transaction.
(v) The
compensation to the Manager for sales of the Shares under this
Section 2(b) shall be a placement fee of 3.0% of the gross sales
price of the Shares sold pursuant to this Section 2(b)
(“Broker
Fee”). The foregoing rate of compensation shall not
apply when the Manager acts as principal, in which case the Company
may sell Shares to the Manager as principal at a price agreed upon
at the relevant Applicable Time pursuant to a Terms Agreement. The
remaining proceeds, after deduction of the Broker Fee and deduction
of any transaction fees imposed by any clearing firm, execution
broker, or governmental or self-regulatory organization in respect
of such sales, shall constitute the net proceeds to the Company for
such Shares (the “Net
Proceeds”).
(vi) The
Manager shall provide written confirmation (which may be by
facsimile or electronic mail) to the Company following the close of
trading on the Trading Market each day in which the Shares are sold
under this Section 2(b) setting forth the number of the Shares sold
on such day, the aggregate gross sales proceeds and the Net
Proceeds to the Company, and the compensation payable by the
Company to the Manager with respect to such sales.
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(vii) Unless
otherwise agreed between the Company and the Manager, settlement
for sales of the Shares will occur at 10:00 a.m. (New York City
time) on the second (2nd) Trading Day (or such earlier day as is
industry practice for regular-way trading) following the date on
which such sales are made (each, a “Settlement Date”). On or
before the Trading Day prior to each Settlement Date, the Company
will, or will cause its transfer agent to, electronically transfer
the Shares being sold by crediting the Manager’s or its
designee’s account (provided that the Manager shall have
given the Company written notice of such designee at least one
Trading Day prior to the Settlement Date) at The Depository Trust
Company (“DTC”) through its Deposit
and Withdrawal at Custodian System or by such other means of
delivery as may be mutually agreed upon by the parties hereto which
Shares in all cases shall be freely tradable, transferable,
registered shares in good deliverable form. On each Settlement
Date, the Manager will deliver the related Net Proceeds in same day
funds to an account designated by the Company. The Company agrees
that, if the Company, or its transfer agent (if applicable),
defaults in its obligation to deliver duly authorized Shares on a
Settlement Date, in addition to and in no way limiting the rights
and obligations set forth in Section 7 hereto, the Company will (i)
hold the Manager harmless against any loss, claim, damage, or
reasonable, documented expense (including reasonable and documented
legal fees and expenses), as incurred, arising out of or in
connection with such default by the Company, and (ii) pay to the
Manager any commission, discount or other compensation to which the
Manager would otherwise have been entitled absent such
default.
(viii)
At each Applicable Time, Settlement Date, and Representation Date,
the Company shall be deemed to have affirmed each representation
and warranty contained in this Agreement as if such representation
and warranty were made as of such date, modified as necessary to
relate to the Registration Statement and the Prospectus as amended
as of such date. Any obligation of the Manager to use its
commercially reasonable efforts to sell the Shares on behalf of the
Company shall be subject to the continuing accuracy of the
representations and warranties of the Company herein, to the
performance by the Company of its obligations hereunder and to the
continuing satisfaction of the additional conditions specified in
Section 6 of this Agreement.
(ix) If
the Company shall declare or make any dividend or other
distribution of its assets (or rights to acquire its assets) to
holders of shares of Common Stock, by way of return of capital or
otherwise (including, without limitation, any distribution of cash,
stock or other securities, property or options by way of a
dividend, spin off, reclassification, corporate rearrangement,
scheme of arrangement or other similar transaction) (a
“Distribution” and the
record date for the determination of stockholders entitled to
receive the Distribution, the “Record Date”), the
Company hereby covenants that, in connection with any sales of
Shares pursuant to a Sales Notice on the Record Date, the Company
covenants and agrees that the Company shall issue and deliver such
Shares to the Manager on the Record Date and the Record Date shall
be the Settlement Date and the Company shall cover any additional
costs of the Manager in connection with the delivery of Shares on
the Record Date.
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(c) Term
Sales. If the Company wishes to sell the Shares pursuant to
this Agreement but other than as set forth in Section 2(b) of this
Agreement (each, a “Placement”), the Company
will notify the Manager of the proposed terms of such Placement. If
the Manager, acting as principal, wishes to accept such proposed
terms (which it may decline to do for any reason in its sole
discretion) or, following discussions with the Company wishes to
accept amended terms, the Manager and the Company will enter into a
Terms Agreement setting forth the terms of such Placement. The
terms set forth in a Terms Agreement will not be binding on the
Company or the Manager unless and until the Company and the Manager
have each executed such Terms Agreement accepting all of the terms
of such Terms Agreement. In the event of a conflict between the
terms of this Agreement and the terms of a Terms Agreement, the
terms of such Terms Agreement will control. A Terms Agreement may
also specify certain provisions relating to the reoffering of such
Shares by the Manager. The commitment of the Manager to purchase
the Shares pursuant to any Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall specify the
number of the Shares to be purchased by the Manager pursuant
thereto, the price to be paid to the Company for such Shares, any
provisions relating to rights of, and default by, underwriters
acting together with the Manager in the reoffering of the Shares,
and the time and date (each such time and date being referred to
herein as a “Time of
Delivery”) and place of delivery of and payment for
such Shares. Such Terms Agreement shall also specify any
requirements for opinions of counsel, accountants’ letters
and officers’ certificates pursuant to Section 6 of this
Agreement and any other information or documents required by the
Manager.
(d) Maximum
Number of Shares. Under no circumstances shall the Company
cause or request the offer or sale of any Shares if, after giving
effect to the sale of such Shares, the aggregate amount of Shares
sold pursuant to this Agreement would exceed the lesser of (A)
together with all sales of Shares under this Agreement, the Maximum
Amount, (B) the amount available for offer and sale under the
currently effective Registration Statement and (C) the amount
authorized from time to time to be issued and sold under this
Agreement by the Board, a duly authorized committee thereof or a
duly authorized executive committee, and notified to the Manager in
writing. Under no circumstances shall the Company cause or request
the offer or sale of any Shares pursuant to this Agreement at a
price lower than the minimum price authorized from time to time by
the Board, a duly authorized committee thereof or a duly authorized
executive officer, and notified to the Manager in writing. Further,
under no circumstances shall the Company cause or permit the
aggregate offering amount of Shares sold pursuant to this Agreement
to exceed the Maximum Amount.
(e) Regulation
M Notice. Unless the exceptive provisions set forth in
Rule 101(c)(1) of Regulation M under the Exchange Act are
satisfied with respect to the Shares, the Company shall give the
Manager at least one Business Day’s prior notice of its
intent to sell any Shares in order to allow the Manager time to
comply with Regulation M.
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3. Representations
and Warranties. The Company represents and warrants to, and
agrees with, the Manager at the Execution Time and on each such
time the following representations and warranties are repeated or
deemed to be made pursuant to this Agreement, as set forth below or
in the Registration Statement, the Prospectus or the Incorporated
Documents.
(a) Subsidiaries.
All of the direct and indirect subsidiaries (individually, a
“Subsidiary”)
of the Company are set forth on Exhibit 21.1 to the Company’s
most recent Annual Report on Form 10-K filed with the Commission.
The Company owns, directly or indirectly, all of the capital stock
or other equity interests of each Subsidiary free and clear of any
“Liens”
(which for purposes of this Agreement shall mean a lien, charge,
security interest, encumbrance, right of first refusal, preemptive
right or other restriction), and all of the issued and
outstanding shares of capital stock of each Subsidiary are validly
issued and are fully paid, non-assessable and free of preemptive
and similar rights to subscribe for or purchase
securities.
(b) Organization
and Qualification. The
Company and each of the Subsidiaries is an entity duly incorporated
or otherwise organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization,
with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation
nor default of any of the provisions of its respective certificate
or articles of incorporation, bylaws or other organizational or
charter documents. Each of the Company and the Subsidiaries is duly
qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the
nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, could not have
or reasonably be expected to result in: (i) a material adverse
effect on the legality, validity or enforceability of this
Agreement, (ii) a material adverse effect on the results of
operations, assets, business, prospects or condition (financial or
otherwise) of the Company and the Subsidiaries, taken as a whole,
from that set forth in the Registration Statement, the Base
Prospectus, any Prospectus Supplement, the Prospectus or the
Incorporated Documents, or (iii) a material adverse effect on the
Company’s ability to perform in any material respect on a
timely basis its obligations under this Agreement (any of (i), (ii)
or (iii), a “Material Adverse Effect”)
and no “Proceeding”
(which for purposes of this Agreement shall mean any action, claim,
suit, investigation or proceeding (including, without limitation,
an informal investigation or partial proceeding, such as a
deposition), whether commenced or threatened) has been instituted
in any such jurisdiction revoking, limiting or curtailing or
seeking to revoke, limit or curtail such power and authority or
qualification.
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(c) Authorization
and Enforcement. The
Company has the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Company and the
consummation by it of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of the
Company and no further action is required by the Company, the Board
or the Company’s stockholders in connection herewith other
than in connection with the Required Approvals. This Agreement has
been duly executed and delivered by the Company and, when delivered
in accordance with the terms hereof, will constitute the valid and
binding obligation of the Company enforceable against the Company
in accordance with its terms, except (i) as limited by general
equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and
(iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
(d) No
Conflicts. The
execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares and the consummation
by it of the transactions contemplated hereby do not and will not
(i) conflict with or violate any provision of the Company’s
or any Subsidiary’s certificate or articles of incorporation,
bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or
assets of the Company or any Subsidiary, or give to others any
rights of termination, amendment, anti-dilution or similar
adjustments, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or
other instrument (evidencing a Company or Subsidiary debt or
otherwise) or other understanding to which the Company or any
Subsidiary is a party or by which any property or asset of the
Company or any Subsidiary is bound or affected, or (iii) subject to
the Required Approvals, conflict with or result in a violation of
any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which
the Company or a Subsidiary is subject (including federal and state
securities laws and regulations), or by which any property or asset
of the Company or a Subsidiary is bound or affected; except in the
case of each of clauses (ii) and (iii), such as could not have or
reasonably be expected to result in a Material Adverse
Effect.
(e) Filings,
Consents and Approvals. The
Company is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing
or registration with, any court or other federal, state, local or
other governmental authority or other “Person” (defined
as an individual or corporation, partnership, trust, incorporated
or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind, including the
Trading Market) in connection with the execution, delivery and
performance by the Company of this Agreement, other than (i) the
filings required by this Agreement, (ii) the filing with the
Commission of the Prospectus Supplement, (iii) the filing of
application(s) to and approval by the Trading Market for the
listing of the Shares for trading thereon in the time and manner
required thereby, and (iv) such filings as are required to be made
under applicable state securities laws and the rules and
regulations of the Financial Industry Regulatory Authority, Inc.
(“FINRA”)
(collectively, the “Required
Approvals”).
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(f) Issuance
of Shares. The Shares are duly
authorized and, when issued and paid for in accordance with this
Agreement, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company.
The Company has reserved from its duly authorized capital stock a
sufficient number of shares of Common Stock to be issued pursuant
to this Agreement. The issuance by the Company of the Shares has
been registered under the Act and all of the Shares are freely
transferable and tradable by the purchasers thereof without
restriction (other than any restrictions arising solely from an act
or omission of such a purchaser). The Shares are being issued
pursuant to the Registration Statement and the issuance of the
Shares has been registered by the Company under the Act. The
“Plan of
Distribution” section
within the Registration Statement permits the issuance and sale of
the Shares as contemplated by this Agreement. Upon receipt of the
Shares, the purchasers of such Shares will have good and marketable
title to such Shares and the Shares will be freely tradable on the
Trading Market.
(g) Capitalization.
The capitalization of
the Company is as set forth in the SEC Reports. Except for any
Shares issued pursuant to this Agreement, the Company has not
issued any capital stock since its most recently filed periodic report under the
Exchange Act, other than pursuant to the exercise of
employee stock options under the Company’s stock option
plans, the issuance of shares of Common Stock to employees pursuant
to the Company’s employee stock purchase plan and pursuant to
the conversion and/or exercise of securities exercisable,
exchangeable or convertible into Common Stock (“Common Stock
Equivalents”) outstanding as of the date of the most
recently filed periodic report under the Exchange Act. No Person
has any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the
transactions contemplated by this Agreement. Except as set forth in
the SEC Reports, there are no outstanding options, warrants, scrip
rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations
convertible into or exercisable or exchangeable for, or giving any
Person any right to subscribe for or acquire, any shares of Common
Stock or the capital stock of any Subsidiary, or contracts,
commitments, understandings or arrangements by which the Company or
any Subsidiary is or may become bound to issue additional shares of
Common Stock or Common Stock Equivalents or capital stock of any
Subsidiary. Except as set forth in the SEC Reports, the issuance
and sale of the Shares will not obligate the Company or any
Subsidiary to issue shares of Common Stock or other securities to
any Person. Except as set for in the SEC Reports, there are no
outstanding securities or instruments of the Company or any
Subsidiary with any provision that adjusts the exercise,
conversion, exchange or reset price of such security or instrument
upon an issuance of securities by the Company or any Subsidiary.
Except as set forth in the SEC Reports, there are no outstanding
securities or instruments of the Company or any Subsidiary that
contain any redemption or similar provisions, and there are no
contracts, commitments, understandings or arrangements by which the
Company or any Subsidiary is or may become bound to redeem a
security of the Company or such Subsidiary. The Company does not
have any stock appreciation rights or “phantom stock”
plans or agreements or any similar plan or agreement. All of the
outstanding shares of capital stock of the Company are duly
authorized, validly issued, fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws,
and none of such outstanding shares was issued in violation of any
preemptive rights or similar rights to subscribe for or purchase
securities. Other than the Required Approvals, no further approval
or authorization of any stockholder, the Board or others is
required for the issuance and sale of the Shares. There are no
stockholders agreements, voting agreements or other similar
agreements with respect to the Company’s capital stock to
which the Company is a party or, to the knowledge of the Company,
between or among any of the Company’s
stockholders.
(h) Registration
Statement. The Company meets the requirements for use of
Form S-3 under the Act and has prepared and filed with the
Commission the Registration Statement, including a related Base
Prospectus, for registration under the Act of the offering and sale
of the Shares. Such Registration Statement is effective and
available for the offer and sale of the Shares as of the date
hereof. As filed, the Base Prospectus contains all information
required by the Act and the rules thereunder, and, except to the
extent the Manager shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to the Manager
prior to the Execution Time or prior to any such time this
representation is repeated or deemed to be made. The Registration
Statement, at the Execution Time, each such time this
representation is repeated or deemed to be made, and at all times
during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172, 173
or any similar rule) in connection with any offer or sale of the
Shares, meets the requirements set forth in Rule 415(a)(1)(x).
The initial Effective Date of the Registration Statement was not
earlier than the date three years before the Execution Time. The
Company meets the transaction requirements with respect to the
aggregate market value of securities being sold pursuant to this
offering and during the twelve (12) months prior to this offering,
as set forth in General Instruction I.B.6 of Form S-3, if
applicable.
(i) Accuracy
of Incorporated Documents. The
Incorporated Documents, when they were filed with the Commission,
conformed in all material respects to the requirements of the
Exchange Act and the rules thereunder, and none of the Incorporated
Documents, when they were filed with the Commission, contained any
untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made not misleading; and any
further documents so filed and incorporated by reference in the
Registration Statement, the Base Prospectus, the Prospectus
Supplement or the Prospectus, when such documents are filed with
the Commission, will conform in all material respects to the
requirements of the Exchange Act and the rules thereunder, as
applicable, and will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
11
(j) Ineligible
Issuer. (i) At the earliest time after the filing of
the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of
Rule 164(h)(2)) of the Shares and (ii) as of the
Execution Time and on each such time this representation is
repeated or deemed to be made (with such date being used as the
determination date for purposes of this clause (ii)), the
Company was not and is not an Ineligible Issuer (as defined in
Rule 405), without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that
the Company be considered an Ineligible Issuer.
(k) Free
Writing Prospectus. The Company is eligible to use Issuer
Free Writing Prospectuses. Each Issuer Free Writing Prospectus does
not include any information the substance of which conflicts with
the information contained in the Registration Statement, including
any Incorporated Documents and any prospectus supplement deemed to
be a part thereof that has not been superseded or modified; and
each Issuer Free Writing Prospectus does not contain any 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, not misleading. The
foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by the
Manager specifically for use therein. Any Issuer Free Writing Prospectus
that the Company is required to file
pursuant to Rule 433(d) has been, or will be, filed with the
Commission in accordance with the requirements of the Act and the
rules thereunder. Each Issuer Free Writing Prospectus
that the Company has filed, or is
required to file, pursuant to Rule 433(d) or that was prepared by
or behalf of or used by the Company complies or will comply in all
material respects with the requirements of the Act and the rules
thereunder. The Company will not, without the prior consent of the
Manager, prepare, use or refer to, any Issuer Free Writing
Prospectuses.
(l) Proceedings
Related to Registration Statement. The Registration
Statement is not the subject of a pending proceeding or examination
under Section 8(d) or 8(e) of the Act, and the Company is not
the subject of a pending proceeding under Section 8A of the
Act in connection with the offering of the Shares. The Company has not received any notice that the
Commission has issued or intends to issue a stop-order with respect
to the Registration Statement or that the Commission otherwise has
suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has
threatened in writing to do so.
(m) SEC
Reports. The Company has
filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Act and the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof, for the
two years preceding the date hereof (or such shorter period as the
Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and
documents incorporated by reference therein, together with the
Prospectus and the Prospectus Supplement, being collectively
referred to herein as the “SEC Reports”) on a timely
basis or has received a valid extension of such time of filing and
has filed any such SEC Reports prior to the expiration of any such
extension. As of their respective dates, the SEC Reports complied
in all material respects with the requirements of the Act and the
Exchange Act, as applicable, and none of the SEC Reports, when
filed, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with
respect thereto as in effect at the time of filing. Such financial
statements have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent
basis during the periods involved (“GAAP”), except as may be
otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all
material respects the financial position of the Company and its
consolidated Subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
(n)
[RESERVED]
12
(o) Material
Changes; Undisclosed Events, Liabilities or Developments.
Since the date of the latest audited financial statements included
within the SEC Reports, except as specifically disclosed in a
specific subsequent SEC Report filed prior to the date this
representation is being made, (i) there has been no event,
occurrence or development that has had or that could reasonably be
expected to result in a Material Adverse Effect, (ii) the Company
has not incurred any liabilities (contingent or otherwise) other
than (A) trade payables and accrued expenses incurred in the
ordinary course of business consistent with past practice and (B)
liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or disclosed in filings made
with the Commission, (iii) the Company has not altered its method
of accounting, (iv) the Company has not declared or made any
dividend or distribution of cash or other property to its
stockholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock and (v) the
Company has not issued any equity securities to any officer,
director or “Affiliate” (defined as any Person that, directly or
indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144 under the
Act), except pursuant to existing Company stock option
plans. The Company does not have pending before the Commission any
request for confidential treatment of information. Except for the
issuance of the Shares contemplated by this Agreement or as set
forth in the SEC Reports, no event, liability, fact, circumstance,
occurrence or development has occurred or exists or is reasonably
expected to occur or exist with respect to the Company or its
Subsidiaries or their respective businesses, prospects, properties,
operations, assets or financial condition that would be required to
be disclosed by the Company under applicable securities laws at the
time this representation is made or deemed made that has not been
publicly disclosed at least 1 Trading Day prior to the date that
this representation is made.
(p) Litigation.
Except as set forth in the SEC Reports, there is no action, suit,
inquiry, notice of violation, proceeding or investigation pending
or, to the knowledge of the Company, threatened against or
affecting the Company, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state,
county, local or foreign) (collectively, an “Action”) that (i)
adversely affects or challenges the legality, validity or
enforceability of this Agreement or the Shares or (ii) could, if
there were an unfavorable decision, have or reasonably be expected
to result in a Material Adverse Effect. Neither the Company nor any
Subsidiary, nor, to the knowledge of the Company, any director or
officer thereof, is or has been the subject of any Action involving
a claim of violation of or liability under federal or state
securities laws or a claim of breach of fiduciary duty. There has
not been, and to the knowledge of the Company, there is not pending
or contemplated, any investigation by the Commission involving the
Company or any current or former director or officer of the
Company. The Commission has not issued any stop order or other
order suspending the effectiveness of any registration statement
filed by the Company or any Subsidiary under the Exchange Act or
the Act.
13
(q) Labor
Relations. No labor
dispute exists or, to the knowledge of the Company, is imminent
with respect to any of the employees of the Company, which could
reasonably be expected to result in a Material Adverse Effect. None
of the Company’s or its Subsidiaries’ employees is a
member of a union that relates to such employee’s
relationship with the Company or such Subsidiary, and neither the
Company nor any of its Subsidiaries is a party to a collective
bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the
knowledge of the Company, no executive officer of the Company or
any Subsidiary, is, or is now expected to be, in violation of any
material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition
agreement, or any other contract or agreement or any restrictive
covenant in favor of any third party, and the continued employment
of each such executive officer does not subject the Company or any
of its Subsidiaries to any liability with respect to any of the
foregoing matters. The Company and its Subsidiaries are in
compliance with all U.S. federal, state, local and foreign laws and
regulations relating to employment and employment practices, terms
and conditions of employment and wages and hours, except where the
failure to be in compliance could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(r) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or
in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a
default by the Company or any Subsidiary under), nor has the
Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or
credit agreement or any other agreement or instrument to which it
is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is
in violation of any judgment, decree or order of any court,
arbitrator or other governmental authority or (iii) is or has been
in violation of any statute, rule, ordinance or regulation of any
governmental authority, including without limitation all foreign,
federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and
safety and employment and labor matters, except in each case as
could not have or reasonably be expected to result in a Material
Adverse Effect.
(s) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance
with all federal, state, local and foreign laws relating to
pollution or protection of human health or the environment
(including ambient air, surface water, groundwater, land surface or
subsurface strata), including laws relating to emissions,
discharges, releases or threatened releases of chemicals,
pollutants, contaminants, or toxic or hazardous substances or
wastes (collectively, “Hazardous Materials”)
into the environment, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials, as well as all
authorizations, codes, decrees, demands, or demand letters,
injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations, issued, entered, promulgated
or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required
of them under applicable Environmental Laws to conduct their
respective businesses; and (iii) are in compliance with all terms
and conditions of any such permit, license or approval where in
each clause (i), (ii) and (iii), the failure to so comply could be
reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect.
14
(t) Regulatory
Permits. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary
to conduct their respective businesses as described in the SEC
Reports, except where the failure to possess such permits could not
reasonably be expected to result in a Material Adverse Effect
(“Material
Permits”), and neither the Company nor any Subsidiary
has received any notice of proceedings relating to the revocation
or modification of any Material Permit.
(u) Title
to Assets. The Company
and the Subsidiaries have good and marketable title in fee simple
to all real property owned by them and good and marketable title in
all personal property owned by them that is material to the
business of the Company and the Subsidiaries, in each case free and
clear of all Liens, except for (i) Liens as do not materially
affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the
Company and the Subsidiaries and (ii) Liens for the payment of
federal, state or other taxes, for which appropriate reserves have
been made therefor in accordance with GAAP and, the payment of
which is neither delinquent nor subject to penalties. Any real
property and facilities held under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and
enforceable leases with which the Company and the Subsidiaries are
in compliance, except where such non-compliance would not have or
reasonably be expected to have a Material Adverse
Effect.
(v)
Intellectual
Property. The Company
and the Subsidiaries have, or have rights to use, all patents,
patent applications, trademarks, trademark applications, service
marks, trade names, trade secrets, inventions, copyrights, licenses
and other intellectual property rights and similar rights necessary
or required for use in connection with their respective businesses
as described in the SEC Reports and which the failure to so have
could have a Material Adverse Effect (collectively, the
“Intellectual
Property Rights”). None of, and neither the Company
nor any Subsidiary has received a notice (written or otherwise)
that any of, the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate
or be abandoned, within two (2) years from the date of this
Agreement. Neither the Company nor any Subsidiary has received,
since the date of the latest audited financial statements included
within the SEC Reports, a written notice of a claim or otherwise
has any knowledge that the Intellectual Property Rights violate or
infringe upon the rights of any Person, except as could not have or
reasonably be expected to not have a Material Adverse Effect. To
the knowledge of the Company, all such Intellectual Property Rights
are enforceable and to the knowledge of the Company, there is no
existing infringement by another Person of any of the Intellectual
Property Rights. The Company and its Subsidiaries have taken
reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties,
except where failure to do so could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
15
(w) Insurance.
The Company and the Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary for companies of
similar size as the Company in the businesses in which the Company
and the Subsidiaries are engaged, including, but not limited to,
directors and officers insurance coverage. Neither the Company nor
any Subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business without a significant
increase in cost.
(x) Affiliate
Transactions. Except as
set forth in the SEC Reports, none of the officers or directors of
the Company or any Subsidiary and, to the knowledge of the Company,
none of the employees of the Company or any Subsidiary is presently
a party to any transaction with the Company or any Subsidiary
(other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing
for the furnishing of services to or by, providing for rental of
real or personal property to or from, providing for the borrowing
of money from or lending of money to or otherwise requiring
payments to or from any officer, director or such employee or, to
the knowledge of the Company, any entity in which any officer,
director, or any such employee has a substantial interest or is an
officer, director, trustee, stockholder, member or partner, in each
case in excess of $120,000 other than for (i) payment of salary or
consulting fees for services rendered, (ii) reimbursement for
expenses incurred on behalf of the Company and (iii) other employee
benefits, including stock option agreements under any stock option
plan of the Company.
(y) Sarbanes
Oxley Compliance. Except as
disclosed in the SEC Reports, the Company and the
Subsidiaries are in material compliance with any and all applicable
requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 that are effective
as of the date hereof, and any and all applicable rules and
regulations promulgated by the Commission thereunder that are
effective as of the date hereof. The
Company and the Subsidiaries 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 authorizations, (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset
accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company and the Subsidiaries have established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and the Subsidiaries and designed such
disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or
submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the
Commission’s rules and forms. The Company’s certifying
officers have evaluated the effectiveness of the disclosure
controls and procedures of the Company and the Subsidiaries as of
the end of the period covered by the most recently filed periodic
report under the Exchange Act (such date, the
“Evaluation
Date”). The Company
presented in its most recently filed periodic report under the
Exchange Act the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on
their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no changes in the internal control over
financial reporting (as such term is defined in the Exchange Act)
of the Company and its Subsidiaries that have materially affected,
or is reasonably likely to materially affect, the internal control
over financial reporting of the Company and its
Subsidiaries.
16
(z) Certain
Fees. Other than payments to be made to the Manager, no
brokerage or finder’s fees or commissions are or will be
payable by the Company or any Subsidiary to any broker, financial
advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated
by this Agreement. The Manager shall have no obligation with
respect to any fees or with respect to any claims made by or on
behalf of other Persons for fees of a type contemplated in this
Section that may be due in connection with the transactions
contemplated by this Agreement.
(aa) No
Other Sales Agency Agreement. The Company has not entered
into any other sales agency agreements or other similar
arrangements with any agent or any other representative in respect
of at the market offerings of the Shares.
(bb) [RESERVED]
(cc) Listing
and Maintenance Requirements. The Common Stock is listed on
the Trading Market and the issuance of the Shares as contemplated
by this Agreement does not contravene the rules and regulations of
the Trading Market. The Common Stock is registered pursuant to
Section 12(b) or 12(g) of the Exchange Act, and the Company has
taken no action designed to, or which to its knowledge is likely to
have the effect of, terminating the registration of the Common
Stock under the Exchange Act nor has the Company received any
notification that the Commission is contemplating terminating such
registration. Except as disclosed in the SEC Reports, the Company
has not, in the 12 months preceding the date hereof, received
notice from any Trading Market on which the Common Stock is or has
been listed or quoted to the effect that the Company is not in
compliance with the listing or maintenance requirements of such
Trading Market. Except as disclosed in the SEC Reports, the Company
is, and has no reason to believe that it will not in the
foreseeable future continue to be, in compliance with all such
listing and maintenance requirements. The Common Stock is currently
eligible for electronic transfer through the Depository Trust
Company or another established clearing corporation and the Company
is current in payment of the fees to the Depository Trust Company
(or such other established clearing corporation) in connection with
such electronic transfer.
17
(dd) Application
of Takeover Protections. Except as set forth in the
Registration Statement, the Base Prospectus, any Prospectus
Supplement or the Prospectus, the Company and the Board have taken
all necessary action, if any, in order to render inapplicable any
control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or other
similar anti-takeover provision under the Company’s
certificate of incorporation (or similar charter documents) or the
laws of its state of incorporation that is or could become
applicable to the Shares.
(ee) Solvency.
Based on the consolidated financial condition of the Company as of
the Effective Date, (i) the fair saleable value of the
Company’s assets exceeds the amount that will be required to
be paid on or in respect of the Company’s existing debts and
other liabilities (including known contingent liabilities) as they
mature, (ii) the Company’s assets do not constitute
unreasonably small capital to carry on its business as now
conducted and as proposed to be conducted including its capital
needs taking into account the particular capital requirements of
the business conducted by the Company, consolidated and projected
capital requirements and capital availability thereof, and (iii)
the current cash flow of the Company, together with the proceeds
the Company would receive, were it to liquidate all of its assets,
after taking into account all anticipated uses of the cash, would
be sufficient to pay all amounts on or in respect of its
liabilities when such amounts are required to be paid. The Company
does not intend to incur debts beyond its ability to pay such debts
as they mature (taking into account the timing and amounts of cash
to be payable on or in respect of its debt). The Company has no
knowledge of any facts or circumstances which lead it to believe
that it will file for reorganization or liquidation under the
bankruptcy or reorganization laws of any jurisdiction within one
year from the date hereof. The SEC Reports set forth as of the
dates thereof all outstanding secured and unsecured Indebtedness of
the Company or any Subsidiary, or for which the Company or any
Subsidiary has commitments. For the purposes of this Agreement,
“Indebtedness” means (x)
any liabilities for borrowed money or amounts owed in excess of
$50,000 (other than trade accounts payable incurred in the ordinary
course of business), (y) all guaranties, endorsements and other
contingent obligations in respect of indebtedness of others,
whether or not the same are or should be reflected in the
Company’s consolidated balance sheet (or the notes thereto),
except guaranties by endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business; and (z) the present value of any lease payments
in excess of $50,000 due under leases required to be capitalized in
accordance with GAAP. Neither the Company nor any Subsidiary is in
default with respect to any Indebtedness.
18
(ff) Tax
Status. Except for matters that would not, individually or
in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i)
has made or filed all United States federal, state and local income
and all foreign income and franchise tax returns, reports and
declarations required by any jurisdiction to which it is subject,
(ii) has paid all taxes and other governmental assessments and
charges that are material in amount, shown or determined to be due
on such returns, reports and declarations and (iii) has set aside
on its books provision reasonably adequate for the payment of all
material taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid taxes
in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Company or of any
Subsidiary know of no basis for any such claim.
(gg) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary,
nor to the knowledge of the Company or any Subsidiary, any agent or
other person acting on behalf of the Company or any Subsidiary, has
(i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses
related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or
employees or to any foreign or domestic political parties or
campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company or any Subsidiary (or made by any
person acting on its behalf of which the Company is aware) which is
in violation of law, or (iv) violated in any material respect any
provision of the Foreign Corrupt Practices Act of 1977, as
amended.
(hh) Accountants.
The Company’s accounting firm is set forth in the SEC
Reports. To the knowledge and belief of the Company, such
accounting firm (i) is a registered public accounting firm as
required by the Exchange Act and (ii) shall express its opinion
with respect to the financial statements to be included in the
Company’s Annual Report for the fiscal year ending December
31, 2021.
(ii) Regulation
M Compliance. The Company has not, and to its
knowledge no one acting on its behalf has, (i) taken, directly or
indirectly, any action designed to cause or to result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the Shares, (ii)
sold, bid for, purchased, or, paid any compensation for soliciting
purchases of, any of the Shares, or (iii) paid or agreed to pay to
any Person any compensation for soliciting another to purchase any
other securities of the Company, other than, in the case of clauses
(ii) and (iii), compensation paid to the Manager in connection with
the Shares.
19
(jj) FDA.
As to each product subject to the jurisdiction of the U.S. Food and
Drug Administration (“FDA”) under the Federal
Food, Drug and Cosmetic Act, as amended, and the regulations
thereunder (“FDCA”) that is
manufactured, packaged, labeled, tested, distributed, sold, and/or
marketed by the Company or any of its Subsidiaries (each such
product, a “Pharmaceutical Product”),
such Pharmaceutical Product is being manufactured, packaged,
labeled, tested, distributed, sold and/or marketed by the Company
in compliance with all applicable requirements under FDCA and
similar laws, rules and regulations relating to registration,
investigational use, premarket clearance, licensure, or application
approval, good manufacturing practices, good laboratory practices,
good clinical practices, product listing, quotas, labeling,
advertising, record keeping and filing of reports, except where the
failure to be in compliance would not have a Material Adverse
Effect. There is no pending, completed or, to the Company's
knowledge, threatened, action (including any lawsuit, arbitration,
or legal or administrative or regulatory proceeding, charge,
complaint, or investigation) against the Company or any of its
Subsidiaries, and none of the Company or any of its Subsidiaries
has received any notice, warning letter or other communication from
the FDA or any other governmental entity, which (i) contests the
premarket clearance, licensure, registration, or approval of, the
uses of, the distribution of, the manufacturing or packaging of,
the testing of, the sale of, or the labeling and promotion of any
Pharmaceutical Product, (ii) withdraws its approval of, requests
the recall, suspension, or seizure of, or withdraws or orders the
withdrawal of advertising or sales promotional materials relating
to, any Pharmaceutical Product, (iii) imposes a clinical hold on
any clinical investigation by the Company or any of its
Subsidiaries, (iv) enjoins production at any facility of the
Company or any of its Subsidiaries, (v) enters or proposes to enter
into a consent decree of permanent injunction with the Company or
any of its Subsidiaries, or (vi) otherwise alleges any violation of
any laws, rules or regulations by the Company or any of its
Subsidiaries, and which, either individually or in the aggregate,
would have a Material Adverse Effect. The properties, business and
operations of the Company have been and are being conducted in all
material respects in accordance with all applicable laws, rules and
regulations of the FDA. The Company has not been informed by
the FDA that the FDA will prohibit the marketing, sale, license or
use in the United States of any product proposed to be developed,
produced or marketed by the Company nor has the FDA expressed any
concern as to approving or clearing for marketing any product being
developed or proposed to be developed by the Company.
(kk) Stock
Option Plans. Except as set forth in the SEC Reports, each
stock option granted by the Company under the Company’s stock
option plan was granted (i) in accordance with the terms of the
Company’s stock option plan and (ii) with an exercise price
at least equal to the fair market value of the Common Stock on the
date such stock option would be considered granted under GAAP and
applicable law. No stock option granted under the Company’s
stock option plan has been backdated. The Company has not knowingly
granted, and there is no and has been no Company policy or practice
to knowingly grant, stock options prior to, or otherwise knowingly
coordinate the grant of stock options with, the release or other
public announcement of material information regarding the Company
or its Subsidiaries or their financial results or
prospects.
(ll) Office
of Foreign Assets Control. Neither the Company nor any
Subsidiary nor, to the Company's knowledge, any director, officer,
agent, employee or affiliate of the Company or any Subsidiary is
currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”).
(mm) U.S.
Real Property Holding Corporation. The Company is not and
has never been a U.S. real property holding corporation within the
meaning of Section 897 of the Internal Revenue Code of 1986, as
amended, and the Company shall so certify upon the Manager’s
request.
(nn) Bank
Holding Company Act. Neither the Company nor any of its
Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation
by the Board of Governors of the Federal Reserve System (the
“Federal
Reserve”). Neither the Company nor any of its
Subsidiaries or Affiliates owns or controls, directly or
indirectly, five percent (5%) or more of the outstanding shares of
any class of voting securities or twenty-five percent or more of
the total equity of a bank or any entity that is subject to the
BHCA and to regulation by the Federal Reserve. Neither the Company
nor any of its Subsidiaries or Affiliates exercises a controlling
influence over the management or policies of a bank or any entity
that is subject to the BHCA and to regulation by the Federal
Reserve.
20
(oo) Money
Laundering. The operations of the Company and its
Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules
and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company
or any Subsidiary with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company or any Subsidiary,
threatened.
(pp) FINRA
Member Shareholders. There are
no affiliations with any FINRA member firm among the
Company’s officers, directors or, to the knowledge of the
Company, any five percent (5%) or greater stockholder of the
Company, except as set forth in the Registration Statement, the
Base Prospectus, any Prospectus Supplement or the
Prospectus.
4. Agreements.
The Company agrees with the Manager that:
(a) Right
to Review Amendments and Supplements to Registration Statement and
Prospectus. 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, 173 or any similar rule) to be delivered under the
Act in connection with the offering or the sale of Shares, the
Company will not file any amendment to the Registration Statement
or supplement (including any Prospectus Supplement) to the Base
Prospectus unless the Company has furnished to the Manager a copy
for its review prior to filing and will not file any such proposed
amendment or supplement to which the Manager reasonably objects.
The Company will properly cause any supplement to the Prospectus
filed after the Effective Time to be properly completed, in a form
approved by the Manager, and will file such supplement with the
Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed thereby and will provide evidence
reasonably satisfactory to the Manager of such timely filing. The
Company will promptly advise the Manager (i) when the
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b),
(ii) when, during any period when the delivery of a prospectus
(whether physically or through compliance with Rule 172, 173
or any similar rule) is required under the Act in connection with
the offering or sale of the Shares, any amendment to the
Registration Statement shall have been filed or become effective
(other than any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act), (iii) of any
request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement,
or for any supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or of any notice objecting to its use or the institution
or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the institution or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent
the issuance of any such stop order or the occurrence of any such
suspension or objection to the use of the Registration Statement
and, upon such issuance, occurrence or notice of objection, to
obtain as soon as possible the withdrawal of such stop order or
relief from such occurrence or objection, including, if necessary,
by filing an amendment to the Registration Statement or a new
registration statement and using its best efforts to have such
amendment or new registration statement declared effective as soon
as practicable.
21
(b) Subsequent
Events. If, at any time on or after an Applicable Time but
prior to the related Settlement Date, any event occurs as a result
of which the Registration Statement or Prospectus would include any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made or the circumstances then
prevailing not misleading, the Company will (i) notify
promptly the Manager so that any use of the Registration Statement
or Prospectus may cease until such are amended or supplemented;
(ii) amend or supplement the Registration Statement or
Prospectus to correct such statement or omission; and
(iii) supply any amendment or supplement to the Manager in
such quantities as the Manager may reasonably request.
(c) Notification
of Subsequent Filings. 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, 173 or any similar rule) to be delivered under the
Act, any event occurs as a result of which the Prospectus as then
supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or
supplement the Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, including in connection
with use or delivery of the Prospectus, the Company promptly will
(i) notify the Manager of any such event, (ii) subject to
Section 4(a), prepare and file with the Commission an amendment or
supplement or new registration statement which will correct such
statement or omission or effect such compliance, (iii) use its
best efforts to have any amendment to the Registration Statement or
new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the
Prospectus and (iv) supply any supplemented Prospectus to the
Manager in such quantities as the Manager may reasonably
request.
(d) Earnings
Statements. As soon as practicable, the Company will make
generally available to its security holders and to the Manager an
earnings statement or statements of the Company and its
Subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158. For the avoidance
of doubt, the Company’s compliance with the reporting
requirements of the Exchange Act shall be deemed to satisfy the
requirements of this Section 4(d).
(e) Delivery
of Registration Statement. Upon the request of the Manager,
the Company will furnish to the Manager and counsel for the
Manager, without charge, signed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of
a prospectus by the Manager or dealer may be required by the Act
(including in circumstances where such requirement may be satisfied
pursuant to Rule 172, 173 or any similar rule), as many copies
of the Prospectus and each Issuer Free Writing Prospectus and any
supplement thereto as the Manager may reasonably request. The
Company will pay the expenses of printing or other production of
all documents relating to the offering.
22
(f) Qualification
of Shares. The Company will arrange, if necessary, for the
qualification of the Shares for sale under the laws of such
jurisdictions as the Manager may designate and will maintain such
qualifications in effect so long as required for the distribution
of the Shares; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not
now so subject.
(g) Free
Writing Prospectus. The Company agrees that, unless it has
or shall have obtained the prior written consent of the Manager,
and the Manager agrees with the Company that, unless it has or
shall have obtained, as the case may be, the prior written consent
of the Company, it has not made and will not make any offer
relating to the Shares that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be
filed by the Company with the Commission or retained by the Company
under Rule 433. Any such free writing prospectus consented to
by the Manager or the Company is hereinafter referred to as a
“Permitted Free
Writing Prospectus.” The Company agrees that
(i) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (ii) it has complied and will comply, as the
case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record
keeping.
(h) Subsequent
Equity Issuances. The Company shall not deliver any Sales
Notice hereunder (and any Sales Notice previously delivered shall
not apply during such three Business Days) for at least three (3)
Business Days prior to any date on which the Company or any
Subsidiary offers, sells, issues, contracts to sell, contracts to
issue or otherwise disposes of, directly or indirectly, any other
shares of Common Stock or any Common Stock Equivalents (other than
the Shares), subject to Manager’s right to waive this
obligation, provided that, without compliance with the foregoing
obligation, the Company may issue and sell Common Stock pursuant to
any employee equity plan, stock ownership plan or dividend
reinvestment plan of the Company in effect at the Execution Time
and the Company may issue Common Stock issuable upon the conversion
or exercise of Common Stock Equivalents outstanding for at least
three (3) Business Days prior to the delivery of any Sales
Notice.
(i) Market
Manipulation. Until the termination of this Agreement, the
Company will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation in violation of the Act, Exchange Act
or the rules and regulations thereunder of the price of any
security of the Company to facilitate the sale or resale of the
Shares or otherwise violate any provision of Regulation M under the
Exchange Act.
23
(j) Notification
of Incorrect Certificate. The Company will, at any time
during the term of this Agreement, as supplemented from time to
time, advise the Manager immediately after it shall have received
notice or obtained knowledge thereof, of any information or fact
that would alter or affect any opinion, certificate, letter and
other document provided to the Manager pursuant to Section 6
herein.
(k) Certification
of Accuracy of Disclosure. Upon commencement of the offering
of the Shares under this Agreement (and upon the recommencement of
the offering of the Shares under this Agreement following the
termination of a suspension of sales hereunder lasting more than 30
Trading Days), and each time that (i) the Registration Statement or
Prospectus shall be amended or supplemented, other than by means of
Incorporated Documents, (ii) the Company files its Annual Report on
Form 10-K under the Exchange Act, (iii) the Company files its
quarterly reports on Form 10-Q under the Exchange Act, (iv) the
Company files a Current Report on Form 8-K containing amended
financial information (other than information that is furnished and
not filed), if the Manager reasonably determines that the
information in such Form 8-K is material, or (v) the Shares are
delivered to the Manager as principal at the Time of Delivery
pursuant to a Terms Agreement (such commencement or recommencement
date and each such date referred to in (i), (ii), (iii), (iv) and
(v) above, a “Representation Date”),
unless waived by the Manager, the Company shall furnish or cause to
be furnished to the Manager forthwith a certificate dated and
delivered on the Representation Date, in form reasonably
satisfactory to the Manager to the effect that the statements
contained in the certificate referred to in Section 6 of this
Agreement which were last furnished to the Manager are true and
correct at the Representation Date, as though made at and as of
such date (except that such statements shall be deemed to relate to
the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in
said Section 6, modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the
date of delivery of such certificate.
(l) Bring
Down Opinions; Negative Assurance. At each Representation
Date, unless waived by the Manager, the Company shall furnish or
cause to be furnished forthwith to the Manager and to counsel to
the Manager a written opinion of counsel to the Company
(“Company
Counsel”) addressed to the Manager and dated and
delivered on such Representation Date, in form and substance
reasonably satisfactory to the Manager, including a negative
assurance representation. The requirement to furnish or cause to be
furnished an opinion (but not with respect to a negative assurance
representation) under this Section 4(l) shall be waived for any
Representation Date other than a Representation Date on which a
material amendment to the Registration Statement or Prospectus is
made or the Company files its Annual Report on Form 10-K or a
material amendment thereto under the Exchange Act, unless the
Manager reasonably requests such deliverable required this Section
4(l) in connection with a Representation Date, upon which request
such deliverable shall be deliverable hereunder.
24
(m) Auditor
Bring Down “Comfort” Letter. At each
Representation Date, unless waived by the Manager, the Company
shall cause (1) the Company’s auditors (the
“Accountants”), or other
independent accountants satisfactory to the Manager forthwith to
furnish the Manager a letter, and (2) the Chief Financial
Officer of the Company forthwith to furnish the Manager a
certificate, in each case dated on such Representation Date, in
form satisfactory to the Manager, of the same tenor as the letters
and certificate referred to in Section 6 of this Agreement but
modified to relate to the Registration Statement and the
Prospectus, as amended and supplemented to the date of such letters
and certificate. The requirement to furnish or cause to be
furnished a “comfort” letter under this Section 4(m)
shall be waived for any Representation Date other than a
Representation Date on which a material amendment to the
Registration Statement or Prospectus is made or the Company files
its Annual Report on Form 10-K or a material amendment thereto
under the Exchange Act, unless the Manager reasonably requests the
deliverables required by this Section 4(m) in connection with a
Representation Date, upon which request such deliverable shall be
deliverable hereunder.
(n) Due
Diligence Session. Upon commencement of the offering of the
Shares under this Agreement (and upon the recommencement of the
offering of the Shares under this Agreement following the
termination of a suspension of sales hereunder lasting more than 30
Trading Days), and at each Representation Date, the Company will
conduct a due diligence session, in form and substance, reasonably
satisfactory to the Manager, which shall include representatives of
management and Accountants. The Company shall cooperate timely with
any reasonable due diligence request from or review conducted by
the Manager or its agents from time to time in connection with the
transactions contemplated by this Agreement, including, without
limitation, providing information and available documents and
access to appropriate corporate officers and the Company’s
agents during regular business hours, and timely furnishing or
causing to be furnished such certificates, letters and opinions
from the Company, its officers and its agents, as the Manager may
reasonably request. The Company shall reimburse the Manager for
Manager’s counsel’s fees in each such due diligence
update session, up to a maximum of $2,500 per update, plus any
reasonable and customary incidental expense incurred by the Manager
in connection therewith.
(o) Acknowledgment
of Trading. The Company consents to the Manager trading in
the Common Stock for the Manager’s own account and for the
account of its clients at the same time as sales of the Shares
occur pursuant to this Agreement or pursuant to a Terms
Agreement.
25
(p) Disclosure
of Shares Sold. The Company will disclose in its Annual
Reports on Form 10-K and Quarterly Reports on Form 10-Q,
as applicable, the number of Shares sold through the Manager under
this Agreement, the Net Proceeds to the Company and the
compensation paid by the Company with respect to sales of Shares
pursuant to this Agreement during the relevant quarter; and, if
required by any subsequent change in Commission policy or request,
more frequently by means of a Current Report on Form 8-K or a
further Prospectus Supplement.
(q) Rescission
Right. If to the knowledge of the Company, the conditions
set forth in Section 6 shall not have been satisfied as of the
applicable Settlement Date, the Company will offer to any person
who has agreed to purchase Shares from the Company as the result of
an offer to purchase solicited by the Manager the right to refuse
to purchase and pay for such Shares.
(r) Bring
Down of Representations and Warranties. Each acceptance by
the Company of an offer to purchase the Shares hereunder, and each
execution and delivery by the Company of a Terms Agreement, shall
be deemed to be an affirmation to the Manager 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 acceptance or of such Terms Agreement as though made at and as
of such date, and an undertaking that such representations and
warranties will be true and correct as of the Settlement Date for
the Shares relating to such acceptance or as of the Time of
Delivery relating to such sale, as the case may be, as though made
at and as of 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).
(s) Reservation
of Shares. The Company shall ensure that there are at all
times sufficient shares of Common Stock to provide for the
issuance, free of any preemptive rights, out of its authorized but
unissued shares of Common Stock or shares of Common Stock held in
treasury, of the maximum aggregate number of Shares authorized for
issuance by the Board pursuant to the terms of this Agreement. The
Company will use its commercially reasonable efforts to cause the
Shares to be listed for trading on the Trading Market and to
maintain such listing.
(t) Obligation
Under Exchange Act. 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, 173 or any similar rule) to be delivered under the
Act, the Company will file all documents required to be filed with
the Commission pursuant to the Exchange Act within the time periods
required by the Exchange Act and the regulations
thereunder.
26
(u) DTC
Facility. The Company shall cooperate with Manager and use
its reasonable efforts to permit the Shares to be eligible for
clearance and settlement through the facilities of
DTC.
(v) Use
of Proceeds. The Company will apply the Net Proceeds from
the sale of the Shares in the manner set forth in the
Prospectus.
(w) Filing
of Prospectus Supplement. If any sales are made pursuant to
this Agreement which are not made in “at the market”
offerings as defined in Rule 415, including, without limitation,
any Placement pursuant to a Terms Agreement, the Company shall file
a Prospectus Supplement describing the terms of such transaction,
the amount of Shares sold, the price thereof, the Manager’s
compensation, and such other information as may be required
pursuant to Rule 424 and Rule 430B, as applicable, within the time
required by Rule 424.
(x) Additional
Registration Statement. To the extent that the Registration
Statement is not available for the sales of the Shares as
contemplated by this Agreement, the Company shall file a new
registration statement with respect to any additional shares of
Common Stock necessary to complete such sales of the Shares and
shall cause such registration statement to become effective as
promptly as practicable. After the effectiveness of any such
registration statement, all references to “Registration Statement”
included in this Agreement shall be deemed to include such new
registration statement, including all documents incorporated by
reference therein pursuant to Item 12 of Form S-3, and all
references to “Base
Prospectus” included in this Agreement shall be deemed
to include the final form of prospectus, including all documents
incorporated therein by reference, included in any such
registration statement at the time such registration statement
became effective.
5. Payment
of Expenses. The Company agrees to pay the costs and
expenses incident to the performance of its obligations under this
Agreement, whether or not the transactions contemplated hereby are
consummated, including without limitation: (i) the
preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial
statements and exhibits thereto), the Prospectus and each Issuer
Free Writing Prospectus, and each amendment or supplement to any of
them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting
and packaging) of such copies of the Registration Statement, the
Prospectus, and each Issuer Free Writing Prospectus, and all
amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and
sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the
Shares, including any stamp or transfer taxes in connection with
the original issuance and sale of the Shares; (iv) the
printing (or reproduction) and delivery of this Agreement, any blue
sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Shares; (v) the registration of the Shares under the Exchange
Act, if applicable, and the listing of the Shares on the Trading
Market; (vi) any registration or qualification of the Shares
for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and
expenses of counsel for the Manager relating to such registration
and qualification); (vii) the transportation and other
expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the
Shares; (viii) the fees and expenses of the Company’s
accountants and the fees and expenses of counsel (including local
and special counsel) for the Company; (ix) the filing fee under
FINRA Rule 5110; (x) the reasonable fees and expenses of the
Manager’s counsel, not to exceed $50,000 (excluding any
periodic due diligence fees provided for under Section 4(n)), which
shall be paid upon the Execution Time; and (xi) all other costs and
expenses incident to the performance by the Company of its
obligations hereunder.
27
6. Conditions
to the Obligations of the Manager. The obligations of the
Manager under this Agreement and any Terms Agreement shall be
subject to (i) the accuracy of the representations and
warranties on the part of the Company contained herein as of the
Execution Time, each Representation Date, and as of each Applicable
Time, Settlement Date and Time of Delivery, (ii) the
performance by the Company of its obligations hereunder and
(iii) the following additional conditions:
(a) Effectiveness
of the Registration Statement; Filing of Prospectus
Supplement. The Registration Statement shall have been
declared effective by the Commission and the Prospectus, and any
supplement thereto, required by Rule 424 to be filed with the
Commission have been filed in the manner and within the time period
required by Rule 424(b) with respect to any sale of Shares;
each Prospectus Supplement shall have been filed in the manner
required by Rule 424(b) within the time period required
hereunder and under the Act; any other material required to be
filed by the Company pursuant to Rule 433(d) under the Act,
shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; and no
stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued
and no proceedings for that purpose shall have been instituted or
threatened.
(b) Delivery
of Opinion. The Company shall have caused the Company
Counsel to furnish to the Manager its opinion and negative
assurance statement, dated as of such date and addressed to the
Manager in form and substance acceptable to the
Manager.
(c) Delivery
of Officer’s Certificate. The Company shall have
furnished or caused to be furnished to the Manager a certificate of
the Company signed by the Chief Executive Officer or the President
and the principal financial or accounting officer of the Company,
dated as of such date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any Prospectus Supplement and any documents
incorporated by reference therein and any supplements or amendments
thereto and this Agreement and that:
28
(i) the
representations and warranties of the Company in this Agreement are
true and correct on and as of such date with the same effect as if
made on such date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such date;
(ii) no
stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use has been issued and no
proceedings for that purpose have been instituted or, to the
Company’s knowledge, threatened; and
(iii) since
the date of the most recent financial statements included in the
Registration Statement, the Prospectus and the Incorporated
Documents, there has been no Material Adverse Effect on the
condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Registration Statement and the Prospectus.
(d) Delivery
of Accountants’ “Comfort” Letter. The
Company shall have requested and caused the Accountants to have
furnished to the Manager letters (which may refer to letters
previously delivered to the Manager), dated as of such date, in
form and substance satisfactory to the Manager, confirming that
they are independent accountants within the meaning of the Act and
the Exchange Act and the respective applicable rules and
regulations adopted by the Commission thereunder and that they have
performed a review of any unaudited interim financial information
of the Company included or incorporated by reference in the
Registration Statement and the Prospectus and provide customary
“comfort” as to such review in form and substance
satisfactory to the Manager.
(e) No
Material Adverse Event. Since the respective dates as of
which information is disclosed in the Registration Statement, the
Prospectus and the Incorporated Documents, except as otherwise
stated therein, there shall not have been (i) any change or
decrease in previously reported results specified in the letter or
letters referred to in paragraph (d) of this Section 6 or
(ii) any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Registration Statement, the
Prospectus and the Incorporated Documents (exclusive of any
amendment or supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole
judgment of the Manager, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery
of the Shares as contemplated by the Registration Statement
(exclusive of any amendment thereof), the Incorporated Documents
and the Prospectus (exclusive of any amendment or supplement
thereto).
29
(f) Payment
of All Fees. The Company shall have paid the required
Commission filing fees relating to the Shares within the time
period required by Rule 456(b)(1)(i) of the Act without regard
to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) of the Act and, if applicable, shall
have updated the “Calculation of Registration Fee”
table in accordance with Rule 456(b)(1)(ii) either in a
post-effective amendment to the Registration Statement or on the
cover page of a prospectus filed pursuant to
Rule 424(b).
(g) No
FINRA Objections. FINRA shall not have raised any objection
with respect to the fairness and reasonableness of the terms and
arrangements under this Agreement.
(h) Shares
Listed on Trading Market. The Shares shall have been listed
and admitted and authorized for trading on the Trading Market, and
satisfactory evidence of such actions shall have been provided to
the Manager.
(i) Other
Assurances. Prior to each Settlement Date and Time of
Delivery, as applicable, the Company shall have furnished to the
Manager such further information, certificates and documents as the
Manager may reasonably request.
If any
of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this
Agreement shall not be reasonably satisfactory in form and
substance to the Manager and counsel for the Manager, this
Agreement and all obligations of the Manager hereunder may be
canceled at, or at any time prior to, any Settlement Date or Time
of Delivery, as applicable, by the Manager. Notice of such
cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The
documents required to be delivered by this Section 6 shall be
delivered to the office of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, counsel for the
Manager, at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, email: ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, on each such date as
provided in this Agreement.
7. Indemnification
and Contribution.
(a) Indemnification
by Company. The Company agrees to indemnify and hold
harmless the Manager, the directors, officers, employees and agents
of the Manager and each person who controls the Manager within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange
Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the
registration of the Shares as originally filed or in any amendment
thereof, or in the Base Prospectus, any Prospectus Supplement, the
Prospectus, any Issuer Free Writing Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading or result from or relate to any breach of
any of the representations, warranties, covenants or agreements
made by the Company in this Agreement, and agrees to reimburse each
such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with
written information furnished to the Company by the Manager
specifically for inclusion therein. This indemnity agreement will
be in addition to any liability that the Company may otherwise
have.
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(b) Indemnification
by Manager. The Manager agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company
to the Manager, but only with reference to written information
relating to the Manager furnished to the Company by the Manager
specifically for inclusion in the documents referred to in the
foregoing indemnity; provided, however, that in no case shall
the Manager be responsible for any amount in excess of the Broker
Fee applicable to the Shares and paid hereunder. This indemnity
agreement will be in addition to any liability which the Manager
may otherwise have.
(c) Indemnification
Procedures. Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party’s
choice at the indemnifying party’s expense to represent the
indemnified party in any action for which indemnification is sought
(in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth
below); provided,
however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall
have reasonably concluded 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, (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or
proceeding.
(d) Contribution.
In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party for any reason,
the Company and the Manager agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending the same) (collectively “Losses”) to which the
Company and the Manager may be subject in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and by the Manager on the other from the
offering of the Shares; provided, however, that in no case shall
the Manager be responsible for any amount in excess of the Broker
Fee applicable to the Shares and paid hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for
any reason, the Company and the Manager severally shall contribute
in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the
one hand and of the Manager on the other in connection with the
statements or omissions which resulted in such Losses as well as
any other relevant equitable considerations. Benefits received by
the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by it, and
benefits received by the Manager shall be deemed to be equal to the
Broker Fee applicable to the Shares and paid hereunder as
determined by this Agreement. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided
by the Company on the one hand or the Manager on the other, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Manager agree that it
would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person
who controls the Manager within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of
the Manager shall have the same rights to contribution as the
Manager, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution
as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
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8. Termination.
(a) The
Company shall have the right, by giving written notice as
hereinafter specified, to terminate the provisions of this
Agreement relating to the solicitation of offers to purchase the
Shares in its sole discretion at any time upon ten (10) Business
Days’ prior written notice. Any such termination shall be
without liability of any party to any other party except that
(i) with respect to any pending sale, through the Manager for
the Company, the obligations of the Company, including in respect
of compensation of the Manager, shall remain in full force and
effect notwithstanding the termination and (ii) the provisions
of Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13
and 14 of this Agreement shall remain in full force and effect
notwithstanding such termination.
(b) The
Manager shall have the right, by giving written notice as
hereinafter specified, to terminate the provisions of this
Agreement relating to the solicitation of offers to purchase the
Shares in its sole discretion at any time. Any such termination
shall be without liability of any party to any other party except
that the provisions of Sections 5, 6, 7, 8, 9, 10, 12, the
second sentence of 13 and 14 of this Agreement shall remain in full
force and effect notwithstanding such termination.
(c) This
Agreement shall remain in full force and effect until such date
that this Agreement is terminated pursuant to Sections 8(a) or
(b) above or otherwise by mutual agreement of the parties,
provided that any such termination by mutual agreement shall in all
cases be deemed to provide that Sections 5, 6, 7, 8, 9, 10,
12, the second sentence of 13 and 14 shall remain in full force and
effect.
(d) Any
termination of this Agreement shall be effective on the date
specified in such notice of termination, provided that such
termination shall not be effective until the close of business on
the date of receipt of such notice by the Manager or the Company,
as the case may be. If such termination shall occur prior to the
Settlement Date or Time of Delivery for any sale of the Shares,
such sale of the Shares shall settle in accordance with the
provisions of Section 2(b) of this Agreement.
(e) In
the case of any purchase of Shares by the Manager pursuant to a
Terms Agreement, the obligations of the Manager pursuant to such
Terms Agreement shall be subject to termination, in the absolute
discretion of the Manager, by prompt oral notice given to the
Company prior to the Time of Delivery relating to such Shares, if
any, and confirmed promptly by facsimile or electronic mail, if
since the time of execution of the Terms Agreement and prior to
such delivery and payment, (i) trading in the Common Stock
shall have been suspended by the Commission or the Trading Market
or trading in securities generally on the Trading Market shall have
been suspended or limited or minimum prices shall have been
established on such exchange, (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities
or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which
on financial markets is such as to make it, in the sole judgment of
the Manager, impractical or inadvisable to proceed with the
offering or delivery of the Shares as contemplated by the
Prospectus (exclusive of any amendment or supplement
thereto).
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9. Representations
and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of
the Company or its officers and of the Manager set forth in or made
pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by the Manager or the Company
or any of the officers, directors, employees, agents or controlling
persons referred to in Section 7, and will survive delivery of
and payment for the Shares.
10. Notices.
All communications hereunder will be in writing and effective only
on receipt, and will be mailed, delivered, e-mailed or facsimiled
to the addresses of the Company and the Manager, respectively, set
forth on the signature page hereto.
11. Successors.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in
Section 7, and no other person will have any right or
obligation hereunder.
12. No
Fiduciary Duty. The Company hereby acknowledges that
(a) the purchase and sale of the Shares pursuant to this
Agreement is an arm’s-length commercial transaction between
the Company, on the one hand, and the Manager and any affiliate
through which it may be acting, on the other, (b) the Manager
is acting solely as sales agent and/or principal in connection with
the purchase and sale of the Company’s securities and not as
a fiduciary of the Company and (c) the Company’s
engagement of the Manager in connection with the offering and the
process leading up to the offering is as independent contractors
and not in any other capacity. Furthermore, the Company agrees that
it is solely responsible for making its own judgments in connection
with the offering (irrespective of whether the Manager has advised
or is currently advising the Company on related or other matters).
The Company agrees that it will not claim that the Manager has
rendered advisory services of any nature or respect, or owe an
agency, fiduciary or similar duty to the Company, in connection
with such transaction or the process leading thereto.
13. Integration.
This Agreement and any Terms Agreement supersede all prior
agreements and understandings (whether written or oral) between the
Company and the Manager with respect to the subject matter hereof.
Notwithstanding anything herein to the contrary, the letter
agreement, dated October 13, 2020, by and between the Company and
the Manager shall continue to be effective and the terms therein
shall continue to survive and be enforceable by the Manager in
accordance with its terms, provided that, in the event of a
conflict between the terms of the letter agreement and this
Agreement, the terms of this Agreement shall prevail.
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14. Amendments;
Waivers. No provision of this Agreement may be waived,
modified, supplemented or amended except in a written instrument
signed, in the case of an amendment, by the Company and the
Manager. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of any party to
exercise any right hereunder in any manner impair the exercise of
any such right.
15. Applicable
Law. This Agreement and any Terms Agreement will be governed
by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed within the
State of New York. Each of the Company and the Manager: (i)
agrees that any legal suit, action or proceeding arising out of or
relating to this Agreement shall be instituted exclusively in New
York Supreme Court, County of New York, or in the United States
District Court for the Southern District of New York, (ii) waives
any objection which it may have or hereafter to the venue of any
such suit, action or proceeding, and (iii) irrevocably consents to
the jurisdiction of the New York Supreme Court, County of New York,
and the United States District Court for the Southern District of
New York in any such suit, action or proceeding. Each of the
Company and the Manager further agrees to accept and acknowledge
service of any and all process which may be served in any such
suit, action or proceeding in the New York Supreme Court, County of
New York, or in the United States District Court for the Southern
District of New York and agrees that service of process upon the
Company mailed by certified mail to the Company’s address
shall be deemed in every respect effective service of process upon
the Company, in any such suit, action or proceeding, and service of
process upon the Manager mailed by certified mail to the
Manager’s address shall be deemed in every respect effective
service process upon the Manager, in any such suit, action or
proceeding. If either party shall commence an action or proceeding
to enforce any provision of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other
party for its reasonable attorney’s fees and other costs and
expenses incurred with the investigation, preparation and
prosecution of such action or proceeding.
16. WAIVER
OF JURY TRIAL. THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, ANY TERMS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
17. Counterparts.
This Agreement and any Terms Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement, which
may be delivered by facsimile or in .pdf file via
e-mail.
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18. Headings.
The section headings used in this Agreement and any Terms Agreement
are for convenience only and shall not affect the construction
hereof.
If the
foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate
hereof, whereupon this letter and your acceptance shall represent a
binding agreement among the Company and the Manager.
Very
truly yours,
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
President and Chief Executive Officer
Address for
Notice:
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief
Executive Officer
E-mail:
▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
The
foregoing Agreement is hereby confirmed and accepted as of the date
first written above.
▇.▇.
▇▇▇▇▇▇▇▇▇▇ & CO., LLC
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By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title:
Chief Operating Officer
|
Address for
Notice:
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Chief Executive Officer
E-mail:
▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
35
Form of Terms Agreement
ANNEX I
TERMS AGREEMENT
Dear
Sirs:
AzurRx BioPharma,
Inc. (the “Company”) proposes,
subject to the terms and conditions stated herein and in the At The
Market Offering Agreement, dated May 26, 2021 (the
“At The Market
Offering Agreement”), between the Company and ▇.▇.
▇▇▇▇▇▇▇▇▇▇ & Co., LLC (“Manager”), to issue and
sell to Manager the securities specified in the Schedule I hereto (the
“Purchased
Shares”).
Each of the
provisions of the At The Market Offering Agreement not specifically
related to the solicitation by the Manager, as agent of the
Company, of offers to purchase securities is incorporated herein by
reference in its entirety, and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Each of the representations and
warranties set forth therein shall be deemed to have been made at
and as of the date of this Terms Agreement and the Time of
Delivery, except that each representation and warranty in
Section 3 of the At The Market Offering Agreement which makes
reference to the Prospectus (as therein defined) shall be deemed to
be a representation and warranty as of the date of the At The
Market Offering Agreement in relation to the Prospectus, and also a
representation and warranty as of the date of this Terms Agreement
and the Time of Delivery in relation to the Prospectus as amended
and supplemented to relate to the Purchased Shares.
An amendment to the
Registration Statement (as defined in the At The Market Offering
Agreement), or a supplement to the Prospectus, as the case may be,
relating to the Purchased Shares, in the form heretofore delivered
to the Manager is now proposed to be filed with the Securities and
Exchange Commission.
Subject to the
terms and conditions set forth herein and in the At The Market
Offering Agreement which are incorporated herein by reference, the
Company agrees to issue and sell to the Manager and the latter
agrees to purchase from the Company the number of shares of the
Purchased Shares at the time and place and at the purchase price
set forth in the Schedule I
hereto.
36
If the foregoing is in accordance with
your understanding, please sign and return to us a counterpart
hereof, whereupon this Terms Agreement, including those provisions
of the At The Market Offering Agreement incorporated herein by
reference, shall constitute a binding agreement between the Manager
and the Company.
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By:
Name:
Title:
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ACCEPTED as of the
date first written above.
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▇.▇.
▇▇▇▇▇▇▇▇▇▇ & CO., LLC
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By:__________________________________________
Name:
Title:
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