InSite Vision Incorporated
December
16, 2005
InSite
Vision Incorporated
▇.
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, Ph.D.
President
and Chief Executive Officer
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Placement
Agency Agreement (the “Agreement”)
Dear
▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇:
Reference
is made to our recent discussions relating to the proposed private placement
by
InSite Vision Incorporated (the “Company”) of certain of its securities for sale
solely pursuant to Section 4(2) of the Securities Act of 1933, as amended (the
“Act”), or Rule 506 (“Rule 506”) of Regulation D (“Regulation D”) promulgated
under the Act, as hereinafter described. On the basis of the
representations,
warranties,
covenants and agreements
set
forth herein, Paramount BioCapital, Inc., having a principal place of business
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“Paramount”) hereby agrees to act as exclusive
placement agent for the Company, on a “best efforts” basis, to introduce the
Company to “accredited investors” as defined in Rule 501 of Regulation D (“Rule
501”) promulgated under the Act (“Investors”) in connection with a private
placement offering (the “Offering”) of the Company's debt or equity securities,
upon the following basic terms and conditions:
1. The
Offering. The
Company will offer to sell debt or equity securities (the ”Securities”) to
Investors, upon terms to be agreed upon by the Company and the Placement Agent
and intended to be in the form attached as Exhibit
A,
yielding aggregate gross proceeds to the Company of at least $3,000,000 (the
“Minimum Offering”) and up to $5,000,000 (the “Maximum Offering”), with an
over-allotment option granted in favor of Paramount and the Company (to be
agreed upon mutually) to offer for sale additional Securities which would
provide the Company with gross proceeds of up to an additional $1,000,000 (the
“Over-allotment”). The terms and conditions of the purchase and sale of the
Securities in the Offering will be evidenced by a written subscription agreement
between the Company and each Investor in the Offering (the “Subscription
Agreement”). For purposes of this Agreement, the term “Offering Documents” shall
mean each Subscription Agreement and any related transaction document to be
drafted subsequent to the date hereof and any other document prepared or
approved by the Company and provided to Investors in connection with the
Offering, if any (including, without limitation, any offering
memoranda).
2. Closing. Subject
to obtaining subscriptions in an aggregate amount equal to or greater than
the
Minimum Offering, the Company intends to conduct one or more closings (each,
a
“Closing”) of the Offering on or before December 31, 2005, subject to extension
at the Company’s and Paramount’s mutual discretion without notice to Investors
for up to an additional 90 days (the “Final Closing Date”), until the date on
which the Maximum Offering, including the Over-allotment, if applicable, is
met,
whichever event occurs first. Prior to any Closing, all subscription amounts
will be deposited in a segregated escrow account with an escrow agent reasonably
acceptable to the Company and Paramount.
3. Placement
Fees. (a)
Upon
(i) each Closing and (ii) the closing of any Investment (as defined below),
the
Company will pay to Paramount or its designees placement fees, in cash, equal
to
seven percent (7%) of the gross proceeds received by the Company at such Closing
or the closing of any Investment, as applicable (provided, however, that such
cash placement fee shall not be payable with respect to any gross proceeds
received by the Company at such Closing or the closing of any Investment from
any of Valesco Healthcare Partners I LP, Valesco Healthcare Partners II LP
and
Valesco Healthcare Overseas Fund, Ltd. (collectively, the “Valesco Entities”).
In addition, upon the Final Closing Date (as defined below), the Company shall
issue to Paramount’s designees warrants (the “Placement Warrants”) to purchase
200,000 shares of the Company’s common stock, par value $0.01 per share (the
“Common Stock”) (such shares issuable upon the exercise of the Placement
Warrants, the “Placement Warrant Shares”). The Placement Warrants shall have an
exercise price per share equal to the exercise price of the Investor Warrants
sold at the Closing, be subject to adjustments for stock splits, reverse stock
splits, re-organizations, etc., have a cashless exercise feature, be exercisable
for 5 years from the date on which the final Closing occurs (the “Final Closing
Date”), and otherwise be substantially in the form attached hereto as
Exhibit
B.
For
purposes of this Agreement, an “Investment” shall mean any original issuance of
securities of the Company which is made during the 12-month period following
the
Final Closing Date or earlier termination or expiration of the Offering to
an
Investor set forth on Annex A hereto (other than the Valesco Entities), which
contains each Investor which the Company and Paramount agree will be introduced
by Paramount to the Company. Annex A hereto shall be updated to reflect
additional Investors introduced by Paramount to the Company, provided that
each
such additional Investor is approved in writing by the Company prior to such
introduction. Notwithstanding the foregoing, Annex A will automatically be
deemed to include each Investor that participates in the Offering. Paramount,
its employees and its affiliates shall have the right to invest in the Offering
provided they are “accredited investors” as defined in Rule 501(a) of Regulation
D.
(b) The
Company agrees that the Placement Warrant Shares shall be afforded equivalent
registration rights as the Securities sold in the Offering pursuant to which
the
Placement Warrants are issued. In consideration for the Company’s inclusion of
the Placement Warrant Shares in the Registration Statement (as defined below),
Paramount agrees that it shall be deemed a “Holder” under the Subscription
Agreement or other document granting the Investors registration rights in the
Offering or as otherwise provided in the Offering Documents prepared for the
Investments and, accordingly, it shall abide by all of the terms, conditions
and
limitations set forth in such documents.
4. Expense
Allowance.
At the
Closing or upon the earlier termination or expiration of the Offering, the
Company shall reimburse Paramount for its reasonable, documented expenses
(including attorneys’ fees) actually incurred in connection with the Offering,
up to a maximum of $75,000 (the “Expense Allowance”). Legal fees and expenses in
connection with blue sky matters and the Registration Statement, if any, will
be
the responsibility of the Company. Paramount
agrees and acknowledges that, except as expressly set forth in any Subscription
Agreement, the Company shall have no obligation to reimburse any Investor for
any expenses incurred by such Investor in connection with the
Offering.
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5. Confidentiality.
Unless
required by law, any services and communications
rendered
by or
involving Paramount
pursuant to this Agreement (and the existence of this Agreement) shall not
be
disclosed publicly in any manner without Paramount’s prior written approval and
shall be treated by the Company as confidential information. All material
non-public information given to Paramount by the Company shall be treated by
Paramount as confidential information and, subject to applicable law, shall
not
be disclosed in any manner without the Company’s prior written approval and
shall not be used by Paramount except in rendering its services pursuant to
this
Agreement.
Notwithstanding anything to the contrary contained herein, the Company shall
not
disclose material non-public information of any company with a public market
(other than material non-public information of the Company) to Paramount or
its
representatives, unless prior to disclosure of such information the Company
identifies such information as being material non-public information and
provides Paramount and its representatives with the opportunity to accept or
refuse to accept such material non-public information for review.
6. Conditions
to Paramount's Obligations.
The
obligations of Paramount hereunder are subject to (i) the accuracy of the
representations and warranties of the Company (A) herein contained as of the
date hereof and as of the date of each Closing; and (B) in each of the Offering
Documents as of the date of each Closing; (ii) to the performance by the Company
of its obligations hereunder; and (iii) to the following additional
conditions:
(a) Due
Qualification or Exemption.
(1) The
Offering contemplated by this Agreement shall become qualified or be exempt
from
qualification under the securities laws of the jurisdictions in which the
Securities are contemplated to be offered in accordance with applicable laws,
rules, and regulations, but in any event not later than the initial Closing
Date, subject to any filings to be made thereafter, and (2) at the Final Closing
Date no stop order suspending the sale of the Securities shall have been issued,
and no proceeding for that purpose shall have been initiated or
threatened;
(b) Compliance
with Agreements.
Except
for such agreements and conditions that expressly may be performed or satisfied
after the Final Closing Date, the Company shall have complied with all
agreements and satisfied all conditions that the Company is required to perform
or satisfy hereunder and under the Offering Documents at or prior to each
Closing;
(c)
Corporate
Action.
The
Company shall have taken all corporate action necessary in order to permit
the
valid execution, delivery and performance of the Offering Documents by the
Company, including, without limitation, obtaining the approval of the Company's
board of directors for the execution and delivery of the Offering Documents,
the
performance by the Company of its obligations hereunder and the Offering
contemplated hereby. Such corporate action shall be in form and substance
reasonably satisfactory to Paramount;
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(d) Opinion
of Counsel to the Company.
Paramount shall have received an opinion of counsel to the Company reasonably
satisfactory to Paramount and its counsel (which opinion shall also be addressed
to the Investors in the Offering), in the form attached hereto as Exhibit
C;
(e) Officer's
Certificate.
Paramount shall have received an officer's certificate of the Company, duly
executed and in the form mutually agreed to in good faith by the parties. The
certificate shall state, among other things, that the representations and
warranties contained herein and in the Offering Documents are true and accurate
in all material respects at such Closing date with the same effect as though
expressly made at such Closing date and Paramount shall be entitled to rely
on
such representations of the Company in the Offering Documents as if they were
made directly to Paramount;
(f) Escrow
Agreement.
The
Company, Paramount and an escrow agent reasonably acceptable to the parties
shall execute an Escrow Agreement for the purpose of holding funds until each
Closing; and
(g) No
Adverse Changes.
There
shall not have occurred, at any time prior to each Closing, in Paramount’s
reasonable discretion: (i) any domestic or international event, act or other
similar occurrence which has disrupted, or will materially disrupt, the
securities markets; (ii) a general suspension of, or a general limitation on
prices for, trading in securities on the principal market or exchange on which
the Common Stock is then traded for more than one-trading day; (iii) any
outbreak of major hostilities or terrorist act or other national or
international calamity having a material effect on the performance of this
Agreement; (iv) any banking moratorium declared by a state or federal authority;
(v) any material interruption in the mail service or other means of
communication within the United States; (vi) any event or events which,
individually or in the aggregate, would reasonably be likely to have a material
adverse effect on the business, prospects, operations, conditions (financial
or
otherwise), assets or results of operations of the Company as a whole (a
“Material Adverse Effect”); or (vii) any change in the market for securities in
general or in political, financial or economic conditions which makes it
inadvisable to proceed with the offering, sale, and delivery of the
Securities.
7. Covenants
of the Company.
(a) Notification.
The
Company shall notify Paramount immediately, and in writing, when any event
shall
have occurred during the period commencing on the date hereof and ending on
the
Final Closing Date as a result of which the Offering Documents would include
any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made.
(b) Use
of
Proceeds.
The net
proceeds from the Offering will be used for working capital and general
corporate purposes. Except as set forth in the Offering Documents, the Company
shall not use any proceeds from the Offering to repay any current indebtedness
of the Company, including, but not limited to, any indebtedness to current
executive officers or principal stockholders of the Company, but excluding
accounts payable and accrued expenses incurred in the ordinary course of
business.
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(c) Expenses
of Offering.
The
Company shall be responsible for and shall bear all Company Expenses (as defined
below). For the purposes of this Agreement, the “Company Expenses” shall
include: the costs of preparing and duplicating the Offering Documents and
all
exhibits thereto; the costs of preparing, printing and filing with the
Securities and Exchange Commission (“SEC”) any registration statement described
in the Subscription Agreement, if any (a “Registration Statement”) and any
amendments, post-effective amendments and supplements thereto; preparing,
duplicating and delivering exhibits thereto and copies of the preliminary,
final
and supplemental prospectus; preparing, duplicating and delivering (including
by
facsimile) all selling documents, including but not limited to the Offering
Documents, this Agreement, blue sky memoranda and certificates evidencing the
Securities; blue sky fees and other filing fees in connection with blue sky
matters; legal expenses of the Company; fees and disbursements of the transfer
agent for the Common Stock; and reasonable fees and expenses (including legal
fees and expenses, if any) incurred or made by the Investors or their collateral
agent in connection with the creation and/or perfection of the security interest
relating to the Securities, including without limitation any filing or recording
fees in connection with any financing statements or filings to be made with
the
USPTO or any other governmental agency. (collectively, the “Company Expenses”).
In addition, if the Offering is not completed for any reason, then the Company
shall be responsible for and shall reimburse Paramount for all reasonable costs
incurred in connection with the preparation of the Offering Documents and the
Offering (including, without limitation, attorney’s fees, expenses and
disbursements); provided,
however,
that
the Company shall not be obligated to reimburse Paramount an amount greater
than
the Expense Allowance.
(d) Blue
Sky.
The
Company shall use its best efforts to qualify the Securities for offering and
sale under exemptions from qualification or registration requirements under
the
securities or blue sky laws of such jurisdictions, as Paramount may reasonably
request; provided however, that the Company will not be obligated to qualify
as
a dealer in securities in any jurisdiction in which it is not so qualified.
The
Company will not consummate any sale of Securities in any jurisdiction in which
it is not so qualified or in any manner in which such sale may not be lawfully
made.
(e) Securities
Law Compliance.
The
Offering Documents shall, as of their respective dates and each Closing,
describe all material aspects of an investment in the Company and conform in
all
respects with the requirements of Section 4(2) of the Act and Regulation D
and
with the requirements of all other published rules and regulations of the SEC
currently in effect relating to “private offerings” to “accredited investors” as
that term is defined in Rule 501. The Offering Documents will not, as of their
respective dates and each Closing, contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. If, at any time prior to the completion of the Offering or
other
termination of this Agreement, any event shall occur as a result of which it
might become necessary to amend or supplement the Offering Documents so that
they do not include any untrue statement of any material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances then existing, not misleading, the Company will
promptly notify Paramount and will supply Paramount and all offerees and
Investors participating in the Offering with amendments or supplements
correcting such statement or omission. The Company shall also provide Paramount,
for delivery to all offerees and Investors participating in the Offering and
their representatives, if any, any information, documents and instruments that
Paramount or the Company’s counsel reasonably deem necessary to comply with
applicable law.
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The
Company acknowledges that Paramount: (i) will not draft the Offering Documents
and has not supplied any information for inclusion in the Offering Documents
other than information relating to Paramount furnished in writing to the Company
by Paramount specifically for inclusion in the Offering Documents; (ii) has
no
obligation (and has not undertaken) to independently verify any of the
information in the Offering Documents; and (iii) has no responsibility for
the
accuracy or completeness of the Offering Documents, except for the information
relating to Paramount furnished in writing by Paramount to the Company
specifically for inclusion in the Offering Documents.
(f) No
"Integration" with Future Offers.
The
Company agrees that no future offer and sale of securities by it will be made
if, as a result of the doctrine of "integration" referred to in Rule 502 under
the Act or for any other reason, such offer or sale would render invalid the
entitlement of the Securities to the exemption from the registration
requirements of the Act provided by Section 4(2) thereof.
(g) Rule
144 Information.
The
Company will make available, upon request, to Paramount and to each holder
and
prospective purchaser or transferee of any Securities, reasonably current
information ("Rule 144 Information") required to allow the resale or other
transfer of such Securities pursuant to Rule 144, in each case as are reasonably
requested. If at any time an event occurs or condition exists as a result of
which any Rule 144 Information would not comply in a material respect with
the
requirements of Rule 144 or would contain an untrue statement of a material
fact
or omit to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made not misleading, the Company will promptly notify Paramount
(by telephone, confirmed in writing) and will promptly prepare an amendment
or
supplement to such Rule 144 Information (in form and substance satisfactory
to
Paramount) which will correct such noncompliance or such untrue statement or
omission.
(h) Form
D
Filing.
The
Company shall file five copies of a Notice of Sales of Securities on Form D
with
the SEC no later than 15 days after the date of the first Closing. The Company
shall promptly file such amendments to such Notices on Form D as shall become
necessary and shall also comply with any filing requirement imposed by the
laws
of any state or jurisdiction in which offers and sales are made.
(i) Press
Releases, Etc.
Except
as otherwise required by applicable law or the rules of a regulatory body (which
shall be reasonably determined by the Company upon advice of its legal counsel),
the Company shall not, during the period commencing on the date hereof and
ending upon the effectiveness of the Registration Statement, issue any press
release or other communication (other than its year-end or quarterly earnings
releases and conference calls or other releases or communications made in the
ordinary course of the Company’s business consistent with past practice
(provided that “ordinary course of the Company’s business consistent with past
practice” shall include but not be limited to announcements regarding the
results of the Company’s clinical trials and communications with the U.S. Food
and Drug Administration), provided, however, that Paramount is provided a
reasonable opportunity to review and comment on such release or other written
communication), make any written or oral statement to any media organization
or
publication or hold any press conference, presentation or seminar, or engage
in
any other publicity with respect to the Company, its condition (financial or
otherwise), results of operations, business, prospects, properties, assets,
or
liabilities, or the Offering, without the prior consent of Paramount, which
consent shall not be unreasonably withheld, conditioned or delayed.
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(j) No
Statements.
Except
as otherwise required by applicable law or the rules of a regulatory body,
the
Company shall not use the name of Paramount or any officer, director, employee
or stockholder thereof without the express consent of such party and such
person.
(k) Right
of First Refusal:
The
Company hereby grants Paramount a right of first refusal (the “Right of First
Refusal”) to act as the Company's exclusive placement agent in connection with
any offering by the Company of its debt or equity securities to be conducted
with the assistance of a placement agent during the period commencing on the
Final Closing Date and ending on the earlier of (i) the close of business on
the
six month anniversary of the Final Closing Date; and (ii) earlier repayment
in
full of the promissory notes included in the Securities. Prior to engaging
another placement agent in connection with such an offering (an “Alternative
Engagement”), the Company shall provide notice to Paramount setting forth in
reasonable detail the terms and conditions of such proposed Alternative
Engagement, which notice shall be deemed to be an offer by the Company to enter
into a comparable engagement with Paramount on the terms and subject to the
conditions set forth in the notice (the “Alternative Engagement Notice”).
Paramount shall have ten (10) business days following the date it receives
the
Alternative Engagement Notice to elect, in writing, to accept the engagement
pursuant to the terms and conditions set forth in the Alternative Engagement
Notice. Paramount shall notify the Company in writing of its decision to accept
or reject the engagement terms set forth in the Alternative Engagement Notice
before the expiration of such 10-day period, and failure by Paramount to provide
the Company with such notice shall be deemed to be a rejection by Paramount.
In
the event Paramount elects to reject or fails to respond to the Alternative
Engagement Notice, the Company shall have the right to consummate the proposed
Alternative Engagement substantially in accordance with the terms described
in
the Alternative Engagement Notice (with such other terms and conditions which
are customary and appropriate for such transactions to be agreed upon by the
parties); provided that an Alternative Engagement not substantially in
accordance with the terms described in the Alternative Engagement Notice will
again become subject to the Right of First Refusal.
(l) Restrictions
on Securities.
Except
as a result of any stock splits and reverse stock splits and except as otherwise
contemplated hereby, or required by a pre-existing legal or contractual
obligation, during the time during which any promissory notes issued to
Investors are outstanding , the Company will not extend the expiration date
or
lower the exercise or the conversion price of any options, warrants, convertible
securities or other security purchase rights without Paramount’s prior written
consent.
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(m) Reliance.
Paramount shall be entitled to rely on the Company’s representations and
warranties given to each Investor in the Offering in the Subscription Agreement
as if such representation and warranty was given by the Company to Paramount.
(n) Noncircumvention.
Pending
completion or termination of the Offering, the Company agrees that it will
not,
directly or indirectly, through any officer, director, agent or otherwise,
initiate, solicit, encourage, negotiate or discuss with any third party
(including by way of furnishing non-public information concerning the Company
or
its businesses, assets or properties), or take any other action to facilitate
any inquiries with respect to the making of, any proposal that constitutes
or
may reasonably be expected to lead to a (i) possible public offering or private
placement of its securities, other than negotiations or discussions currently
pending and solely concerning a corporate partnership, or (ii) sale, merger,
consolidation or other transaction by or with the Company and/or any of its
subsidiaries or affiliates, other than negotiations or discussions currently
pending and solely concerning a corporate partnership. In addition, pending
completion or termination of the Offering, the Company agrees that it will
not
dispose of any assets or subsidiaries of the Company (including, without
limitation, creating, suffering to exist or permitting the imposition of any
liens) other than inventory in the ordinary course of business.
(o) Lockup.
The
Company shall obtain from its officers, directors and principal stockholders,
an
agreement that, for a period of time commencing immediately upon the Closing
date until the earlier to occur of (i) the repayment of amounts due under the
promissory notes included in the Securities; and (ii) 30 days from the date
the
SEC declares the Registration Statement effective, they will not sell, assign
or
transfer any of their shares of the Company's securities without Paramount’s
prior written consent.
8.
Indemnification. In
consideration for Paramount’s services on behalf of the Company in connection
with the Offering, the Company agrees to indemnify and hold harmless Paramount
and each of its affiliates, stockholders, directors, officers, employees, agents
and controlling persons (within the meaning of Section 15 of the Act or Section
20 of the Exchange Act) to the extent set forth, and as provided for, in the
indemnification and contribution provisions (the “Indemnification Provisions”)
attached hereto as Exhibit
D
and
incorporated herein in their entirety. Paramount shall indemnify and hold
harmless the Company and each of its affiliates, stockholders, directors,
officers, employees, agents and controlling persons within the meaning of the
Act and Exchange Act to the same extent as set forth in the indemnity from
the
Company to Paramount in Exhibit
D,
but
only in connection with (i) information relating to Paramount furnished in
writing to the Company by Paramount for the specific purpose of including such
information in the Offering Documents or any SEC filing, (ii) material breaches
of the representations and warranties of Paramount set forth in Section 9(a)
hereof; and (iii) any and all losses, claims, expenses, damages and liabilities
that arise out of the bad faith, gross negligence or willful misconduct of
Paramount.
To the
fullest extent permitted by applicable law, it is agreed that Paramount and
any
of its officers, directors, employees or former employees and affiliates shall
not have or be deemed to have any fiduciary or financial advisory duty to the
Company, its stockholders, creditors, employees or its affiliates. The
provisions of this Section 8 shall be enforceable to the fullest extent
permitted by law.
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9. Representations
and Warranties of the Parties.
(a) Paramount
represents and warrants to the Company, as of the date hereof, and as of the
date of each Closing as follows:
(i) it
is a
member in good standing of the National Association of Securities Dealers,
Inc.
(“NASD”) and it has, and at all times while taking any actions constituting an
offer or sale of the Securities had, all governmental licenses (including both
federal and state broker dealer licenses) required to act as placement agent
for
the Securities;
(ii) it
has
not used any general solicitation or general advertising in its offering of
the
Securities or used any offering materials not approved by the Company;
and
(iii) it
reasonably believes that the subscribers contacted by Paramount satisfy the
investor suitability standards set forth in Regulation D.
(b) The
Company represents and warrants to Paramount that:
(i) it
has
all requisite corporate power and authority to execute and deliver this
Agreement and to carry out the transactions contemplated by this Agreement;
it
is not in violation of or default under, nor will the execution and delivery
of
this Agreement and consummation of the transactions contemplated herein will
not
result in a violation of, or constitute a default in the performance or
observance of any law (with or without giving of notice, the lapse of time,
or
both), obligation under its certificate of incorporation, as amended, or its
by-laws, or any indenture, contract, material purchase order or other agreement
or instrument to which the Company is a party or by which it or its property
or
assets is bound or affected;
(ii) the
Chief
Executive Officer and the Chief Financial Officer of the Company have signed,
and the Company has furnished to the SEC, all certifications required by
Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002; such certifications
contain no qualifications or exceptions to the matters certified therein and
have not been modified or withdrawn; and neither the Company nor any of its
officers has received notice from any governmental entity questioning or
challenging the accuracy, completeness, form or manner of filing or submission
of such certifications; and
(iii) complete
and correct copies of all certifications filed with the SEC pursuant to Sections
302 and 906 of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 are available on the SEC’s ▇▇▇▇▇
filing system and the Company hereby reaffirms, represents and warrants to
Paramount the matters and statements made in such certificates.
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10. Termination;
Survival. Either
the Company or Paramount may terminate this Agreement at any time prior to
any
Closing in their respective sole discretion, with or without cause, and without
liability whatsoever. Sections 3, 4, 5, 7, 9, and 10 through 15 of this
Agreement shall remain operative and in full force and effect regardless of
any
expiration or termination of this Agreement
and
regardless of any investigation made by or on behalf of Paramount or any
controlling person thereof.
11. Selected
Dealers. Paramount
may engage other persons, selected by it in its discretion, who are members
of
the NASD, or who are located outside the United States and that have executed
a
Selected Dealers Agreement and Paramount may allow such persons such part of
the
compensation and payment of expenses payable to Paramount hereunder as Paramount
shall determine; provided,
however,
that any
such compensation shall be received pursuant to Section 3 hereof.
12. Choice
of Law; Consent to Jurisdic-tion.
This
Agree-ment shall be governed by and construed in accor-dance with the internal
laws (without giving effect to the con-flicts of law principles) of the State
of
New York. Each of the parties hereto submits to the exclusive jurisdiction
of
any state or federal court sitting in the Borough of Manhattan, County of New
York, in any action or proceeding arising out of or relating to this Agreement,
agrees that all claims in respect of the action or proceeding may be heard
and
determined in any such court and agrees not to bring any action or proceeding
arising out of or relating to this Agreement in any other court. Each of the
parties waives any defense of inconvenient forum to the maintenance of any
action or proceeding so brought and waives any bond, surety or other security
that might be required of any other party with respect thereto. Any party may
make service on any other party hereto by sending or delivering a copy of the
process to the party to be served at the address for each respective party
first
written above. Nothing in this Section, however, shall affect the right of
any
party to serve legal process in any other manner permitted by law.
13. Binding
Agreement; Non-Assignability. This
Agreement shall be binding upon and inure to the benefit of Paramount and the
Company and each of their successors and permitted assigns. This Agreement
may
not be assigned by either party without the prior written consent of the
other.
14. Other
Services.
Subject
to Section 5 of this Agreement, nothing herein shall restrict or otherwise
limit
Paramount from performing similar or dissimilar services for any other party
or
for its own account.
15. Miscellaneous.
This
Agreement embodies the entire agreement and understanding between the parties
hereto and supersedes any prior agreements or understandings, oral or written,
relating to the subject matter hereof. If any provision of this Agreement is
determined to be invalid or unenforceable in any respect, such determination
will not affect such provision in any other respect or any other provision
of
this Agreement, which will remain in full force and effect. This Agreement
may
not be amended or otherwise modified or waived except by an instrument in
writing signed by both the Company and Paramount.
The
parties may execute this Agreement in counterparts, and each such counterpart
shall be, and shall be deemed to be, an original instrument, but all such
counterparts taken together shall constitute one and the same Agreement.
*
* * *
*
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If
the
foregoing conforms to your understanding, please sign and return to us the
enclosed copy of this letter.
|
Very
truly yours,
PARAMOUNT BIOCAPITAL,
INC.
|
||
| |
|
|
| By: | ||
|
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D. |
||
| Title: Chairman & Chief Executive Officer | ||
| INSITE VISION INCORPORATED | |
| By: | |
|
Name: ▇▇▇▇ ▇▇▇▇▇▇ |
|
| Title: Vice President, Development and Operations |
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