3,500,000 Shares and 3,500,000 Warrants OPEXA THERAPEUTICS, INC. Common Stock and Common Stock Purchase Warrants UNDERWRITING AGREEMENT February 13, 2008
Exhibit
1.1
3,500,000
Shares and 3,500,000 Warrants
Common
Stock and Common Stock Purchase Warrants
February
13, 2008
MDB
Capital Group LLC
As
Representative of the Several Underwriters named in Schedule I
hereto
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Ladies
and
Gentlemen:
Opexa
Therapeutics, Inc., a Texas corporation (“Company”), proposes to issue
and sell to the several Underwriters (as defined below) an aggregate of
3,500,000 shares of its common stock, $0.50 par value per share (the “Common Stock”) and an
aggregate of 3,500,000 common stock purchase warrants, each warrant to purchase
one share of common stock for an exercise period of five years commencing
the
date of issuance (the “Public
Series E Warrants”).
It
is
understood that, subject to the conditions hereinafter stated, an aggregate
of
3,500,000 shares of the Common Stock (the “Firm Shares”) and an aggregate
of 3,500,000 Public Series E Warrants (the “Firm Warrants”) (together the
Firm Shares and the Firm Warrants are referred to as the “Firm Securities”) will be sold
to the several Underwriters named in Schedule I hereto (the “Underwriters”) in connection
with the offering (the “Offering”) and sale of such
Firm Securities. MDB Capital Group LLC shall act as the
representative (the “Representative”) of the
several Underwriters. In addition, as set forth below the Company
proposes to issue and sell to the Underwriters, upon the terms and conditions
set forth in Section 2, an aggregate of up to 525,000 additional shares of
the
Common Stock (the “Optional
Shares”) and an aggregate of up to 525,000 additional Series E Warrants
(the “Optional
Warrants”) (together the Optional Shares and Optional Warrants are
referred to as the “Optional
Securities”). The Firm Securities and the Optional Securities
are hereinafter called the “Securities.”
This
is to
confirm the agreement concerning the purchase of the Securities from the
Company
by the Underwriters.
1. Representations
and
Warranties. The Company represents and warrants to, and agrees
with, each Underwriter that:
(a) The
Company has prepared and filed with the Securities and Exchange Commission
(the
“Commission”) a
registration statement on Form SB-2 (File No. 333-147167), which contains
a form
of prospectus to be used in connection with the public offering and sale
of the
Securities. Such registration statement, as amended, including the
financial statements, exhibits and schedules thereto, in the form in which
it
was declared effective by the Commission under the Securities Act of 1933,
as
amended (the “Securities
Act”) and the rules and regulations promulgated thereunder (the “Rules and Regulations”),
including any required information deemed to be a part thereof at the time
of
effectiveness pursuant to Rule 430A under the Securities Act, is called the
“Registration
Statement.” Any registration statement filed by the Company
pursuant to Rule 462(b) under the Securities Act is called the “Rule 462(b) Registration
Statement”, and from and after the date and time of filing of the Rule
462(b) Registration Statement the term “Registration Statement” shall
include the Rule 462(b) Registration Statement. Any preliminary
prospectus included in the Registration Statement is hereinafter called a
“preliminary
prospectus.” The term “Prospectus” shall mean
the
final prospectus relating to the Securities that is first filed pursuant
to Rule
424(b) after the date and time that this Agreement is executed and delivered
by
the parties hereto (the “Execution Time”) or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration Statement
at
the time it became effective. All references in this Agreement to the
Registration Statement, the Rule 462(b) Registration Statement, a preliminary
prospectus, the Prospectus, or any amendments or supplements to any of the
foregoing, shall include any copy thereof filed with the Commission pursuant
to
its Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”).
(b) The
Registration Statement and any Rule 462(b) Registration Statement have been
declared effective by the Commission under the Securities Act. The
Company has complied, to the Commission’s satisfaction, with all requests of the
Commission for additional or supplemental information. No stop order
suspending the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement is in effect and no proceedings for such purpose have
been instituted or are pending or, to the best knowledge of the Company,
are
contemplated or threatened by the Commission.
The
final
preliminary prospectus, as supplemented on January 23, 2008, included in
the
Disclosure Package (as defined below) and the Prospectus when filed complied
in
all material respects with the Securities Act and the rules thereunder and,
if
filed by electronic transmission pursuant to ▇▇▇▇▇ (except as may be permitted
by Regulation S-T under the Securities Act), was identical to the copy thereof
delivered to the Underwriters for use in connection with the offer and sale
of
the Securities. Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto, at the time
it
became effective and at the date hereof, the Closing Date and any Subsequent
Closing Date, complied and will comply in all material respects with the
Securities Act and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading. The
Prospectus (including any Prospectus wrapper), as amended or supplemented,
as of
its date and at the date hereof, the Closing Date and any Option Closing
Date,
did not and will not contain any untrue statement of a material fact or omit
to
state a material fact necessary in order to make the statements therein,
in the
light of the circumstances under which they were made, not
misleading. The representations and warranties set forth in the two
immediately preceding sentences do not apply to statements in or omissions
from
the Registration Statement, any Rule 462(b) Registration Statement, or any
post-effective amendment thereto, or the Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by the
Representative expressly for use therein, it being understood and agreed
that
the only such information furnished by the Representative consists of the
information described as such in Section 11 hereof. There are no
contracts or other documents required to be described in the Prospectus or
to be
filed as exhibits to the Registration Statement which have not been described
or
filed as required.
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(c) The
term
“Disclosure Package”
shall mean, collectively,
(i) the preliminary prospectus that is included in the
Registration Statement immediately prior to the Initial Sale Time (as defined
below), if any, as amended or supplemented, (ii) the issuer free writing
prospectuses as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing
Prospectus”) identified in Schedule III hereto, and (iii) any other free
writing prospectus that the parties hereto shall hereafter expressly agree
in
writing to treat as part of the Disclosure Package. As of 10:00A.M.
(Eastern time) on the date of this Agreement (the “Initial Sale Time”), the
Disclosure Package did 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 preceding sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by the Representative specifically for
use
therein, it being understood and agreed that the only such information furnished
by or on behalf of any Underwriter consists of the information described
as such
in Section 11 hereof.
(d) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times
through the completion of the Offering or until any earlier date that the
Company notified or notifies the Representative as described in the next
sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in
the
Registration Statement. 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
Representative specifically for use therein, it being understood and agreed
that
the only such information furnished by any Underwriter consists of the
information described as such in Section 11 hereof.
(e) The
Company has delivered to the Representative one complete manually signed
copy of
the Registration Statement and of each consent and certificate of experts
filed
as a part thereof, and conformed copies of the Registration Statement (without
exhibits) and preliminary prospectuses and the Prospectus, as amended or
supplemented, in such quantities and at such places as the Representative
have
reasonably requested for each of the Underwriters.
(f) The
Company has not distributed and will not distribute, prior to the later of
the
Option Closing Date (as defined in Section 3 below) and the completion of
the
Underwriters' distribution of the Securities, any offering material in
connection with the offering and sale of the Securities other than any
preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus
reviewed and consented to by the Representative or included in Schedule III
hereto or the Registration Statement.
(g) ▇▇▇▇▇▇
& ▇▇▇▇▇▇, PC, whose report appears in the Registration Statement, and
included in the Disclosure Package and the Prospectus, are independent certified
public accountants as required by the Securities Act and the Rules and
Regulations. The financial statements and schedules (including the
related notes) included in the Registration Statement, and included in the
Disclosure Package and the Prospectus, present fairly the financial condition,
the results of the operations and changes in financial condition of the entities
purported to be shown thereby at the dates or for the periods indicated and
have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods indicated. All
adjustments necessary for a fair presentation of results for such periods
have
been made. The selected financial, operating and statistical data set
forth in any preliminary prospectus included in the Disclosure Package and
the
Prospectus under the captions “Prospectus Summary,” “Selected Consolidated
Financial Data” and “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” fairly present, when read in conjunction with the
Company’s financial statements and the related notes and schedules and on the
basis stated in the Registration Statement, the information set forth
therein.
3
(h) Each
of
the Company and its Subsidiaries (as defined in Section 13 hereof) has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its organization, with full power and
authority (corporate and other) to own or lease its properties and conduct
its
business as described in the Disclosure Package and Prospectus, and is duly
qualified to do business and is in good standing as a foreign corporation
in
each jurisdiction in which the character of the business conducted by it
or the
location of the properties owned or leased by it makes such qualification
necessary; each of the Company and its Subsidiaries is in possession of and
operating in compliance with all franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders required for the conduct
of its business, all of which are valid and in full force and effect (except
with respect to each of the foregoing representations, where any failure
to do
so would not result in a material adverse change in the condition (financial
or
otherwise), business, prospects, properties or results of operations of the
Company and its subsidiaries considered as a whole) (“Material Adverse Effect”); and
neither the Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such franchise,
grant, authorization, license, permit, easement, consent, certificate or
order
which, individually or in the aggregate, if the subject of an unfavorable
decision, would result, individually or in the aggregate, in having a Material
Adverse Effect.
(i) The
capitalization of the Company is as set forth in the Disclosure Package and
Prospectus, and the Common Stock and Warrants conform to the descriptions
thereof contained under the caption “Description of Securities” in the
Disclosure Package and Prospectus; the outstanding shares of capital stock
have
been duly authorized, validly issued, fully paid and nonassessable and have
been
issued in compliance with federal and state securities laws. There
are no preemptive rights or other rights to subscribe for or to purchase,
or any
restriction upon the voting or transfer of, any shares of capital stock pursuant
to the Company’s certificate of incorporation, by-laws or other governing
documents or any agreement or other instrument to which the Company or any
of
its Subsidiaries is a party or by which any of them may be
bound. None of the outstanding shares of capital stock were issued in
violation of any preemptive rights, rights of first refusal or other similar
rights to subscript for or purchase securities of the Company. There
are no authorized or outstanding options, warrants, preemptive rights, rights
of
first refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any capital stock of
the
Company other than those accurately described in the Disclosure Package and
the
Prospectus. The description of the Company's stock option, stock
bonus and other stock plans or arrangements, and the options or other rights
granted thereunder, set forth in the Disclosure Package and the Prospectus
accurately and fairly presents the information required to be shown with
respect
to such plans, arrangements, options and rights. Neither the filing
of the Registration Statement nor the offering or sale of the Securities
as
contemplated by this Agreement gives rise to any rights, other than those
which
have been waived or satisfied, for or relating to the registration of any
shares
of Common Stock. All of the outstanding shares of capital stock of
each Subsidiary of the Company have been duly authorized and validly issued,
are
fully paid and nonassessable and are owned directly or indirectly by the
Company, free and clear of any claim, lien, encumbrance or security
interest. Except as disclosed in the Disclosure Package, there are no
authorized or outstanding options, warrants, preemptive rights, rights of
first
refusal or other rights to purchase, or equity or debt securities convertible
into or exchangeable or exercisable for, any capital stock of any
Subsidiary.
4
(j) Subsequent
to the respective dates as of which information is given in the Disclosure
Package and the Prospectus, and except as described or contemplated in the
Disclosure Package and the Prospectus: neither the Company nor any of
its Subsidiaries has incurred any liabilities or obligations, direct or
contingent, nor entered into any transactions not in the ordinary course
of
business, which in either case are material to the Company or such Subsidiary,
as the case may be; there has not been any Material Adverse Effect; and there
has been no dividend or distribution of any kind declared, paid or made by
the
Company on any class of its capital stock.
(k) Neither
the Company nor any of its Subsidiaries is, or with the giving of notice
or
lapse of time or both would be, in violation of or in default under, nor
will
the execution or delivery hereof or consummation of the transactions
contemplated hereby result in a violation of, or constitute a default under,
the
certificate of incorporation, bylaws or other governing documents of the
Company
or any of its Subsidiaries, or any agreement, contract, mortgage, deed of
trust,
loan agreement, note, lease, indenture or other instrument, to which the
Company
or any of its Subsidiaries is a party or by which any of them is bound, or
to
which any of their properties is subject, nor will the performance by the
Company of its obligations hereunder violate any law, rule, administrative
regulation or decree of any court, or any governmental agency or body having
jurisdiction over the Company, its Subsidiaries or any of their properties,
or
result in the creation or imposition of any lien, charge, claim or encumbrance
upon any property or asset of the Company or any of its Subsidiaries (except
with respect to each of the foregoing, where any such default or violation
would
not result in a Material Adverse Effect). Except for permits and
similar authorizations required under the Securities Act and the securities
or
“Blue Sky” laws of certain jurisdictions and for such permits and authorizations
which have been obtained, no consent, approval, authorization or order of
any
court, governmental agency or body or financial institution is required in
connection with the consummation of the transactions contemplated by this
Agreement (except where such failure would not have a Material Adverse
Effect).
(l) This
Agreement has been duly authorized, executed and delivered by the Company
and
constitutes a legal, valid and binding obligation of the Company and is
enforceable against the Company in accordance with its terms.
(m) The
Securities to be purchased by the Underwriters from the Company have been
duly
authorized for issuance and sale pursuant to this Agreement and, when issued
and
delivered by the Company pursuant to this Agreement, will be validly issued,
fully paid and nonassessable. The issuance of the Securities pursuant
to this Agreement will not be subject to any preemptive rights, rights of
first
refusal or other similar rights to subscribe for or purchase securities of
the
Company. There are no restrictions upon the voting or transfer of the
Securities under the Company’s certificate of incorporation or by laws or any
agreement or other instrument to which the Company is a party or otherwise
filed
as an exhibit to the Registration Statement.
(n) The
warrants to purchase Common Stock and warrants to purchase Series E Warrants
to
be issued to the Underwriters (the “Underwriter Warrants”)
pursuant to Section 4(k) have been duly authorized for issuance. The
Company has reserved 700,000 shares of its Common Stock for issuance upon
exercise of the Underwriter Warrants and when issued and paid for in accordance
with the terms of the Underwriter Warrants and the underlying Series E Warrants,
such Common Stock issuable thereunder will be validly issued, fully paid
and
nonassessable. The issuance of the Common Stock pursuant to the
Underwriter Warrants and the underlying Series E Warrants will not be subject
to
any preemptive rights, rights of first refusal or other similar rights to
subscript for or purchase securities of the Company. There will be no
restrictions upon the voting or transfer of the Common Stock issuable pursuant
to the Underwriter Warrants and the underlying Series E Warrants under the
Company’s certificate of incorporation or bylaws or any agreement or other
instrument to which the Company is a party or otherwise filed as an exhibit
to
the Registration Statement.
5
(o) The
Company and its Subsidiaries have good and marketable title in fee simple
to all
items of real property and good and marketable title to all personal property
owned by them, in each case clear of all liens, encumbrances and defects
except
such as are described or referred to in the Disclosure Package and Prospectus
or
such as do not materially affect the value of such property and do not interfere
with the use made or proposed to be made of such property by the Company
or such
Subsidiaries; and any real property and buildings held under lease by the
Company and its Subsidiaries are held by them under valid, existing and
enforceable leases with such exceptions as are not material and do not interfere
with the use made or proposed to be made of such property and buildings by
the
Company or such Subsidiaries.
(p) Except
as
described in the Disclosure Package and the Prospectus, there is no litigation
or governmental proceeding to which the Company or any of its Subsidiaries
is a
party or to which any property of the Company or any of its Subsidiaries
is
subject or which is pending or, to the knowledge of the Company, threatened
against the Company which individually or in the aggregate might result in
any
Material Adverse Effect, which would materially and adversely affect the
consummation of this Agreement or the transactions contemplated hereby or
which
is required to be disclosed in the Disclosure Package and the
Prospectus.
(q) Neither
the Company nor any Subsidiary is in violation of any law, ordinance,
governmental rule or regulation or court decree to which it may be subject
which
violation might have a Material Adverse Effect.
(r) The
Company has not taken and may not take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of
the
price of the shares of Common Stock to facilitate the sale or resale of the
Securities.
(s) The
Company and its Subsidiaries have filed all necessary federal, state and
foreign
income and franchise tax returns, and all such tax returns are complete and
correct in all material respects, and the Company and its Subsidiaries have
not
failed to pay any taxes which were payable pursuant to said returns or any
assessments with respect thereto. The Company has no knowledge of any
tax deficiency which has been or is likely to be threatened or asserted against
the Company or its Subsidiaries.
(t) The
Company maintains a system of internal accounting controls sufficient to
provide
reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity
with
generally accepted accounting principles in the United States and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. Except as disclosed in the Registration Statement, the Disclosure
Package and the Prospectus, since the date of the most recent evaluation
of such
system of internal accounting controls, there has been no material change
in
internal control over financial reporting, including any corrective actions
with
regard to significant deficiencies or material weaknesses.
6
(u) The
Company and its Subsidiaries maintain insurance of the types and in the amounts
its Board of Director has determined reasonable for its business, including,
but
not limited to, directors’ and officers’ insurance, insurance covering real and
personal property owned or leased by the Company and its Subsidiaries against
theft, damage, destruction, acts of vandalism and all other risks customarily
insured against by companies of similar size and stage of development, all
of
which insurance is in full force and effect. The Company has not been
refused any insurance coverage sought or applied for, and the Company has
no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from
similar insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect.
(v) Neither
the Company nor any of its Subsidiaries nor, to the best of the Company’s
knowledge, any of its employees or agents has at any time during the last
five
years (i) made any unlawful contribution to any candidate for foreign
office, or failed to disclose fully any contribution in violation of law,
or
(ii) made any payment to any foreign, federal or state governmental officer
or official or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States
or
any jurisdiction thereof.
(w) The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described under
the
caption “Use of Proceeds” in the Disclosure Package or the Prospectus, will not
be an “investment company” as defined in the Investment Company Act of 1940, as
amended.
(x) Except
as
disclosed in the Disclosure Package or the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give
rise to a valid claim against the Company or any Underwriter for a brokerage
commission, finder’s fee or other like payment in connection with the
Offering.
(y) Except
as
disclosed in the Company’s reports under the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”), there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company
to
file a registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require
the
Company to include such securities in the securities registered pursuant
to a
Registration Statement or in any securities being registered pursuant to
any
other registration statement filed by the Company under the Securities
Act.
(z) The
Securities and the Common Stock and Series E Warrants reserved for issuance
under the Underwriter Warrants and Common Stock reserved for issuance under
the
underlying Series E Warrants have been approved for listing on The Nasdaq
Capital Market subject only to official notice of issuance. The
Common Stock and the Series E Warrants of the Company have been registered
under
Section 12(b) of the Exchange Act.
7
(aa) The
Company is in material compliance with all applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 that are currently effective and the rules and
regulations promulgated in connection therewith.
(bb) No
consent, approval, authorization, or order of, or filing with, any governmental
agency or body or any court is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance and sale of
the
Securities by the Company, except such as have been obtained and made under
the
Securities Act and such as may be required by the National Association of
Securities Dealers, Inc. (the “NASD”) or under state
securities laws or the laws of any foreign jurisdiction.
(cc) The
execution, delivery and performance of this Agreement, and the issuance and
sale
of the Securities will not result in a breach or violation of any of the
terms
and provisions of, or constitute a default under, (i) any statute, any
rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company, except in the
case of
this clause (i) for such breaches, violations or defaults which would not,
individually or in the aggregate, have a Material Adverse Effect or
(ii) any agreement or instrument to which the Company is a party or by
which the Company is bound, except in the case of this clause (ii) for such
breaches, violations or defaults which would not, individually or in the
aggregate, have a Material Adverse Effect, or (iii) the charter or by-laws
of the Company, and the Company has full power and authority to authorize,
issue
and sell the Securities as contemplated by this Agreement.
(dd) The
Company is not presently doing business with the government of Cuba or with
any
person or affiliate located in Cuba.
(ee) No
labor
dispute with the employees of the Company or any subsidiary exists or, to
the
knowledge of the Company, is imminent that might have a Material Adverse
Effect.
(ff) To
the
Company’s knowledge, the Company and its Subsidiaries own or possess the right
to use sufficient trademarks, trade names, patent rights, copyrights, domain
names, licenses, approvals, trade secrets, inventions, technology, know-how
and
other similar rights (collectively, “Intellectual Property Rights”)
as are (i) necessary or material to conduct its business as now conducted
and as described in the Disclosure Package and the Prospectus and as are
(ii) necessary or material for the commercialization of the products
described in the Disclosure Package and the Prospectus as being under
development. Except as set forth in the Disclosure Package and the
Prospectus, (a) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding, or claim by others challenging the rights
of the Company or any of its Subsidiaries in or to any such Intellectual
Property Rights that, if decided adversely to the Company would, individually
or
in the aggregate, have a Material Adverse Effect, and the Company is unaware
of
any facts which would form a reasonable basis for any such claim; (b) there
is no pending, or to the Company’s knowledge, threatened action, suit,
proceeding, or claim by others that the Company or any of its Subsidiaries
infringes, misappropriates, or otherwise violates any Intellectual Property
Rights, of others that, if decided adversely to the Company would, individually
or in the aggregate, have a Material Adverse Effect, and the Company is unaware
of any facts which would form a reasonable basis for any such claim;
(c) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding, or claim by others challenging the validity, scope, or
enforceability of any such Intellectual Property Rights owned by the Company
or
its Subsidiaries and the Company is unaware of any facts which would form
a
reasonable basis for any such claim; (d) to the Company’s knowledge, the
operation of the business of the Company and its Subsidiaries as now conducted,
and as described in the Disclosure Package and the Prospectus, and in connection
with the development and commercialization of the products described in the
Disclosure Package and the Prospectus does not infringe any claim of any
patent
or published patent application; (e) there is no prior art of which the
Company is aware that may render any patent owned or licensed by the Company
or
its Subsidiaries invalid or any patent application owned or licensed by the
Company unpatentable which has not been disclosed to the applicable government
patent office; and (f) the Company’s granted or issued patents, registered
trademarks, and registered copyrights have been duly maintained and are in
full
force and in effect, and none of the patents, trademarks and copyrights have
been adjudged invalid or unenforceable in whole or in part. Neither
the Company nor any of its Subsidiaries is a party to or bound by any options,
licenses or agreements with respect to the Intellectual Property Rights of
any
other person or entity that are required to be set forth in the Disclosure
Package and the Prospectus and are not described therein in all material
respects. None of the technology or intellectual property used by the
Company and its Subsidiaries in its business has been obtained or is being
used
by the Company or its Subsidiaries in violation of any contractual obligation
binding on the Company or its Subsidiaries, or, to the Company’s knowledge, any
of its officers, directors, or employees or otherwise in violation of the
rights
of any persons. No third party has been granted by the Company or its
Subsidiaries rights to the Intellectual Property Rights of the Company or
its
Subsidiaries that, if exercised, could enable such party to develop products
competitive to those of the Company as described in the Disclosure Package
and
the Prospectus.
8
(gg) The
Company has duly and properly filed or caused to be filed with the U.S. Patent
and Trademark Office (the “PTO”) and applicable
foreign
and international patent authorities all patent applications owned by the
Company and its Subsidiaries (the “Company Patent
Applications”). To the knowledge of the Company, the Company
has complied with the PTO’s duty of candor and disclosure for the Company Patent
Applications and has made no material misrepresentation in the Company Patent
Applications. To the Company’s knowledge, the Company Patent
Applications disclose patentable subject matters. The Company has not
been notified of any inventorship challenges nor has any interference been
declared or provoked nor is any material fact known by the Company that would
preclude the issuance of patents with respect to the Company Patent Applications
or would render such patents, if issued, invalid or unenforceable.
(hh) Neither
the Company or any of its Subsidiaries has breached and is currently in breach
of any provision of any license, contract or other agreement governing the
use
by the Company or its Subsidiaries of Intellectual Property Rights owned
by
third parties (collectively, the “Licenses”) and, except as
described in the Disclosure Package and the Prospectus, no third party has
alleged any such breach and the Company is unaware of any facts that would
form
a reasonable basis for such a claim. To the Company’s knowledge, no
other party to the Licenses has breached or is currently in breach of any
provision of the Licenses. Each of the Licenses is in full force and
effect and constitutes a valid and binding agreement between the parties
thereto, enforceable in accordance with its terms, and there has not occurred
any breach or default under any such Licenses or any event that with the
giving
of notice or lapse of time would constitute a breach or default
thereunder. Except as would not have a Material Adverse Effect,
neither the Company nor any of its Subsidiaries has been and is currently
involved in any disputes regarding the Licenses. To the Company’s
knowledge, all patents licensed to the Company pursuant to the Licenses are
valid, enforceable and being duly maintained. To the Company’s
knowledge, all patent applications licensed to the Company pursuant to the
Licenses are being duly prosecuted.
(ii) The
studies that are referred to in the Disclosure Package and the Prospectus
and
their protocols were, to the Company’s knowledge, independently developed,
analyzed and reported by the persons or entities conducting the clinical
studies. The prospective studies that are referred to in the
Disclosure Package and the Prospectus were, to the Company’s knowledge,
conducted in all material respects in accordance with experimental protocols,
procedures and controls consistent with the standards applied in other studies
in the industry. The retrospective studies that are referred to in
the Disclosure Package and the Prospectus were, to the Company’s knowledge,
statistically analyzed to ensure the results presented therein are accurate
in
all material respects. The descriptions of such clinical studies
contained in the Disclosure Package and the Prospectus are accurate in all
material respects. The Company has not received any notices or
correspondence from the U.S. Food and Drug Administration (the “FDA”) or any foreign,
state or
local governmental or self-regulatory body exercising comparable authority
requiring the termination, suspension or material modification of any such
clinical studies, which termination, suspension or material modification
would
reasonably be expected to result in a Material Adverse Effect.
9
(jj) The
Company and its Subsidiaries are in compliance in all material respects with
all
applicable rules and regulations of the FDA, or any foreign, state or local
governmental or self-regulatory body exercising comparable authority, and
all
related applicable laws, statutes, ordinances, rules or regulations (including,
without limitation, the Federal Food, Drug and Cosmetic Act, as amended,
the
Good Manufacturing Practice regulations and similar foreign laws and
regulations), the enforcement of which, individually or in the aggregate,
would
be expected to result in a Material Adverse Effect.
(kk) To
the
Company’s knowledge, there are no rulemaking or similar proceedings before the
FDA, PTO, or any foreign, state or local governmental or self-regulatory
body
exercising comparable authority, which affect or involve the Company, its
Subsidiaries, or any of the products that the Company has developed, is
developing or proposes to develop or uses or proposes to use which, if the
subject of an action unfavorable to the Company, would result in a Material
Adverse Effect.
(ll) The
Company and each Subsidiary possess such valid and current certificates,
authorizations, approvals or permits issued by the appropriate state, federal,
foreign regulatory agencies or bodies necessary to conduct their respective
businesses as currently conducted and neither the Company nor any Subsidiary
has
received any notice of proceedings relating to the revocation or modification
of, or non-compliance with, any such certificate, authorization or permit
which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling
or
finding, could result in a Material Adverse Effect.
(mm) There
are
no business relationships or related-party transactions involving the Company
or
any Subsidiary or any other person required to be described in the Disclosure
Package and the Prospectus that have not been described as
required.
(nn) Except
as
would not, individually or in the aggregate, result in a Material Adverse
Effect
(i) neither the Company nor any of its Subsidiaries is in violation of any
federal, state, local or foreign law or regulation relating to pollution
or
protection of human health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or
wildlife, including without limitation, laws and regulations relating to
emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum and
petroleum products (collectively, “Materials of Environmental
Concern”), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern (collectively, “Environmental Laws”), which
violation includes, but is not limited to, noncompliance with any permits
or
other governmental authorizations required for the operation of the business
of
the Company under applicable Environmental Laws, or noncompliance with the
terms
and conditions thereof, nor has the Company or any of its Subsidiaries received
any written communication, whether from a governmental authority, citizens
group, employee or otherwise, that alleges that the Company or any of its
Subsidiaries is in violation of any Environmental Law; (ii) there is no
claim, action or cause of action filed with a court or governmental authority,
no investigation with respect to which the Company or any of its Subsidiaries
has received written notice, and no written notice by any person or entity
alleging potential liability for investigatory costs, cleanup costs,
governmental responses costs, natural resources damages, property damages,
personal injuries, attorneys’ fees or penalties arising out of, based on or
resulting from the presence, or release into the environment, of any Material
of
Environmental Concern at any location owned, leased or operated by the Company
or any of its Subsidiaries, now or in the past (collectively, “Environmental Claims”),
pending or, to the best of the Company’s knowledge, threatened against the
Company, any of its Subsidiaries, or any person or entity whose liability
for
any Environmental Claim the Company or any of its Subsidiaries has retained
or
assumed either contractually or by operation of law; and (iii) to the
Company’s knowledge, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release, emission, discharge, presence or disposal of any Material of
Environmental Concern, that reasonably could result in a violation of any
Environmental Law or form the basis of a potential Environmental Claim against
the Company, any of its Subsidiaries, or against any person or entity whose
liability for any Environmental Claim the Company or any of its Subsidiaries
has
retained or assumed either contractually or by operation of law.
10
(oo) The
Company and any “employee benefit plan” (as defined under the Employee
Retirement Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (collectively, “ERISA”)) established or
maintained by the Company, or its “ERISA Affiliates” (as defined below) are in
compliance in all material respects with ERISA. “ERISA Affiliates” means, with
respect to the Company, any member of any group of organizations described
in
Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder (the
“Code”) of which the
Company is a member. No “reportable event” (as defined under ERISA)
has occurred or is reasonably expected to occur with respect to any “employee
benefit plan” established or maintained by the Company, or any of its ERISA
Affiliates. No “employee benefit plan” established or maintained by
the Company or any of its ERISA Affiliates, if such “employee benefit plan” were
terminated, would have any “amount of unfunded benefit liabilities” (as defined
under ERISA). Neither the Company, nor any of its ERISA Affiliates
has incurred or reasonably expects to incur any liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal
from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or
4980B of the Code. Each “employee benefit plan” established or
maintained by the Company or any of its ERISA Affiliates that is intended
to be
qualified under Section 401(a) of the Code is so qualified and nothing has
occurred, whether by action or failure to act, which would cause the loss
of
such qualification.
(pp) There
are
no outstanding loans, advances (except normal advances for business expenses
in
the ordinary course of business) or guarantees or indebtedness by the Company
to
or for the benefit of any of the officers or directors of the Company or
any of
the members of any of them, except as disclosed in the Disclosure Package
and
the Prospectus.
11
(qq) The
market
data and industry forecasts included in the Registration Statement and the
Disclosure Package and the Prospectus were obtained or derived from industry
publications that are and were not at any time under the Company’s control which
the Company reasonably and in good faith believes are reliable and accurate,
and
such data agree with the sources from which they are derived.
(rr) Except
as
disclosed in the Disclosure Package and the Prospectus, since the date of
the
latest audited financial statements included in the Disclosure Package and
the
Prospectus there has been no Material Adverse Effect, nor any development
or
event involving a prospective Material Adverse Effect, in the condition
(financial or other), business, properties or results of operations of the
Company and its Subsidiaries taken as a whole.
Any
certificate signed by an officer of the Company and delivered to the
Representative or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the
matters
set forth therein.
The
Company acknowledges that the Underwriters and, for purposes of the opinions
to
be delivered pursuant to Section 5 hereof, counsels to the Company and
counsel to the Underwriters, will rely upon the accuracy and truthfulness
of the
foregoing representations and hereby consents to such reliance.
2. Purchase
of the Securities by the Underwriters.
(a) Subject
to
the terms and conditions and upon the basis of the representations, warranties
and agreements herein set forth, the Company agrees to issue and sell to
the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to
purchase at a price of $1.80 per share and $.135 per Public Warrant, the
number
of Firm Securities set forth opposite such Underwriter’s name in Schedule I
hereto, subject to adjustment in accordance with Section 7
hereof. The Underwriters agree to offer the Firm Securities to the
public as set forth in the Prospectus.
(b) The
Company hereby grants to the Underwriters an option to purchase from the
Company, solely for the purpose of covering over-allotments in connection
with
the distribution and sale of the Firm Securities, all or any portion of the
Optional Securities for a period of forty five (45) days from the date hereof
at
the purchase price per Share set forth above. The Optional Securities
shall be purchased from the Company, severally and not jointly, for the accounts
of the several Underwriters in proportion to the number of Firm Securities
set
forth opposite such Underwriter’s name in Schedule I hereto, except that the
respective purchase obligations of each Underwriter shall be adjusted by
the
Representative so that no Underwriter shall be obligated to purchase fractional
Optional Securities. No Optional Securities shall be sold and
delivered unless the Firm Securities previously have been, or simultaneously
are, sold and delivered.
3. Delivery
of and Payment for
Securities. Delivery of certificates for the Firm Securities
to be purchased by the Underwriters from the Company and payments therefor
shall
be made at the offices of MDB Capital Group LLC (or such other place as mutually
may be agreed upon), on the third full Business Day following the date hereof
or, if the pricing of the Firm Securities occurs after 4:30 p.m., New York
City time, on the fourth full Business Day thereafter, or at such other date
as
shall be determined by the Representative and the Company (the “First Closing
Date”).
12
The
option
to purchase the Optional Securities granted in Section 2 hereof may be
exercised during the term thereof by written notice to the Company from the
Representative. The exercise for the Optional Securities may be for
either or both the Optional Shares and Optional Warrants, in whole or in
part,
and on more than one occasion. Such notice shall set forth the aggregate
number
of Optional Securities as to which the option is being exercised and the
time
and date, not earlier than either the First Closing Date or the second Business
Day after the date on which the option shall have been exercised nor later
than
the fifth Business Day after the date of such exercise, as determined by
the
Representative, when the Optional Securities are to be delivered (the “Option Closing
Date”). Delivery and payment for such Optional Securities is
to be at the offices set forth above for delivery and payment of the Firm
Securities. (The First Closing Date and the Option Closing Date are
herein individually referred to as the “Closing Date” and collectively
referred to as the “Closing
Dates”.)
Delivery
of certificates for the Securities shall be made by or on behalf of the Company
to the Representative, for the respective accounts of the Underwriters, against
payment by the Representative, for the several accounts of the Underwriters,
of
the purchase price therefor by (i) Federal funds wire transfer or
(ii) certified or official bank check payable in next day funds to the
order of the Company. The certificates for the Securities shall be
registered in such names and denominations as the Representative shall have
requested at least two full Business Days prior to the applicable Closing
Date,
and shall be made available for checking and packaging at a location in New
York, New York as may be designated by the Representative at least one full
Business Day prior to such Closing Date. Time shall be of the essence
and delivery at the time and place specified in this Agreement is a further
condition to the obligations of each Underwriter.
4. Covenants. The
Company covenants and agrees with each Underwriter that:
(a) During
such period beginning on the Initial Sale Time and ending on the later of
the
Closing Date or such date, as in the opinion of counsel for the Underwriters,
the Prospectus is no longer required by law to be delivered in connection
with
sales as contemplated by this Agreement by an Underwriter or dealer, including
in circumstances where such requirement may be satisfied pursuant to Rule
172
(the “Prospectus Delivery
Period”), prior to amending or supplementing the Registration Statement
(including any registration statement filed under Rule 462(b) under the
Securities Act), the Disclosure Package or the Prospectus, the Company shall
furnish to the Representative for review a copy of each such proposed amendment
or supplement and the Company shall not file any such proposed amendment
or
supplement to which the Representative reasonably objects.
(b) After
the
date of this Agreement, the Company shall promptly advise the Representative
in
writing (i) when the Registration Statement, if not effective at the Execution
Time, shall have become effective, (ii) of the receipt of any comments of,
or
requests for additional or supplemental information from, the Commission,
(iii)
of the time and date of any filing of any post-effective amendment to the
Registration Statement or any amendment or supplement to any preliminary
prospectus or the Prospectus, (iv) of the time and date that any post-effective
amendment to the Registration Statement becomes effective and (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the
Registration Statement or any post-effective amendment thereto or of any
order
or notice preventing or suspending the use of the Registration Statement,
any
preliminary prospectus or the Prospectus, or of any proceedings to remove,
suspend or terminate from listing or quotation the Common Stock from any
securities exchange upon which it is listed for trading or included or
designated for quotation, or of the threatening or initiation of any proceedings
for any of such purposes. The Company shall use its best efforts to
prevent the issuance of any such stop order or prevention or suspension of
such
use. If the Commission shall enter any such stop order or order or
notice of prevention or suspension at any time, the Company will use its
best
efforts to obtain the lifting of such order at the earliest possible moment,
or
will file a new registration statement and use its best efforts to have such
new
registration statement declared effective as soon as
practicable. Additionally, the Company agrees that it shall comply
with the provisions of Rules 424(b) and 434, as applicable, under the Securities
Act, including with respect to the timely filing of documents thereunder,
and
will use its reasonable efforts to confirm that any filings made by the Company
under such Rule 424(b) were received in a timely manner by the
Commission.
13
(c) (i)
If the
preliminary prospectus included in the Disclosure Package is being used to
solicit offers to buy the Securities and any event or development shall occur
or
condition exist as a result of which it is necessary to amend or supplement
the
Disclosure Package in order to make the statements therein, in the light
of the
circumstances under which they were made or then prevailing, as the case
may be,
not misleading (in which case the Company agrees to notify the Representative
of
any such event or condition), or if in the reasonable opinion of the
Representative it is otherwise necessary to amend or supplement the Disclosure
Package to comply with law, the Company agrees to promptly prepare, file
with
the Commission and furnish to the Underwriters and to dealers, at its own
expense, amendments or supplements to the Disclosure Package so that the
statements in the Disclosure Package as so amended or supplemented will not
be,
in the light of the circumstances under which they were made or then prevailing,
as the case may be, misleading or so that the Disclosure Package, as amended
or
supplemented, will comply with law; (ii) if, during the Prospectus Delivery
Period, any event or development shall occur or condition exist as a result
of
which it is necessary to amend or supplement the Registration Statement or
the
Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made or then prevailing, as the case
may be,
not misleading (in which case the Company agrees to notify the Representative
of
any such event or condition), or if in the reasonable opinion of the
Representative it is otherwise necessary to amend or supplement the Registration
Statement or the Prospectus to comply with law, including in connection with
the
delivery of the Prospectus, the Company agrees to promptly prepare, file
with
the Commission (and use its best efforts to have any amendment to the
Registration Statement or any new registration statement to be declared
effective) and furnish to the Underwriters and to dealers, amendments or
supplements to the Registration Statement or the Prospectus, or any new
registration statement so that the statements in the Registration Statement
or
the Prospectus as so amended or supplemented will not be, in the light of
the
circumstances under which they were made or then prevailing, as the case
may be,
misleading or so that the Registration Statement or the Prospectus, as amended
or supplemented, will comply with law.
(d) The
Company agrees that, unless it obtains the prior written consent of the
Representative, it will not make any offer relating to the Common Stock that
would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405 of the Securities
Act) required to be filed by the Company with the Commission or retained
by the
Company under Rule 433 of the Securities Act; provided that the prior written
consent of the Representative hereto shall be deemed to have been given in
respect of the Free Writing Prospectuses included in Schedule III
hereto. Any such free writing prospectus consented to by the
Representative 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) has complied and will comply, as
the
case may be, with the requirements of Rules 164 and 433 of the Securities
Act
applicable to any Permitted Free Writing Prospectus, including in respect
of
timely filing with the Commission, legending and record keeping.
14
(e) The
Company shall furnish to the Underwriters, from time to time and without
charge,
copies of the Registration Statement of which three shall be signed and shall
include exhibits and all amendments and supplements to any of such Registration
Statement, in each case as soon as available and in such quantities as the
Representative may from time to time reasonably request.
(f) The
Company shall take or cause to be taken all necessary action and furnish
to
whomever the Representative may direct such information as may be required
in
qualifying the Securities for sale under the laws of such jurisdictions which
the Representative shall designate and to continue such qualifications in
effect
for as long as may be necessary for the distribution of the Securities; except
that in no event shall the Company be obligated in connection therewith to
qualify as a foreign corporation, or to execute a general consent for service
of
process.
(g) The
Company shall make generally available to its securityholders, in the manner
contemplated by Rule 158(b) under the Securities Act, as soon as
practicable but in any event not later than 60 days after the end of its
fiscal
quarter in which the first anniversary date of the effective date of the
Registration Statement occurs, an earning statement which will comply with
Section 11(a) of the Securities Act covering a period of at least 12
consecutive months beginning after the effective date of the Registration
Statement.
(h) The
Company will not, without the prior written consent of the Representative
(which
consent may be withheld in the Representative’s sole discretion), directly or
indirectly, issue, sell, offer, agree to sell, contract or grant any option
to
sell (including, without limitation, pursuant to any short sale), pledge,
make
any short sale of, maintain any short position with respect to, transfer,
establish or maintain an open “put equivalent position” within the meaning of
Rule 16a-1(h) under the Exchange Act, enter into any swap, derivative
transaction or other arrangement (whether such transaction is to be settled
by
delivery of common stock, other securities, cash or other consideration)
that
transfers to another, in whole or in part, any of the economic consequences
of
ownership, or otherwise dispose of any shares of Common Stock, options or
warrants to acquire shares of Common Stock, or securities exchangeable or
exercisable for or convertible into shares of Common Stock, or publicly announce
an intention to do any of the foregoing, for a period commencing on the date
hereof and continuing through the close of trading on the date 180 days after
the date of the Prospectus (the “Lock-Up Period”).
Notwithstanding
the foregoing, for the purpose of allowing the Underwriters to comply with
NASD
Rule 2711(f)(4), if (1) during the last 17 days of the initial Lock-Up Period,
the Company releases earnings results or material news or a material event
relating to us occurs or (2) prior to the expiration of the initial Lock-Up
Period, the Company announces that it will release earnings results during
the
16-day period beginning on the last day of the initial Lock-Up Period, then
in
each case the Lock-Up Period will be extended until the expiration of the
18-day
period beginning on the date of release of the earnings results or material
news, as applicable, unless the Representative waives, in writing, such
extension.
(i) The
Company shall cause each officer and director of the Company holding shares
of
Common Stock or any securities convertible into, or exercisable or exchangeable
for, shares of Common Stock, to furnish to the Representative, on or prior
to
the date of this Agreement, a letter or letters, in form and substance
satisfactory to counsel for the Underwriters, pursuant to which each such
person
shall agree not to offer for sale, contract to sell, sell, distribute, grant
any
option, right or warrant to purchase, pledge, hypothecate or otherwise dispose
of, directly or indirectly, any shares of Common Stock or any securities
convertible into, or exercisable or exchangeable for, shares of Common Stock
during the 180 days (subject to an additional extension to accommodate for
earnings or material news releases) following the effective date of the
Registration Statement, except with the Representative’s prior written
consent.
15
(j) The
Company will use its best efforts to have the Securities and the Common Stock
and Series E Warrants reserved for issuance under the Underwriter Warrants
listed on the Nasdaq Capital Market.
(k) On
the
First Closing Date, the Company shall issue to the Underwriters the Underwriter
Warrants to purchase that number of shares of Common Stock and that number
of
Series E Warrants equal to ten percent of the Firm Securities (adjusted upward
to the nearest whole share). The Underwriter Warrants shall be in the
form of Exhibit A attached hereto. The Underwriter Warrants shall be
purchased from the Company, severally and not jointly, for the accounts of
the
several Underwriters in proportion to the number of Firm Securities set forth
opposite such Underwriter’s name in Schedule I hereto, except that the
respective purchase obligations of each Underwriter shall be adjusted by
the
Representative so that no Underwriter Warrants to be purchased by an Underwriter
shall represent the right to purchase a fractional share of Common Stock
or
fractional Public Warrant. The aggregate purchase price for the
Underwriter Warrants will be $100.00.
(l) Whether
or
not this Agreement becomes effective or is terminated or the sale of the
Securities to the Underwriters is consummated, the Company shall pay or cause
to
be paid (A) all expenses (including stock transfer taxes) incurred in
connection with the delivery to the several Underwriters of the Securities,
(B) all fees and expenses (including, without limitation, fees and expenses
of the Company’s accountants and counsel, but excluding fees and expenses of
counsel for the Underwriters) in connection with the preparation, printing,
filing, delivery and shipping of the Registration Statement (including the
financial statements therein and all amendments and exhibits thereto), each
preliminary prospectus, the Disclosure Package and the Prospectus as amended
or
supplemented and the printing, delivery and shipping of this Agreement and
other
underwriting documents, including Underwriters’ Questionnaires, Underwriters’
Powers of Attorney, Blue Sky Memoranda, the Agreement Among Underwriters
and
Selected Dealer Agreements, (C) all filing fees and fees and disbursements
of counsel to the Underwriters incurred in connection with the qualification
of
the Securities for sale under state securities laws as provided in
Section 4(f) hereof, (D) the filing fee of FINRA, (E) any
applicable listing fees, (F) the cost of printing certificates representing
the Securities, (G) the cost and charges of any transfer agent or
registrar, (H) a non-accountable expense allowance equal to one percent
(1%) of the gross proceeds received by the Company from the sale of the
Securities of which non-accountable expense allowance shall be paid to the
Representative and (I) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise provided
for in
this Section. It is understood, however, that, except as provided in
this Section, Section 6 and Section 8 hereof, the Underwriters shall
pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Securities by them and any
advertising expenses connected with any offers they may make. If the
sale of the Securities provided for herein is not consummated by reason of
acts
of the Company pursuant to Section 8(a) hereof which prevent this Agreement
from becoming effective, or by reason of any failure, refusal or inability
on
the part of the Company to perform any agreement on its part to be performed
or
because any other condition of the Underwriters’ obligations hereunder is not
fulfilled, unless the failure to perform the agreement or fulfill the condition
is due to the default or omission of any Underwriter, the Company shall
reimburse the several Underwriters for all reasonable out-of-pocket
disbursements (including fees and disbursements of counsel) incurred by the
Underwriters in connection with their investigation, preparing to market
and
marketing the Securities or in contemplation of performing their obligations
hereunder. The Company shall not in any event be liable to any of the
Underwriters for loss of anticipated profits from the transactions covered
by
this Agreement.
16
5. Conditions
of Underwriters’
Obligations. The respective obligations of the several
Underwriters hereunder are subject to the accuracy, at and as of the date
hereof
and the First Closing Date (as if made at the First Closing Date) and, with
respect to the Optional Securities, the Option Closing Date (as if made at
the
Option Closing Date), of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) The
Registration Statement shall have become effective not later than 10:00 A.M.,
Eastern time, on the date of this Agreement, or such later time and date
as the
Representative shall approve and all filings required by Rules 424, 430A
and 433
under the Securities Act shall have been timely made; no stop order suspending
the effectiveness of the Registration Statement or any amendment thereof
shall
have been issued; no proceedings for the issuance of such an order shall
have
been initiated or threatened; and any request of the Commission for additional
information (to be included in the Registration Statement, the Disclosure
Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise)
shall
have been complied with to the Representative’s satisfaction.
(b) No
Underwriter shall have advised the Company that the Registration Statement,
the
Disclosure Package or the Prospectus, or any amendment thereof or supplement
thereto, contains an untrue statement of fact which, in the Representative’s
opinion, is material, or omits to state a fact which, in the Representative’s
opinion, is material and is required to be stated therein or is necessary
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading.
(c) On
each
Closing Date, the Representative shall have received the favorable opinion
of
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, dated as of such Closing
Date, the form of which is attached as Exhibit B.
(d) On
each
Closing Date, the Representative shall have received the favorable opinion
of
Polsmelli ▇▇▇▇▇▇▇ ▇▇▇▇▇ Seulthaus PC, special intellectual property/patent
counsel for the Company, dated as of such Closing Date, the form of which
is
attached hereto as Exhibit C.
(e)
On each
Closing Date the Representative shall have received the favorable opinion
of DLA
Piper US LLP, special regulatory counsel for the Company, dated as of such
Closing Date, the form of which is attached hereto Exhibit D.
(f) On
each
Closing Date the Representative shall have received the favorable opinion
of
Golenbock ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriters,
dated as of such Closing Date, in form and substance satisfactory to the
Representative.
17
(g) There
shall have been furnished to the Representative a certificate of the Company,
dated as of each Closing Date and addressed to the Representative, signed
by the
Chief Executive Officer and by the Chief Financial Officer of the Company
to the
effect that:
(i) The
representations and warranties of the Company in this Agreement are true
and
correct, as if made at and as of such Closing Date, and the Company has complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date;
(ii) No
stop
order suspending the effectiveness of the Registration Statement has been
issued, and no proceedings for that purpose have been initiated or are pending
or, to their knowledge, contemplated;
(iii) Any
and
all filings required by Rules 424, 430A, 430B and 430C under the Securities
Act
have been timely made;
(iv) The
signers of said certificate have carefully examined the Registration Statement
and the Disclosure Package and the Prospectus, and any amendments or supplements
thereto, and such documents contain all statements and information required
to
be included therein; the Registration Statement or any amendment thereto
does
not 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; and the Disclosure Package and the Prospectus or
any
supplements thereto do not 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, in the light of the circumstances under which
they
were made, not misleading;
(v) Since
the
effective date of the Registration Statement, there has occurred no event
required to be set forth in an amendment or supplement to the Registration
Statement or the Disclosure Package and the Prospectus which has not been
so set
forth; and
(vi) Since
the
effective date of the Registration Statement, neither the Company nor any
of its
Subsidiaries shall have sustained any loss by strike, fire, flood, accident
or
other calamity (whether or not insured), or shall have become a party to
or the
subject of any litigation, which is material to the Company or its Subsidiaries
taken as a whole, nor shall there have been a material adverse change in
the
general affairs, business, key personnel, capitalization, financial position,
earnings or net worth of the Company and its Subsidiaries, whether or not
arising in the ordinary course of business, which loss, litigation or change,
in
the Representative’s judgment, shall render it inadvisable to proceed with the
delivery of the Securities.
(h) On
the
date hereof, and on each Closing Date, the Representative shall have received
from ▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC, independent public or certified public accountants
for the Company, a letter dated the date hereof addressed to the Representative,
on behalf of the several Underwriters, in form and substance satisfactory
to the
Representative, containing statements and information of the type ordinarily
included in accountant’s “comfort letters” to underwriters, delivered according
to Statement of Auditing Standards No. 100 (or any successor bulletin), with
respect to the audited and unaudited financial statements and certain financial
information contained in the Registration Statement and the Prospectus (and
the
Representative shall have received an additional five conformed copies of
such
accountants’ letter for each of the several Underwriters).
18
(i) The
Securities and the Common Stock and the Series E Warrants reserved for issuance
under the Underwriter Warrants shall have been duly authorized for listing
on
the Nasdaq Capital Market.
(j) The
“lock-up” agreements between the Representatives and the officers and directors
of the Company listed on Schedule II, delivered to the Representative on
or
before the date hereof, shall be in full force and effect on each Closing
Date.
(k) On
or
before each Closing Date, the Representative and counsel for the Underwriters
shall have received such information, certificates, agreements, opinions
and
other documents as they may reasonably require.
All
such
opinions, certificates, letters and documents shall be in compliance with
the
provisions hereof only if they are satisfactory in form and substance to
the
Representative and to counsel for the Underwriters. The Company shall
furnish the Representative with such conformed copies of such opinions,
certificates, letters and other documents as the Representative shall reasonably
request. If any of the conditions specified in this Section 5
shall not have been fulfilled when and as required by this Agreement, this
Agreement and all obligations of the Underwriters hereunder may be canceled
at,
or at any time prior to, the First Closing Date or the Option Closing Date,
as
the case may be, by the Representative. Any such cancellation shall
be without liability of the Underwriters to the Company. Notice of
such cancellation shall be given to the Company in writing, or by telegraph
or
telephone and confirmed in writing.
6. Indemnification
and Contribution.
(a) The
Company shall indemnify and hold harmless each Underwriter, its directors,
officers, employees and agents and each person, if any, who controls any
Underwriter within the meaning of the Securities Act and the Exchange Act
against any loss, claim, damage or liability, joint or several, as incurred,
to
which such Underwriter or such controlling person may become subject, under
the
Securities Act or otherwise, insofar as such loss, claim, damage or liability
(or action in respect thereof) arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereto, including any information
deemed to be a part thereof pursuant to Rule 430A, Rule 430B or Rule 430C
under
the Securities Act, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading; or (ii) upon any untrue statement or alleged untrue statement
of
a material fact contained in any Issuer Free Writing Prospectus, any preliminary
prospectus, the Prospectus (or any amendment or supplement thereto) or any
“issuer information” filed or required to be filed pursuant to Rule 433 under
the Securities Act or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and to reimburse
each
Underwriter, its officers, directors, employees, agents and each such
controlling person for any and all expenses (including the fees and
disbursements of one counsel chosen by the Representative) as such expenses
are
reasonably incurred by such Underwriter, its officers, directors, employees
and
agents or such controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the foregoing indemnity agreement
shall not apply to any loss, claim, damage, liability or expense to the extent,
but only to the extent, arising out of or based upon any untrue statement
or
alleged untrue statement or omission or alleged omission made in reliance
upon
and in conformity with written information furnished to the Company by the
Representative expressly for use in the Registration Statement, any Issuer
Free
Writing Prospectus, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto). The indemnity agreement set forth
in this Section 6(a) shall be in addition to any liabilities that the Company
may otherwise have.
19
(b) Each
Underwriter severally, but not jointly, shall indemnify and hold harmless
the
Company, its directors, officers, employees and each person, if any who controls
the Company within the meaning of the Securities Act or the Exchange Act
against
any loss, claim, damage or liability, joint or several, as incurred, to which
the Company may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage or liability (or action in respect thereof) arises
out of or is based upon any untrue or alleged untrue statement of a material
fact contained in the Registration Statement, any Issuer Free Writing
Prospectus, any preliminary prospectus or the Prospectus (or any amendment
or
supplement thereto), or arises out of or is based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to
the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any Issuer Free Writing Prospectus, any preliminary prospectus,
the
Prospectus (or any amendment or supplement thereto), in reliance upon and
in
conformity with written information furnished to the Company by the
Representative expressly for use therein; and to reimburse the Company, or
any
such director, officer, employee or controlling person for any legal and
other
expense reasonably incurred by the Company, or any such director, officer,
employee or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action. The indemnity agreement set forth in this Section
6(b) shall be in addition to any liabilities that each Underwriter may otherwise
have.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of
the
claim or the commencement of that action; the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under such subsection. If any such
claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any
other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election
to
assume the defense of such claim or action, the indemnifying party shall
not be
liable to the indemnified party under such subsection for any legal or other
expenses subsequently incurred by the indemnified party in connection with
the
defense thereof other than reasonable costs of investigation; except that
the
Representative shall have the right to employ counsel to represent it and
those
other Underwriters who may be subject to liability arising out of any claim
in
respect of which indemnity may be sought by the Underwriters against the
Company
under such subsection if, in the Representative’s reasonable judgment, based
upon the advice of counsel, it is advisable for the Representative and those
Underwriters to be represented by separate counsel, and in that event the
fees
and expenses of such separate counsel shall be paid by the Company.
20
(d) If
the
indemnification provided for in this Section 6 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or
(b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages
or
liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by
the
Company on the one hand and the Underwriters on the other from the offering
of
the Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on the
other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities
(before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. Relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged
omission to state a material fact relates to information supplied by the
Company
or the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were
to be
determined by pro rata allocation (even if the Underwriters were treated
as one
entity for such purpose) or by any other method of allocation which does
not
take into account the equitable considerations referred to in the first sentence
of this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities referred
to in
the first sentence of this subsection (d) shall be deemed to include any
legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending against any action or claim which is the
subject
of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount
in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint. Each party entitled to contribution agrees
that upon the service of a summons or other initial legal process upon it
in any
action instituted against it in respect of which contribution may be sought,
it
shall promptly give written notice of such service to the party or parties
from
whom contribution may be sought, but the omission so to notify such party
or
parties of any such service shall not relieve the party from whom contribution
may be sought from any obligation it may have hereunder or otherwise (except
as
specifically provided in subsection (c) hereof).
(e) The
obligations of the Company under this Section 6 shall be in addition to any
liability which the Company may otherwise have; and the obligations of the
Underwriters under this Section 6 shall be in addition to any liability
that the respective Underwriters may otherwise have, and shall extend, upon
the
same terms and conditions, to each director of the Company (including any
person
who, with his consent, is named in the Registration Statement as about to
become
a director of the Company), to each officer of the Company who has signed
the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Securities Act, in either case, whether or not
such
person is a party to any action or proceeding.
21
7. Substitution
of
Underwriters. If any Underwriter defaults in its obligation to
purchase the number of Securities which it has agreed to purchase under this
Agreement, the non-defaulting Underwriters shall be obligated to purchase
(in
the respective proportions which the number of Securities set forth opposite
the
name of each non-defaulting Underwriter in Schedule I hereto bears to the
total number of Securities set forth opposite the names of all the non-
defaulting Underwriters in Schedule I hereto) the Securities which the
defaulting Underwriter agreed but failed to purchase; except that the
non-defaulting Underwriters shall not be obligated to purchase any of the
Securities if the total number of Securities which the defaulting Underwriter
or
Underwriters agreed but failed to purchase exceeds 10% of the total number
of
Firm Securities, and any non-defaulting Underwriter shall not be obligated
to
purchase more than 110% of the number of Securities set forth opposite its
name
in Schedule I hereto purchasable by it pursuant to the terms of
Section 2. If the foregoing maximums are exceeded, (i) the
non-defaulting Underwriters, and any other underwriters satisfactory to the
Representative who so agree, shall have the right, but shall not be obligated,
to purchase (in such proportions as may be agreed upon among them) all the
Securities. If the non- defaulting Underwriters or the other
underwriters satisfactory to the Representative do not elect to purchase
the
Securities which the defaulting Underwriter or Underwriters agreed but failed
to
purchase, this Agreement shall terminate without liability on the part of
any
non-defaulting Underwriter or the Company except for the payment of expenses
to
be borne by the Company and the Underwriters as provided in Section (4)(l)
and the indemnity and contribution agreements of the Company and the
Underwriters contained in Section 6 hereof.
Nothing
contained herein shall relieve a defaulting Underwriter of any liability
it may
have for damages caused by its default. If the other underwriters
satisfactory to the Representative are obligated or agree to purchase the
Securities of a defaulting Underwriter, either the Representative or the
Company
may postpone the First Closing Date for up to five full Business Days in
order
to effect any changes that may be necessary in the Registration Statement,
the
Disclosure Package or the Prospectus or in any other document or agreement,
and
to file promptly any amendments or any supplements to the Registration Statement
or the Disclosure Package or the Prospectus which in the Representative’s
opinion may thereby be made necessary.
8. Effective
Date and Termination.
(a) This
Agreement shall become effective at 12:00 Noon, New York City time, on the
first
full Business Day following the earlier of (i) the date hereof, or
(ii) the day on which the Representative release the initial public
offering of the Firm Securities for sale to the public. The
Representative shall notify the Company immediately after the Representative
has
taken any action which causes this Agreement to become
effective. Until this Agreement is effective, it may be terminated by
the Company or by the Representative by giving notice as hereinafter provided
to
the Representative or by the Representative by giving notice as hereinafter
provided to the Company, except that the provisions of Sections 4(l) and
6 shall
at all times be effective. For the purpose of this Section, the
Securities shall be deemed to have been released for sale to the public upon
release by the Representative of an electronic communication authorizing
commencement of the offering the Securities for sale by the Underwriters
or
other securities dealers.
(b) Until
the
First Closing Date, this Agreement may be terminated by the Representative
by
giving notice as hereinafter provided to the Company, if (i) the Company
shall have failed, refused or been unable, at or prior to the First Closing
Date, to perform any agreement on its part to be performed hereunder unless
the
failure to perform any agreement is due to the default or omission by any
Underwriter, (ii) any other condition of the obligations of the
Underwriters hereunder is not fulfilled; (iii) trading in securities
generally on the New York Stock Exchange, American Stock Exchange or the
Nasdaq
Capital Market shall have been suspended or minimum or maximum prices shall
have
been established on either of such exchanges or such market by the Commission
or
by such exchange or other regulatory body or governmental authority having
jurisdiction; (iv) trading or quotation in any of the Company’s securities
shall have been suspended or limited by the Commission or by the Nasdaq Capital
Market or other regulatory body of governmental authority having jurisdiction;
(v) a general banking moratorium shall have been declared by Federal or
state authorities; (vi) a material disruption in securities settlement,
payment or clearance services in the United States shall have occurred;
(vii) there shall have been any material adverse change in general
economic, political or financial conditions or if the effect of international
conditions on the financial markets in the United States shall be such as,
in
the Representative’s judgment, makes it inadvisable to proceed with the delivery
of the Securities; or (viii) any attack on, outbreak or escalation of
hostilities, declaration of war or act of terrorism involving the United
States
or any other national or international calamity or emergency if, in the
Representative’s judgment, the effect of any such attack, outbreak, escalation,
declaration, act, calamity or emergency makes it impractical or inadvisable
to
proceed with the completion of the public offering or the delivery of the
Securities. Any termination of this Agreement pursuant to this
Section 8 shall be without liability on the part of the Company or any
Underwriter, except as otherwise provided in Sections 4(l) or 6
hereof.
22
Any
notice
referred to above may be given at the address specified in Section 10
hereof in writing or by telegraph or telephone, and if by telegraph or
telephone, shall be immediately confirmed in writing.
(c) This
Agreement may also be terminated as provided in Section 7
hereof.
9. Survival
of Indemnities,
Contribution, Warranties and Representations. All
representations, warranties, and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the several
Underwriters and the Company contained in Section 6 hereof, shall remain
operative and in full force and effect regardless of any investigation made
by
or on behalf of any Underwriter or any controlling person thereof, or the
Company or any of its officers, directors, or controlling persons, and shall
survive delivery of, and payment for, the Securities to and by the Underwriters
hereunder.
10. Notices. All
communications hereunder shall be in writing and shall be mailed, hand delivered
or telecopied and confirmed to the parties hereto as follows:
|
|
If
to the Representative:
|
MDB
Capital Group LLC
|
|
|
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
|
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Facsimile:
(310) 526- 5020
|
|
|
Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
|
with
a copy to:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
|
|
|
Golenbock
▇▇▇▇▇▇▇ Assor ▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇
|
|
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ – ▇▇▇▇
▇▇▇▇▇
|
|
|
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|
|
Facsimile
(▇▇▇) ▇▇▇-▇▇▇▇
|
23
|
|
If
to the Company:
|
|
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
|
|
|
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Facsimile
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
with
a copy to:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
|
|
|
▇▇▇▇▇▇
& ▇▇▇▇▇▇ L.L.P.
|
|
|
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
|
▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇
|
|
|
Facsimile
(▇▇▇) ▇▇▇-▇▇▇▇
|
11. Information
Furnished by
Underwriters. The statements set forth under the caption
“Underwriting” in the table in the first paragraph concerning the number of
shares each Underwriter has agreed to purchase and in the paragraphs concerning
sales by Underwriters to the public at the offering price and to dealers
at such
price less a concession and sales by Underwriters to discretionary accounts
in
any preliminary prospectus and the Prospectus, constitute the only written
information furnished by or on behalf of any Underwriter referred to in
paragraphs (b) and (c) of Section 1 hereof and in paragraphs (a) and (b) of
Section 6 hereof.
12. Parties. This
Agreement is made solely for the benefit of the several Underwriters, the
Company, any officer, director or controlling person referred to in
Section 6 hereof, and their respective successors and assigns, and no other
person shall acquire or have any right by virtue of this
Agreement. The term “successors and assigns,” as used in this
Agreement, shall not include any purchaser of any of the Securities from
any of
the Underwriters merely by reason of such purchase.
13. Definition
of “Business Day” and
“Subsidiary”. For purposes of this Agreement,
(a) ”Business Day” means any day on which the New York Stock Exchange, Inc.
is open for trading, and (b) ”Subsidiary” has the meaning set forth in Rule
405 under the Securities Act.
14. Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws
of the
State of California, without giving effect to the choice of law or conflict
of
laws principles thereof.
15. Partial
Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision
hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be
deemed
to be made such minor changes (and only such minor changes) as are necessary
to
make it valid and enforceable.
16. General
Provisions. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and
all
contemporaneous oral agreements, understandings and negotiations with respect
to
the subject matter hereof. This Agreement may be executed in two or
more counterparts, each one of which shall be an original, with the same
effect
as if the signatures thereto and hereto were upon the same
instrument. This Agreement may not be amended or modified unless in
writing by all of the parties hereto, and no condition herein (express or
implied) may be waived unless waived in writing by each party whom the condition
is meant to benefit. The Section headings herein are for the
convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
24
Please
confirm, by signing and returning to us two (2) counterparts of this Agreement,
that the Representative is acting on behalf of itself and the several
Underwriters and that the foregoing correctly sets forth the agreement among
the
Company and the several Underwriters.
Very
truly
yours,
|
By:
|
/s/▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
|
|
Title:
|
President
and CEO
|
CONFIRMED
AND ACCEPTED
as
of the
date first above mentioned:
MDB
CAPITAL GROUP LLC,
as
Representative of the Several Underwriters named
in
Schedule I hereto
By:
/s/ ▇▇▇▇▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇,
Authorized
Signatory
25
SCHEDULE
I
Underwriting
Agreement dated February 13, 2008
|
Underwriter
|
Number of Firm Securitiesto be Purchased | ||||
|
MDB
Capital Group LLC
|
2,250,000
|
||||
|
GunnAllen
Financial, Inc.
|
1,250,000
|
||||
|
3,500,000
|
|||||
Schedule
I
SCHEDULE
II
Lock-Up
Agreements
Schedule
II
SCHEDULE
III
Issuer
Free Writing Prospectus
Schedule
III
EXHIBIT
A
Form
of Underwriter Warrants
Exhibit
A
EXHIBIT
B
Form
of Opinion of Company Counsel
Exhibit
B
EXHIBIT
C
Form
of Opinion of Special Intellectual Property Counsel of the Company
Exibit
C
EXHIBIT
D
Form
of Opinion of Special Regulatory Counsel of the Company
C-1