Exhibit
1.1
AMENDMENT NO. 1 TO AT-THE-MARKET ISSUANCE SALES
AGREEMENT
December
8, 2017
Ladies
and Gentlemen:
CorMedix Inc. (the
“
Company
”) and MLV &
Co. LLC (“
MLV
”) are parties to that
certain At-the-Market Issuance Sales Agreement dated April 8, 2015
(the “
Original
Agreement
”). All capitalized terms not defined herein
shall have the meanings ascribed to them in the Original Agreement.
The parties, together with B. Riley FBR, intending to be legally
bound, hereby amend the Original Agreement as follows:
1.
All references to
“MLV & Co. LLC” and “MLV” set forth the
Original Agreement are revised to read “B. Riley FBR,
Inc.” and “B. Riley FBR”
respectively.
2.
Section 1 is
deleted in its entirety and replaced with the
following:
“
Issuance and Sale of Shares
.
The Company agrees that, from time to time during the term of this
Agreement, on the terms and subject to the conditions set forth
herein, it may issue and sell through B. Riley FBR, shares (the
“
Placement
Shares
”) of the Company’s common stock, par
value $0.001 per share (the “
Common Stock
”),
provided however,
that in
no event shall the Company issue or sell through B. Riley FBR such
number of Placement Shares that (a) exceeds $50.0 million of Common
Stock registered on the effective Registration Statement (as
defined below) pursuant to which the offering is being made, or (b)
exceeds the number of authorized but unissued shares of Common
Stock (the lesser of (a) and (b), the “
Maximum Amount
”).
Notwithstanding anything to the contrary contained herein, the
parties hereto agree that compliance with the limitations set forth
in this
Section 1
on the number of Placement Shares issued and sold under this
Agreement shall be the sole responsibility of the Company and that
B. Riley FBR shall have no obligation in connection with such
compliance. Pursuant to this Agreement, shares of our common stock
were previously sold for $39.5 million in aggregate gross proceeds
under a separate prospectus. Under this Agreement, as amended by
Amendment No. 1 to the At-the-Market Issuance Sales Agreement, the
Company, through B. Riley FBR, may offer and sell further shares of
common stock having an aggregate offering price of up to
$20,000,000 pursuant to the Prospectus (as defined below).The
issuance and sale of Placement Shares through B. Riley FBR will be
effected pursuant to the Registration Statement (as defined below),
although nothing in this Agreement shall be construed as requiring
the Company to use the Registration Statement to issue any
Placement Shares.
The
Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations
thereunder (the “
Securities Act
”), with
the Securities and Exchange Commission (the “
Commission
”), a
registration statement on Form S-3 (File No. 333-203300), including
a base prospectus relating to certain securities, including the
Placement Shares, to be issued from time to time by the Company,
and which incorporates by reference documents that the Company has
filed or will file in accordance with the provisions of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the “
Exchange Act
”). The
Company has prepared a prospectus supplement to the base prospectus
included as part of such registration statement specifically
relating to the Placement Shares (the “
Prospectus Supplement
”).
The Company will furnish to B. Riley FBR, for use by B. Riley FBR,
copies of the base prospectus included as part of such registration
statement, as supplemented by the Prospectus Supplement, relating
to the Placement Shares. Except where the context otherwise
requires, such registration statement, and any post-effective
amendment thereto, including all documents filed as part thereof or
incorporated by reference therein, and including any information
contained in a Prospectus (as defined below) subsequently filed
with the Commission pursuant to Rule 424(b) under the Securities
Act or deemed to be a part of such registration statement pursuant
to Rule 430B of the Securities Act, is herein called the
“
Registration
Statement
.” The base prospectus, including all
documents incorporated or deemed incorporated therein by reference
to the extent such information has not been superseded or modified
in accordance with Rule 412 under the Securities Act (as qualified
by Rule 430B(g) of the Securities Act), included in the
Registration Statement, as it may be supplemented by the Prospectus
Supplement, in the form in which such base prospectus and/or
Prospectus Supplement have most recently been filed by the Company
with the Commission pursuant to Rule 424(b) under the Securities
Act, is herein called the “
Prospectus
.” Any
reference herein to the Registration Statement, the Prospectus or
any amendment or supplement thereto shall be deemed to refer to and
include the documents incorporated or deemed incorporated by
reference therein, and any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein (the
“
Incorporated
Documents
”).
For
purposes of this Agreement, all references to the Registration
Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include the most recent copy filed with the
Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval System, or if applicable, the Interactive Data Electronic
Application system when used by the Commission (collectively,
“EDGAR”).”
3.
Section 3(a) is
deleted in its entirety and replaced with the
following:
“Subject to
the terms and conditions of this Agreement, for the period
specified in a Placement Notice, B. Riley FBR will use its
commercially reasonable efforts consistent with its normal trading
and sales practices and applicable state and federal laws, rules
and regulations and the rules of NYSE American (the
“
Exchange
”), to sell the
Placement Shares up to the amount specified in, and otherwise in
accordance with the terms of, such Placement Notice. B. Riley FBR
will provide written confirmation to the Company no later than the
opening of the Trading Day (as defined below) immediately following
the Trading Day on which it has made sales of Placement Shares
hereunder setting forth the number of Placement Shares sold on such
day, the compensation payable by the Company to B. Riley FBR
pursuant to Section 2 with respect to such sales, and the Net
Proceeds (as defined below) payable to the Company, with an
itemization of the deductions made by B. Riley FBR (as set forth in
Section 5(b)) from the gross proceeds that it receives from such
sales. Subject to the terms of a Placement Notice, B. Riley FBR may
sell Placement Shares by any method permitted by law deemed to be
an “at the market offering” as defined in Rule 415 of
the Securities Act. “
Trading Day
” means any
day on which Common Stock is purchased and sold on the
Exchange.”
4.
Section 6(k) is
deleted in its entirety and replaced with the
following:
“
S-3 Eligibility.
(i) At the
time of filing the Registration Statement and (ii) at the time
of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of prospectus),
the Company met the then applicable requirements for use of Form
S-3 under the Securities Act, including compliance with General
Instruction I.B.1 of Form S-3, as applicable. The Company is not a
shell company (as defined in Rule 405) and has not been a shell
company for at least 12 calendar months previously and if it has
been a shell company at any time previously, has filed current Form
10 information (as defined in Instruction I.B.6 of Form S-3) with
the Commission at least 12 calendar months previously reflecting
its status as an entity that is not a shell
company.”
5.
Section 9 is
deleted in its entirety and replaced with the
following:
“Payment of
Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i)
the preparation, filing, including any fees required by the
Commission, and printing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each
amendment and supplement thereto and each Free Writing Prospectus,
in such number as B. Riley FBR shall deem reasonably necessary,
(ii) the printing and delivery to B. Riley FBR of this Agreement
and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Placement
Shares, (iii) the preparation, issuance and delivery of the
certificates, if any, for the Placement Shares to B. Riley FBR,
including any stock or other transfer taxes and any capital duties,
stamp duties or other duties or taxes payable upon the sale,
issuance or delivery of the Placement Shares to B. Riley FBR, (iv)
the fees and disbursements of the counsel, accountants and other
advisors to the Company, (v) the fees and disbursements of counsel
to B. Riley FBR up to $35,000, inclusive of the $25,000
reimbursement previously paid by the Company, (vi) the fees and
expenses of the transfer agent and registrar for the Common Stock,
(vii) the filing fees incident to any review by FINRA of the terms
of the sale of the Placement Shares, and (viii) the fees and
expenses incurred in connection with the listing of the Placement
Shares on the Exchange.
6.
Section 14 is
hereby amended to replace,
“MLV &
Co. LLC
1251
Avenue of the Americas, 41st Floor
New
York, New York 10020
Attention: General
Counsel
Telephone: (212)
542-5870
Email:
dcolucci@mlvco.com
with a
copy to:
LeClairRyan, A
Professional Corporation
885
Third Avenue
New
York, NY 10022
Attention: James T.
Seery
Telephone: (973)
491-3315
Email:
james.seery@leclairryan.com”
With,
“B. Riley
FBR, Inc.
299
Park Avenue
New
York, NY 10171
Attention: General
Counsel
Telephone:(212)
457-9947
Email:
atmdesk@brileyfbr.com
with a
copy to:
Duane
Morris LLP
One
Riverfront Plaza
1037
Raymond Boulevard, Suite 1800
Newark,
New Jersey 07102-5429
Attention: James T.
Seery
Telephone: (973)
424-2088
Email:
jtseery@duanemorris.com
”
7.
Schedule 3 is
hereby amended to replace,
“
MLV
Randy
Billhardt
rbillhardt@mlvco.com
Ryan
Loforte
rloforte@mlvco.com
Patrice
McNicoll
pmcnicoll@mlvco.com
Miranda Toledano mtoledano@mlvco.com
With a
copy to mlvatmdesk@mlvco.com”
With
“
B. Riley FBR
Matthew
Feinberg mfeinberg@brileyfbr.com
Ryan
Loforte
rloforte@brileyfbr.com
Patrice
McNicoll
pmcnicoll@brileyfbr.com
Keith Pompliano
kpompliano@brileyfbr.com
with a
copy to atmdesk@brileyfbr.com”
8.
All references to
“April 8, 2015” set forth in Schedule 1 and Exhibit
7(l) of the Original Agreement are revised to read “April 8,
2015 (as amended by Amendment No. 1 to At-the-Market Issuance Sales
Agreement, dated December 8, 2017)”.
9.
Except as
specifically set forth herein, all other provisions of the Original
Agreement shall remain in full force and effect.
10.
Entire Agreement; Amendment;
Severability
. This Amendment No. 1 to the Original Agreement
together with the Original Agreement (including all schedules and
exhibits attached hereto and thereto and Placement Notices issued
pursuant hereto and thereto) constitutes the entire agreement and
supersedes all other prior and contemporaneous agreements and
undertakings, both written and oral, among the parties hereto with
regard to the subject matter hereof. All references in the Original
Agreement to the “Agreement” shall mean the Original
Agreement as amended by this Amendment No. 1;
provided, however
, that all references
to “date of this Agreement” in the Original Agreement
shall continue to refer to the date of the Original Agreement, and
the reference to “time of execution of this Agreement”
set forth in Section 13(a) shall continue to refer to the time of
execution of the Original Agreement.
11.
Applicable Law; Consent to
Jurisdiction
. This amendment shall be governed by, and
construed in accordance with, the internal laws of the State of New
York without regard to the principles of conflicts of laws. Each
party hereby irrevocably submits to the non-exclusive jurisdiction
of the state and federal courts sitting in the City of New York,
borough of Manhattan, for the adjudication of any dispute hereunder
or in connection with any transaction contemplated hereby, and
hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by
mailing a copy thereof (certified or registered mail, return
receipt requested) to such party at the address in effect for
notices to it under this amendment and agrees that such service
shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by
law.
12.
Waiver of Jury Trial
. The
Company, MLV and B. Riley FBR each hereby irrevocably waives any
right it may have to a trial by jury in respect of any claim based
upon or arising out of this amendment or any transaction
contemplated hereby.
13.
Assignment
. MLV hereby assigns
to B. Riley FBR its rights and obligations under the Original
Agreement and this amendment, and upon the execution of this
amendment MLV shall no longer be a party to the Original Agreement
as amended. The Company hereby consents to the foregoing assignment
in accordance with Section 15 of the Original
Agreement.
14.
Counterparts
. This amendment
may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument. Delivery of an executed amendment by one
party to the other may be made by facsimile
transmission.
[Remainder of Page Intentionally Blank]
If the
foregoing correctly sets forth the understanding among the Company,
MLV and B. Riley, please so indicate in the space provided below
for that purpose, whereupon this letter shall constitute a binding
amendment to the Original Agreement between the Company, MLV and B.
Riley FBR.
Very
truly yours,
CORMEDIX
INC.
Name:
Robert W. Cook
Title:
Chief Financial Offier
MLV
& CO. LLC
By:
/s/
Patrice
McNicoll
Name:
Patrice McNicoll
Title:
Chief Executive Officer
B.
RILEY FBR, INC.
By:
/s/
Patrice
McNicoll
Name:
Patrice McNicoll
Title:
Co-Head of Investment Banking
[Signature page to Amendment No. 1 to At-the-Market Issuance Sales
Agreement]
5
Exhibit 5.1
Wyrick
Robbins Yates & Ponton LLP
4101
Lake Boone Trail, Suite 300
Raleigh,
North Carolina 27607
December
8, 2017
Board
of Directors
CorMedix
Inc.
400
Connell Drive, Suite 5000
Berkley
Heights, NJ 07922
Ladies
and Gentlemen:
We have
acted as counsel to CorMedix Inc., a Delaware corporation (the
“Company”), in connection with an offering of up to
$20,000,000 of shares of Common Stock that may be issued and sold
(the “Shares”) under an At-the-Market Issuance Sales
Agreement, dated April 8, 2015, as amended on December 8, 2017,
between the Company and B. Riley FBR, Inc. (as amended, the
“Sales Agreement”), pursuant to a Registration
Statement on Form S-3 (File No. 333-203300) (the
“Registration Statement”) and the related Prospectus
and Prospectus Supplement, as amended, filed with the Securities
and Exchange Commission (the “Commission”). All of the
Shares are to be sold by the Company as described in the
Registration Statement and the related Prospectus and Prospectus
Supplement.
In
connection with this opinion, we have examined the Registration
Statement and the related Prospectus and Prospectus Supplement, the
Company’s certificate of incorporation and bylaws, as
currently in effect and such other documents, records,
certificates, memoranda and other instruments as we deem necessary
as a basis for this opinion. We have assumed the genuineness and
authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies
thereof, and the due execution and delivery of all documents where
due execution and delivery are a prerequisite to the effectiveness
thereof. Further, we have assumed that the aggregate gross amount
of Shares sold will not exceed $20,000,000.
Based
upon the foregoing, we are of the opinion that, when the Shares
have been duly and properly sold, paid for and delivered as
contemplated in the Registration Statement and the related
Prospectus and Prospectus Supplement, the Shares will be duly
authorized, validly issued, fully paid and
non-assessable.
This
opinion is limited to the Delaware General Corporation Law,
including the statutory provisions of the Delaware General
Corporate Law and all applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting these
laws. We hereby consent to the filing of this opinion with the
Commission as Exhibit 5.1 to the Company’s Current Report on
Form 8-K filed with the Commission on or about December 8,
2017.
Very
truly yours,
/s/
Wyrick Robbins Yates & Ponton LLP