Exhibit 1.1
January
14, 2021
Inuvo,
Inc.
500 President Clinton Ave., Suite
300
Little Rock, Arkansas
72201
Attention:
Richard K. Howe
Chairman and Chief
Executive Officer
Dear
Mr. Howe:
This
letter (the “Agreement”) constitutes the
agreement between A.G.P./Alliance Global Partners, as exclusive
placement agent (“A.G.P.” or the “Placement Agent”), and Inuvo,
Inc., a company organized under the laws of the state of Nevada
(the “Company”),
that the Placement Agent shall serve as the placement agent for the
Company, on a “reasonable best efforts” basis, in
connection with the proposed placement (the “Placement”) of shares of common
stock, par value, $0.001 per share (the “Shares”). The Shares actually
placed by the Placement Agent are referred to herein as the
“Placement Agent
Securities.” The Placement Agent Securities shall be
offered and sold under the Company’s registration statement
on Form S-3 (File No. 333-239147) with respect to the Placement
Agent Securities. The documents executed and delivered by the
Company and the Purchasers (as defined below) in connection with
the Placement, including, without limitation, a securities purchase
agreement (the “Purchase
Agreement”), shall be collectively referred to herein
as the “Transaction
Documents.” The purchase price to the Purchasers for
each Share is $0.60. The Placement Agent may retain other
brokers or dealers to act as sub-agents or selected-dealers on its
behalf in connection with the Placement.
The
terms of the Placement shall be mutually agreed upon by the Company
and the purchasers listed in the Purchase Agreement (each, a
“Purchaser” and
collectively, the “Purchasers”), and nothing herein
constitutes that the Placement Agent would have the power or
authority to bind the Company or any Purchaser, or an obligation
for the Company will issue any Securities or complete the
Placement. The Company expressly acknowledges and agrees that the
Placement Agent’s obligations hereunder are on a reasonable
best efforts basis only and that the execution of this Agreement
does not constitute a commitment by the Placement Agent to purchase
the Securities and does not ensure the successful placement of the
Securities or any portion thereof or the success of the Placement
Agent with respect to securing any other financing on behalf of the
Company. Certain affiliates of the Placement Agent may participate
in the Placement by purchasing some of the Placement Agent
Securities. The sale of Placement Agent Securities to any Purchaser
will be evidenced by the Purchase Agreement between the Company and
such Purchaser, in a form reasonably acceptable to the Company and
the Purchaser. Capitalized terms that are not otherwise defined
herein have the meanings given to such terms in the Purchase
Agreement. Prior to the signing of any Purchase Agreement, officers
of the Company will be available to answer inquiries from
prospective Purchasers.
SECTION
1. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY; COVENANTS OF THE
COMPANY.
A. Representations
of the Company. With respect to the Placement Agent
Securities, each of the representations and warranties (together
with any related disclosure schedules thereto) and covenants made
by the Company to the Purchasers in the Purchase Agreement in
connection with the Placement, is hereby incorporated herein by
reference into this Agreement (as though fully restated herein) and
is, as of the date of this Agreement and as of the Closing Date,
hereby made to, and in favor of, the Placement Agent. In addition
to the foregoing, the Company represents and warrants that there
are no affiliations with any FINRA member firm among the
Company’s officers, directors or, to the knowledge of the
Company, any five percent (5.0%) or greater stockholder of the
Company.
B. Covenants
of the Company. The Company covenants and agrees to continue
to retain (i) a firm of independent PCAOB registered public
accountants for a period of at least three (3) years after the
Closing Date and (ii) a competent transfer agent with respect to
the Placement Agent Securities for a period of three (3) years
after the Closing Date.
SECTION 2.
REPRESENTATIONS OF THE PLACEMENT
AGENT. The Placement Agent represents and warrants that it
(i) is a member in good standing of the Financial Industry
Regulatory Authority (“FINRA”), (ii) is registered as a
broker/dealer under the Securities Exchange Act of 1934, as amended
(the “Exchange
Act”), (iii) is licensed as a broker/dealer under the
laws of the United States of America, applicable to the offers and
sales of the Placement Agent Securities by the Placement Agent,
(iv) is and will be a corporate body validly existing under the
laws of its place of incorporation, and (v) has full power and
authority to enter into and perform its obligations under this
Agreement. The Placement Agent will immediately notify the Company
in writing of any change in its status with respect to subsections
(i) through (v) above. The Placement Agent covenants that it will
use its reasonable best efforts to conduct the Placement hereunder
in compliance with the provisions of this Agreement and the
requirements of applicable law.
SECTION 3.
COMPENSATION. In
consideration of the services to be provided for hereunder, the
Company shall pay to the Placement Agent or its respective
designees a total cash fee equal to seven percent (7.0%) of gross
proceeds from the Placement of the total amount of Placement Agent
Securities sold (the “Cash
Fee”) and an accountable expense allowance as set
forth in Section 4 below. A.G.P. reserves the right to reduce any
item of compensation or adjust the terms thereof as specified
herein in the event that a determination shall be made by FINRA to
the effect that the Placement Agent’s aggregate compensation
is in excess of FINRA Rules or that the terms thereof require
adjustment.
SECTION
4. EXPENSES. The Company
agrees to pay all costs, fees and expenses incurred by the Company
in connection with the performance of its obligations hereunder and
in connection with the transactions contemplated hereby, including,
without limitation: (i) all expenses incident to the issuance,
delivery and qualification of the Securities (including all
printing and engraving costs); (ii) all fees and expenses of the
registrar and transfer agent of the Shares; (iii) all necessary
issue, transfer and other stamp taxes in connection with the
issuance and sale of the Placement Agent Securities; (iv) all
fees and expenses of the Company’s counsel, independent
public or certified public accountants and other advisors; (v) all
costs and expenses incurred in connection with the preparation,
printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules,
consents and certificates of experts), the Base Prospectus and each
Prospectus Supplement, and all amendments and supplements thereto,
and this Agreement; (vi) all filing fees, reasonable
attorneys’ fees and expenses incurred by the Company in
connection with qualifying or registering (or obtaining exemptions
from the qualification or registration of) all or any part of the
Securities for offer and sale under the state securities or blue
sky laws or the securities laws of any other country; (vii) the
fees and expenses associated with including the Securities on the
Trading Market; (viii) up to $50,000 for accountable expenses
related to legal fees of counsel to the Placement Agent, and (ix)
up to $15,000 for non-accountable expenses including, but not
limited to, IPREO software related expenses, background check
expenses, tombstones and marketing related expenses, including road
show expenses if they are incurred. Notwithstanding the foregoing,
any advance received by the Placement Agent will be reimbursed to
the Company to the extent not actually incurred in compliance with
FINRA Rule 5110(f)(2)(C). In the event that this Agreement shall
not be carried out for any reason whatsoever, within the time
specified herein or any extensions thereof pursuant to the terms
herein, the Company shall be obligated to pay to the Placement
Agent their actual and accountable out-of-pocket expenses related
to the transactions contemplated herein then due and payable
(including the fees and disbursements of Representative Counsel) up
to $20,000 and upon demand the Company shall pay the full amount
thereof to the Placement Agent; provided, however, that such expense cap in no
way limits or impairs the indemnification and contribution
provisions of this Agreement.
SECTION
5. INDEMNIFICATION.
A. To
the extent permitted by law, with respect to the Placement Agent
Securities, the Company will indemnify the Placement Agent and its
affiliates, stockholders, directors, officers, employees, members
and controlling persons (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) against all
losses, claims, damages, expenses and liabilities, as the same are
incurred (including the reasonable fees and expenses of counsel),
relating to or arising out of its activities hereunder or pursuant
to this Agreement, except to the extent that any losses, claims,
damages, expenses or liabilities (or actions in respect thereof)
are found in a final judgment (not subject to appeal) by a court of
law to have resulted primarily and directly from the Placement
Agent’s willful misconduct or gross negligence in performing
the services described herein.
B. Promptly
after receipt by the Placement Agent of notice of any claim or the
commencement of any action or proceeding with respect to which the
Placement Agent is entitled to indemnity hereunder, the Placement
Agent will promptly notify the Company in writing of such claim or
of the commencement of such action or proceeding, but failure to so
notify the Company shall not relieve the Company from any
obligation it may have hereunder, except and only to the extent
such failure results in the forfeiture by the Company of
substantial rights and defenses. If the Company so elects or is
requested by the Placement Agent, the Company will assume the
defense of such action or proceeding and will employ counsel
reasonably satisfactory to the Placement Agent and will pay the
fees and expenses of such counsel. Notwithstanding the preceding
sentence, the Placement Agent will be entitled to employ its own
counsel separate from counsel for the Company and from any other
party in such action if counsel for the Placement Agent reasonably
determines that it would be inappropriate under the applicable
rules of professional responsibility for the same counsel to
represent both the Company and the Placement Agent. In such event,
the reasonable fees and disbursements of no more than one such
separate counsel will be paid by the Company, in addition to fees
of local counsel. The Company will have the right to settle the
claim or proceeding, provided that the Company will not settle any
such claim, action or proceeding without the prior written consent
of the Placement Agent, which will not be unreasonably
withheld.
C. The
Company agrees to notify the Placement Agent promptly of the
assertion against it or any other person of any claim or the
commencement of any action or proceeding relating to a transaction
contemplated by this Agreement.
D. If
for any reason the foregoing indemnity is unavailable to the
Placement Agent or insufficient to hold the Placement Agent
harmless, then the Company shall contribute to the amount paid or
payable by the Placement Agent as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to
reflect not only the relative benefits received by the Company on
the one hand and the Placement Agent on the other, but also the
relative fault of the Company on the one hand and the liable
Placement Agent on the other that resulted in such losses, claims,
damages or liabilities, as well as any relevant equitable
considerations. The amounts paid or payable by a party in respect
of losses, claims, damages and liabilities referred to above shall
be deemed to include any legal or other fees and expenses incurred
in defending any litigation, proceeding or other action or claim.
Notwithstanding the provisions hereof, the liable Placement
Agent’s share of the liability hereunder shall not be in
excess of the amount of fees actually received, or to be received,
by the Placement Agent under this Agreement (excluding any amounts
received as reimbursement of expenses incurred by the Placement
Agent).
E. These
indemnification provisions shall remain in full force and effect
whether or not the transaction contemplated by this Agreement is
completed and shall survive the termination of this Agreement, and
shall be in addition to any liability that the Company might
otherwise have to any indemnified party under this Agreement or
otherwise.
SECTION 6.
COMPANY
LOCK-UP AGREEMENTS.
(a)
Restriction on Sales of
Capital Stock. The Company, on behalf of itself and any
successor entity, agrees that, without the prior written consent of
the Placement Agent, it will not, for a period beginning on the
date of this Agreement and ending on the date that is the
90th day after the date of this Agreement (the
“Lock-Up
Period”), (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for shares of
capital stock of the Company; (ii) file or cause to be filed any
registration statement with the Commission relating to the offering
of any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for shares of
capital stock of the Company; (iii) complete any offering of debt
securities of the Company, other than entering into a line of
credit with a traditional bank or (iv) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of capital stock of the
Company, whether any such transaction described in clause (i),
(ii), (iii) or (iv) above is to be settled by delivery of shares of
capital stock of the Company or such other securities, in cash or
otherwise.
The
restrictions contained in this Section 6(a) (collectively, the
“Restrictions”)
shall not apply to (i) the Placement Agent Securities, (ii) the
issuance by the Company of securities of the Company pursuant to
any documents, agreements or securities existing or outstanding as
of the Closing Date, provided that such existing or outstanding
documents, agreements or securities have not been amended since the
date of this Agreement to increase the number of securities or to
decrease the exercise price, exchange price or conversion price of
securities (other than in connection with stock splits or
combinations) or to extend the term of such documents, agreements
or securities, (iii) the issuance by the Company of any securities
of the Company under any equity compensation plan of the Company
for services rendered to the Company; or (iv) the issuance of any
securities of the Company in connection with a merger, joint
venture, licensing arrangement or any other similar non-capital
raising transaction, provided that any such issuance shall only be
to a Person (or to the equityholders of a Person) which is, itself
or through its subsidiaries, an operating company or an owner of an
asset in a business synergistic with the business of the Company
and shall provide to the Company additional benefits in addition to
the investment of funds, but shall not include a transaction in
which the Company is issuing securities primarily for the purpose
of raising capital or to an entity whose primary business is
investing in securities, provided that in each of (ii) through (iv)
above, the securities shall be restricted from sale during the
entire Lock-Up Period.
(b)
Restriction on Continuous
Offerings. Notwithstanding the restrictions contained in
Section 6(a), from the date hereof until ninety (90) calendar days
after the date of this Agreement, the Company shall be prohibited
from effecting or entering into an agreement to effect any issuance
by the Company or any of its Subsidiaries of Common Stock or Common
Stock Equivalents (or a combination of units thereof) involving a
Variable Rate Transaction unless entered into with A.G.P.
“Variable Rate Transaction” means a transaction in
which the Company (i) issues or sells any debt or equity securities
that are convertible into, exchangeable or exercisable for, or
include the right to receive additional shares of Common Stock
either (A) at a conversion price, exercise price or exchange rate
or other price that is based upon and/or varies with the trading
prices of or quotations for the shares of Common Stock at any time
after the initial issuance of such debt or equity securities, or
(B) with a conversion, exercise or exchange price that is subject
to being reset at some future date after the initial issuance of
such debt or equity security or upon the occurrence of specified or
contingent events directly or indirectly related to the business of
the Company or the market for the Common Stock or (ii) enters into,
or effects a transaction under, any agreement, including, but not
limited to, an “at-the market” offering or equity line
of credit, whereby the Company may issue securities at a future
determined price. The Placement Agent shall be entitled to obtain
injunctive relief against the Company to preclude any such
issuance, which remedy shall be in addition to any right to collect
damages.
SECTION
7. ENGAGEMENT TERM. The Placement
Agent’s engagement hereunder will be until the earlier of (i)
February 13, 2021 and (ii) the Closing Date. The date of
termination of this Agreement is referred to herein as the
“Termination
Date.” In the event, however, in the course of the
Placement Agent’s performance of due diligence it deems it
necessary to terminate the engagement, the Placement Agent may do
so prior to the Termination Date. The Company may elect to
terminate the engagement hereunder for any reason prior to the
Termination Date but will remain responsible for fees pursuant to
Section 3 hereof with respect to the Placement Agent Securities if
sold in the Placement. Notwithstanding anything to the contrary
contained herein, the provisions concerning the Company’s
obligation to pay any fees actually earned pursuant to Section 3
hereof and the provisions concerning confidentiality,
indemnification and contribution contained herein will survive any
expiration or termination of this Agreement. If this Agreement is
terminated prior to the completion of the Placement, all fees due
to the Placement Agent as set forth in Section 3 shall be paid by
the Company to the Placement Agent on or before the Termination
Date (in the event such fees are earned or owed as of the
Termination Date). The Placement Agent agrees not to use any
confidential information concerning the Company provided to the
Placement Agent by the Company for any purposes other than those
contemplated under this Agreement.
SECTION
8. PLACEMENT AGENT INFORMATION.
The Company agrees that any information or advice rendered by the
Placement Agent in connection with this engagement is for the
confidential use of the Company only in their evaluation of the
Placement and, except as otherwise required by law, the Company
will not disclose or otherwise refer to the advice or information
in any manner without the Placement Agent’s prior written
consent.
SECTION
9. NO FIDUCIARY RELATIONSHIP. This
Agreement does not create, and shall not be construed as creating
rights enforceable by any person or entity not a party hereto,
except those entitled hereto by virtue of the indemnification
provisions hereof. The Company acknowledges and agrees that the
Placement Agent is not and shall not be construed as a fiduciary of
the Company and shall have no duties or liabilities to the equity
holders or the creditors of the Company or any other person by
virtue of this Agreement or the retention of the Placement Agent
hereunder, all of which are hereby expressly waived.
SECTION
10. CLOSING. The obligations of the
Placement Agent, and the closing of the sale of the Placement Agent
Securities hereunder are subject to the accuracy, when made and on
the Closing Date, of the representations and warranties on the part
of the Company contained herein and in the Purchase Agreement, to
the performance by the Company of its obligations hereunder, and to
each of the following additional terms and conditions, except as
otherwise disclosed to and acknowledged and waived by the Placement
Agent:
A. All
corporate proceedings and other legal matters incident to the
authorization, form, execution, delivery and validity of each of
this Agreement, the Placement Agent Securities, and all other legal
matters relating to this Agreement and the transactions
contemplated hereby with respect to the Placement Agent Securities
shall be reasonably satisfactory in all material respects to the
Placement Agent.
B. The
Placement Agent shall have received from outside counsels to the
Company such counsel’s written opinion with respect to the
Placement Agent Securities, addressed to the Placement Agent and
dated as of the Closing Date, in form and substance reasonably
satisfactory to the Placement Agent.
C.
The Placement Agent shall have received
a letter of Mayer Hoffman McCann P.C., on the Closing Date,
addressed to A.G.P., confirming that they are independent public
accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualifications of accountants under Rule 2-01 of Regulation S-X of
the Commission, and confirming, as of the date of each such letter
(or, with respect to matters involving changes or developments
since the respective dates as of which specified financial
information is given in the Registration Statement and the
Prospectus, as of a date not prior to the date hereof or more than
five days prior to the date of such letter), the conclusions and
findings of said firm with respect to the financial information and
other matters required by A.G.P.
D. The
Shares shall be registered under the Exchange Act. The Company
shall have taken no action designed to, or likely to have the
effect of terminating the registration of the Shares under the
Exchange Act or delisting or suspending from trading the Shares
from the Trading Market or other applicable U.S. national exchange,
nor has the Company received any information suggesting that the
Commission or the Trading Market or other U.S. applicable national
exchange is contemplating terminating such registration or
listing.
E. No
action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Placement Agent Securities or
materially and adversely affect or potentially and adversely affect
the business or operations of the Company; and no injunction,
restraining order or order of any other nature by any federal or
state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance or sale of the
Placement Agent Securities or materially and adversely affect or
potentially and adversely affect the business or operations of the
Company.
F. The
Company shall have entered into a Purchase Agreement with each of
the Purchasers of the Placement Agent Securities and such
agreements shall be in full force and effect and shall contain
representations, warranties and covenants of the Company as agreed
upon between the Company and the Purchasers.
G. FINRA
shall have raised no objection to the fairness and reasonableness
of the terms and arrangements of this Agreement. In addition, the
Company shall, if requested by the Placement Agent, make or
authorize Placement Agent’s counsel to make on the
Company’s behalf, any filing with the FINRA Corporate
Financing Department pursuant to FINRA Rule 5110 with respect to
the Placement and pay all filing fees required in connection
therewith.
If any
of the conditions specified in this Section 10 shall not have been
fulfilled when and as required by this Agreement, all obligations
of the Placement Agent hereunder may be cancelled by the Placement
Agent at, or at any time prior to, the Closing Date. Notice of such
cancellation shall be given to the Company in writing or orally.
Any such oral notice shall be confirmed promptly thereafter in
writing.
SECTION 11.
GOVERNING
LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York applicable to
agreements made and to be performed entirely in such State, without
regard to principles of conflicts of law. This Agreement may not be
assigned by either party without the prior written consent of the
other party. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and
permitted assigns. Any right to trial by jury with respect to any
dispute arising under this Agreement or any transaction or conduct
in connection herewith is waived. Any dispute arising under this
Agreement may be brought into the courts of the State of New York
or into the Federal Court located in New York, New York and, by
execution and delivery of this Agreement, the Company hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of aforesaid courts. Each party
hereto hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or
proceeding by delivering a copy thereof via overnight delivery
(with evidence of delivery) to such party at the address in effect
for notices to it under this Agreement 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. If
either party shall commence an action or proceeding to enforce any
provisions of this Agreement, then the prevailing party in such
action or proceeding shall be reimbursed by the other party for its
attorney’s fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such action or
proceeding.
SECTION
12. ENTIRE AGREEMENT/MISCELLANEOUS.
This Agreement embodies the entire agreement and understanding
between the parties hereto, and supersedes all prior agreements and
understandings, relating to the subject matter hereof. If any
provision of this Agreement is determined to be invalid or
unenforceable in any respect, such determination will not affect
such provision in any other respect or any other provision of this
Agreement, which will remain in full force and effect. This
Agreement may not be amended or otherwise modified or waived except
by an instrument in writing signed by the Placement Agent and the
Company. The representations, warranties, agreements and covenants
contained herein shall survive the Closing Date of the Placement
and delivery of the Placement Agent Securities. This Agreement may
be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party
and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission or a .pdf format
file, such signature shall create a valid and binding obligation of
the party executing (or on whose behalf such signature is executed)
with the same force and effect as if such facsimile or .pdf
signature page were an original thereof.
SECTION 13. NOTICES.
Any and all notices or other communications or deliveries required
or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of (a) the date of
transmission, if such notice or communication is sent to the email
address specified on the signature pages attached hereto prior to
6:30 p.m. (New York City time) on a business day, (b) the next
business day after the date of transmission, if such notice or
communication is sent to the email address on the signature pages
attached hereto on a day that is not a business day or later than
6:30 p.m. (New York City time) on any business day, (c) the third
business day following the date of mailing, if sent by U.S.
internationally recognized air courier service, or (d) upon actual
receipt by the party to whom such notice is required to be given.
The address for such notices and communications shall be as set
forth on the signature pages hereto.
SECTION
14. PRESS ANNOUNCEMENTS. The
Company agrees that the Placement Agent shall, on and after the
Closing Date, have the right to reference the Placement and the
Placement Agent’s role in connection therewith in the
Placement Agent’s marketing materials and on its website and
to place advertisements in financial and other newspapers and
journals, in each case at its own expense.
[The remainder of this page has been
intentionally left blank.]
Please
confirm that the foregoing correctly sets forth our agreement by
signing and returning to the Placement Agent the enclosed copy of
this Agreement.
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Very
truly yours,
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A.G.P./ALLIANCE GLOBAL PARTNERS
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By:
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/s/ Thomas J.
Higgins
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Name:
Thomas J. Higgins
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Title:
Managing Director
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Address
for notice:
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590
Madison Avenue 36th
Floor
New
York, New York 10022
Attn:
Thomas Higgins
Email:
thiggins@allianceg.com
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[Signature
Page to Placement Agency Agreement.]
Accepted
and Agreed to as of
the
date first written above:
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INUVO, INC.
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By:
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/s/ Richard
Howe
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Name:
Richard Howe
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Title:
Chairman and CEO
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Address for
notice:
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500 President Clinton Ave., Suite
300
Little Rock, Arkansas
72201
Attention:
Richard K. Howe
Chairman and Chief
Executive Officer
[Signature
Page to Placement Agency Agreement.]
Exhibit
10.1
FORM OF SECURITIES PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as
of January 14, 2021, and is between Inuvo, Inc., a corporation
incorporated under the laws of the state of Nevada (the
“Company”), and each
purchaser identified on the signature pages hereto (each, including
its successors and assigns, a “Purchaser” and
collectively the “Purchasers”).
WHEREAS, subject to
the terms and conditions set forth in this Agreement and pursuant
to an effective registration statement under the Securities Act (as
defined below) as to the Shares, the Company desires to issue and
sell to each Purchaser, and each Purchaser, severally and not
jointly, desires to purchase from the Company, securities of the
Company as more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the Company
and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1
Definitions. In addition to the
terms defined elsewhere in this Agreement, for all purposes of this
Agreement, the following terms have the meanings set forth in this
Section 1.1:
“A.G.P.” means
A.G.P./Alliance Global Partners, lead placement agent.
“Acquiring Person” shall
have the meaning ascribed to such term in Section 4.5.
“Action” shall have the
meaning ascribed to such term in Section 3.1(m).
“Affiliate” means any
Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common
control with a Person as such terms are used in and construed under
Rule 405 under the Securities Act.
“Applicable Laws” shall
have the meaning ascribed to such term in Section
3.1(ss).
“Authorization” shall have
the meaning ascribed to such term in Section 3.1(ss).
“BHCA” shall have the
meaning ascribed to such term in Section 3.1(oo).
“Board of Directors” means
the board of directors of the Company.
“Business Day” means any
day except any Saturday, any Sunday, any day which is a federal
legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by
law or other governmental action to close.
“Closing” means the
closing of the purchase and sale of the Shares pursuant to Section
2.1.
“Closing Date” means the
Trading Day on which all of the Transaction Documents have been
executed and delivered by the applicable parties thereto, and all
conditions precedent to (i) the Purchasers’ obligations to
pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Shares, in each case, have been
satisfied or waived, but in no event later than the second
(2nd) Trading Day following
the date hereof.
“Code” means the United
States Internal Revenue Code of 1986, as amended.
“Commission” means the
United States Securities and Exchange Commission.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would
entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, right,
option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the
holder thereof to receive, Common Stock.
“Common Stock” means the
common stock of the Company, par value $0.001 per share, and any
other class of securities into which such securities may hereafter
be reclassified or changed.
“Company Counsel” means
Porter, Wright, Morris & Arthur LLP and to be named Nevada
counsel reasonably acceptable to A.G.P..
“Disclosure Time” means,
(i) if this Agreement is signed on a day that is not a Trading Day
or after 9:00 a.m. (New York City time) and before midnight (New
York City time) on any Trading Day, 9:01 a.m. (New York City time)
on the Trading Day immediately following the date hereof, unless
otherwise instructed as to an earlier time by A.G.P., and (ii) if
this Agreement is signed between midnight (New York City time) and
9:00 a.m. (New York City time) on any Trading Day, no later than
9:01 a.m. (New York City time) on the date hereof, unless otherwise
instructed as to an earlier time by A.G.P.
“DWAC” shall have the
meaning ascribed to such term in Section 2.2(a)(v).
“EDGAR” means the
Commission’s Electronic Data Gathering, Analysis and
Retrieval System.
“Environmental Law” shall
have the meaning ascribed to such term in Section
3.1(p).
“Evaluation Date” shall
have the meaning ascribed to such term in Section
3.1(v).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Exempt Issuance” means
the issuance of (a) shares of Common Stock or options to employees,
officers, directors, consultants or advisors of the Company
pursuant to any stock or option plan duly adopted for such purpose,
by a majority of the non-employee members of the Board of Directors
or a majority of the members of a committee of non-employee
directors established for such purpose, (b) securities upon the
exercise or exchange of or conversion of any Securities issued
hereunder and/or other securities exercisable or exchangeable for
or convertible into shares of Common Stock issued and outstanding
on the date of this Agreement, provided that such securities have
not been amended since the date of this Agreement to increase the
number of such securities or to decrease the exercise price,
exchange price or conversion price of such securities (other than
in connection with stock splits or combinations) or to extend the
term of such securities, and (c) securities issued pursuant to
acquisitions or strategic transactions approved by a majority of
the disinterested directors of the Company, provided that any such
issuance shall only be to a Person (or to the equityholders of a
Person) which is, itself or through its subsidiaries, an operating
company or an owner of an asset in a business synergistic with the
business of the Company and shall provide to the Company additional
benefits in addition to the investment of funds, but shall not
include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose
primary business is investing in securities.
“FCPA” means the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
“Federal Reserve” shall
have the meaning ascribed to such term in Section
3.1(oo).
“GAAP” shall have the
meaning ascribed to such term in Section 3.1(k).
“Hazardous Substances”
shall have the meaning ascribed to such term in Section
3.1(q).
“Health Care Laws” shall
have the meaning ascribed to such term in Section
3.1(uu).
“Intellectual Property
Rights” shall have the meaning ascribed to such term
in Section 3.1(s).
“Issuer Free Writing
Prospectus” shall have the meaning ascribed to such
term in Section 3.1(f)(ii).
“IT Systems” shall have
the meaning ascribed to such term in Section 3.1(qq).
“Lien” means a lien,
charge, mortgage, pledge, security interest, claim, right of first
refusal, pre-emptive right, or other encumbrance of any kind
whatsoever.
“Material Adverse Effect”
shall have the meaning assigned to such term in Section
3.1(b).
“Money Laundering Laws”
shall have the meaning assigned to such term in Section
3.1(pp).
“Per Share Purchase Price”
shall mean $0.60 per Share.
“Person” means an
individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
“Personal Data” shall have
the meaning ascribed to such term in Section 3.1(qq).
“Placement Agency
Agreement” means that certain Placement Agency
Agreement by and between the Company and A.G.P., dated as of the
date hereof.
“Proceeding” means an
action, claim, suit, investigation or proceeding (including,
without limitation, an informal investigation or partial
proceeding, such as a deposition) pending or, to the
Company’s knowledge, threatened in writing against or
affecting the Company, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state,
county, local or foreign).
“Prospectus” means the
final base prospectus filed for the Registration
Statement.
“Prospectus Supplement”
means the supplement to the Prospectus complying with Rule 424(b)
of the Securities Act that is filed with the Commission and
delivered by the Company to each Purchaser at the
Closing.
“Purchaser Party” shall
have the meaning ascribed to such term in Section 4.8.
“Registration Statement”
shall have the meaning ascribed to such term in Section
3.1(f)(ii).
“Required Approvals” shall
have the meaning ascribed to such term in Section
3.1(e).
“Sanctions” shall have the
meaning ascribed to such term in Section 3.1(kk).
“SEC Reports” shall have
the meaning ascribed to such term in Section 3.1(j).
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Shares” means the shares
of Common Stock issued or issuable to each Purchaser pursuant to
this Agreement.
“Shelf Procedures” shall
have the meaning ascribed to such term in Section
3.1(f)(i).
“Short Sales” means all
“short sales” as defined in Rule 200 of Regulation SHO
under the Exchange Act (but shall not be deemed to include locating
and/or borrowing Common Stock).
“Specified Person” shall
have the meaning ascribed to such term in Section
3.1(kk).
“Subscription Amount”
means, as to each Purchaser, the aggregate amount to be paid for
Shares purchased hereunder as specified below such
Purchaser’s name on the signature page of this Agreement and
next to the heading “Subscription Amount,” in United
States dollars and in immediately available funds.
“Subsidiary” and
“Subsidiaries” shall have
the meanings ascribed to such terms in Section 3.1(a).
“Trading Day” means a day
on which the New York Stock Exchange is open for
trading.
“Trading Market” means any
of the following markets or exchanges on which the Common Stock are
listed or quoted for trading on the date in question: the NYSE
American, the Nasdaq Capital Market, the Nasdaq Global Market, the
Nasdaq Global Select Market, the New York Stock Exchange (or any
successors to any of the foregoing).
“Transaction Documents”
means this Agreement and the Placement Agency Agreement, all
exhibits and schedules thereto and hereto and any other documents
or agreements executed in connection with the transactions
contemplated hereunder.
“Transfer Agent” means
Colonial Stock Transfer Company, the current transfer agent of the
Company, at its principal office in Salt Lake City, Utah, and any
successor transfer agent of the Company.
ARTICLE II.
PURCHASE AND SALE
2.1
Closing. On the
Closing Date, upon the terms and subject to the conditions set
forth herein, the Company agrees to sell, and the Purchasers,
severally and not jointly, agree to purchase, up to an aggregate of
$8,000,000.40 of Shares. The Company shall deliver to each
Purchaser its respective Shares, and the Company and each Purchaser
shall deliver the other items set forth in Section 2.2 deliverable
at the Closing. Upon satisfaction of the covenants and conditions
set forth in Sections 2.2 and 2.3, the Closing shall occur at the
offices of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., or
such other location as the parties shall mutually agree. Unless
otherwise directed by the Placement Agent, settlement of the Shares
shall occur via “Delivery Versus Payment”
(“DVP”) (i.e., on the Closing Date, the Company shall
issue the Shares registered in the Purchasers’ names and
addresses and released by the Transfer Agent directly to the
account(s) at the Placement Agent identified by each Purchaser;
upon receipt of such Shares, the Placement Agents shall promptly
electronically deliver such Shares to the applicable Purchaser, and
payment therefor shall be made by the Placement Agent (or its
clearing firm) by wire transfer to the Company).
2.2
Deliveries.
(a)
On or prior to the Closing Date, the Company shall deliver or cause
to be delivered to each Purchaser the following:
(i)
this Agreement duly executed by the Company;
(ii)
legal opinions of Company Counsel, in a form reasonably acceptable
to A.G.P.;
(iii)
a certificate executed by the Chief Financial Officer of the
Company, in form and substance reasonably satisfactory to
A.G.P.;
(iv)
the Company shall have provided each Purchaser with the
Company’s wire instructions, on Company letterhead and
executed by the Chief Executive Officer or Chief Financial
Officer;
(v)
a copy of the irrevocable instructions to the Transfer Agent
instructing the Transfer Agent to deliver on an expedited basis via
The Depository Trust Company Deposit or Withdrawal at Custodian
system (“DWAC”) Shares equal to
such Purchaser’s Subscription Amount divided by the Per Share
Purchase Price, registered in the name of such
Purchaser;
(vi)
Officer’s Certificate, in form and
substance satisfactory to the Purchasers;
(vii)
Secretary’s Certificate, in form and
substance satisfactory to the Purchasers; and
(viii)
the Prospectus and Prospectus Supplement (which may be
delivered in accordance with Rule 172 under the Securities
Act).
(b)
On or prior to the Closing Date, each Purchaser shall deliver or
cause to be delivered to the Company the following:
(i)
this Agreement duly executed by such Purchaser; and
(ii)
such Purchaser’s Subscription Amount.
2.3
Closing
Conditions.
(a)
The obligations of the Company hereunder in connection with the
Closing are subject to the following conditions being
met:
(i)
the accuracy in all material respects (or, to the extent
representations or warranties are qualified by materiality or
Material Adverse Effect, in all respects) when made and on the
Closing Date of the representations and warranties of the
Purchasers contained herein (unless as of a specific date therein
in which case they shall be accurate as of such date);
(ii)
all obligations, covenants and agreements of each Purchaser
required to be performed at or prior to the Closing Date shall have
been performed; and
(iii)
the delivery by each Purchaser of the items set forth in Section
2.2(b) of this Agreement.
(b)
The respective obligations of the Purchasers hereunder in
connection with the Closing are subject to the following conditions
being met:
(i)
the accuracy in all material respects (or, to the extent
representations or warranties are qualified by materiality or
Material Adverse Effect, in all respects) when made and on the
Closing Date of the representations and warranties of the Company
contained herein (unless as of a specific date therein in which
case they shall be accurate as of such date);
(ii)
all obligations, covenants and agreements of the Company required
to be performed at or prior to the Closing Date shall have been
performed;
(iii)
the delivery by the Company of the items set forth in Section
2.2(a) of this Agreement;
(iv)
there shall have been no Material Adverse Effect with respect to
the Company since the date hereof;
(v)
from the date hereof to the Closing Date, trading in the Common
Stock shall not have been suspended by the Commission or The NYSE
American, and, at any time prior to the Closing Date, trading in
securities generally as reported by Bloomberg L.P. shall not have
been suspended or limited, or minimum prices shall not have been
established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium
have been declared either by the United States or New York State
authorities nor shall there have occurred any material outbreak or
escalation of hostilities or other national or international
calamity of such magnitude in its effect on, or any material
adverse change in, any financial market which, in each case, in the
reasonable judgment of such Purchaser, makes it impracticable or
inadvisable to purchase the Shares at the Closing; and
(vi) the
Shares shall be approved for listing on the NYSE, subject to
official notice of issuance.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
Representations and
Warranties of the Company. The Company hereby makes the
following representations and warranties to each
Purchaser:
(a)
Subsidiaries. All
of the direct and indirect subsidiaries of the Company are set
forth in the SEC Reports (each, a “Subsidiary”, and
collectively, the “Subsidiaries”). The
Company owns, directly or indirectly, all of the capital stock or
other equity interests of each Subsidiary free and clear of any
Liens, and all of the issued and outstanding shares of capital
stock of each Subsidiary are validly issued and are fully paid,
non-assessable and free of preemptive and similar rights to
subscribe for or purchase securities. There are no outstanding
options, warrants, scrip rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exercisable or
exchangeable for, or giving any Person any right to subscribe for
or acquire, any capital stock of any Subsidiary, or contracts,
commitments, understandings or arrangements by which any Subsidiary
is or may become bound to issue capital stock.
(b)
Organization and
Qualification. The Company and each of the material
Subsidiaries has been duly organized and validly exists as a
corporation, limited partnership or company in good standing (or
the foreign equivalent thereof, if any) under the laws of its
jurisdiction of organization. The Company and each of the
Subsidiaries is duly qualified to do business and is in good
standing as a foreign or extra-provincial corporation, partnership,
company or limited liability company in each jurisdiction in which
the character or location of its properties (owned, leased or
licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so
qualified or in good standing which (individually and in the
aggregate) would not have a Material Adverse Effect. No Proceeding
has been instituted in any such jurisdiction revoking, limiting or
curtailing or seeking to revoke, limit or curtail such power and
authority or qualification. Neither the Company nor any Subsidiary
is in violation nor default of any of the provisions of its
respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. The term
“Material Adverse
Effect” means an effect, change, event or occurrence
that, alone or in conjunction with any other or others: (i) has or
would reasonably be expected to have a material adverse effect on:
(A) the business, general affairs, management, condition (financial
or otherwise), results of operations, shareholders’ equity,
properties or prospects of the Company and the Subsidiaries, taken
as a whole, or (B) the legality, validity or enforceability of any
Transaction Document, (ii) the Company’s ability to perform
in any material respect on a timely basis its obligations under any
Transaction Document or (iii) would result in the Prospectus or any
amendment thereto containing a misrepresentation within the meaning
of applicable securities laws; provided
that a change in the market price or trading volume of the Common
Stock alone shall not be deemed, in and of itself, to constitute a
Material Adverse Effect.
(c)
Authorization;
Enforcement. The Company has the requisite corporate power
and authority to enter into and to consummate the transactions
contemplated by this Agreement and each of the other Transaction
Documents and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement and each
of the other Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and
thereby have been duly authorized by all necessary action on the
part of the Company and no further action is required by the
Company, the Board of Directors or the Company’s shareholders
in connection herewith or therewith other than in connection with
the Required Approvals. This Agreement and each other Transaction
Document to which the Company is a party has been (or upon delivery
will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof and thereof, will constitute the
valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except (i) as limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and
(iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
(d)
No Conflicts. The
execution, delivery and performance by the Company of this
Agreement and the other Transaction Documents to which it is a
party, the issuance and sale of the Shares and the consummation by
it of the transactions contemplated hereby and thereby do not and
will not (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles
of incorporation, bylaws or other organizational or charter
documents, or (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a
default) under, result in the creation of any Lien upon any of the
properties or assets of the Company or any Subsidiary, or give to
others any rights of termination, amendment, anti-dilution or
similar adjustments, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a Company or Subsidiary debt
or otherwise) or other understanding to which the Company or any
Subsidiary is a party or by which any property or asset of the
Company or any Subsidiary is bound or affected, or (iii) subject to
the Required Approvals, conflict with or result in a violation of
any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority, to which
the Company or a Subsidiary is subject (including federal and state
securities laws and regulations),or by which any property or asset
of the Company or a Subsidiary is bound or affected; except in the
case of each of clauses (ii) and (iii), such as could not have or
reasonably be expected to result in a Material Adverse
Effect.
(e)
Filings, Consents and
Approvals. The Company is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or
make any filing or registration with, any court or other federal,
state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the
Company of this Agreement, other than: (i) the filings required
pursuant to Section 4.4 of this Agreement, (ii) the filing with the
Commission of the Prospectus Supplement, and (iv) application to
The NYSE American for the listing of the Shares for trading thereon
in the time and manner required thereby (collectively, the
“Required
Approvals”).
(f)
Issuance of the Shares;
Qualification; Registration.
(i)
The Shares are duly authorized and, when issued and paid for in
accordance with the applicable Transaction Documents, will be duly
and validly issued, fully paid and non-assessable, free and clear
of all Liens imposed by the Company. The Company has reserved from
its duly authorized capital stock the maximum number of shares of
Common Stock issuable pursuant to this Agreement.
(ii)
The Company was at the time of the filing of the Registration
Statement eligible to use Form S-3. The Company meets the general
eligibility requirements for the use of Form S-3 under the
Securities Act and it meets the transaction requirements set forth
in General Instruction I.B.1 of Form S-3, and has prepared and
filed with the Commission a registration statement under the
Securities Act on Form S-3 (File No. 333-239147) on June 12, 2020,
providing for the offer and sale, from time to time, of up to
$25,000,000 of the Company’s securities (the
“Registration
Statement”). The Registration Statement became
effective pursuant to Rule 467(a) under the Securities Act on June
26, 2020. The prospectus included in the Registration Statement at
the time it became effective, including documents incorporated
therein by reference, is referred to herein as the “Base
Prospectus”. No stop order suspending the effectiveness of
the Registration Statement has been issued under the Securities Act
and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by
the Commission and any request on the part of the Commission for
additional information has been complied with.
The
term “Prospectus” means the
prospectus supplement (the “Prospectus Supplement”)
relating to the offering and sale of the Shares to filed with the
Commission pursuant to General Instructions of Form S-3, together
with the Base Prospectus, including all documents incorporated
therein by reference.
Any
“issuer free writing prospectus” (as defined in Rule
433 under the Securities Act) relating to the Shares is hereafter
referred to as an “Issuer Free Writing
Prospectus”. Any reference herein to the Base
Prospectus and the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein as of the
date of filing thereof; and any reference herein to any
“amendment” or “supplement” with respect to
any of the Base Prospectus and the Prospectus shall be deemed to
refer to and include (i) the filing of any document with the
Commission incorporated or deemed to be incorporated therein by
reference after the date of filing of such Base Prospectus or
Prospectus and (ii) any such document so filed.
All
references in this Agreement to the Registration Statement, the
Base Prospectus, or the Prospectus, or any Issuer Free Writing
Prospectus, or any amendments or supplements to any of the
foregoing, shall be deemed to include any copy thereof filed with
the Commission on EDGAR.
(g)
Securities Act
Compliance. The Registration Statement complies, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will comply, with the
applicable provisions of the Securities Act. Each part of the
Registration Statement, when such part became effective, did not
and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading The Prospectus, as of
its filing date, and any amendment thereof or supplement thereto,
did not and will not contain an untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(h)
No Stop Orders. No
order preventing or suspending the use of the Base Prospectus or
any Issuer Free Writing Prospectus has been issued by the
Commission.
(i)
Capitalization. The
equity capitalization of the Company is as set forth in the SEC
Reports (as defined below). All of the outstanding shares of Common
Stock are fully paid and non-assessable and have been duly and
validly authorized and issued, in compliance with all federal and
state securities laws and not in violation of or subject to any
preemptive or similar right that entitles any person to acquire
from the Company any Common Stock or other security of the Company
or any security convertible into, or exercisable or exchangeable
for, Common Stock or any other such security, except for such
rights as may have been fully satisfied or waived prior to the date
hereof. Except as disclosed in the SEC Reports, the Company has no
outstanding options, warrants, scrip rights to subscribe to, calls
or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exercisable
or exchangeable for, or giving any Person any right to subscribe
for or acquire, any Common Stock, or contracts, commitments,
understandings or arrangements by which the Company is or may
become bound to issue additional Common Stock or Common Stock
Equivalents. No Person has any right of first refusal, pre-emptive
right, right of participation, or any similar right to participate
in the transactions contemplated by the Transaction Documents. The
issuance and sale of the Shares will not obligate the Company to
issue Common Stock or other securities to any Person (other than
the Purchasers) and will not result in a right of any holder of
Company securities to adjust the exercise, conversion, exchange or
reset price under any of such securities. There are no outstanding
securities or instruments of the Company with any provision that
adjusts the exercise, conversion, exchange or reset price of such
security or instrument upon an issuance of securities by the
Company. There are no outstanding securities or instruments of the
Company that contain any redemption or similar provisions, and
there are no contracts, commitments, understandings or arrangements
by which the Company is or may become bound to redeem a security of
the Company. Except for the Required Approvals, no further approval
or authorization of any shareholder of the Company, the Board of
Directors or others is required for the issuance and sale of the
Shares. There are no shareholders agreements, voting agreements or
other similar agreements with respect to the Company’s
capital stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s
shareholders.
(j)
Reports. The
Company has filed all reports, schedules, forms, statements and
other documents required to be filed by the Company under the
Securities Act and Exchange Act, including pursuant to Section
13(a) or 15(d) thereof (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein,
together with the Prospectus and the Prospectus Supplements, being
collectively referred to herein as the “SEC Reports”)
on a timely basis or has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC
Reports complied in all material respects with the requirements of
the Securities Act and the Exchange Act, as applicable, and none of
the SEC Reports, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(k)
Financial
Statements. The consolidated financial statements, including
the notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus comply in all material
respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at
the time of filing. Such financial statements have been prepared in
accordance with generally accepted accounting principles
(“GAAP”) applied on a
consistent basis during the periods involved, except as may be
otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all
material respects the financial position of the Company and its
consolidated Subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
(l)
Material Changes;
Undisclosed Events, Liabilities or Developments. Since the
date of the latest consolidated financial statements included in or
incorporated by reference into the Registration Statement and the
Prospectus, except as set forth in the Registration Statement and
the Prospectus, (i) there has been no event, occurrence or
development that has had or that could reasonably be expected to
result in a Material Adverse Effect, (ii) neither the Company nor
any Subsidiary has incurred any liabilities (contingent or
otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past
practice and (B) liabilities not required to be reflected in the
Company’s financial statements pursuant to GAAP or disclosed
in filings made with the Commission, (iii) the Company has not
altered its method of accounting, (iv) the Company has not declared
or made any dividend or distribution of cash or other property to
its stockholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock and (v) except
as disclosed in the SEC Reports, the Company has not issued any
equity securities to any officer, director or Affiliate, except
pursuant to existing Company stock option plans. The Company does
not have pending before the Commission any request for confidential
treatment of information. Except for the issuance of the Shares
contemplated by this Agreement, no event, liability, fact,
circumstance, occurrence or development has occurred or exists or
is reasonably expected to occur or exist with respect to the
Company or its Subsidiaries or their respective businesses,
prospects, properties, operations, assets or financial condition
that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made
or deemed made that has not been publicly disclosed at least one
(1) Trading Day prior to the date that this representation is
made.
(m)
Litigation. There
is no material action, suit, inquiry, notice of violation,
proceeding or investigation pending or, to the knowledge of the
Company, threatened against or affecting the Company, any
Subsidiary or any of their respective properties before or by any
court, arbitrator, governmental or administrative agency or
regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”) which adversely
affects or challenges the legality, validity or enforceability of
any of the Transaction Documents or the Shares. The Company has
disclosed, in the documents filed by the Company pursuant to
Sections 12, 13, 14 or 15 of the Exchange Act and incorporated or
deemed to be incorporated by reference into the Prospectus, all
such information that it is required to disclose in respect of any
Action pursuant to the requirements of the Securities Act and the
Exchange Act, as applicable. Neither the Company nor any
Subsidiary, nor any director or officer thereof, is or has been the
subject of any Action involving a claim of violation of or
liability under federal or state securities laws or a claim of
breach of fiduciary duty. There has not been, and to the knowledge
of the Company, there is not pending or contemplated, any material
investigation by the Commission involving the Company or any
current or former director or officer of the Company which is
required to be disclosed in the SEC Reports. The Commission has not
issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company or any
Subsidiary under the Exchange Act or the Securities
Act.
(n)
Labor Relations. No
labor dispute exists or, to the knowledge of the Company, is
imminent with respect to any of the employees of the Company, which
could reasonably be expected to result in a Material Adverse
Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such
employee’s relationship with the Company or such Subsidiary,
and neither the Company nor any of its Subsidiaries is a party to a
collective bargaining agreement, and the Company and its
Subsidiaries believe that their relationships with their employees
are good. To the knowledge of the Company, no executive officer of
the Company or any Subsidiary, is, or is now expected to be, in
violation of any material term of any employment contract,
confidentiality, disclosure or proprietary information agreement or
non-competition agreement, or any other contract or agreement or
any restrictive covenant in favor of any third party, and the
continued employment of each such executive officer does not
subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its
Subsidiaries are in compliance with all U.S. federal, state, local
and foreign laws and regulations relating to employment and
employment practices, terms and conditions of employment and wages
and hours, except where the failure to be in compliance could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect
(o)
Compliance. Neither
the Company nor any Subsidiary: (i) is in default under or in
violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a
default by the Company or any Subsidiary under), nor has the
Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or
credit agreement or any other agreement or instrument to which it
is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is
in violation of any judgment, decree or order of any court,
arbitrator or other governmental authority or (iii) is or has been
in violation of any statute, rule, ordinance or regulation of any
governmental authority, including without limitation all foreign,
federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and
safety and employment and labor matters, except in each case of
(i), (ii) and (iii) as could not have or reasonably be expected to
result in a Material Adverse Effect.
(p)
Environmental
Law. There has been no storage, generation,
transportation, handling, use, treatment, disposal, discharge,
emission, contamination, release or other activity involving any
kind of hazardous, toxic or other wastes, pollutants, contaminants,
petroleum products or other hazardous or toxic substances,
chemicals or materials (“Hazardous Substances”)
by, due to, on behalf of, or caused by the Company or any
Subsidiary (or, to the Company’s knowledge, any other entity
for whose acts or omissions the Company is or may be liable) upon
any property now or previously owned, operated, used or leased by
the Company or any Subsidiary, or upon any other property, which
would be a violation of or give rise to any liability under any
applicable law, rule, regulation, order, judgment, decree or
permit, common law provision or other legally binding standard
relating to pollution or protection of human health and the
environment (“Environmental Law”),
except for violations and liabilities which, individually or in the
aggregate, would not have a Material Adverse Effect. There has been
no disposal, discharge, emission contamination or other release of
any kind at, onto or from any such property or into the environment
surrounding any such property of any Hazardous Substances with
respect to which the Company or any Subsidiary has knowledge,
except as would not, individually or in the aggregate, have a
Material Adverse Effect. There is no pending or, to the best of the
Company’s knowledge, threatened administrative, regulatory or
judicial action, claim or notice of noncompliance or violation,
investigation or proceedings relating to any Environmental Law
against the Company or any Subsidiary, except as would not,
individually or in the aggregate, have a Material Adverse Effect.
No property of the Company or any Subsidiary is subject to any Lien
under any Environmental Law. Except as disclosed in the Prospectus,
neither the Company nor any Subsidiary is subject to any order,
decree, agreement or other individualized legal requirement related
to any Environmental Law, which, in any case (individually or in
the aggregate), would have a Material Adverse Effect. The Company
and each Subsidiary has all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements. In the ordinary course of its
business, the Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of
the Company and the Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure or remediation of
properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the
basis of such review, the Company has reasonably concluded that
such associated costs and liabilities would not, individually or in
the aggregate, have a Material Adverse Effect.
(q)
Title to Assets.
Except as disclosed in the SEC Reports, the Company and the
Subsidiaries have good and marketable title in fee simple to all
real property owned by them and good and marketable title in all
personal property owned by them that is material to the business of
the Company and the Subsidiaries, in each case free and clear of
all Liens, except for (i) Liens as do not materially affect the
value of such property and do not materially interfere with the use
made and proposed to be made of such property by the Company and
the Subsidiaries and (ii) Liens for the payment of federal, state
or other taxes, for which appropriate reserves have been made
therefor in accordance with GAAP and, the payment of which is
neither delinquent nor subject to penalties. Any real property and
facilities held under lease by the Company and the Subsidiaries are
held by them under valid, subsisting and enforceable leases with
which the Company and the Subsidiaries are in compliance in all
material respects.
(r)
Regulatory Permits.
The Company and each of its Subsidiaries holds, and is in
compliance with, all franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders
(“Permits”) of any governmental or self-regulatory
agency, authority or body (including, without limitation, those
administered by the Food and Drug Administration of the U.S.
Department of Health and Human Services (the “FDA”) or
by any foreign, federal, state or local governmental or regulatory
authority performing functions similar to those performed by the
FDA) required for the conduct of its business, and all such Permits
are in full force and effect, in each case except where the failure
to hold, or comply with, any of them is not reasonably likely to
result in a Material Adverse Effect or adversely affect the
consummation of the transactions contemplated by this Agreement.
The Company is in compliance with all such Permits, including with
all conditions and limitations on the commercial rights granted by
such Permits; all such Permits are valid and in full force and
effect, except where the validity or failure to be in full force
and effect would not, singularly or in the aggregate, have a
Material Adverse Effect. The Company has not received notification
of any revocation, modification, suspension, termination or
invalidation (or proceedings related thereto) of any such
Governmental Permit and the Company has no reason to believe that
any such Governmental Permit will not be renewed.
(s)
Intellectual
Property. To the Company’s knowledge, the Company or
its Subsidiaries owns or possesses or has valid rights to use all
patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations,
copyrights, licenses, inventions, trade secrets and similar rights
(“Intellectual Property Rights”) necessary for the
conduct of the business of the Company and its Subsidiaries as
currently carried on and as described in the Registration Statement
and the Prospectus. To the knowledge of the Company, no action or
use by the Company necessary for the conduct of its business as
currently carried on and as described in the Registration Statement
and the Prospectus will involve or give rise to any infringement
of, or license or similar fees for, any Intellectual Property
Rights of others. Neither the Company nor any of its Subsidiaries
has received any notice alleging any such infringement, fee or
conflict with asserted Intellectual Property Rights of others.
Except as would not reasonably be expected to result, individually
or in the aggregate, in a Material Adverse Effect (A) to the
knowledge of the Company, there is no infringement,
misappropriation or violation by third parties of any of the
Intellectual Property Rights owned by the Company; (B) there is no
pending or, to the knowledge of the Company, threatened action,
suit, proceeding or claim by others challenging the rights of the
Company in or to any such Intellectual Property Rights, and the
Company is unaware of any facts which would form a reasonable basis
for any such claim, that would, individually or in the aggregate,
together with any other claims in this Section 3.1(s), reasonably
be expected to result in a Material Adverse Effect; (C) the
Intellectual Property Rights owned by the Company and, to the
knowledge of the Company, the Intellectual Property Rights licensed
to the Company have not been adjudged by a court of competent
jurisdiction invalid or unenforceable, in whole or in part, and
there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging
the validity or scope of any such Intellectual Property Rights, and
the Company is unaware of any facts which would form a reasonable
basis for any such claim that would, individually or in the
aggregate, together with any other claims in this Section 3.1(s),
reasonably be expected to result in a Material Adverse Effect; (D)
there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others that the
Company infringes, misappropriates or otherwise violates any
Intellectual Property Rights or other proprietary rights of others,
the Company has not received any written notice of such claim and
the Company is unaware of any other facts which would form a
reasonable basis for any such claim that would, individually or in
the aggregate, together with any other claims in this Section
3.1(s), reasonably be expected to result in a Material Adverse
Effect; and (E) to the Company’s knowledge, no employee of
the Company is in or has ever been in violation in any material
respect of any term of any employment contract, patent disclosure
agreement, invention assignment agreement, non-competition
agreement, non-solicitation agreement, nondisclosure agreement or
any restrictive covenant to or with a former employer where the
basis of such violation relates to such employee’s employment
with the Company, or actions undertaken by the employee while
employed with the Company and could reasonably be expected to
result, individually or in the aggregate, in a Material Adverse
Effect. To the Company’s knowledge, all material technical
information developed by and belonging to the Company which has not
been disclosed in a filed patent application has been kept
confidential. The Company is not 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 Registration Statement and the Prospectus and
are not described therein. The Registration Statement and the
Prospectus contain in all material respects the same description of
the matters set forth in the preceding sentence. None of the
technology employed by the Company has been obtained or is being
used by the Company in violation of any contractual obligation
binding on the Company or, to the Company’s knowledge, any of
its officers, directors or employees, or otherwise in violation of
the rights of any persons.
(t)
Insurance. The
Company and the Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which the
Company and the Subsidiaries are engaged, including, but not
limited to, directors and officers insurance coverage. Neither the
Company nor any Subsidiary has any reason to believe that it will
not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business without a
significant increase in cost.
(u)
Transactions With
Affiliates and Employees. None of the officers or directors
of the Company or any Subsidiary and, to the knowledge of the
Company, none of the employees of the Company or any Subsidiary is
presently a party to any transaction with the Company or any
Subsidiary (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, providing for the
borrowing of money from or lending of money to or otherwise
requiring payments to or from any officer, director or such
employee or, to the knowledge of the Company, any entity in which
any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member
or partner, in each case in excess of the lesser of $120,000 or 1%
of the Company’s aggregate assets as of December 31, 2019,
other than for (i) payment of salary or consulting fees for
services rendered, (ii) reimbursement for expenses incurred on
behalf of the Company and (iii) other employee benefits, including
stock option agreements under any stock option plan of the
Company.
(v)
Sarbanes-Oxley; Internal
Accounting Controls. The Company and the Subsidiaries and
their respective officers and directors are in compliance with the
applicable provisions of the Sarbanes-Oxley Act of 2002, as
amended. The Company and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset
accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company and the Subsidiaries have established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and the Subsidiaries and designed such
disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or
submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the
Commission’s rules and forms. The Company’s certifying
officers have evaluated the effectiveness of the disclosure
controls and procedures of the Company and the Subsidiaries as of
applicable dates specified under the Exchange Act (such date, the
“Evaluation
Date”). The Company presented in its most recently
filed annual report on Form 10-K the conclusions of the certifying
officers about the effectiveness of the disclosure controls and
procedures based on their evaluations as of the Evaluation Date.
Except as set forth in the Prospectus, since the Evaluation Date,
there have been no changes in the internal control over financial
reporting (as such term is defined in the Exchange Act) of the
Company and the Subsidiaries that have materially affected, or is
reasonably likely to materially affect, the internal control over
financial reporting of the Company and the
Subsidiaries.
(w)
Certain Fees.
Except for fees payable to A.G.P as will be as set forth in the
Prospectus and that certain Placement Agency Agreement, no
brokerage or finder’s fees or commissions are or will be
payable by the Company or any Subsidiary or any Related Entity to
any broker, financial advisor or consultant, finder, placement
agent, investment banker, bank or other Person with respect to the
transactions contemplated by the Transaction Documents. The
Purchasers shall have no obligation with respect to any fees or
with respect to any claims made by or on behalf of other Persons
for fees of a type contemplated in this Section that may be due in
connection with the transactions contemplated by the Transaction
Documents.
(x)
Investment Company.
The Company is not, and is not an Affiliate of, and immediately
after receipt of payment for the Shares, will not be or be an
Affiliate of, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended. The
Company shall conduct its business in a manner so that it will not
become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(y)
Registration
Rights. No Person has any right to cause the Company or any
Subsidiary to effect the registration under the Securities Act of
any securities of the Company or any Subsidiary.
(z)
Listing and Maintenance
Requirements. The Company is subject to the reporting
requirements of Section 13 of the Exchange Act and files periodic
reports with the SEC; the Shares are registered with the SEC under
Section 12(b) of the Exchange Act and the Company is not in breach
of any filing or other requirements under the Exchange Act. The
Company has not received any
notice from that the Commission is contemplating terminating such
registration. Except as disclosed in the SEC Reports, the Company
has not, in the 12 months preceding the date hereof, received
notice from any Trading Market on which the Common Stock are or
have been listed or quoted to the effect that the Company is not in
compliance with the listing or maintenance requirements of such
Trading Market. The Company is, and has no reason to believe that
it will not in the foreseeable future continue to be, in compliance
with all such listing and maintenance requirements. The Common
Stock is currently eligible for electronic transfer through the
Depository Trust Company or another established clearing
corporation and the Company is current in payment of the fees to
the Depository Trust Company (or such other established clearing
corporation) in connection with such electronic
transfer.
(aa)
Application of Takeover
Protections. The Company and the Board of Directors have
taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or other
similar anti-takeover provision under the Company’s articles
of incorporation (or similar charter documents) or the laws of its
jurisdiction of incorporation that is or could become applicable to
the Purchasers as a result of the Purchasers and the Company
fulfilling their obligations or exercising their rights under the
Transaction Documents, including without limitation as a result of
the Company’s issuance of the Shares and the
Purchasers’ ownership of the Shares.
(bb)
Disclosure. Except
with respect to the material terms and conditions of the
transactions contemplated by the Transaction Documents, the Company
confirms that neither it nor any other Person acting on its behalf
has provided any of the Purchasers or their agents or counsel with
any information that it believes constitutes or might constitute
material, non-public information which is not otherwise disclosed
in the Prospectus Supplement. The Company understands and confirms
that the Purchasers will rely on the foregoing representation in
effecting transactions in securities of the Company. All of the
disclosure furnished by or on behalf of the Company to the
Purchasers regarding the Company and its Subsidiaries, their
respective businesses and the transactions contemplated hereby is
true and correct in all material respects and does not contain any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not
misleading. The press releases disseminated by the Company during
the twelve months preceding the date of this Agreement taken as a
whole do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made and when made, not
misleading. The Company acknowledges and agrees that no Purchaser
makes or has made any representations or warranties with respect to
the transactions contemplated hereby other than those specifically
set forth in Section 3.2 hereof.
(cc)
No Integrated
Offering. Assuming the accuracy of the Purchasers’
representations and warranties set forth in Section 3.2, neither
the Company, nor any of its Affiliates, nor any Person acting on
its or their behalf has, directly or indirectly, made any offers or
sales of any security or solicited any offers to buy any security,
under circumstances that would cause this offering of the
Securities to be integrated with prior offerings by the Company for
purposes of (i) the Securities Act, or (ii) any applicable
shareholder approval provisions of any Trading Market on which any
of the securities of the Company are listed or
designated.
(dd)
Based on the consolidated financial condition of the Company as of
the Closing Date, after giving effect to the receipt by the Company
of the proceeds from the sale of the Shares hereunder, (i) the fair
saleable value of the Company’s assets exceeds the amount
that will be required to be paid on or in respect of the
Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the
Company’s assets do not constitute unreasonably small capital
to carry on its business as now conducted and as proposed to be
conducted including its capital needs taking into account the
particular capital requirements of the business conducted by the
Company, consolidated and projected capital requirements and
capital availability thereof, and (iii) the current cash flow of
the Company, together with the proceeds the Company would receive,
were it to liquidate all of its assets, after taking into account
all anticipated uses of the cash, would be sufficient to pay all
amounts on or in respect of its liabilities when such amounts are
required to be paid. The Company does not intend to incur debts
beyond its ability to pay such debts as they mature (taking into
account the timing and amounts of cash to be payable on or in
respect of its debt). The Company has no knowledge of any facts or
circumstances which lead it to believe that it will file for
reorganization or liquidation under the bankruptcy or
reorganization laws of any jurisdiction within one year from the
Closing Date. The SEC Reports set forth as of the date hereof all
outstanding secured and unsecured Indebtedness of the Company or
any Subsidiary, or for which the Company or any Subsidiary has
commitments. For the purposes of this Agreement,
“Indebtedness” means (x) any liabilities for borrowed
money or amounts owed by the Company in excess of $50,000 (other
than trade accounts payable incurred in the ordinary course of
business), (y) all guaranties, endorsements and other contingent
obligations in respect of indebtedness of others to third parties,
whether or not the same are or should be reflected in the
Company’s consolidated balance sheet (or the notes thereto),
except guaranties by endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business; and (z) the present value of any lease payments
in excess of $50,000 due under leases required to be capitalized in
accordance with GAAP. Neither the Company nor any Subsidiary is in
default with respect to any Indebtedness.
(ee)
Tax Status. Except
for matters that would not, individually or in the aggregate, have
or reasonably be expected to result in a Material Adverse Effect,
the Company and its Subsidiaries each (i) has made or filed all
United States federal, state and local income and all foreign tax
returns, reports and declarations required by any jurisdiction to
which it is subject, (ii) has paid all taxes and other governmental
assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations and
(iii) has set aside on its books provision reasonably adequate for
the payment of all material taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There
are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of the
Company or of any Subsidiary know of no basis for any such
claim.
(ff)
Foreign Corrupt Practices;
Criminal Acts. Neither the Company nor any Subsidiary, nor
to the knowledge of the Company or any Subsidiary, any agent or
other person acting on behalf of the Company or any Subsidiary, has
(i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses
related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or
employees or to any foreign or domestic political parties or
campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company or any Subsidiary (or made by any
person acting on its behalf of which the Company is aware) which is
in violation of law, or (iv) violated in any material respect any
provision of FCPA.
(gg)
Accountants. The
Company’s independent registered public accounting firm is as
set forth in the Prospectus. To the knowledge and belief of the
Company, such accounting firm (i) is a registered public accounting
firm as required by the Exchange Act and (ii) shall express its
opinion with respect to the financial statements to be included in
the Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2020.
(hh)
Acknowledgment Regarding
Purchasers’ Purchase of Shares. The Company
acknowledges and agrees that each of the Purchasers is acting
solely in the capacity of an arm’s length purchaser with
respect to the Transaction Documents and the transactions
contemplated thereby. The Company further acknowledges that no
Purchaser is acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to the
Transaction Documents and the transactions contemplated thereby and
any advice given by any Purchaser or any of their respective
representatives or agents in connection with the Transaction
Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Shares. The
Company further represents to each Purchaser that the
Company’s decision to enter into this Agreement and the other
Transaction Documents has been based solely on the independent
evaluation of the transactions contemplated hereby by the Company
and its representatives.
(ii)
Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere
herein to the contrary notwithstanding (except for Sections 3.2(e)
and 4.14 hereof), it is understood and acknowledged by the Company
that: (i) none of the Purchasers has been asked by the Company to
agree, nor has any Purchaser agreed, to desist from purchasing or
selling, long and/or short, securities of the Company, or
“derivative” securities based on securities issued by
the Company or to hold the Shares for any specified term; (ii) past
or future open market or other transactions by any Purchaser,
specifically including, without limitation, Short Sales or
“derivative” transactions, before or after the closing
of this or future private placement transactions, may negatively
impact the market price of the Company’s publicly-traded
securities; (iii) any Purchaser, and counter-parties in
“derivative” transactions to which any such Purchaser
is a party, directly or indirectly, presently may have a
“short” position in the Common Stock, and (iv) each
Purchaser shall not be deemed to have any affiliation with or
control over any arm’s length counter-party in any
“derivative” transaction. The Company further
understands and acknowledges that (y) one or more Purchasers may
engage in hedging activities (in material compliance with
applicable laws) at various times during the period that the Shares
are outstanding, and (z) such hedging activities (if any) could
reduce the value of the existing shareholders’ equity
interests in the Company at and after the time that the hedging
activities are being conducted. The Company acknowledges that such
aforementioned hedging activities do not constitute a breach of any
of the Transaction Documents.
(jj)
Regulation M
Compliance. The Company has not, and to its knowledge no one
acting on its behalf has, (i) taken, directly or indirectly, any
action designed to cause or to result in the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Shares, (ii) sold, bid
for, purchased, or, paid any compensation for soliciting purchases
of, any of the Shares, or (iii) paid or agreed to pay to any Person
any compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii)
and (iii), compensation paid to A.G.P.
(kk)
Office of Foreign Assets
Control. Neither the Company nor any Subsidiary nor, to the
Company’s knowledge, any director, officer, agent, employee
or affiliate of the Company or any Subsidiary is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”) and the Company
will not, directly or indirectly, use the proceeds of the Offering
hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
(ll)
Stock Option Plans.
Each stock option granted by the Company under the Company’s
stock option plan or omnibus long-term incentive plan was granted
(i) in accordance with the terms of such plan and (ii) with an
exercise price at least equal to the fair market value of the
Common Stock on the date such stock option would be considered
granted under GAAP and applicable law. No stock option granted
under the Company’s stock option plan or omnibus long-term
incentive plan has been backdated. The Company has not knowingly
granted, and there is no and has been no Company policy or practice
to knowingly grant, stock options prior to, or otherwise knowingly
coordinate the grant of stock options with, the release or other
public announcement of material information regarding the Company
or the Subsidiaries or their financial results or
prospects.
(mm)
[Reserved]
(nn)
U.S. Real Property Holding
Corporation. The Company is not and has never been a United
States real property holding corporation within the meaning of
Section 897 of the Internal Revenue Code of 1986, as amended, and
the Company shall so certify upon Purchaser’s
request.
(oo)
Bank Holding Company
Act. Neither the Company nor any of its Subsidiaries or
Affiliates is subject to the Bank Holding Company Act of 1956, as
amended (the “BHCA”) and to regulation
by the Board of Governors of the Federal Reserve System (the
“Federal
Reserve”). Neither the Company nor any of its
Subsidiaries or Affiliates owns or controls, directly or
indirectly, five percent (5%) or more of the outstanding shares of
any class of voting securities or twenty-five percent or more of
the total equity of a bank or any entity that is subject to the
BHCA and to regulation by the Federal Reserve. Neither the Company
nor any of its Subsidiaries or Affiliates exercises a controlling
influence over the management or policies of a bank or any entity
that is subject to the BHCA and to regulation by the Federal
Reserve.
(pp)
Money Laundering.
The operations of the Company and its Subsidiaries are and have
been conducted at all times in compliance with applicable financial
record-keeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations
thereunder (collectively, the “Money Laundering Laws”),
and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary with respect to the Money Laundering
Laws is pending or, to the knowledge of the Company or any
Subsidiary, threatened.
(qq)
Information
Technology. The Company’s, the Subsidiaries’
and, to the knowledge of the Company, the Related Parties’
information technology assets and equipment, computers, systems,
networks, hardware, software, websites, applications, and databases
(collectively, “IT
Systems”) operate and perform in all material respects
as required in connection with the operation of the business of the
Company, the Subsidiaries and the Related Parties as currently
conducted. The Company, the Subsidiaries and, to the knowledge of
the Company, the Related Parties maintain commercially reasonable
controls, policies, procedures, and safeguards to maintain and
protect their material confidential information and the integrity,
continuous operation, redundancy and security of all IT Systems and
all personal, personally identifiable, sensitive, confidential or
regulated data (“Personal Data”) processed
and stored thereon, and to the knowledge of the Company, there have
been no breaches, incidents, violations, outages, compromises or
unauthorized uses of or accesses to same, except for those that
have been remedied without material cost or liability or the duty
to notify any other person, nor any incidents under internal review
or investigations relating to the same. The Company, the
Subsidiaries and, to the knowledge of the Company, the Related
Parties are presently in compliance in all material respects with
all applicable laws or statutes and all applicable judgments,
orders, rules and regulations of any court or arbitrator or
governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of IT
Systems and Personal Data and to the protection of such IT Systems
and Personal Data from unauthorized use, access, misappropriation
or modification, except for any such noncompliance that would not
have a Material Adverse Effect.
(rr)
Other Covered
Persons. Other than A.G.P., the Company is not aware of any
person that has been or will be paid (directly or indirectly)
remuneration for solicitation of purchasers in connection with the
sale of any Shares.
(ss)
Regulatory. Except
as described in the Registration Statement and the Prospectus, as
applicable, the Company and its Subsidiaries (i) are and at all
times have been in material compliance with all statutes, rules and
regulations applicable to the ownership, testing, development,
manufacture, packaging, processing, use, distribution, marketing,
advertising, labeling, promotion, sale, offer for sale, storage,
import, export or disposal of any product manufactured or
distributed by the Company including, without limitation the
Federal Food, Drug and Cosmetic Act (21 U.S.C. §301 et seq.),
the federal Anti-Kickback Statute (42 U.S.C. §1320a-7b(b)),
the Health Insurance Portability and Accountability Act of 1996, as
amended by the Health Information Technology for Economic and
Clinical Health Act of 2009, and the Patient Protection and
Affordable Care Act of 2010, as amended by the Health Care and
Education Affordability Reconciliation Act of 2010, the regulations
promulgated pursuant to such laws, and any successor government
programs and comparable state laws, regulations relating to Good
Clinical Practices and Good Laboratory Practices and all other
local, state, federal, national, supranational and foreign laws,
manual provisions, policies and administrative guidance relating to
the regulation of the Company (collectively, the “Applicable Laws”); (ii) have not received any
notice from any court or arbitrator or governmental or regulatory
authority or third party alleging or asserting noncompliance with
any Applicable Laws or any licenses, exemptions, certificates,
approvals, clearances, authorizations, permits, registrations and
supplements or amendments thereto required by any such Applicable
Laws (“Authorizations”); (iii) possess all material
Authorizations and such Authorizations are valid and in full force
and effect and are not in violation of any term of any such
Authorizations; (iv) have not received written notice of any claim,
action, suit, proceeding, hearing, enforcement, investigation
arbitration or other action from any court or arbitrator or
governmental or regulatory authority or third party alleging that
any product operation or activity is in violation of any Applicable
Laws or Authorizations nor is any such claim, action, suit,
proceeding, hearing, enforcement, investigation, arbitration or
other action threatened; (v) have not received any written notice
that any court or arbitrator or governmental or regulatory
authority has taken, is taking or intends to take, action to limit,
suspend, materially modify or revoke any Authorizations nor is any
such limitation, suspension, modification or revocation threatened;
(vi) have filed, obtained, maintained or submitted all material
reports, documents, forms, notices, applications, records, claims,
submissions and supplements or amendments as required by any
Applicable Laws or Authorizations and that all such reports,
documents, forms, notices, applications, records, claims,
submissions and supplements or amendments were complete and
accurate on the date filed (or were corrected or supplemented by a
subsequent submission); and (vii) are not a party to any corporate
integrity agreements, monitoring agreements, consent decrees,
settlement orders, or similar agreements with or imposed by any
governmental or regulatory authority.
(tt)
Material
Agreements. The agreements and documents described in the
Registration Statement or Prospectus conform in all material
respects to the descriptions thereof contained or incorporated by
reference therein conformed
in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable at the time filed, and were
filed on a timely basis with the Commission and none of such
documents contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; any further documents so filed and
there are no agreements or other documents required by the
Securities Act and the rules and regulations thereunder to be
described in the Prospectus or to be filed with the Commission as
exhibits to the Registration Statement or to be incorporated by
reference in the Registration Statement or Prospectus, that have
not been so described or filed or incorporated by
reference.
3.2
Representations and
Warranties of the Purchasers. Each Purchaser, for itself and
for no other Purchaser, hereby represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows
(unless as of a specific date therein, in which case they shall be
accurate as of such date):
(a)
Organization;
Authority. Such Purchaser is either an individual or an
entity duly incorporated or formed, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and
to consummate the transactions contemplated by the Transaction
Documents and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of the Transaction Documents
and performance by such Purchaser of the transactions contemplated
by the Transaction Documents have been duly authorized by all
necessary corporate, partnership, limited liability company or
similar action, as applicable, on the part of such Purchaser. Each
Transaction Document to which it is a party has been duly executed
by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof or thereof, will constitute the
valid and legally binding obligation of such Purchaser, enforceable
against it in accordance with its terms, except: (i) as limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally; (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies; and
(iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
(b)
Understandings or
Arrangements. Such Purchaser is acquiring the Shares as
principal for its own account and has no direct or indirect
arrangement or understandings with any other persons to distribute
or regarding the distribution of such Shares (this representation
and warranty not limiting such Purchaser’s right to sell the
Shares pursuant to the Registration Statement or otherwise in
compliance with applicable federal and state securities laws). Such
Purchaser is acquiring the Shares hereunder in the ordinary course
of its business. Such Purchaser is acquiring such Shares as
principal for his, her or its own account and not with a view to or
for distributing or reselling such Shares or any part thereof in
violation of the Securities Act or any applicable state securities
law, has no present intention of distributing any of such
Securities in violation of the Securities Act or any applicable
state securities law and has no direct or indirect arrangement or
understandings with any other persons to distribute or regarding
the distribution of such Shares in violation of the Securities Act
or any applicable state securities law (this representation and
warranty not limiting such Purchaser’s right to sell such
Shares pursuant to a registration statement or otherwise in
compliance with applicable federal and state securities
laws).
(c)
Purchaser Status.
At the time such Purchaser was offered the Shares, it was, and as
of the date hereof it is, either: (i) an “accredited
investor” as defined in Rule 501(a)(1), (a)(2), (a)(3),
(a)(7) or (a)(8) under the Securities Act or (ii) a
“qualified institutional buyer” as defined in Rule
144A(a) under the Securities Act.
(d)
Experience of Such
Purchaser. Such Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in the Shares,
and has so evaluated the merits and risks of such investment. Such
Purchaser is able to bear the economic risk of an investment in the
Shares and, at the present time, is able to afford a complete loss
of such investment.
(e)
Access to
Information. Such Purchaser acknowledges that it has had the
opportunity to review the Transaction Documents (including all
exhibits and schedules thereto) and the SEC Reports filed with the
Commission and has been afforded: (i) the opportunity to ask such
questions as it has deemed necessary of, and to receive answers
from, representatives of the Company concerning the terms and
conditions of the offering of the Shares and the merits and risks
of investing in the Shares; (ii) access to information about the
Company and its financial condition, results of operations,
business, properties, management and prospects sufficient to enable
it to evaluate its investment; and (iii) the opportunity to obtain
such additional information that the Company possesses or can
acquire without unreasonable effort or expense that is necessary to
make an informed investment decision with respect to the
investment. Such Purchaser acknowledges and agrees that neither
A.G.P. nor any Affiliate of A.G.P. has provided such Purchaser with
any information or advice with respect to the Shares nor is such
information or advice necessary or desired. Neither A.G.P. nor any
Affiliate of A.G.P. has made or makes any representation as to the
Company or the quality of the Shares and A.G.P. and any Affiliate
of A.G.P. may have acquired non-public information with respect to
the Company which such Purchaser agrees need not be provided to it.
In connection with the issuance of the Shares to such Purchaser,
neither A.G.P. nor any of its Affiliates has acted as a financial
advisor or fiduciary to such Purchaser.
(f)
Certain Transactions and
Confidentiality. Other than consummating the transactions
contemplated hereunder, such Purchaser has not, nor has any Person
acting on behalf of or pursuant to any understanding with such
Purchaser, directly or indirectly executed any purchases or sales,
including Short Sales, of the securities of the Company during the
period commencing as of the time that such Purchaser first received
a term sheet (written or oral) from the Company or any other Person
representing the Company setting forth the material terms of the
transactions contemplated hereunder and ending immediately prior to
the execution hereof. Notwithstanding the foregoing, in the case of
a Purchaser that is a multi-managed investment vehicle whereby
separate portfolio managers manage separate portions of such
Purchaser’s assets and the portfolio managers have no direct
knowledge of the investment decisions made by the portfolio
managers managing other portions of such Purchaser’s assets,
the representation set forth above shall only apply with respect to
the portion of assets managed by the portfolio manager that made
the investment decision to purchase the Shares covered by this
Agreement. Other than to other Persons party to this Agreement or
to such Purchaser’s representatives, including, without
limitation, its officers, directors, partners, legal and other
advisors, employees, agents and Affiliates, such Purchaser has
maintained the confidentiality of all disclosures made to it in
connection with this transaction (including the existence and terms
of this transaction). Notwithstanding the foregoing, for the
avoidance of doubt, nothing contained herein shall constitute a
representation or warranty against, or a prohibition of, any
actions with respect to the borrowing of, arrangement to borrow,
identification of the availability of, and/or securing of,
securities of the Company in order for such Purchaser (or its
broker or other financial representative) to effect Short Sales or
similar transactions in the future.
(g)
General
Solicitation. Such Purchaser is not purchasing the Shares as
a result of any advertisement, article, notice or other
communication regarding the Shares published in any newspaper,
magazine or similar media or broadcast over television or radio or
presented at any seminar or, to the knowledge of such Purchaser,
any other general solicitation or general
advertisement.
The
Company acknowledges and agrees that the representations contained
in this Section 3.2 shall not modify, amend or affect such
Purchaser’s right to rely on the Company’s
representations and warranties contained in this Agreement or any
representations and warranties contained in any other Transaction
Document or any other document or instrument executed and/or
delivered in connection with this Agreement or the consummation of
the transactions contemplated hereby. Notwithstanding the
foregoing, for the avoidance of doubt, nothing contained herein
shall constitute a representation or warranty, or preclude any
actions, with respect to locating or borrowing shares in order to
effect Short Sales or similar transactions in the
future.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1
Legends. The Shares
shall be issued free of legends.
4.2
[Reserved.]
4.3
Integration. The
Company shall not sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the
offer or sale of the Shares for purposes of the rules and
regulations of any Trading Market such that it would require
shareholder approval prior to the closing of such other transaction
unless shareholder approval is obtained before the closing of such
subsequent transaction.
4.4
Securities Laws
Disclosure; Publicity. The Company shall (a) by the
Disclosure Time issue a press release disclosing the material terms
of the transactions contemplated hereby, (b) file a Current Report
on Form 8-K, including the Transaction Documents as exhibits
thereto, with the Commission within the time required by the
Exchange Act. From and after the issuance of such press release,
the Company represents to the Purchasers that it shall have
publicly disclosed all material, non-public information delivered
to any of the Purchasers by the Company or any of the Subsidiaries,
or any of their respective officers, directors, employees or agents
in connection with the transactions contemplated by the Transaction
Documents. In addition, effective upon the issuance of such press
release, the Company acknowledges and agrees that any and all
confidentiality or similar obligations under any agreement, whether
written or oral, between the Company, any of the Subsidiaries or
any of their respective officers, directors, agents, employees or
Affiliates on the one hand, and any of the Purchasers or any of
their Affiliates on the other hand, shall terminate. The Company
and each Purchaser shall consult with each other in issuing any
other press releases with respect to the transactions contemplated
hereby, and neither the Company nor any Purchaser shall issue any
such press release nor otherwise make any such public statement
without the prior consent of the Company, with respect to any press
release of any Purchaser, or without the prior consent of each
Purchaser, with respect to any press release of the Company, which
consent shall not unreasonably be withheld or delayed, except if
such disclosure is required by law, in which case the disclosing
party shall promptly provide the other party with prior notice of
such public statement or communication. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of any
Purchaser, or include the name of any Purchaser in any filing with
the Commission or any regulatory agency or Trading Market, without
the prior written consent of such Purchaser, except (a) as required
by federal securities law in connection with the filing of final
Transaction Documents with the Commission and (b) to the extent
such disclosure is required by law or Trading Market regulations,
in which case the Company shall provide the Purchasers with prior
notice of such disclosure permitted under this clause
(b).
4.5
Shareholder Rights
Plan. No claim will be made or enforced by the Company or,
with the consent of the Company, any other Person, that any
Purchaser is an “Acquiring Person” under
any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or similar
anti-takeover plan or arrangement in effect or hereafter adopted by
the Company, or that any Purchaser could be deemed to trigger the
provisions of any such plan or arrangement, by virtue of receiving
Shares under the Transaction Documents or under any other agreement
between the Company and the Purchasers.
4.6
Non-Public
Information. Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction
Documents, which shall be disclosed pursuant to Section 4.4, the
Company covenants and agrees that neither it, nor any other Person
acting on its behalf will provide any Purchaser or any
Purchaser’s agents or counsel with any information that
constitutes, or the Company reasonably believes constitutes,
material non-public information, unless prior thereto such
Purchaser shall have consented to the receipt of such information
and agreed with the Company to keep such information confidential.
The Company understands and confirms that each Purchaser shall be
relying on the foregoing covenant in effecting transactions in
securities of the Company. To the extent that the Company delivers
any material, non-public information to a Purchaser without such
Purchaser’s consent, the Company hereby covenants and agrees
that such Purchaser shall not have any duty of confidentiality to
the Company, any of the Subsidiaries, or any of their respective
officers, directors, agents, employees or Affiliates, or a duty to
the Company, any of the Subsidiaries or any of their respective
officers, directors, agents, employees or Affiliates not to trade
on the basis of, such material, non-public information, provided
that the Purchaser shall remain subject to applicable law. To the
extent that any notice provided pursuant to any Transaction
Document constitutes, or contains, material, non-public information
regarding the Company or any Subsidiaries, the Company shall
simultaneously file such material non-public information on with
the Commission pursuant to a Current Report on Form 8-K. The
Company understands and confirms that each Purchaser shall be
relying on the foregoing covenant in effecting transactions in
securities of the Company.
4.7
Use of Proceeds.
The Company shall use the net proceeds from the sale of the Shares
hereunder for working capital purposes and shall not use such
proceeds: (a) for the satisfaction of any portion of the
Company’s debt (other than payment of trade payables in the
ordinary course of the Company’s business and prior
practices), (b) for the redemption of any Common Stock or Common
Stock Equivalents, (c) for the settlement of any outstanding
litigation, or (d) in violation of FCPA or OFAC
regulations.
4.8
Indemnification of
Purchasers. Subject to the provisions of this Section 4.8,
the Company will indemnify and hold each Purchaser and its
directors, officers, shareholders, members, partners, employees and
agents (and any other Persons with a functionally equivalent role
of a Person holding such titles notwithstanding a lack of such
title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with
a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title) of such
controlling persons (each, a “Purchaser Party”)
harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all
judgments, amounts paid in settlements, court costs and reasonable
attorneys’ fees and costs of investigation that any such
Purchaser Party may suffer or incur caused by or based upon (a) any
breach of any of the representations or warranties made by the
Company in this Agreement or in the other Transaction Documents or
(b) any action instituted against the Purchaser Parties in any
capacity, or any of them or their respective Affiliates, by any
shareholder of the Company who is not an Affiliate of such
Purchaser Party, with respect to any of the transactions
contemplated by the Transaction Documents (unless such action is
solely based upon a material breach of such Purchaser Party’s
representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Purchaser Party
may have with any such shareholder or any violations by such
Purchaser Party of state or federal securities laws or any conduct
by such Purchaser Party which is finally judicially determined to
constitute fraud, gross negligence or willful misconduct). The
Company will indemnify each Purchaser Party, to the fullest extent
permitted by applicable law, from and against any and all losses,
claims, damages, liabilities, costs (including, without limitation,
reasonable attorneys’ fees) and expenses, as incurred, caused
by or based upon (i) any untrue or alleged untrue statement of a
material fact contained in the Registration Statement or any
amendment thereto, any Issuer Free Writing Prospectus, the
Prospectus or any amendment or supplement thereto, or caused by or
based upon any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements
therein (in the case of any prospectus or supplement thereto, in
the light of the circumstances under which they were made) not
misleading, except to the extent, but only to the extent, that such
untrue statements or omissions are based solely upon information
regarding such Purchaser Party furnished in writing to the Company
by such Purchaser Party expressly for use therein, or (ii) any
violation or alleged violation by the Company of the Securities
Act, the Exchange Act or any state securities law, or any rule or
regulation thereunder in connection therewith. If any action shall
be brought against any Purchaser Party in respect of which
indemnity may be sought pursuant to this Agreement, such Purchaser
Party shall promptly notify the Company in writing, and the Company
shall have the right to assume the defense thereof with counsel of
its own choosing reasonably acceptable to the Purchaser Party. Any
Purchaser Party shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such
Purchaser Party except to the extent that (x) the employment
thereof has been specifically authorized by the Company in writing,
(y) the Company has failed after a reasonable period of time to
assume such defense and to employ counsel or (z) in such action
there is, in the reasonable opinion of counsel, a material conflict
on any material issue between the position of the Company and the
position of such Purchaser Party, in which case the Company shall
be responsible for the reasonable fees and expenses of no more than
one such separate counsel. The Company will not be liable to any
Purchaser Party under this Agreement (1) for any settlement by a
Purchaser Party effected without the Company’s prior written
consent, which shall not be unreasonably withheld or delayed; or
(2) to the extent, but only to the extent that a loss, claim,
damage or liability is attributable to any Purchaser Party’s
breach of any of the representations, warranties, covenants or
agreements made by such Purchaser Party in this Agreement or in the
other Transaction Documents. The indemnification required by this
Section 4.8 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and
when bills are received or are incurred. The indemnity agreements
contained herein shall be in addition to any cause of action or
similar right of any Purchaser Party against the Company or others
and any liabilities the Company may be subject to pursuant to
law.
4.9
Reservation of Common
Stock. As of the date hereof, the Company has reserved and
the Company shall continue to reserve and keep available at all
times, free of preemptive rights, a sufficient number of shares of
Common Stock for the purpose of enabling the Company to issue the
Shares pursuant to this Agreement.
4.10
Listing of Common
Stock. The Company hereby agrees to use commercially
reasonable best efforts to maintain the listing or quotation of the
Common Stock on the NYSE American, and prior to the Closing, the
Company shall apply to list or quote all of the Stock on the NYSE
American and promptly secure the listing of all of the Stock on the
NYSE American. The Company further agrees, if the Company applies
to have the Common Stock traded on any other Trading Market, it
will then include in such application all of the Common Stock, and
will take such other action as is necessary to cause all of the
Shares to be listed or quoted on such other Trading Market as
promptly as possible. The Company will then take all action
reasonably necessary to continue the listing and trading of its
Common Stock on a Trading Market and will comply in all respects
with the Company’s reporting, filing and other obligations
under the bylaws or rules of the Trading Market. For so long as the
Company maintains a listing or quotation of the Common Stock on a
Trading Market, the Company agrees to maintain the eligibility of
the Common Stock for electronic transfer through the Depository
Trust Company or another established clearing corporation,
including, without limitation, by timely payment of fees to the
Depository Trust Company or such other established clearing
corporation in connection with such electronic
transfer.
4.11
Reserved.
4.12
Subsequent Equity
Sales.
(a)
From the date hereof until ninety (90)
calendar days after the Closing Date, neither the Company nor any
Subsidiary shall issue, enter into any agreement to issue or
announce the issuance or proposed issuance of any Common Stock or
Common Stock Equivalents.
(b)
From the date hereof until ninety (90) calendar days after the
Closing Date, the Company shall be prohibited from effecting or
entering into an agreement to effect any issuance by the Company or
any of its Subsidiaries of Common Stock or Common Stock Equivalents
(or a combination of units thereof) involving a Variable Rate
Transaction. “Variable Rate
Transaction” means a transaction in which the Company
(i) issues or sells any debt or equity securities that are
convertible into, exchangeable or exercisable for, or include the
right to receive additional shares of Common Stock either (A) at a
conversion price, exercise price or exchange rate or other price
that is based upon and/or varies with the trading prices of or
quotations for the shares of Common Stock at any time after the
initial issuance of such debt or equity securities, or (B) with a
conversion, exercise or exchange price that is subject to being
reset at some future date after the initial issuance of such debt
or equity security or upon the occurrence of specified or
contingent events directly or indirectly related to the business of
the Company or the market for the Common Stock or (ii) enters into,
or effects a transaction under, any agreement, including, but not
limited to, an “at-the market” offering or equity line
of credit, whereby the Company may issue securities at a future
determined price. Any Purchaser shall be entitled to obtain
injunctive relief against the Company to preclude any such
issuance, which remedy shall be in addition to any right to collect
damages.
(c) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an
Exempt Issuance.
4.13
Equal Treatment of
Purchasers. No consideration (including any modification of
any Transaction Document) shall be offered or paid to any Person to
amend or consent to a waiver or modification of any provision of
the Transaction Documents unless the same consideration is also
offered to all of the parties to such Transaction Documents. For
clarification purposes, this provision constitutes a separate right
granted to each Purchaser by the Company and negotiated separately
by each Purchaser, and is intended for the Company to treat the
Purchasers as a class and shall not in any way be construed as the
Purchasers acting in concert or as a group with respect to the
purchase, disposition or voting of Shares or
otherwise.
4.14
Certain Transactions and
Confidentiality. Each Purchaser, severally and not jointly
with the other Purchasers, covenants that neither it nor any
Affiliate acting on its behalf or pursuant to any understanding
with it will execute any purchases or sales, including Short Sales
of any of the Company’s securities during the period
commencing with the execution of this Agreement and ending at such
time that the transactions contemplated by this Agreement are first
publicly announced pursuant to the initial press release as
described in Section 4.4. Each Purchaser, severally and not jointly
with the other Purchasers, covenants that until such time as the
transactions contemplated by this Agreement are publicly disclosed
by the Company pursuant to the initial press release as described
in Section 4.4, such Purchaser will maintain the confidentiality of
the existence and terms of this transaction and the information
included in this Agreement, including the schedules hereto.
Notwithstanding the foregoing, and
notwithstanding anything contained in this Agreement to the
contrary, the Company expressly acknowledges and agrees that (i) no
Purchaser makes any representation, warranty or covenant hereby
that it will not engage in effecting transactions in any securities
of the Company after the time that the transactions contemplated by
this Agreement are first publicly announced pursuant to the initial
press release as described in Section 4.4, (ii) no Purchaser shall
be restricted or prohibited from effecting any transactions in any
securities of the Company in accordance with applicable securities
laws from and after the time that the transactions contemplated by
this Agreement are first publicly announced pursuant to the initial
press release as described in Section 4.4 and (iii) no Purchaser
shall have any duty of confidentiality or duty not to trade in the
securities of the Company to the Company or the Subsidiaries after
the issuance of the initial press release as described in Section
4.4. Notwithstanding the foregoing, in the case of a
Purchaser that is a multi-managed investment vehicle whereby
separate portfolio managers manage separate portions of such
Purchaser’s assets and the portfolio managers have no direct
knowledge of the investment decisions made by the portfolio
managers managing other portions of such Purchaser’s assets,
the covenant set forth above shall only apply with respect to the
portion of assets managed by the portfolio manager that made the
investment decision to purchase the Shares covered by this
Agreement.
ARTICLE V.
MISCELLANEOUS
5.1
Termination. This
Agreement may be terminated by any Purchaser, as to such
Purchaser’s obligations hereunder only and without any effect
whatsoever on the obligations between the Company and the other
Purchasers, by written notice to the other parties, if the Closing
has not been consummated on or before February 13, 2021;
provided,
however,
that no such termination will affect the right of any party to sue
for any breach by any other party (or parties).
5.2
Fees and Expenses.
Except as expressly set forth in the Transaction Documents to the
contrary, each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all
other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement.
The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any
instruction letter delivered by the Company and any exercise notice
delivered by a Purchaser), stamp taxes and other taxes and duties
levied in connection with the delivery of any Shares to the
Purchasers.
5.3
Entire Agreement.
The Transaction Documents, together with the exhibits and schedules
thereto, and the Prospectus contain the entire understanding of the
parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have
been merged into such documents, exhibits and
schedules.
5.4
Notices. Any and
all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of: (a) the time of
transmission, if such notice or communication is delivered via
facsimile at the facsimile number or email attachment at the email
address as set forth on the signature pages attached hereto at or
prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the
next Trading Day after the time of transmission, if such notice or
communication is delivered via facsimile at the facsimile number or
email attachment at the email address as set forth on the signature
pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the
second (2nd) Trading Day
following the date of mailing, if sent by U.S. nationally
recognized overnight courier service or (d) upon actual receipt by
the party to whom such notice is required to be given. The address
for such notices and communications shall be as set forth on the
signature pages attached hereto. To the extent that any notice
provided pursuant to any Transaction Document constitutes, or
contains, material, non-public information regarding the Company or
any Subsidiaries, the Company shall simultaneously disclose such
information in accordance with applicable law and file such notice
with the Commission pursuant to a Current Report on Form
8-K.
5.5
Amendments;
Waivers. No provision of this Agreement may be waived,
modified, supplemented or amended except in a written instrument
signed, in the case of an amendment, by the Company and Purchasers
which purchased a majority in interest of the Shares based on the
initial Subscription Amounts hereunder or, in the case of a waiver,
by the party against whom enforcement of any such waived provision
is sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of any party to
exercise any right hereunder in any manner impair the exercise of
any such right.
5.6
Headings. The
headings herein are for convenience only, do not constitute a part
of this Agreement and shall not be deemed to limit or affect any of
the provisions hereof.
5.7
Successors and
Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of each
Purchaser (other than by merger). Any Purchaser may assign any or
all of its rights under this Agreement to any Person to whom such
Purchaser assigns or transfers any Shares, provided that such
transferee agrees in writing to be bound, with respect to the
transferred Shares, by the provisions of the Transaction Documents
that apply to the “Purchasers.”
5.8
No Third-Party
Beneficiaries. A.G.P. shall be the third party beneficiary
of the representations and warranties of the Company in Section 3.1
and the representations and warranties of the Purchasers in Section
3.2. This Agreement is intended for the benefit of the parties
hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced
by, any other Person, except as otherwise set forth in Section 4.8
and this Section 5.8.
5.9
Governing Law. All
questions concerning the construction, validity, enforcement and
interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of
the State of New York, without regard to the principles of
conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense
of the transactions contemplated by this Agreement and any other
Transaction Documents (whether brought against a party hereto or
its respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of
New York. Each party hereby irrevocably submits to the 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 herewith or with any transaction
contemplated hereby or discussed herein (including with respect to
the enforcement of any of the Transaction Documents), and hereby
irrevocably waives, and agrees not to assert in any action or
proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such action or proceeding is
improper or is an inconvenient venue for such Proceeding. Each
party hereby irrevocably waives personal service of process and
consents to process being served in any such action or proceeding
by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement 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 other
manner permitted by law. If any party shall commence an action or
proceeding to enforce any provisions of the Transaction Documents,
then, in addition to the obligations of the Company under Section
4.8, the prevailing party in such action or proceeding shall be
reimbursed by the non-prevailing party for its reasonable
attorneys’ fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such action or
proceeding.
5.10
Survival. The
representations and warranties contained herein shall survive the
Closing and the delivery of the Shares for a period of not longer
than twelve (12) months from the Closing.
5.11
Execution. This
Agreement may be executed in two or more counterparts, all of which
when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by
each party and delivered to each other party, it being understood
that the parties need not sign the same counterpart. In the event
that any signature is delivered by facsimile transmission or by
e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the
same force and effect as if such facsimile or “.pdf”
signature page were an original thereof.
5.12
Severability. If
any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.
5.13
Rescission and Withdrawal
Right. Notwithstanding anything to the contrary contained in
(and without limiting any similar provisions of) any of the other
Transaction Documents, whenever any Purchaser exercises a right,
election, demand or option under a Transaction Document and the
Company does not timely perform its related obligations within the
periods therein provided, then such Purchaser may rescind or
withdraw, in its sole discretion from time to time upon written
notice to the Company, any relevant notice, demand or election in
whole or in part without prejudice to its future actions and
rights.
5.14
Replacement of
Shares. If any certificate or instrument evidencing any
Shares is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and
upon cancellation thereof (in the case of mutilation), or in lieu
of and substitution therefor, a new certificate or instrument, but
only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction. The applicant for a new
certificate or instrument under such circumstances shall also pay
any reasonable third-party costs (including customary indemnity)
associated with the issuance of such replacement
Shares.
5.15
Remedies. In
addition to being entitled to exercise all rights provided herein
or granted by law, including recovery of damages, each of the
Purchasers and the Company will be entitled to specific performance
under the Transaction Documents. The parties agree that monetary
damages may not be adequate compensation for any loss incurred by
reason of any breach of obligations contained in the Transaction
Documents and hereby agree to waive and not to assert in any action
for specific performance of any such obligation the defense that a
remedy at law would be adequate.
5.16
Payment Set Aside.
To the extent that the Company makes a payment or payments to any
Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or
payments or the proceeds of such enforcement or exercise or any
part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, recovered from, disgorged by
or are required to be refunded, repaid or otherwise restored to the
Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, state or
federal law, common law or equitable cause of action), then to the
extent of any such restoration the obligation or part thereof
originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or
such enforcement or setoff had not occurred.
5.17
Independent Nature of
Purchasers’ Obligations and Rights. The obligations of
each Purchaser under any Transaction Document are several and not
joint with the obligations of any other Purchaser, and no Purchaser
shall be responsible in any way for the performance or
non-performance of the obligations of any other Purchaser under any
Transaction Document. Nothing contained herein or in any other
Transaction Document, and no action taken by any Purchaser pursuant
hereto or thereto, shall be deemed to constitute the Purchasers as
a partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Purchasers are in any way
acting in concert or as a group with respect to such obligations or
the transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce
its rights including, without limitation, the rights arising out of
this Agreement or out of the other Transaction Documents, and it
shall not be necessary for any other Purchaser to be joined as an
additional party in any proceeding for such purpose. Each Purchaser
has been represented by its own separate legal counsel in its
review and negotiation of the Transaction Documents. For reasons of
administrative convenience only, each Purchaser and its respective
counsel have chosen to communicate with the Company through the
legal counsel of A.G.P. The legal counsel of A.G.P. does not
represent any of the Purchasers and only represents A.G.P. The
Company has elected to provide all Purchasers with the same terms
and Transaction Documents for the convenience of the Company and
not because it was required or requested to do so by any of the
Purchasers. It is expressly understood and agreed that each
provision contained in this Agreement and in each other Transaction
Document is between the Company and a Purchaser, solely, and not
between the Company and the Purchasers collectively and not between
and among the Purchasers.
5.18
[Reserved].
5.19
Saturdays, Sundays,
Holidays, etc. If the last or appointed
day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such
action may be taken or such right may be exercised on the next
succeeding Business Day.
5.20
Currency. Unless
otherwise stated, all dollar amounts and references to “
$” in this Agreement refer to the lawful currency of the
United States.
5.21
Construction. The
parties agree that each of them and/or their respective counsel
have reviewed and had an opportunity to revise the Transaction
Documents and, therefore, the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of the
Transaction Documents or any amendments thereto. In addition, each
and every reference to share prices and Common Stock in any
Transaction Document shall be subject to adjustment for reverse and
forward stock splits, stock dividends, stock combinations and other
similar transactions of the Common Stock that occur after the date
of this Agreement.
5.22
WAIVER
OF JURY TRIAL. IN ANY
ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY
PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND
INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW,
HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY
WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
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INUVO, INC.
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Address
for Notice:
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By:
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500
President Clinton Ave., Suite 300
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Name:
Richard Howe
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Little
Rock, Arkansas 72201
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Title:
Chairman and CEO
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Fax:
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E-mail:
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO INUVO, INC. SECURITIES PURCHASE
AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
Name of
Purchaser:
______________________________________________________
Signature of Authorized Signatory of
Purchaser: _________________________________
Name of
Authorized Signatory:
_______________________________________________
Title
of Authorized Signatory:
________________________________________________
Email
Address of Authorized
Signatory:_________________________________________
Facsimile Number of
Authorized Signatory:
__________________________________________
Address
for Notice to Purchaser:
DWAC
for Shares:
Subscription
Amount: $_________________
Shares:
_________________
EIN
Number: ____________________