Attached files
file | filename |
---|---|
8-K - GENVEC INC | v172431_8k.htm |
EX-5.1 - GENVEC INC | v172431_ex5-1.htm |
EX-4.1 - GENVEC INC | v172431_ex4-1.htm |
EX-99.1 - GENVEC INC | v172431_ex99-1.htm |
EX-10.1 - GENVEC INC | v172431_ex10-1.htm |
GENVEC,
INC.
14,000,000
Shares of Common Stock, par value $0.001 per share
and
Warrants to Purchase 4,200,000 Shares of Common Stock
PLACEMENT
AGENCY AGREEMENT
January
27,
2010
Roth
Capital Partners, LLC
24
Corporate Plaza
Newport
Beach, California 92660
Merriman
Curhan Ford & Co.
135 E.
57th Street, 24th Floor
New York,
New York 10022
Dear Sir
or Madam:
GenVec,
Inc., a Delaware corporation (the “Company”), proposes to issue and sell
14,000,000 shares (the “Offered Shares”) of common stock, par value $0.001 per
share (the “Common Stock”), and warrants to purchase up to 4,200,000 shares of
Common Stock (the “Offered Warrants”) in the form attached hereto as Exhibit A, to certain
investors (collectively, the “Investors”). The Offered Shares and the
Offered Warrants shall be sold together as units, each unit consisting of one
Offered Share and 0.30 of an Offered Warrant to purchase one (1) share of Common
Stock (such units are referred to herein individually as the “Offered Security”
and collectively as the “Offered Securities”). The Offered Warrants
shall be immediately separable from the units. The Company desires to
engage Roth Capital Partners, LLC (“Roth”) and Merriman Curhan Ford & Co.
(“MCF”) as its exclusive placement agents (each, a “Placement Agent” and,
collectively, the “Placement Agents”) in connection with such issuance and
sale. The Common Stock issuable upon exercise of the Offered Warrants
is herein referred to as the “Warrant Shares.” The Offered Securities
are more fully described in the Registration Statement (as hereinafter
defined).
The
Company hereby confirms as follows its agreements with the Placement
Agents.
1. Agreement to Act as
Placement Agents. On the basis of the representations,
warranties and agreements of the Company herein contained and subject to all the
terms and conditions of this Agreement, each of the Placement Agents, severally
and not jointly, agrees to act as the Company’s exclusive placement agent in
connection with the issuance and sale, on a best efforts basis, by the Company
of the Offered Securities to the Investors. The Placement Agents
shall use commercially reasonable efforts to assist the Company in obtaining
performance by each Investor whose offer to purchase Offered Securities has been
solicited by the Placement Agents and accepted by the Company, but no Placement
Agent shall, except as otherwise provided in this Agreement, have any liability
to the Company in the event any such purchase is not consummated for any
reason. The Company shall pay to the Placement Agents 6% of the
proceeds received by the Company from the sale of the Offered Shares as set
forth on the cover page of the Prospectus (as hereinafter defined) (the
“Placement Fee”). The Placement Fee shall be allocated 65% to Roth
and 35% to MCF, unless the Placement Agents otherwise agree.
2. Delivery and
Payment. The closing (the “Closing”) of the sale of the
Offered Securities shall take place at the office of Lowenstein Sandler PC at
1251 Avenue of the Americas, New York, New York 10020 at 10:00 a.m., New York
City time, on February 1, 2010, or at such other time on such other date as may
be agreed upon by the Company and the Placement Agent (the “Closing
Date”). All actions taken at the Closing shall be deemed to have
occurred simultaneously. On or before the Closing Date, each Investor
shall pay by wire transfer of immediately available funds to an account
specified by the Company an amount equal to the product of (x) the number of
Offered Securities such Investor has agreed to purchase and (y) the purchase
price per unit as set forth on the cover page of the Prospectus (as defined
below) (the “Purchase Amount”). On the Closing Date, the Company
shall (i) deliver or cause to be delivered the Offered Securities to the
Investors, with the delivery of the Offered Shares to be made, if possible,
through the facilities of The Depository Trust Company's DWAC system, and the
delivery of the Offered Warrants to be made by mail or overnight carrier to the
Investors to the addresses set forth on the applicable Investor Purchase
Agreement (as defined below), and (ii) pay to the Placement Agents (A) 65% of
the Placement Fee as directed by Roth and 35% of the Placement Fee as directed
by MCF and (B) the expense reimbursement to which the Placement Agents are
entitled pursuant to Section 6 hereof.
3. Representations and
Warranties of the Company. The Company represents and warrants
and covenants to the Placement Agents that:
(a) A
“shelf” registration statement on Form S-3 (File No. 333-140373) with respect to
the Common Stock and certain other securities of the Company has been prepared
by the Company in conformity with the requirements of the Securities Act of
1933, as amended (the “Act”), and the rules and regulations (the “Rules and
Regulations”) of the Securities and Exchange Commission (the “Commission”)
thereunder, and has been filed with the Commission. The Company and
the transactions contemplated by this Agreement meet the requirements and comply
with the conditions for the use of Form S-3. The Registration
Statement meets the requirements of Rule 415(a)(1)(x) under the Act and complies
in all materials respects with said rule. As used in this
Agreement:
(i) “Applicable Time” means
9:00 a.m. (New York City time) on the date of this Agreement;
(ii) “Effective Date” means
any date as of which any part of the Registration Statement became, or is deemed
to have become, effective under the Act in accordance with the Rules and
Regulations;
(iii) “Issuer Free Writing
Prospectus” means each “issuer free writing prospectus” (as defined in Rule
433(h) of the Rules and Regulations);
(iv) “Preliminary
Prospectus” means any preliminary prospectus relating to the Offered
Securities included in the Registration Statement or filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations, including any preliminary
prospectus supplement thereto relating to the Offered Securities;
(v) “Pricing Disclosure
Materials” means, as of the Applicable Time, the most recent Preliminary
Prospectus, together with each Issuer Free Writing Prospectus listed on
Schedule 1 hereto, and the information set forth on Schedule 2
hereto;
(vi) “Prospectus” means the
final prospectus relating to the Offered Securities including any prospectus
supplement thereto relating to the Offered Securities, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations;
and
(vi) “Registration
Statement” means, collectively, the various parts of the registration statement
described in Section 3(a), each as amended as of the Effective Date for such
part, including any Preliminary Prospectus or the Prospectus and all exhibits to
such registration statement.
-2-
Any
reference to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents incorporated or deemed to be incorporated by
reference therein pursuant to Form S-3 under the Act as of the date
of such Preliminary Prospectus or the Prospectus, as the case may
be. Any reference herein to the terms “amend”, “amendment” or
“supplement” with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
document filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), after the effective date of the Registration Statement, the
date of such Preliminary Prospectus or the date of the Prospectus, as the case
may be, which is incorporated therein by reference.
(b) The
Registration Statement has heretofore become effective under the Act or, with
respect to any registration statement to be filed to register the offer and sale
of Offered Securities pursuant to Rule 462(b) under the Act, will be filed with
the Commission and become effective under the Act no later than 10:00 p.m., New
York City time, on the date of determination of the public offering price for
the Offered Securities; no stop order of the Commission preventing or suspending
the use of any Prospectus, or the effectiveness of the Registration Statement,
has been issued, and no proceedings for such purpose have been instituted or, to
the Company’s knowledge, are contemplated by the Commission.
(c) The
Company was not at the time of the initial filing of the Registration Statement,
has not been since the date of such filing, and will not be on the Closing Date,
an “ineligible issuer” (as defined in Rule 405 under the Act). The
Company has been since the time of initial filing of the Registration Statement
and continues to be eligible to use Form S-3 for the offering of the Offered
Securities.
(d) The
Registration Statement, at the time it became effective, as of the date hereof,
and at the Closing Date conformed and will conform in all material respects to
the requirements of the Act and the Rules and Regulations. The Preliminary
Prospectus conformed, and the Prospectus will conform, when filed with the
Commission pursuant to Rule 424(b) and on the Closing Date to the requirements
of the Act and the Rules and Regulations. The documents incorporated by
reference in any Preliminary Prospectus or the Prospectus conformed, and any
documents incorporated therein on or prior to the Closing, when filed with the
Commission to the requirements of the Exchange Act or the Act, as applicable,
and the rules and regulations of the Commission thereunder.
(e) The
Registration Statement did not, as of the Effective Date, 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.
(f)
The Prospectus will not, as of its
date and on the Closing Date, 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, in the light of the circumstances under which they were
made, not misleading; provided, however, that the
Company makes no representation or warranty with respect to any statement
contained in the Prospectus in reliance upon and in conformity with information
concerning the Placement Agent and furnished in writing by the Placement Agent
to the Company expressly for use in the Prospectus, as set forth in Section
8(b).
(g) The
documents incorporated by reference in any Preliminary Prospectus or the
Prospectus did not, and any documents filed and incorporated by reference
therein on or prior to the Closing will not, when filed with the Commission,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated in such document or necessary to make the statements in
such document, in light of the circumstances under which they were made, not
misleading.
-3-
(h) The
Pricing Disclosure Materials did not, as of the Applicable Time, 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, in light of the
circumstances under which they were made, not misleading; provided, however, that the
Company makes no representation or warranty with respect to any statement
contained in the Pricing Disclosure Materials in reliance upon and in conformity
with information concerning the Placement Agents and furnished in writing by the
Placement Agents to the Company expressly for use in the Pricing Disclosure
Materials, as set forth in Section 8(b).
(i)
Each Issuer Free Writing Prospectus, when considered
together with the Pricing Disclosure Materials as of the Applicable Time, did
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,
in light of the circumstances under which they were made, not
misleading.
(j)
Each Issuer Free Writing Prospectus conformed or will
conform in all material respects to the requirements of the Act and the Rules
and Regulations on the date of first use, and the Company has complied or will
comply with any filing requirements applicable to such Issuer Free Writing
Prospectus pursuant to the Rules and Regulations. Each Issuer Free
Writing Prospectus, as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Offered Securities, did not, does
not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the
Prospectus, including any document incorporated by reference therein that has
not been superseded or modified. The Company has retained in
accordance with the Rules and Regulations all Issuer Free Writing Prospectuses
that were not required to be filed pursuant to the Rules and
Regulations.
(k) The
Company is, and at the Closing Date will be, duly organized, validly existing
and in good standing under the laws of the State of Delaware. The
Company (i) has, and at the Closing Date will have, full power and
authority to conduct all the activities conducted by it, to own or lease all the
assets owned or leased by it and to conduct its business as described in the
Registration Statement and the Prospectus and (ii) is, and at the Closing
Date will be, duly licensed or qualified to do business and in good standing as
a foreign organization in all jurisdictions in which the nature of the
activities conducted by it or the character of the assets owned or leased by it
makes such licensing or qualification necessary; except, in each case, where the
failure to be so qualified or in good standing or have such power or authority
would not, individually or in the aggregate, have a material adverse effect or
would not reasonably be expected to have a material adverse effect on or
affecting the business, properties, management, financial position,
stockholders’ equity or results of operations of the Company (a “Material
Adverse Effect”). Complete and correct copies of the articles or
certificate of incorporation and of the bylaws of the Company and all amendments
thereto have been delivered or made available to the Placement Agents, and no
changes therein will be made subsequent to the date hereof and prior to the
Closing Date.
(l)
The Company does not have any
subsidiaries.
(m) The
issued and outstanding shares of capital stock of the Company have been validly
issued, are fully paid and nonassessable and, other than as set forth in the
Registration Statement, are not subject to any preemptive rights, rights of
first refusal or similar rights. The Company has an authorized,
issued and outstanding capitalization as set forth in the Prospectus as of the
dates referred to therein. The descriptions of the securities of the
Company in the Registration Statement and the Prospectus (taken together with
the Pricing Disclosure Materials) are, and at the Closing Date will be, complete
and accurate in all respects. Except as set forth in the Registration
Statement and the Prospectus or pursuant to plans or arrangements described
therein, the Company does not have outstanding any options to purchase, or any
rights or warrants to subscribe for, or any securities or obligations
convertible into, or exchangeable for, or any contracts or commitments to issue
or sell, any shares of capital stock or other securities.
-4-
(n) The
Company has full legal right, power and authority to enter into this Agreement
and the proposed purchase agreements to be executed by each Investor and the
Company, substantially in the form attached hereto as Exhibit B (the
“Investor Purchase Agreements,” and together with this Agreement and the
Warrants, the “Transaction Documents”), and perform the transactions
contemplated hereby and thereby. The Transaction Documents have been
authorized and this Agreement has been, and the Investor Purchase Agreements and
the Warrants will be, validly executed and delivered by the Company and this
Agreement is, and the Investor Purchase Agreements and the Warrants will be,
legal, valid and binding agreements of the Company enforceable against the
Company in accordance with their respective terms, subject to the effect of
applicable bankruptcy, insolvency or similar laws affecting creditors’ rights
generally and equitable principles of general applicability.
(o) The
issuance and sale of each of the Offered Shares and the Offered Warrants have
been duly authorized by the Company, and the Offered Shares, when issued and
paid for in accordance with the Transaction Documents, will be duly and validly
issued, fully paid and nonassessable and will not be subject to preemptive or
similar rights. The Warrant Shares have been duly authorized and
reserved for issuance pursuant to the terms of the Offered Warrants, and the
Warrant Shares, when issued by the Company upon valid exercise of the Offered
Warrants and payment of the exercise price, will be duly and validly issued,
fully paid and nonassessable and will not be subject to preemptive or similar
rights. The Offered Securities, when issued, will conform in all
material respects to the description thereof set forth in or incorporated into
the Prospectus.
(p) The
financial statements and the related notes included in the Registration
Statement and the Prospectus present fairly, in all material respects, the
financial condition of the Company as of the dates thereof and the results
of operations and cash flows at the dates and for the periods covered thereby in
conformity with generally accepted accounting principles (“GAAP”). No
other financial statements or schedules of the Company or any other entity are
required by the Act or the Rules and Regulations to be included in the
Registration Statement or the Prospectus. The Company does not have
any material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations or any “variable interest entities” within the
meaning of Financial Accounting Standards Board Interpretation No. 46), not
disclosed in the Registration Statement, the Pricing Disclosure Materials and
the Prospectus.
(q) To
the Company’s knowledge, KPMG LLP (the “Accountants”), who have reported on such
financial statements and schedules, are registered independent public
accountants with respect to the Company as required by the Act and the Rules and
Regulations and by the rules of the Public Company Accounting Oversight
Board. The financial statements of the Company and the related notes
and schedules included in the Registration Statement and the Prospectus have
been prepared in conformity with the requirements of the Act and the Rules and
Regulations and present fairly the information shown therein.
(r) The
Company is, and at the Closing Date will be, in compliance with all of the
provisions of the Sarbanes Oxley Act of 2002 and the rules and regulations
promulgated therewith (the “Sarbanes Oxley Act”) with which the Company is
required to comply. To the Company’s knowledge, there is, and has
been, no failure on the part of any of the Company’s current officers, in their
capacities as such, to comply with any applicable provisions of the Sarbanes
Oxley Act with respect to the Company.
-5-
The
Company maintains systems 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
generally accepted accounting principles 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 has established
disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and
15d-15). The Company presented in its Form 10-Q for the quarterly
period ended June 30, 2009 (the “Evaluation Date”) the conclusions of the
certifying officers about the effectiveness o the disclosure controls and
procedures based upon their evaluations as of the Evaluation
Date. Since the Evaluation Date, there have been no significant
changes in the Company’s internal controls (as such term is defined in Item
307(b) of Regulation S-K under the Exchange Act) or, to the Company’s knowledge,
in other factors that could significantly affect the Company’s internal
controls.
(s) Except
as set forth in or otherwise contemplated by the Registration Statement, since
the date of the most recent financial statements of the Company included or
incorporated by reference in the Registration Statement and prior to Closing,
(i) there has not been and will not have been any change in the capital stock of
the Company (except for changes in the number of outstanding shares of Common
Stock of the Company due to the issuance of shares upon the exercise of stock
options, purchases under the Company’s Employee Stock Purchase Plan) or
long-term debt of the Company or any dividend or distribution of any kind
declared, set aside for payment, paid or made by the Company on any class of
capital stock, or any material adverse change, or any development that would
reasonably be expected to result in a material adverse change in, or affecting,
the business, properties, management, financial position, stockholders’ equity
or results of operations of the Company (a “Material Adverse Change”) and (ii)
the Company has not sustained, and does not expect to sustain, any material loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor disturbance or dispute or
any action, order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in the
Registration Statement and the Prospectus.
(t) Since
the date as of which information is given in the most recent Preliminary
Prospectus, the Company has not entered into, and will not enter into prior to
the Closing, any transaction or agreement, not in the ordinary course of
business, that is material to the Company, or incurred or will incur prior to
the Closing any liability or obligation, direct or contingent, not in the
ordinary course of business, that is material to the Company.
(u) The
Company does not own any real property. The Company has good and
valid title to all personal property described in the Registration Statement or
the Prospectus as being owned by it that are material to the business of the
Company, in each case free and clear of all liens, encumbrances and claims
except those that (i) do not materially interfere with the use made and proposed
to be made of such property by the Company or (ii) would not reasonably be
expected, individually or in the aggregate, if determined adversely to the
Company, to have a Material Adverse Effect. Any real property
described in the Registration Statement or the Prospectus as being leased by the
Company that is material to the business of the Company is held by the Company
under valid, existing and enforceable leases, except those that (A) do not
materially interfere with the use made or proposed to be made of such property
by the Company or (B) would not be reasonably expected, individually or in the
aggregate, to have a Material Adverse Effect.
(v) The
Company is not, nor upon completion of the transactions contemplated herein will
it be, an “investment company” or an “affiliated person” of, or “promoter” or
“principal underwriter” for, an “investment company,” as such terms are defined
in the Investment Company Act of 1940, as amended (the “Investment Company
Act”).
-6-
(w) There
are no legal, governmental or regulatory actions, suits or proceedings pending,
nor, to the Company’s knowledge, any legal, governmental or regulatory
investigations, to which the Company is a party or to which any property of the
Company is the subject that, individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect or materially and adversely affect
the ability of the Company to perform its obligations under the Transaction
Documents (collectively, the “Actions”); to the Company’s knowledge, no such
Actions are threatened by any governmental or regulatory authority or threatened
by others; and there are no current or pending legal, governmental or regulatory
investigations, actions, suits or proceedings that are required under the Act to
be described in the Prospectus that are not so described.
(x) The
Company has, and at the Closing Date will have, (i) all governmental licenses,
permits, consents, orders, approvals and other authorizations necessary to carry
on its respective business as presently conducted except where the failure to
have such governmental licenses, permits, consents, orders, approvals and other
authorizations would not have a Material Adverse Effect, (ii) complied with all
laws, regulations and orders applicable to either it or its business, including
but not limited to, the laws contained in, and the rules and regulations
promulgated under, the Employee Retirement Income Security Act of 1974, as
amended, and the Currency and Foreign Transactions Reporting Act of 1970, as
amended, except where the failure to so comply would not have a Material Adverse
Effect, and (iii) performed all its obligations required to be performed, and is
not, and at the Closing Date will not be, in default, under any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement, lease, contract or other agreement or instrument
(collectively, a “contract or other agreement”) to which it is a party or by
which its property is bound or subject, except where such failure to perform or
default would not have a Material Adverse Effect, and, to the Company’s
knowledge, no other party under any material contract or other agreement to
which it is a party is in default in any respect thereunder where such default
would have a Material Adverse Effect. The Company is not in violation
of any provision of its organizational or governing documents.
(y) All
consents, authorizations, approvals and orders required in connection with the
Transaction Documents have been obtained, except such as may be required under
state securities or Blue Sky Laws or the by-laws and rules of the Financial
Industry Regulatory Authority (“FINRA”) or the NASDAQ Global
Market.
(z) Neither
the execution of the Transaction Documents, nor the issuance, offering or sale
of the Offered Securities or the Warrant Shares, nor the consummation of any of
the transactions contemplated herein and therein, nor the compliance by the
Company with the terms and provisions hereof and thereof will conflict with, or
will result in a breach of, any of the terms and provisions of, or has
constituted or will constitute a default under, or has resulted in or will
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to the terms of any contract or other
agreement to which the Company may be bound or to which any of the property or
assets of the Company is subject, except such conflicts, breaches or defaults as
may have been waived nor will such action result (x) in any violation of the
provisions of the organizational or governing documents of the Company or (y) in
any violation of the provisions of any statute or any order, rule or regulation
applicable to the Company or of any court or of any federal, state or other
regulatory authority or other government body having jurisdiction over the
Company, except for such violations that could not reasonably be expected to
have a Material Adverse Effect.
-7-
(aa) There
is no document or contract of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as
required. All such contracts to which the Company is a party have
been authorized, executed and delivered by the Company, constitute valid and
binding agreements of the Company, and are enforceable against the Company in
accordance with the terms thereof, subject to the effect of applicable
bankruptcy, insolvency or similar laws affecting creditors’ rights generally and
equitable principles of general applicability.
(bb) The
Company and, to the knowledge of the Company, its directors, officers or
controlling persons have not taken, directly or indirectly, any action intended,
or which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Common Stock.
(cc) No
holder of securities of the Company has rights to the registration of any
securities of the Company as a result of the filing of the Registration
Statement or the transactions contemplated by this Agreement, except for such
rights as have been waived or satisfied.
(dd) The
Common Stock is currently listed on the NASDAQ Global Market. Except
as disclosed in the Registration Statement, the Company has not, in the 12
months preceding the date hereof, received notice from the NASDAQ Global Market
to the effect that the Company is not in compliance with the listing or
maintenance requirements. The Company is, and expects that in the
foreseeable future that it will continue to be, in compliance with such listing
and maintenance requirements, provided, however, that the Company makes no
representation, warranty or covenant with respect to compliance with the NASDAQ
Global Market minimum bid price requirements.
(ee) The
Company is not involved in any material labor dispute nor is any such dispute
known by the Company to be threatened.
(ff)
The business and operations of the Company have been and
are being conducted in compliance with all applicable laws, ordinances, rules,
regulations, licenses, permits, approvals, plans, authorizations or requirements
relating to occupational safety and health, or pollution, or protection of
health or the environment (including, without limitation, those relating to
emissions, discharges, releases or threatened releases of pollutants,
contaminants or hazardous or toxic substances, materials or wastes into ambient
air, surface water, groundwater or land, or relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of chemical substances, pollutants, contaminants or hazardous or toxic
substances, materials or wastes, whether solid, gaseous or liquid in nature) of
any governmental department, commission, board, bureau, agency or
instrumentality of the United States, any state or political subdivision
thereof, or any foreign jurisdiction, and all applicable judicial or
administrative agency or regulatory decrees, awards, judgments and orders
relating thereto, except where the failure to be in such compliance will not,
individually or in the aggregate, have a Material Adverse Effect; and the
Company has not received any notice from any governmental instrumentality or any
third party alleging any material violation thereof or liability thereunder
(including, without limitation, liability for costs of investigating or
remediating sites containing hazardous substances and/or damages to natural
resources).
-8-
(gg) Except
as disclosed in the Registration Statement, (i) the Company owns or has obtained
valid and enforceable licenses or options for the inventions, patent
applications, patents, trademarks (both registered and unregistered), trade
names, copyrights and trade secrets necessary for the conduct of its business as
currently conducted (collectively, the “Company Intellectual Property”); and
(ii) (a) there are no third parties who have any ownership rights to any Company
Intellectual Property described in the Registration Statement that would
preclude the Company from conducting its business as currently conducted and
have a Material Adverse Effect, except for the ownership rights of the owners of
the Company Intellectual Property licensed or optioned by the Company; (b) there
is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the rights of the Company in or to any
Company Intellectual Property, other than claims which would not reasonably be
expected to have a Material Adverse Effect; (c) 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 Company Intellectual Property, other
than actions, suits, proceedings and claims which would not reasonably be
expected to have a Material Adverse Effect; and (d) there is no pending or, to
the Company’s knowledge, threatened action, suit, proceeding or claim by others
that the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary right of others, other than
actions, suits, proceedings and claims which would not reasonably be expected to
have a Material Adverse Effect; provided, however, that with respect to
reexamination proceedings filed with the United States Patent and Trademark
Office (the “USPTO”), opposition proceedings in comparable foreign authorities,
or unpublished or provisional applications filed with the USPTO or comparable
foreign authorities, the representations and warranties set forth in clauses
(b), (c) or (d) above, are qualified as to the Company’s knowledge.
(hh) The
Company has filed all necessary federal, state and foreign income and franchise
tax returns, after taking into account all applicable extensions obtained,
except where the failure to file would not reasonably be expected to have a
Material Adverse Effect, and has paid or accrued all taxes shown as due thereon,
and the Company has no knowledge of any tax deficiency which has been or might
be asserted or threatened against it which could have a Material Adverse
Effect.
(ii)
The Company maintains insurance of the types and in the
amounts that the Company reasonably believes are appropriate for its business,
including, but not limited to, insurance covering real and personal property
owned or leased by the Company against theft, damage, destruction, or acts of
vandalism, all of which insurance, to the knowledge of the Company, is in full
force and effect.
(jj)
Neither the Company, nor, to the knowledge
of the Company, any director, officer, agent or employee of the Company, has
directly or indirectly, (i) made any unlawful contribution to any candidate for
public office, or failed to disclose fully any contribution in violation of law,
(ii) made any payment to any United States federal or state governmental officer
or official, or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States or
any jurisdiction thereof, (iii) violated or is in violation of any provisions of
the U.S. Foreign Corrupt Practices Act of 1977 or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(kk) The
Company has not distributed and, prior to the later to occur of the Closing Date
and completion of the distribution of the Offered Securities, will not
distribute any offering material in connection with the offering and sale of the
Offered Securities other than the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Issuer Free Writing Prospectus to which the
Placement Agent has consented.
(ll)
No
relationship, direct or indirect, exists between or among the Company, on the
one hand, and the directors, officers, stockholders, customers or suppliers of
the Company, on the other, which is required by the Act to be disclosed in the
Registration Statement and the Prospectus and is not so disclosed.
(mm)
The Company has not sold or issued any securities that would be integrated with
the offering of the Offered Securities contemplated by this Agreement pursuant
to the Act, the Rules and Regulations or the interpretations thereof by the
Commission.
-9-
(nn) The
Company is not a party to any contract, agreement or understanding with any
person (other than this Agreement) that would give rise to a valid claim against
the Company or the Placement Agents (or a Placement Agent’s co-agent or
sub-agent, if any) for a brokerage commission, finder’s fee or like payment in
connection with the offering and sale of the Offered Securities.
4. Agreements of the
Company. The Company covenants and agrees with the Placement
Agent as follows:
(a) The
Registration Statement has become effective, and if Rule 430A is used or the
filing of the Prospectus is otherwise required under Rule 424(b), the Company
will file the Prospectus (properly completed if Rule 430A has been used),
subject to the prior approval of the Placement Agent (which approval shall not
be unreasonably withheld or delayed), pursuant to Rule 424(b) within the
prescribed time period and will provide a copy of such filing to the Placement
Agents promptly following such filing.
(b) The
Company will not, during such period as the Prospectus would be required by law
to be delivered in connection with sales of the Offered Securities by an
underwriter or dealer in connection with the offering contemplated by this
Agreement, file any amendment or supplement to the Registration Statement or the
Prospectus unless a copy thereof shall first have been submitted to the
Placement Agents within a reasonable period of time prior to the filing thereof
and the Company has in good faith considered any reasonable objections or
comments of the Placement Agents.
(c) The
Company will notify the Placement Agents promptly, and will, if requested,
confirm such notification in writing, (1) when any post-effective amendment to
the Registration Statement becomes effective, but only during the period
mentioned in Section 4(b); (2) of any request by the Commission for any
amendments to the Registration Statement or any amendment or supplements to the
Prospectus or any Issuer Free Writing Prospectus or for additional information,
but only during the period mentioned in Section 4(b); (3) of the issuance by the
Commission of any stop order preventing or suspending the effectiveness of the
Registration Statement, or the initiation of any proceedings for that purpose or
the threat thereof, but only during the period mentioned in Section 4(b); (4) of
becoming aware of the occurrence of any event during the period mentioned in
Section 4(b) that in the judgment of the Company makes any statement made in the
Registration Statement or the Prospectus untrue in any material respect or that
requires the making of any changes in the Registration Statement or the
Prospectus in order to make the statements therein, in light of the
circumstances in which they are made, not misleading; and (5) of receipt by the
Company of any notification with respect to any suspension of the qualification
of the Offered Securities for offer and sale in any jurisdiction. If
at any time the Commission shall issue any order suspending the effectiveness of
the Registration Statement in connection with the offering contemplated hereby,
the Company will make every reasonable effort to obtain the withdrawal of any
such order at the earliest possible moment. If the Company has
omitted any information from the Registration Statement, pursuant to Rule 430A,
it will use its best efforts to comply with the provisions of and make all
requisite filings with the Commission pursuant to said Rule 430A and to notify
the Placement Agent promptly of all such filings.
-10-
(d) If,
at any time when a Prospectus relating to the Offered Securities is required to
be delivered under the Act, the Company becomes aware of the occurrence of any
event as a result of which the Prospectus, as then amended or supplemented,
would, in the reasonable judgment of counsel to the Company or counsel to the
Placement Agents, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or the
Registration Statement, as then amended or supplemented, would, in the
reasonable judgment of counsel to the Company or counsel to the Placement
Agents, include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading, or if for
any other reason it is necessary, in the reasonable judgment of counsel to the
Company or counsel to the Placement Agents, at any time to amend or supplement
the Prospectus or the Registration Statement to comply with the Act or the Rules
and Regulations, the Company will promptly notify the Placement Agents and,
subject to Section 4(b) hereof, will promptly prepare and file with the
Commission, at the Company’s expense, an amendment to the Registration Statement
or an amendment or supplement to the Prospectus that corrects such statement or
omission or effects such compliance and will deliver to the Placement Agents,
without charge, such number of copies thereof as the Placement Agents may
reasonably request. The Company consents to the use of the Prospectus
or any amendment or supplement thereto by the Placement Agents.
(e) The
Company will furnish to the Placement Agents and their counsel, without charge
(i) one conformed copy of the Registration Statement as originally filed with
the Commission and each amendment thereto, including financial statements and
schedules, and all exhibits thereto, (ii) so long as a prospectus relating to
the Offered Securities is required to be delivered under the Act, as many copies
of each Issuer Free Writing Prospectus, Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto as the Placement Agents may reasonably
request.
(f)
The Company will comply with all the undertakings contained in
the Registration Statement.
(g) Prior
to the sale of the Offered Securities to the Investors, the Company will
cooperate with the Placement Agents and their counsel in connection with the
registration or qualification of the Offered Securities for offer and sale under
the state securities or Blue Sky laws of such jurisdictions as the Placement
Agents may reasonably request; provided, that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where it is not now
so subject.
(h) The
Company will not make any offer relating to the Offered Securities that would
constitute an Issuer Free Writing Prospectus without the prior written consent
of the Placement Agents.
(i)
The Company will retain in accordance with
the Rules and Regulations all Issuer Free Writing Prospectuses not required to
be filed pursuant to the Rules and Regulations.
(j)
The Company will apply the net proceeds from
the offering and sale of the Offered Securities in the manner set forth in the
Prospectus under the caption “Use of Proceeds.”
(k) The
Company will use its best efforts to ensure that the Offered Shares and the
Warrant Shares are listed on the NASDAQ Global Market at the time of the
Closing.
(l)
The Company will not at any time, directly or
indirectly, take any action intended, or which might reasonably be expected, to
cause or result in, or which will constitute, stabilization of the price of the
Offered Shares to facilitate the sale or resale of any of the Offered
Shares.
5. Agreements of the Placement
Agents. Each Placement Agent agrees, severally and not
jointly, that it shall not include any “issuer information” (as defined in Rule
433 under the Act) in any “free writing prospectus” (as defined in Rule 405)
used or referred to by such Placement Agent without the prior consent of the
Company (any such issuer information with respect to whose use the Company has
given its consent, “Permitted Issuer Information”). Each Placement
Agent also agrees, severally and not jointly, to provide to each Investor, prior
to the Closing, a copy of the Prospectus and any amendments or supplements
thereto.
-11-
6. Expenses. Whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay all costs and expenses incident to
the performance of the obligations of the Company under this Agreement,
including but not limited to costs and expenses of or relating to (1) the
preparation, printing and filing of the Registration Statement (including each
pre- and post-effective amendment thereto) and exhibits thereto, any Issuer Free
Writing Prospectus, each Preliminary Prospectus, the Prospectus and any
amendments or supplements thereto, including all fees, disbursements and other
charges of counsel and accountants to the Company, (2) the preparation and
delivery of certificates representing the Offered Securities,
(3) furnishing (including costs of shipping and mailing) such copies of the
Registration Statement (including all pre- and post-effective amendments
thereto), the Prospectus and any Preliminary Prospectus or Issuer Free Writing
Prospectus, and all amendments and supplements thereto, as may be requested for
use in connection with the direct placement of the Offered Securities,
(4) the listing of the Common Stock on the NASDAQ Global Market,
(5) any filings required to be made by the Placement Agents with FINRA and
the fees, disbursements and other charges of counsel for the Placement Agents in
connection therewith (provided that such fees, disbursements and other charges
of counsel shall be subject to the limit in the last sentence of this
Section 6), (6) the registration or qualification of the Offered
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions designated pursuant to Section 4(g), including the reasonable
fees, disbursements and other charges of counsel to the Placement Agents in
connection therewith (provided that such fees, disbursements and other charges
of counsel shall be subject to the limit in the last sentence of this
Section 6) and the preparation and printing of preliminary, supplemental
and final Blue Sky memoranda, and (7) fees, disbursements and other charges
of counsel to the Company. The Company shall reimburse the Placement
Agents for all reasonable travel, legal and other out-of-pocket expenses in an
aggregate amount (other than legal expenses) not to exceed $20,000 and
reasonable legal fees and expenses not to exceed $30,000. If the
Closing occurs, the Placement Agents shall reimburse the Company out of the
Placement Fee, on a pro rata basis, for the reasonable out-of-pocket fees and
expenses for the Accountants incurred in connection with the preparation,
negotiation and delivery of the letter referred to in Section 7(h) hereof, not
to exceed $100,000 in the aggregate.
7. Conditions of the
Obligations of the Placement Agents. The obligations of the
Placement Agents hereunder are subject to the following conditions:
(a) (i) No
stop order suspending the effectiveness of the Registration Statement shall have
been issued, and no proceedings for that purpose shall be pending or threatened
by any securities or other governmental authority (including, without
limitation, the Commission), (ii) no order suspending the effectiveness of
the Registration Statement or the qualification or registration of the Offered
Securities under the securities or Blue Sky laws of any jurisdiction shall be in
effect and no proceeding for such purpose shall be pending before, or threatened
by any securities or other governmental authority (including, without
limitation, the Commission), (iii) any request for additional information
on the part of the staff of any securities or other governmental authority
(including, without limitation, the Commission) shall have been complied with to
the satisfaction of the staff of the Commission or such authorities and
(iv) after the date hereof and prior to the Closing no amendment or
supplement to the Registration Statement, any Issuer Free Writing Prospectus or
the Prospectus shall have been filed unless a copy thereof was first submitted
to the Placement Agents and the Placement Agents did not object thereto in good
faith.
-12-
(b) Since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, (i) there shall not have been a Material
Adverse Change, whether or not arising from transactions in the ordinary course
of business, in each case other than as set forth in or contemplated by the
Registration Statement and the Prospectus and (ii) the Company shall not
have sustained any material loss or interference with its business or properties
from fire, explosion, flood or other casualty, whether or not covered by
insurance, or from any labor dispute or any court or legislative or other
governmental action, order or decree, which is not set forth in the Registration
Statement and the Prospectus, if in the reasonable judgment of the Placement
Agents any such development makes it impracticable or inadvisable to consummate
the sale and delivery of the Offered Securities to Investors as contemplated
hereby.
(c) Since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall have been no litigation or other
proceeding instituted against the Company or any of its officers or directors in
their capacities as such, before or by any Federal, state or local court,
commission, regulatory body, administrative agency or other governmental body,
domestic or foreign, which litigation or proceeding, in the reasonable judgment
of the Placement Agents, would have a Material Adverse Effect.
(d) Each
of the representations and warranties of the Company contained herein shall be
true and correct in all material respects at the Closing Date, as if made on
such date, and all covenants and agreements herein contained to be performed on
the part of the Company and all conditions herein contained to be fulfilled or
complied with by the Company at or prior to the Closing Date shall have been
duly performed, fulfilled or complied with in all material
respects.
(e) The
Placement Agents shall have received (i) an opinion, dated the Closing Date, of
Hogan & Hartson LLP, counsel to the Company, in form and substance
reasonably satisfactory to the Placement Agents, and (ii) a letter, dated the
Closing Date, of Hogan & Hartson LLP in form and substance reasonably
satisfactory to the Placement Agents.
(f) At
the Closing, the Company shall furnish to the Placement Agents a certificate,
dated the date of its delivery, signed by each of the Chief Executive Officer
and the Chief Financial Officer of the Company, in form and substance reasonably
satisfactory to the Placement Agents to the effect that each signer has
carefully examined the Registration Statement, the Prospectus and the Pricing
Disclosure Materials, and that to each of such person’s knowledge:
1. (A) As
of the date of such certificate, (x) the Registration Statement does 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 not misleading and (y) neither the Prospectus nor the Pricing Disclosure
Materials contains 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 light of the circumstances under which they were made,
not misleading and (B) no event has occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein not untrue or misleading in any material respect.
2. Each
of the representations and warranties of the Company contained in this Agreement
were, when originally made, and are, at the time such certificate is delivered,
true and correct in all material respects.
3. Each
of the covenants required herein to be performed by the Company on or prior to
the date of such certificate has been duly, timely and fully performed and each
condition herein required to be complied with by the Company on or prior to the
delivery of such certificate has been duly, timely and fully complied
with.
-13-
4. Subsequent
to the date of the most recent financial statements in the Prospectus, there has
been no Material Adverse Change.
5. No
order suspending the effectiveness of the Registration Statement or the
qualification or registration of the Offered Securities under the securities or
Blue Sky laws of any jurisdiction are in effect and no proceeding for such
purpose is pending before, or threatened, to the Company's knowledge or in
writing by, any securities or other governmental authority (including, without
limitation, the Commission).
6. The
Company has complied with any request for additional information from the staff
of any securities or other governmental authority (including, without
limitation, the Commission) to the satisfaction of the staff of the Commission
or such authorities.
(g) At
the Closing, the Company shall furnish to the Placement Agents a certificate,
dated the date of its delivery, signed by the Secretary of the Company, in form
and substance reasonably satisfactory to the Placement Agents.
(h) The
Placement Agents shall have received on the Closing Date, a letter dated the
Closing Date, addressed to the Placement Agents and in form and substance
reasonably satisfactory to the Placement Agents and their counsel, from the
Accountants, which letter shall cover, without limitation, the various financial
disclosures, if any, contained in the Registration Statement, the Prospectus or
the Pricing Disclosure Materials and shall contain statements and information of
the type customarily included in accountants’ “comfort letters” to underwriters,
delivered according to Statement of Auditing Standards No. 72 and Statement of
Auditing Standard No. 100 (or successor bulletins), with respect to the audited
and unaudited financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement, the Prospectus
or the Pricing Disclosure Materials.
8. Indemnification.
(a) The
Company shall indemnify and hold harmless each Placement Agent, its directors,
officers, employees and agents and each person, if any, who controls such
Placement Agent within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, liabilities, expenses
and damages, joint or several, (including any and all investigative, legal and
other expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted), to which
it, or any of them, may become subject under the Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, liabilities, expenses or damages arise out of or are based on
(ii) any untrue statement or alleged untrue statement of any material fact
contained in (A) any Preliminary Prospectus, the Registration Statement or
the Prospectus or any amendment or supplement thereto, (B) any Issuer Free
Writing Prospectus or any amendment or supplement thereto or (C) any Permitted
Issuer Information used or referred to in any “free writing prospectus” (as
defined in Rule 405) used or referred to by the Placement Agent and (D) any
application or other document, or any amendment or supplement thereto, executed
by the Company based upon written information furnished by or on behalf of the
Company filed in any jurisdiction in order to qualify the Offered Securities
under the securities or Blue Sky laws thereof or filed with the Commission or
any securities association or securities exchange (each, an “Application”), or
(iii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus, or any amendment or supplement thereto, or in any Permitted
Issuer Information or any Application a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, however, that the
Company will not be liable to the extent that such loss, claim, liability,
expense or damage arises from the sale of the Offered Securities in the public
offering to any person and is based solely on an untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity with
information relating to such Placement Agent furnished in writing to the Company
by such Placement Agent expressly for inclusion in the Registration Statement,
any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus
or in any amendment or supplement thereto or in any Permitted Issuer Information
or any Application (as set forth in Section 8(b) below); provided, further, that such
indemnity with respect to any Preliminary Prospectus, Issuer Free Writing
Prospectus or any Permitted Issuer Information shall not inure to the benefit of
such Placement Agent (or any person controlling such Placement Agent) from whom
the person asserting any such loss, claim, damage, liability or action purchased
Offered Securities which are the subject thereof to the extent that any such
loss, claim, damage or liability (i) results from the fact that such Placement
Agent failed to send or give a copy of the Preliminary Prospectus, Prospectus
(as amended or supplemented) or Issuer Free Writing Prospectus to such person at
or prior to the confirmation of the sale of such Offered Securities to such
person in any case where such delivery is required by the Act and (ii) arises
out of or is based upon an untrue statement or omission of a material fact
contained in such Preliminary Prospectus, Issuer Free Writing Prospectus or any
Permitted Issuer Information that was corrected in the Prospectus (or any
amendment or supplement thereto), unless such failure to deliver the Prospectus
(as amended or supplemented) was the result of noncompliance by the Company with
Section 4(d). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
-14-
(b) Each
Placement Agent will, severally and not jointly, indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, each director of the
Company and each officer of the Company who signs the Registration Statement to
the same extent as the foregoing indemnity from the Company to such Placement
Agent, but only insofar as losses, claims, liabilities, expenses or damages
arise out of or are based on any untrue statement or omission or alleged untrue
statement or omission made in reliance on and in conformity with information
relating to such Placement Agent furnished in writing to the Company by such
Placement Agent expressly for use in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Issuer Free Writing
Prospectus. This indemnity agreement will be in addition to any
liability that each Placement Agent might otherwise have. The Company
acknowledges that, for all purposes under this Agreement, the name of the
Placement Agents and the paragraph relating to placement agents’ fees and
reimbursement of expenses appearing under the caption “Plan of Distribution” in
the Prospectus constitute the only information relating to the Placement Agents
furnished in writing to the Company by the Placement Agents expressly for
inclusion in the Registration Statement, any Preliminary Prospectus or the
Prospectus.
-15-
(c) Any
party that proposes to assert the right to be indemnified under this
Section 8 will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 8, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 8 unless, and only to the extent that,
such omission prejudiced the indemnifying party. If any such action
is brought against any indemnified party and it notifies the indemnifying party
of its commencement, the indemnifying party will be entitled to participate in
and, to the extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the commencement of the
action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel reasonably
satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with
the defense. The indemnified party will have the right to employ its
own counsel in any such action, but the fees, disbursements and other charges of
such counsel will be at the expense of such indemnified party unless (1) the
indemnifying party has agreed in writing to pay such fees, expenses and other
charges, (2) the indemnified party has reasonably concluded (based on advice of
counsel) that a conflict exists (based on advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party that would
prevent the counsel selected by the indemnifying party from representing the
indemnified party (in which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the indemnified party) or (3)
the indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other charges
of more than one separate firm admitted to practice in such jurisdiction at any
one time for all such indemnified party or parties. All such fees,
disbursements and other charges will be reimbursed by the indemnifying party
promptly as they are incurred. The indemnifying party will not,
without the prior written consent of the indemnified party (which consent will
not be unreasonably withheld), settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification has been sought hereunder, unless such
settlement, compromise or consent includes an unconditional release of the
indemnified party from all liability arising out of such claim, action, suit or
proceeding. An indemnifying party will not be liable for any
settlement of any action or claim effected without its written consent (which
consent will not be unreasonably withheld).
(d) In
order to provide for just and equitable contribution in circumstances in which
the indemnification provided for in the foregoing paragraphs of this Section 8
is applicable in accordance with its terms but for any reason is held to be
unavailable from the Company or any Placement Agent, the Company and such
Placement Agent will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted, but after deducting any
contribution received by the Company from persons other than such Placement
Agent such as persons who control the Company within the meaning of the Act or
the Exchange Act, officers of the Company who signed the Registration Statement
and directors of the Company, who also may be liable for contribution) to which
the Company and such Placement Agent may be subject in such proportion as shall
be appropriate to reflect the relative benefits received by the Company on the
one hand and such Placement Agent on the other. The relative benefits
received by the Company on the one hand and such Placement Agent on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting Company expenses) received by the Company as set
forth in the table on the cover page of the Prospectus bear to the fee received
by such Placement Agent hereunder. If, but only if, the allocation
provided by the foregoing sentence is not permitted by applicable law, the
allocation of contribution shall be made in such proportion as is appropriate to
reflect not only the relative benefits referred to in the foregoing sentence but
also the relative fault of the Company, on the one hand, and such Placement
Agent on the other, with respect to the statements or omissions which resulted
in such loss, claim, liability, expense or damage, or action in respect thereof,
as well as any other relevant equitable considerations with respect to such
offering. Such relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or such Placement Agent, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Placement Agent agree
that it would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation or by any other method
of allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 8(d) shall be deemed to
include, for purpose of this Section 8(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions
of this Section 8(d), no Placement Agent shall be required to contribute any
amount in excess of the fee received by it, and no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8(d), any
person who controls a party to this Agreement within the meaning of the Act or
the Exchange Act will have the same rights to contribution as that party, and
each officer of the Company who signed the Registration Statement will have the
same rights to contribution as the Company, subject in each case to the
provisions hereof. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made under this Section 8(d), will notify
any such party or parties from whom contribution may be sought, but the omission
so to notify will not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have under this Section
8(d). No party will be liable for contribution with respect to any
action or claim settled without its written consent (which consent will not be
unreasonably withheld).
-16-
9. Termination.
(a) The
obligations of any Placement Agent under this Agreement may be terminated at any
time prior to the Closing Date, by notice to the Company from such Placement
Agent, without liability on the part of such Placement Agent to the Company if,
prior to delivery and payment for the Offered Securities, in the sole judgment
of such Placement Agent (i) trading in the Common Stock of the Company
shall have been suspended by the Commission or by the NASDAQ Global Market,
(ii) trading in securities generally on the NASDAQ Global Market shall have
been suspended or limited or minimum or maximum prices shall have been generally
established on any of such exchange or additional material governmental
restrictions, not in force on the date of this Agreement, shall have been
imposed upon trading in securities generally by any of such exchange or by order
of the Commission or any court or other governmental authority, (iii) a
general banking moratorium shall have been declared by Federal or New York State
authorities or (iv) any material adverse change in the financial or securities
markets in the United States or any outbreak or material escalation of
hostilities or declaration by the United States of a national emergency or war
or other calamity or crisis shall have occurred, the effect of any of which is
such as to make it, in the sole judgment of such Placement Agent, impracticable
or inadvisable to market the Offered Securities on the terms and in the manner
contemplated by the Prospectus.
(b) If
this Agreement shall be terminated pursuant to any of the provisions hereof, or
if the sale of the Offered Securities provided for herein is not consummated
because any condition to the obligations of the Placement Agents set forth
herein is not satisfied or because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or comply with any provision
hereof, the Company will, subject to demand by the Placement Agents, reimburse
the Placement Agents for all reasonable out-of-pocket expenses incurred in
connection herewith in an aggregate amount not to exceed
$50,000.
-17-
10. No Fiduciary
Duty. The Company acknowledges and agrees that in connection
with this offering, sale of the Offered Securities or any other services each
Placement Agent may be deemed to be providing hereunder, notwithstanding any
preexisting relationship, advisory or otherwise, between the parties or any oral
representations or assurances previously or subsequently made by such Placement
Agent: (i) no fiduciary or agency relationship between the Company and any other
person, on the one hand, and such Placement Agent, on the other, exists; (ii) no
Placement Agent is acting as an advisor, expert or otherwise, to the Company,
including, without limitation, with respect to the determination of the offering
price of the Offered Securities, and such relationship between the Company, on
the one hand, and each Placement Agent, on the other, is entirely and solely
commercial, based on arms-length negotiations; (iii) any duties and obligations
that each Placement Agent may have to the Company with respect to the offering
contemplated by this Agreement shall be limited to those duties and obligations
specifically stated herein; and (iv) each Placement Agent and its affiliates may
have interests that differ from those of the Company. The Company
hereby waives any claims that the Company may have against the Placement Agents
with respect to any breach of fiduciary duty in connection with this
offering.
11. Notices. Notice
given pursuant to any of the provisions of this Agreement shall be in writing
and, unless otherwise specified, shall be mailed or delivered (a) if to the
Company, at the office of the Company, 65 West Watkins Mill Road, Gaithersburg,
MD 20878, Attention: Douglas J. Swirsky, with copies to Hogan &
Hartson LLP, 100 International Drive, Suite 2000, Baltimore,
MD 21202, Attention: Asher M. Rubin, Esq., or (b) if to the Placement
Agents, at the office of Roth Capital Partners, LLC, 24 Corporate Plaza, Newport
Beach, California 92660, Attention: Aaron Gurewitz, and Merriman
Curhan Ford & Co., 135 East 57th Street, 24th Floor, New York, New York
10022, Attention: Jonathan Lowenberg, with copies to Lowenstein Sandler PC. 1251
Avenue of the Americas, New York, New York 10020, Attention: John D.
Hogoboom. Any such notice shall be effective only upon
receipt. Any notice under Section 8 may be made by facsimile or
telephone, but if so made shall be subsequently confirmed in
writing.
12. Survival. The
respective representations, warranties, agreements, covenants, indemnities and
other statements of the Company and the Placement Agents set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, any of its officers or
directors, any Placement Agent or any controlling person referred to in
Section 8 hereof and (ii) delivery of and payment for the Offered
Securities. The respective agreements, covenants, indemnities and
other statements set forth in Sections 6 and 8 hereof shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement.
13. Successors. This
Agreement shall inure to the benefit of and shall be binding upon the Placement
Agents, the Company and their respective successors and legal representatives,
and nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement, or any provisions herein contained, this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of
no other person except that (i) the indemnification and contribution
contained in Sections 8(a) and (d) of this Agreement shall also be for the
benefit of the directors, officers, employees and agents of each Placement Agent
and any person or persons who control each Placement Agent within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnification and contribution contained in Sections 8(b) and (d) of this
Agreement shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No Investor shall be
deemed a successor because of such purchase.
14. Applicable
Law. The validity and interpretations of this Agreement, and
the terms and conditions set forth herein, shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
-18-
15. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
16. Entire
Agreement. This Agreement constitutes the entire understanding
between the parties hereto as to the matters covered hereby and supersedes all
prior understandings, written or oral, relating to such subject
matter.
-19-
Please
confirm that the foregoing correctly sets forth the agreement between the
Company and the Placement Agent.
Very
truly yours,
|
||
GENVEC,
INC.
|
||
By:
|
/s/ Douglas J. Swirsky
|
|
Name: Douglas
J. Swirsky
|
||
Title:
Senior Vice President, Chief Financial
Officer,
Treasurer and Corporate
Secretary
|
Confirmed
as of the date first
above
mentioned:
ROTH
CAPITAL PARTNERS, LLC
|
|
By:
|
/s/ Aaron Gurewitz
|
Name: Aaron
Gurewitz
|
|
Title:
Head of Equity Capital
Markets
|
MERRIMAN
CURHAN FORD & CO.
|
|
By:
|
/s/ John Merriman
|
Name: John
Merriman
|
|
Title:
Managing Director
|
-20-
SCHEDULE
1
ISSUER
FREE WRITING PROSPECTUSES
See
Schedule 2
SCHEDULE
2
TERM
SHEET INFORMATION
Issuer:
|
GenVec, Inc.,
a Delaware corporation (the “Company”).
|
|
Securities
Offered:
|
Aggregate
of (i) 14,000,000 shares (the “Shares”) of the Company’s common
stock, $0.001 par value per share, and (ii) warrants to purchase up
to 4,200,000 shares of common stock (the “Warrants”) (the “Offering”). The
Shares and Warrants will be sold together as units, with each unit
consisting of one share of common stock and 0.30 of a Warrant to purchase
one share of common stock. The Warrants are not attached to the shares of
common stock being offered as part of the units. There will be no minimum
offering amount.
|
|
Warrants:
|
The
exercise price of the Warrants shall be $2.75 per share of common stock.
The Warrants are exercisable any time on or after the date they are issued
and expire on the fifth anniversary of the date they are issued. The
Warrants shall have the terms and conditions substantially as set forth in
the Form of Warrant. A summary of the Warrants is attached as
Exhibit A.
|
|
Purchase
Price:
|
$2.00
per unit.
|
|
Use
of Proceeds to Company:
|
The
Company intends to use the net proceeds received from the sale of the
securities for further development of its lead clinical program,
TNFerade™, and other general corporate purposes.
|
|
Purchase
and Closing Date:
|
The
Company and each investor participating in the Offering (each an
“Investor”) shall execute an Investor Purchase Agreement. It is expected
that the closing of the Offering shall occur on or about February 1,
2010.
|
|
Risk
Factors:
|
An
investment in the Securities involves a high degree of risk. See the
disclosure relating to the risks affecting the Company set forth or
incorporated by reference in the base prospectus included in the
registration statement relating to this Offering and the documents filed
by the Company with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as
amended.
|
Nasdaq
Global Market Symbol:
|
GNVC
|
|
Confidential
Information:
|
The
recipient of this Term Sheet and the materials attached hereto agrees with
the Company, Roth Capital Partners, LLC and Merriman Curhan Ford & Co.
to maintain in confidence this disclosed information, together with any
other non-public information regarding the Company obtained from the
Company, Roth Capital Partners, LLC and Merriman Curhan Ford & Co. or
their agents during the course of the proposed Offering, and to comply
with the recipient’s obligations under U.S. and state securities
laws.
|
|
Placement
Agents:
|
The
Company has engaged Roth Capital Partners, LLC and Merriman Curhan Ford
& Co. to act as exclusive placement agent in connection with the
Offering. The placement agents will receive an aggregate fee of 6% of the
proceeds of the Offering and expense reimbursement of no more than
$30,000.
|
SCHEDULE
2
(Continued)
EXHIBIT A
DESCRIPTION OF
WARRANTS
Each
purchaser of units will receive, for each unit purchased, one share of our
common stock and 0.30 of a warrant representing the right to purchase one share
of common stock at an exercise price of $2.75 per share of common stock. The
warrants will be exercisable on or after the date that the warrants are issued
and will terminate on the fifth anniversary of the date the warrants are issued.
The exercise price is subject to appropriate adjustment in the event of stock
dividends, stock splits, reorganizations or similar events affecting our common
stock and the exercise price and number of warrants held by a purchaser (or such
purchaser’s direct or indirect transferee) are subject to appropriate adjustment
in the event of cash dividends or other distributions to holders of shares of
our common stock.
There is
no established public trading market for the warrants, and we do not expect a
market to develop. We do not intend to apply for listing the warrants on any
securities exchange or for quotation on The NASDAQ Global Market. Without an
active market, the liquidity of the warrants will be limited. In addition, in
the event our common stock price does not exceed the per share exercise price of
the warrants during the period when the warrants are exercisable, the warrants
will not have any value.
Holders
of the warrants may exercise their warrants to purchase shares of our common
stock on or before the termination date by delivering an exercise notice,
appropriately completed and duly signed, and payment of the exercise price for
the number of shares for which the warrant is being exercised. In the
event that a registration statement relating to the warrant shares is not
effective and another exemption from registration is not available, a holder of
warrants will have the right, in its sole discretion, to exercise its warrants
for a net number of warrant shares pursuant to the cashless exercise procedures
specified in the warrants. Warrants may be exercised in whole or in part, and
any portion of a warrant not exercised prior to the termination date shall be
and become void and of no value. The absence of an effective
registration statement or applicable exemption from registration does not
alleviate our obligation to deliver common stock issuable upon exercise of a
warrant.
Upon the
holder’s exercise of a warrant, we will issue the shares of common stock
issuable upon exercise of the warrant within three trading days of our receipt
of notice of exercise and payment of the aggregate exercise price, subject to
surrender of the warrant.
The
shares of common stock issuable on exercise of the warrants will be, when issued
in accordance with the warrants, duly and validly authorized, issued and fully
paid and non-assessable. We will authorize and reserve at least that number of
shares of common stock equal to the number of shares of common stock issuable
upon exercise of all outstanding warrants.
If, at
any time the warrant is outstanding, we consummate any fundamental transaction,
as described in the warrants and generally including any consolidation or merger
into another corporation, the consummation of a transaction whereby another
entity acquires more than 50% of our outstanding common stock, or sell all or
substantially all of our assets, or other transaction in which our common stock
is converted into or exchanged for other securities or other consideration, the
holder of any warrants will thereafter receive upon exercise of the warrants,
the securities or other consideration to which a holder of the number of shares
of common stock then deliverable upon the exercise or conversion of such
warrants would have been entitled upon such consolidation or merger or other
transaction.
The
exercisability of the warrants may be limited in certain circumstances if, upon
exercise, the holder (together with the holder’s affiliates and any other
persons or entities acting together with the holder as a group) would hold more
than 4.99% of our total common stock issued and outstanding. The holder of the
warrant has the ability, upon providing us not less than 61 days’ prior
written notice, to increase or decrease the foregoing percentage, provided that
the percentage cannot at any time exceed 9.99%. The absence of an
effective registration statement relating to the common stock issuable upon
exercise of the warrant will not provide the holder with the right to net-settle
the warrant in cash.
Amendments
and waivers of the terms of the warrants require the written consent of the
holders of warrants representing at least a majority of the shares issuable upon
the then outstanding warrants, except that no such action may increase the
exercise price of a warrant or decrease the number of shares or class of stock
obtainable upon exercise of a warrant without the written consent of the
holder. No amendment will be effective unless it applies to all of
the warrants then outstanding.
THE
HOLDER OF A WARRANT WILL NOT POSSESS ANY RIGHTS AS A SHAREHOLDER UNDER THAT
WARRANT UNTIL THE HOLDER EXERCISES THE WARRANT. THE WARRANTS MAY BE TRANSFERRED
INDEPENDENT OF THE COMMON STOCK WITH WHICH THEY WERE ISSUED, SUBJECT TO
APPLICABLE LAWS.
EXHIBIT
A
FORM OF
WARRANT
EXHIBIT
B
FORM OF
INVESTOR PURCHASE AGREEMENT