Attached files
| file | filename |
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| 8-K - GENVEC INC | v172431_8k.htm |
| EX-5.1 - GENVEC INC | v172431_ex5-1.htm |
| EX-1.1 - GENVEC INC | v172431_ex1-1.htm |
| EX-4.1 - GENVEC INC | v172431_ex4-1.htm |
| EX-99.1 - GENVEC INC | v172431_ex99-1.htm |
January
27, 2010
GenVec,
Inc.
65 West
Watkins Mill Road
Gaithersburg,
MD 20878
Ladies
and Gentlemen:
The
undersigned (the “Investor”) hereby confirms and agrees with you as
follows:
1. This
Purchase Agreement (the “Agreement”) is made as of the date hereof between
GenVec, Inc., a Delaware corporation (the “Company”), and the Investor that is a
signatory to this Agreement.
2. The
Company has authorized the sale and issuance of up to 14,000,000 shares of its
common stock (the “Offered Shares”), 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”) (the “Offering”). 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 (the “Warrant”) to purchase one
share of Common Stock (such units are referred to herein individually as the
“Offered Security” and collectively as the “Offered Securities”). The
exercise price of the Warrants is $2.75 per share. The Offering is
being made pursuant to an effective shelf registration statement on Form S-3
(SEC File No. 333-140373).
3. The
Company and the Investor agree that the Offering is being made subject to the
execution by the Company and the Placement Agents of the Placement Agency
Agreement, delivery of a preliminary term sheet describing the proposed
offering, delivery of the base prospectus relating to the Offered Securities and
delivery of additional offering information, including pricing
information. The Company and the Investor agree that the Investor
will purchase from the Company and the Company will issue and sell to the
Investor the number of Offered Securities set forth below the Investor’s name on
Schedule I hereto, at a purchase price of $2.00 per unit, pursuant to the Terms
and Conditions for Purchase of Offered Securities attached hereto as Annex I and
incorporated herein by reference as if fully set forth herein. The
Investor acknowledges that the Offering is not being underwritten by the
Placement Agents and that there is no minimum offering amount. Shares
of Common Stock will be credited to the Investor using customary book-entry
procedures. The executed Warrant will be delivered pursuant to the
terms thereof.
4. The
Investor represents that, except as set forth below, (a) it has had no position,
office or other material relationship within the past three years with the
Company or persons known to it to be affiliates of the Company, (b) neither it,
nor any group of which it is a member or to which it is related, beneficially
owns (including the right to acquire or vote) more than 19.9% of any class of
securities of the Company and (c) it is not a FINRA member or a person
associated with any FINRA member as of the date hereof.
5. The
Investor confirms that it has had full access to all filings made by the Company
with the Securities and Exchange Commission, including the registration
statement and base prospectus relating to the Offered Securities, and the
documents incorporated by reference therein, and that it was able to read,
review, download and print each such filing.
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing in the space provided below for that purpose.
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Name of Investor:
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By:
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Name:
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Title:
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AGREED
AND ACCEPTED:
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GENVEC,
INC.
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By:
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Name:
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Title:
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SCHEDULE
I
SCHEDULE
OF INVESTORS
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Name
of Investor:
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Name
of Individual Representing Investor:
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Title
of Individual Representing Investor:
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Address:
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Telephone:
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Telecopier:
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Number of Offered
Shares to Be
Purchased
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Number of Offered
Warrants to Be
Purchased
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Price Per Offered
Securities In
Dollars
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Aggregate
Purchase Price
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| $ | 2.00 | $ | |||||||||
ANNEX
I
TERMS
AND CONDITIONS FOR PURCHASE OF OFFERED SECURITIES
1. Agreement to Sell and
Purchase the Offered Securities; Placement Agents.
1.1 Upon
the terms and subject to the conditions hereinafter set forth, at the Closing
(as defined in Section 2 below), the Company will sell to the Investor, and the
Investor will purchase from the Company, the number of shares of Common Stock
and the number of Warrants set forth on Schedule I of this Agreement below such
Investor’s name at the purchase price set forth therein.
1.2 The
Company may enter into agreements similar to this Agreement with certain other
investors (the “Other Investors”) and expects to complete sales of Offered
Securities to them. (The Investor and the Other Investors hereinafter
collectively are referred to as the “Investors,” and this Agreement and the
agreements executed by the Other Investors are hereinafter collectively referred
to as the “Agreements”). The Company may accept or reject any one or more
Agreements in its sole discretion.
1.3 The
Company has entered into a Placement Agency Agreement (the “Placement Agency
Agreement”) dated the date hereof with Roth Capital Partners, LLC and Merriman
Curhan Ford & Co. in their capacities as Placement Agents for the Offering
(together, the “Placement Agents”), and the Company has agreed to pay the
Placement Agents a fee in respect of the sale of the Common Stock and
Warrants.
2. Delivery of the Shares at
Closing. The completion of the purchase and sale of the
Offered Securities (the “Closing”) shall take place at a place and time (the
“Closing Date”) to be specified by the Company and the Placement Agents, in
accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of
1934, as amended (the “Exchange Act”).
The Company’s obligation to issue and sell the Offered Securities at Closing to
the Investor shall be subject to the accuracy of the representations and
warranties made by the Investor and the fulfillment of those undertakings of the
Investor to be fulfilled prior to the Closing.
The Investor’s obligation to purchase the Offered Securities shall be subject to
the condition that the Placement Agents shall not have (a) terminated the
Placement Agency Agreement pursuant to the terms thereof or (b) determined that
the conditions to closing in the Placement Agency Agreement have not been
satisfied.
At
the Closing, (i) the Investor shall remit by wire transfer the amount of funds
equal to the aggregate purchase price for the Units being purchased by the
Investor to an account designated by the Company (the “Purchase Price”) and (ii)
upon receipt of the Purchase Price, the Company shall (a) deliver the Offered
Shares purchased by the Investor to the Investor through DTC directly to the
account(s) of the applicable DTC Holder as set forth on Annex II and (b) deliver
the Warrants by mail or overnight carrier to the Investors at the address set
forth on Annex II.
3. Representations, Warranties
and Covenants of the Company. The Company hereby represents
and warrants to, and covenants with, the Investor, as follows:
3.1 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 this Agreement, 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.
3.2 Each
of this Agreement and the Warrants constitutes a valid and binding obligation of
the Company enforceable against the Company in accordance with its terms,
subject to the effect of applicable bankruptcy, insolvency or similar laws
affecting creditors’ rights generally and equitable principles of general
applicability.
3.3 For
a period of 60 days from the date hereof, the Company shall not offer or sell
any equity or equity-related securities in any public or private offering to one
or more institutional investors without the Investor’s prior written consent,
which, for the sake of clarity, will not preclude the Company from, among other
things: (i) the offer or sale of the Offered Securities to the Investor as
contemplated hereby; (ii) the offer or sale of equity or equity-related
securities pursuant to benefit plans for the benefit of the Company’s officers,
directors, employees or consultants; (iii) the offer or sale of equity or
equity-related securities pursuant to any shareholder rights plan of the
Company; or (iv) the offer or sale of equity or equity-related securities as
part of a strategic collaboration, license, partnership, venture or similar
transaction.
3.4 The
Company shall not effect any offer or sale of any equity or equity-related
securities that would result in the transactions contemplated hereby becoming
subject to stockholder approval under the rules and regulations of FINRA or the
NASDAQ Global Market.
3.5 It
is understood and acknowledged by the Company that: (i) except pursuant to the
terms of this Agreement and any confidentiality agreement entered into by the
Investor with respect to the transactions contemplated hereby, the Investor has
not been asked by the Company to agree, nor has the Investor 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
Offered Securities for any specified term; (ii) past or future open market or
other transactions by the Investor, 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) the Investor, and
counter-parties in “derivative” transactions to which the Investor is a party,
directly or indirectly, presently may have a “short” position in the Common
Stock, and (iv) the Investor shall not be deemed to have any affiliation with or
control over any arm’s length counter-party in any “derivative” transaction
merely by reason of such “derivative” transaction. The Company
further understands and acknowledges that (y) subject to the terms of this
Agreement and any confidentiality agreement entered into by the Investor with
respect to the transactions contemplated hereby, the Investor may engage in
hedging activities at various times during the period that the Offered
Securities are outstanding, including, without limitation, during the periods
that the value of the Warrant Shares deliverable with respect to Offered
Securities are being determined, and (z) such hedging activities (if any) could
reduce the value of the existing stockholders' equity interests in the Company
at and after the time that the hedging activities are being
conducted.
3.6 The
Company will use its commercially reasonable efforts to maintain the
effectiveness of the registration statement in accordance with the rules and
regulations promulgated by the Securities and Exchange Commission.
3.7 Prior
to 9:30 AM New York City time on January 27, 2010, the Company will issue a
press release (the “Press Release”) via BusinessWire (or other national wire
service) announcing the transaction contemplated by this
Agreement. In connection with the transactions contemplated by this
Agreement, the Company has not disclosed, or caused to be disclosed, to the
Investor any material non-public information regarding the Company that will not
at the time of the issuance of the Press Release be in the public
domain.
3.8 As
of the Closing Date, the Company shall have duly authorized and reserved for
issuance a number of shares of Common Stock which equals the number
of Offered Warrants. The Company shall, so long as any of
the Offered Warrants are outstanding, take all action necessary to reserve
and keep available out of its authorized and unissued capital stock,
solely for the purpose of effecting the exercise of the Offered Warrants,
100% of the number of shares of Common Stock issuable upon exercise of the
Warrants.
4. Representations, Warranties
and Covenants of the Investor. The Investor represents and
warrants to the Company as follows:
4.1 The
Investor has received the Company’s base prospectus relating to the Offered
Securities and the preliminary term sheet describing the terms of the proposed
Offering. The Investor acknowledges that the Investor has received
certain additional information regarding the Offering, including pricing
information (the “Offering Information”). Such Offering Information may be
provided to the Investor by any means permitted under the Securities Act of
1933, as amended, including through a prospectus supplement, a free writing
prospectus and oral communications.
4.2 The
Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement, and this Agreement constitutes a valid and binding obligation of
the Investor enforceable against the Investor in accordance with its terms,
subject to the effect of applicable bankruptcy, insolvency or similar laws
affecting creditors’ rights generally and equitable principles of general
applicability.
4.3 The
Investor is knowledgeable, sophisticated and experienced in making, and is
qualified to make, decisions with respect to investments in shares representing
an investment decision like that involved in the purchase of the Offered
Securities and has, in connection with its decision to purchase the number of
Offered Securities set forth on Schedule I to the Agreement, relied solely upon
the registration statement, the base prospectus, the preliminary term sheet, the
Offering Information and any amendments or supplements thereto and has not
relied upon any information provided by the Placement Agents.
4.4 The
Investor understands that nothing in the registration statement, the base
prospectus, the preliminary term sheet, the Offering Information and any
amendments or supplements thereto, this Agreement or any other materials
presented to such Investor in connection with the purchase and sale of the
Offered Securities constitutes legal, tax or investment advice. The
Investor has consulted such legal, tax and investment advisors as it, in its
sole discretion, has deemed necessary or appropriate in connection with its
purchase of Offered Securities.
4.5 The
Investor will not, upon the Closing of the transactions contemplated by this
Agreement, beneficially own, as calculated in accordance with Section 13(d) of
the Securities Exchange Act of 1934, as amended, in excess of, 19.99% of the
shares of Common Stock outstanding.
4.6 From
and after obtaining knowledge of the sale of the Offered Securities contemplated
hereby, the Investor has not engaged in any purchases or sales of the securities
of the Company (including, without limitation, any Short Sales (as defined
herein) involving the Company’s securities), and has not violated its
obligations of confidentiality. The Investor covenants that it will not
engage in any purchases or sales of the securities of the Company (including
Short Sales) or disclose any information about the contemplated offering (other
than to its advisors that are under a legal obligation of confidentiality) prior
to the time that the transactions contemplated by this Agreement are publicly
disclosed. The Investor agrees that it will not use any of the Units
acquired pursuant to this Agreement to cover any short position in the Common
Stock if doing so would be in violation of applicable securities laws. For
purposes hereof, “Short Sales” include, without limitation, all “short sales” as
defined in Rule 200 promulgated under Regulation SHO under the Exchange Act,
whether or not against the box, and all types of direct and indirect stock
pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put
equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and
similar arrangements (including on a total return basis), and sales and other
transactions through non-US broker dealers or foreign regulated
brokers.
5. Survival of Representations,
Warranties and Agreements. Notwithstanding any investigation
made by any party to this Agreement, all covenants, agreements, representations
and warranties made by the Company and the Investor herein shall survive the
execution of this Agreement, the delivery to such Investor of the Offered
Securities being purchased and the payment therefor.
6. Notices. All
notices, requests, consents and other communications hereunder shall be in
writing, shall be mailed (A) if within domestic United States, by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile, or (B) if delivered from outside the
United States, by International Federal Express or facsimile, and shall be
deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by a nationally
recognized overnight carrier, one business day after so mailed, (iii) if
delivered by International Federal Express, two business days after so mailed,
(iv) if delivered by facsimile, upon electronic confirmation of receipt and
shall be delivered as addressed as follows: (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.; and (b) if to an Investor, at its address on Schedule I
hereto, or at such other address or addresses as may have been furnished to the
Company in writing by such Investor.
7. Changes. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
8. Headings. The
headings of the various sections of this Agreement have been inserted for
convenience or reference only and shall not be deemed to be part of this
Agreement.
9. Severability. In
case any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
10. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York, without giving
effect to the principles of conflicts of law.
11. Counterparts;
Facsimile. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute one instrument, and shall become effective when
one or more counterparts have been signed by each party hereto and delivered to
the other parties. Facsimile signatures shall be as effective as
original signatures.
Annex II
GENVEC,
INC.
INVESTOR
QUESTIONNAIRE
Pursuant
to Annex I to
the Agreement, please provide us with the following information:
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1.
The exact name that your Shares and Warrants are to be registered in. You
may use a nominee name if appropriate:
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2.
The relationship between the Investor and the registered holder listed in
response to item 1 above:
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3.
The mailing address of the registered holder listed in response to item 1
above:
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4.
The Social Security Number or Tax Identification Number of the registered
holder listed in the response to item 1 above:
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5.
Name of DTC Participant (broker-dealer at which the account or accounts to
be credited with the Shares are maintained):
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6.
DTC Participant Number:
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7.
Name of Account at DTC Participant being credited with the
Shares:
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8.
Account Number at DTC Participant being credited with the
Shares:
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