Form 8-K
8-K — Indaptus Therapeutics, Inc.
Accession: 0001493152-26-040926
Filed: 2026-09-01
Period: 2026-08-28
CIK: 0001857044
SIC: 2834 (PHARMACEUTICAL PREPARATIONS)
Item: Entry into a Material Definitive Agreement
Item: Financial Statements and Exhibits
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of
the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): August 28, 2026
INDAPTUS
THERAPEUTICS, INC.
(Exact
name of registrant as specified in its charter)
Delaware
001-40652
86-3158720
(State
or other jurisdiction
(Commission
(IRS
Employer
of
incorporation)
File
Number)
Identification
No.)
3
Columbus Circle 15th Floor
New
York, New York
10019
(Address
of principal executive offices)
(Zip
Code)
(646)
427-2727
(Registrant’s
telephone number, including area code)
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
☐
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
Trading
Symbol
Name
of each exchange on which registered
Common
Stock, $0.01 par value
INDP
Nasdaq
Capital Market
Indicate
by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933
(§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01. Entry into a Material Definitive Agreement.
On
August 28, 2026, Indaptus Therapeutics, Inc. (the “Company”) entered into an Amended and Restated At
the Market Offering Agreement (the “Sales Agreement”) with H.C. Wainwright & Co., LLC (“Wainwright”),
which amends and restates in its entirety, and supersedes and replaces, the At The Market Offering Agreement, dated June 1, 2022, between
the Company and Wainwright (the “Original Agreement”). The Sales Agreement provides for the sale and issuance
by the Company of shares of its common stock, par value $0.01 per share (the “Common Stock”), from time to
time, through or to Wainwright as the Company’s sales agent and/or principal in an “at the market offering” program
and as otherwise set forth in the Sales Agreement (the “Offering”).
Pursuant
to the Sales Agreement, the Company may issue and sell through or to Wainwright shares of Common Stock having an aggregate maximum offering
price of up to $100,000,000, subject to the limitations set forth in the Sales Agreement, including the number of authorized but unissued
shares of Common Stock available for issuance and the Company’s continued satisfaction of the eligibility and transaction requirements
for use of Form S-3. The $100,000,000 maximum aggregate gross sales price applies solely to shares sold on or after the execution date
of the Sales Agreement. Shares sold pursuant to the Original Agreement prior to the date of the Sales Agreement will not be counted toward
such limit.
On
August 31, 2026, the Company filed a prospectus supplement,
dated August 31, 2026,
including an accompanying base prospectus, dated August 20, 2025 (the “ATM Prospectus Supplement”), which together
form a part of the Company’s shelf registration statement on Form S-3 (File No. 333-289573), initially filed by the Company with
the U.S. Securities and Exchange Commission (the “SEC”) on August 13, 2025 and declared effective by the SEC
on August 20, 2025 (the “Registration Statement”), in connection with the offer and sale of shares of Common
Stock pursuant to the Sales Agreement.
Pursuant
to the Sales Agreement, Wainwright has agreed to use its commercially reasonable efforts to sell shares of Common Stock from time to
time, subject to the terms and conditions of the Sales Agreement. The Company will designate the maximum amount of shares of Common Stock
to be sold by Wainwright on any trading day and the minimum price per share at which such shares may be sold. The gross sales price of
shares of Common Stock sold by Wainwright as sales agent under the Sales Agreement will be the market price for the shares of Common
Stock on the applicable trading market at the time of sale.
Subject
to the terms and conditions of the Sales Agreement, Wainwright may sell shares of Common Stock by any method permitted by law deemed
to be an “at the market offering” as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities
Act”), including, without limitation, sales made directly on the applicable trading market, on any other existing trading
market for the Common Stock or to or through a market maker. Wainwright may also sell shares of Common Stock in privately negotiated
transactions with the Company’s prior written approval and to the extent provided for in the applicable prospectus supplement.
In addition, if the Company wishes to sell shares in a manner other than through sales by Wainwright as sales agent, the Company and
Wainwright may enter into a separate terms agreement pursuant to which Wainwright may purchase shares of Common Stock as principal on
terms agreed upon by the parties.
The
Company has no obligation to sell any shares of Common Stock under the Sales Agreement. The Company or Wainwright may suspend the offering
of shares under the Sales Agreement at any time in accordance with the terms thereof. Wainwright is not obligated to purchase any shares
of Common Stock on a principal basis under the Sales Agreement except as otherwise specifically agreed by Wainwright and the Company
pursuant to a separate terms agreement. No assurance can be given that the Company will sell any shares of Common Stock under the Sales
Agreement or, if any sales occur, as to the price or number of shares that will be sold or the dates on which any such sales will take
place.
Pursuant
to the terms of the Sales Agreement, the Company will pay Wainwright a placement fee equal to 3.0% of the gross sales price of shares
of Common Stock sold by Wainwright as sales agent pursuant to the Sales Agreement. The foregoing rate of compensation does not apply
when Wainwright acts as principal, in which case the Company may sell shares to Wainwright at a price agreed upon pursuant to the applicable
terms agreement.
The
Company has agreed to provide Wainwright and certain related persons with customary indemnification and contribution rights, including
with respect to certain liabilities under the Securities Act. The Company has also agreed to reimburse Wainwright for certain fees and
expenses, including certain fees and expenses of Wainwright’s legal counsel, in each case subject to the terms and limitations
set forth in the Sales Agreement.
The
Sales Agreement contains customary representations and warranties, covenants and conditions to the sale of shares of Common Stock pursuant
thereto.
The
foregoing description of the Sales Agreement is not complete and is qualified in its entirety by reference to the full text of the Sales
Agreement, a copy of which is filed herewith as Exhibit 1.1 to this Current Report on Form 8-K and incorporated herein by reference.
A copy of the opinion of McCarter & English, LLP regarding the validity of the shares of Common Stock that may be issued pursuant
to the Sales Agreement is filed herewith as Exhibit 5.1 to this Current Report on Form 8-K.
This
Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein,
nor shall there be any sale of such securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such state or jurisdiction.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit
No.
Description
1.1*
Amended and Restated At the Market Offering Agreement, dated as of August 28, 2026, by and between the Company and H.C. Wainwright & Co., LLC
5.1
Opinion of McCarter & English, LLP
23.1
Consent
of McCarter & English, LLP (included in Opinion of McCarter & English, LLP filed as Exhibit 5.1)
104
Cover
Page Interactive Data File (embedded within the Inline XBRL document)
*
Certain schedules and exhibits to this agreement have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted
exhibit or schedule will be furnished to the SEC or its staff upon request.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date:
September 1, 2026
INDAPTUS
THERAPEUTICS, INC.
By:
/s/
Junyi Dai
Name:
Junyi
Dai
Title:
Chief
Executive Officer
EX-1.1
EX-1.1
Filename: ex1-1.htm · Sequence: 2
Exhibit
1.1
AMENDED
AND RESTATED AT THE MARKET OFFERING AGREEMENT
August
28, 2026
H.C.
Wainwright & Co., LLC
430
Park Avenue
New
York, New York 10022
Ladies
and Gentlemen:
Indaptus
Therapeutics, Inc., a corporation organized under the laws of Delaware (the “Company”), confirms its agreement with
H.C. Wainwright & Co., LLC (the “Manager”) pursuant to this Amended and Restated At the Market Offering Agreement
(this “Agreement”), which amends and restates in its entirety, and supersedes and replaces, the At The Market Offering
Agreement, dated June 1, 2022 (the “Original Agreement”), between the Company and the Manager, as follows:
1. Definitions.
The terms that follow, when used in this Agreement and any Terms Agreement, shall have the
meanings indicated.
“Accountants”
shall have the meaning ascribed to such term in Section 4(m).
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Action”
shall have the meaning ascribed to such term in Section 3(p).
“Affiliate”
shall have the meaning ascribed to such term in Section 3(o).
“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms
Agreement.
“Base
Prospectus” shall mean the base prospectus contained in the Registration Statement at the Execution Time.
“BHCA”
shall have the meaning ascribed to such term in Section 3(qq).
“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).
“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).
“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, that, for purposes of clarity, commercial banks shall not be deemed
to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental
authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York
generally are open for use by customers on such day.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Common
Stock” shall have the meaning ascribed to such term in Section 2.
“Common
Stock Equivalents” shall have the meaning ascribed to such term in Section 3(g).
“Company
Counsel” shall have the meaning ascribed to such term in Section 4(l).
“Distribution”
shall have the meaning ascribed to such term in Section 4(l).
“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).
“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective.
“Effective
Time” shall mean the first date and time that the Registration Statement became effective.
“Environmental
Laws” shall have the meaning ascribed to such term in Section 3(s).
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3(y).
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Federal
Reserve” shall have the meaning ascribed to such term in Section 3(qq).
“Filing
Date” shall have the meaning ascribed to such term in Section 4(w).
“FINRA”
shall have the meaning ascribed to such term in Section 3(e).
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“GAAP”
shall have the meaning ascribed to such term in Section 3(m).
“Hazardous
Materials” shall have the meaning ascribed to such term in Section 3(s).
“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that are
incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission
after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.
“Indebtedness”
shall have the meaning ascribed to such term in Section 3(ee).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“IT
Systems and Data” shall have the meaning ascribed to such term in Section 3(mm).
“Liens”
shall have the meaning ascribed to such term in Section 3(a).
“Losses”
shall have the meaning ascribed to such term in Section 7(d).
“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).
“Maximum
Amount” shall have the meaning ascribed to such term in Section 2.
“Money
Laundering Laws” shall have the meaning ascribed to such term in Section 3(rr).
“Net
Proceeds” shall have the meaning ascribed to such term in Section 2(b)(v).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).
“Person”
shall have the meaning ascribed to such term in Section 3(e).
“Placement”
shall have the meaning ascribed to such term in Section 2(c).
“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).
“Prospectus”
shall mean the Base Prospectus, as supplemented by the most recently filed Prospectus Supplement (if any).
“Prospectus
Supplement” shall mean each prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b) from time
to time.
“Record
Date” shall have the meaning ascribed to such term in Section 2(b)(ix).
“Registration
Statement” shall mean the shelf registration statement on Form S-3 (File No. 333-289573), including the Base Prospectus, registering
up to $200,000,000 of securities of the Company filed with the Commission on August 13, 2025 and declared effective by the Commission
on August 20, 2025, including exhibits and financial statements filed with or incorporated by reference to such registration statement
and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430B or 462(b) of the Securities Act, as amended on each Effective Date and, in the event any
post-effective amendment thereto becomes effective, shall also mean such registration statement as so amended.
“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).
“Rule
158”, “Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
“Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433” refer
to such rules under the Act.
“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).
“SEC
Reports” shall have the meaning ascribed to such term in Section 3(m).
“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).
“Shares”
shall have the meaning ascribed to such term in Section 2.
“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).
“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).
“Time
of Delivery” shall have the meaning ascribed to such term in Section 2(c).
“Trading
Day” means a day on which the Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York
Stock Exchange (or any successors to any of the foregoing).
All
references in this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in or
otherwise deemed under the Act to be a part of or included in the Registration Statement or the Prospectus, as the case may be, as of
any specified date; and all references in this Agreement to amendments or supplements to the Registration Statement or the Prospectus
shall be deemed to mean and include, without limitation, the filing of any Incorporated Document to be a part of or included in the Registration
Statement or the Prospectus, as the case may be, as of any specified date.
2. Sale
and Delivery of Shares. The Company proposes to issue and sell through or to the Manager,
as sales agent and/or principal, from time to time during the term of this Agreement and
on the terms set forth herein, up to the lesser of such number of shares (the “Shares”)
of the Company’s common stock, $0.01 par value per share (“Common Stock”),
that does not exceed (a) an aggregate maximum offering price of $100,000,000, pursuant to
this Agreement, (b) the number of authorized but unissued shares of Common Stock (less the
number of shares of Common Stock issuable upon exercise, conversion or exchange of any outstanding
securities of the Company or otherwise reserved from the Company’s authorized capital
stock), or (c) the number or dollar amount of shares of Common Stock that would cause the
Company or the offering of the Shares to not satisfy the eligibility and transaction requirements
for use of Form S-3 (the lesser of (a), (b) and (c), the “Maximum Amount”).
For the avoidance of doubt, the $100,000,000 maximum aggregate gross sales price limit set
forth herein applies solely to Shares sold on or after the Execution Date. Any Shares sold
pursuant to the Original Agreement prior to the date hereof shall not be counted toward such
limit, and nothing herein shall affect the validity of sales of Shares completed under the
Original Agreement. Notwithstanding anything to the contrary contained herein, the parties
hereto agree that compliance with the limitations set forth in this Section 2 on the number
and aggregate sales price of Shares issued and sold under this Agreement shall be the sole
responsibility of the Company and that the Manager shall have no obligation in connection
with such compliance.
(a) Appointment
of Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through
the Manager, the Company hereby appoints the Manager as exclusive agent of the Company for
the purpose of selling the Shares of the Company pursuant to this Agreement and the Manager
agrees to use its commercially reasonable efforts to sell the Shares on the terms and subject
to the conditions stated herein. The Company agrees that, whenever it determines to sell
the Shares directly to the Manager as principal, it will enter into a separate agreement
(each, a “Terms Agreement”) in substantially the form of Annex I
hereto, relating to such sale in accordance with Section 2 of this Agreement.
(b) Agent
Sales. Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company will issue and agrees to sell Shares from time to
time through the Manager, acting as sales agent, and the Manager agrees to use its commercially
reasonable efforts to sell, as sales agent for the Company, on the following terms:
i. The
Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company
and the Manager on any day that (A) is a Trading Day, (B) the Company has instructed the
Manager by telephone (confirmed promptly by electronic mail) to make such sales (“Sales
Notice”) and (C) the Company has satisfied its obligations under Section 6 of this
Agreement. The Company will designate the maximum amount of the Shares to be sold by the
Manager daily (subject to the limitations set forth in Section 2(d)) and the minimum price
per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the
Manager shall use its commercially reasonable efforts to sell on a particular day all of
the Shares designated for the sale by the Company on such day. The gross sales price of the
Shares sold under this Section 2(b) shall be the market price for the shares of Common Stock
sold by the Manager under this Section 2(b) on the Trading Market at the time of sale of
such Shares.
ii. The
Company acknowledges and agrees that (A) there can be no assurance that the Manager will
be successful in selling the Shares, (B) the Manager will incur no liability or obligation
to the Company or any other person or entity if it does not sell the Shares for any reason
other than a failure by the Manager to use its commercially reasonable efforts consistent
with its normal trading and sales practices and applicable law and regulations to sell such
Shares as required under this Agreement, and (C) the Manager shall be under no obligation
to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically
agreed by the Manager and the Company pursuant to a Terms Agreement.
iii. The
Company shall not authorize the issuance and sale of, and the Manager shall not be obligated
to use its commercially reasonable efforts to sell, any Share at a price lower than the minimum
price therefor designated from time to time by the Company’s Board of Directors (the
“Board”), or a duly authorized committee thereof, or such duly authorized
officers of the Company, and notified to the Manager in writing. The Company or the Manager
may, upon notice to the other party hereto by telephone (confirmed promptly by electronic
mail), suspend the offering of the Shares for any reason and at any time; provided,
however, that such suspension or termination shall not affect or impair the parties’
respective obligations with respect to the Shares sold hereunder prior to the giving of such
notice.
iv. The
Manager may sell Shares by any method permitted by law deemed to be an “at the market
offering” as defined in Rule 415 under the Act, including without limitation sales
made directly on the Trading Market, on any other existing trading market for the Common
Stock or to or through a market maker. The Manager may also sell Shares in privately negotiated
transactions, provided that the Manager receives the Company’s prior written approval
for any sales in privately negotiated transactions and if so provided in the “Plan
of Distribution” section of the Prospectus Supplement or a supplement to the Prospectus
Supplement or a new Prospectus Supplement disclosing the terms of such privately negotiated
transaction.
v. The
compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement
fee of 3.0% of the gross sales price of the Shares sold pursuant to this Section 2(b) (“Broker
Fee”). The foregoing rate of compensation shall not apply when the Manager acts
as principal, in which case the Company may sell Shares to the Manager as principal at a
price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining
proceeds, after deduction of the Broker Fee and deduction of any transaction fees imposed
by any clearing firm, execution broker, or governmental or self-regulatory organization in
respect of such sales, shall constitute the net proceeds to the Company for such Shares (the
“Net Proceeds”).
vi. The
Manager shall provide written confirmation (which may be by electronic mail) to the Company
following the close of trading on the Trading Market each day in which the Shares are sold
under this Section 2(b) setting forth the number of the Shares sold on such day, the aggregate
gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by
the Company to the Manager with respect to such sales.
vii. Unless
otherwise agreed between the Company and the Manager, settlement for sales of the Shares
will occur at 10:00 a.m. (New York City time) on the first (1st) Trading Day, or any other
settlement cycle as may be in effect pursuant to Rule 15c6-1 under the Exchange Act from
time to time) following the date on which such sales are made (each, a “Settlement
Date”). On or before the Trading Day prior to each Settlement Date, the Company
will, or will cause its transfer agent to, electronically transfer the Shares being sold
by crediting the Manager’s or its designee’s account (provided that the Manager
shall have given the Company written notice of such designee at least one Trading Day prior
to the Settlement Date) at The Depository Trust Company (“DTC”) through
its Deposit and Withdrawal at Custodian System or by such other means of delivery as may
be mutually agreed upon by the parties hereto which Shares in all cases shall be freely tradable,
transferable, registered shares in good deliverable form. On each Settlement Date, the Manager
will deliver the related Net Proceeds in same day funds to an account designated by the Company.
The Company agrees that, if the Company, or its transfer agent (if applicable), defaults
in its obligation to deliver duly authorized Shares on a Settlement Date, in addition to
and in no way limiting the rights and obligations set forth in Section 7 hereto, the Company
will (i) hold the Manager harmless against any loss, claim, damage, or reasonable, documented
expense (including reasonable and documented legal fees and expenses), as incurred, arising
out of or in connection with such default by the Company, and (ii) pay to the Manager any
commission, discount or other compensation to which the Manager would otherwise have been
entitled absent such default.
viii. At
each Applicable Time, Settlement Date, Representation Date, and the Filing Date, the Company
shall be deemed to have affirmed each representation and warranty contained in this Agreement
as if such representation and warranty were made as of such date, modified as necessary to
relate to the Registration Statement and the Prospectus as amended as of such date. Any obligation
of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of
the Company shall be subject to the continuing accuracy of the representations and warranties
of the Company herein, to the performance by the Company of its obligations hereunder and
to the continuing satisfaction of the additional conditions specified in Section 6 of this
Agreement.
ix. If
the Company shall declare or make any dividend or other distribution of its assets (or rights
to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement,
scheme of arrangement or other similar transaction) (a “Distribution”
and the record date for the determination of stockholders entitled to receive the Distribution,
the “Record Date”), the Company hereby covenants that, in connection with
any sales of Shares pursuant to a Sales Notice on the Record Date, the Company covenants
and agrees that the Company shall issue and deliver such Shares to the Manager on the Record
Date and the Record Date shall be the Settlement Date and the Company shall cover any additional
costs of the Manager in connection with the delivery of Shares on the Record Date.
(c) Term
Sales. If the Company wishes to sell the Shares pursuant to this Agreement in a manner
other than as set forth in Section 2(b) of this Agreement (each, a “Placement”),
the Company will notify the Manager of the proposed terms of such Placement. If the Manager,
acting as principal, wishes to accept such proposed terms (which it may decline to do for
any reason in its sole discretion) or, following discussions with the Company wishes to accept
amended terms, the Manager and the Company will enter into a Terms Agreement setting forth
the terms of such Placement. The terms set forth in a Terms Agreement will not be binding
on the Company or the Manager unless and until the Company and the Manager have each executed
such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of
a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms
of such Terms Agreement will control. A Terms Agreement may also specify certain provisions
relating to the reoffering of such Shares by the Manager. The commitment of the Manager to
purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained and shall
be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify
the number of the Shares to be purchased by the Manager pursuant thereto, the price to be
paid to the Company for such Shares, any provisions relating to rights of, and default by,
underwriters acting together with the Manager in the reoffering of the Shares, and the time
and date (each such time and date being referred to herein as a “Time of Delivery”)
and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify
any requirements for opinions of counsel, accountants’ comfort letters and officers’
certificates pursuant to Section 6 of this Agreement and any other information or documents
required by the Manager.
(d) Maximum
Number of Shares. Under no circumstances shall the Company cause or request the offer
or sale of any Shares if, after giving effect to the sale of such Shares, the aggregate amount
of Shares sold pursuant to this Agreement would exceed the lesser of (A) together with all
sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer
and sale under the currently effective Registration Statement and (C) the amount authorized
from time to time to be issued and sold under this Agreement by the Board, a duly authorized
committee thereof or a duly authorized executive officer, and notified to the Manager in
writing. Under no circumstances shall the Company cause or request the offer or sale of any
Shares pursuant to this Agreement at a price lower than the minimum price authorized from
time to time by the Board, a duly authorized committee thereof or a duly authorized executive
officer, and notified to the Manager in writing. Further, under no circumstances shall the
Company cause or permit the aggregate offering amount of Shares sold pursuant to this Agreement
to exceed the Maximum Amount.
(e) Regulation
M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M
under the Exchange Act are satisfied with respect to the Shares, the Company shall give the
Manager at least one (1) Business Day’s prior notice of its intent to sell any Shares
in order to allow the Manager time to comply with Regulation M.
3. Representations
and Warranties. The Company represents and warrants to, and agrees with, the Manager
at the Execution Time and on each such time that the following representations and warranties
are repeated or deemed to be made pursuant to this Agreement, as set forth below, except
as set forth in the Registration Statement, the Prospectus or the Incorporated Documents.
(a) Subsidiaries.
All of the direct and indirect subsidiaries (individually, a “Subsidiary”)
of the Company are set forth on Exhibit 21.1 to the Company’s most recent Annual Report
on Form 10-K filed with the Commission. The Company owns, directly or indirectly, all of
the capital stock or other equity interests of each Subsidiary free and clear of any “Liens”
(which for purposes of this Agreement shall mean a lien, charge, security interest, encumbrance,
right of first refusal, preemptive right or other restriction), and all of the issued and
outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid,
non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated
or otherwise organized, validly existing and in good standing under the laws of the jurisdiction
of its incorporation or organization, with the requisite power and authority to own and use
its properties and assets and to carry on its business as currently conducted. Neither the
Company nor any Subsidiary is in violation nor default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational or charter documents.
Each of the Company and the Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in which the
nature of the business conducted or property owned by it makes such qualification necessary,
except where the failure to be so qualified or in good standing, as the case may be, could
not have or reasonably be expected to result in: (i) a material adverse effect on the legality,
validity or enforceability of this Agreement, (ii) a material adverse effect on the results
of operations, assets, business, prospects or condition (financial or otherwise) of the Company
and the Subsidiaries, taken as a whole, from that set forth in the Registration Statement,
the Base Prospectus, any Prospectus Supplement, the Prospectus or the Incorporated Documents,
or (iii) a material adverse effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii),
a “Material Adverse Effect”) and no “Proceeding” (which
for purposes of this Agreement shall mean any action, claim, suit, investigation or proceeding
(including, without limitation, an informal investigation or partial proceeding, such as
a deposition), whether commenced or threatened) has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority
or qualification.
(c) Authorization
and Enforcement. The Company has the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by this Agreement and otherwise to carry
out its obligations hereunder. The execution and delivery of this Agreement by the Company
and the consummation by it of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of the Company and no further action is required by the
Company, the Board or the Company’s stockholders in connection herewith other than
in connection with the Required Approvals. This Agreement has been duly executed and delivered
by the Company and, when delivered in accordance with the terms hereof, will constitute the
valid and binding obligation of the Company enforceable against the Company in accordance
with its terms, except (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting enforcement
of creditors’ rights generally, (ii) as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement,
the issuance and sale of the Shares and the consummation by it of the transactions contemplated
hereby do not and will not (i) conflict with or violate any provision of the Company’s
or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational
or charter documents, or (ii) conflict with, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, result in the creation of
any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to
others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration
or cancellation (with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise)
or other understanding to which the Company or any Subsidiary is a party or by which any
property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject
to the Required Approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority
to which the Company or a Subsidiary is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Company or a Subsidiary is bound
or affected; except in the case of each of clauses (ii) and (iii), such as could not, have
or reasonably be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization
or order of, give any notice to, or make any filing or registration with, any court or other
federal, state, local or other governmental authority or other “Person” (defined
as an individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind, including the Trading Market) in connection
with the execution, delivery and performance by the Company of this Agreement, other than
(i) the filings required by this Agreement, (ii) the filing with the Commission of the Prospectus
Supplement, (iii) the filing of application(s) to and approval by the Trading Market for
the listing of the Shares for trading thereon in the time and manner required thereby, and
(iv) such filings as are required to be made under applicable state securities laws and the
rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”)
(collectively, the “Required Approvals”).
(f) Issuance
of Shares. The Shares are duly authorized and, when issued and paid for in accordance
with this Agreement, will be duly and validly issued, fully paid and nonassessable, free
and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized
capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement.
The issuance by the Company of the Shares has been registered under the Act and all of the
Shares are freely transferable and tradable by the purchasers thereof without restriction
(other than any restrictions arising solely from an act or omission of such a purchaser).
The Shares are being issued pursuant to the Registration Statement and the issuance of the
Shares has been registered by the Company under the Act. The “Plan of Distribution”
section within the Registration Statement permits the issuance and sale of the Shares as
contemplated by this Agreement. Upon receipt of the Shares, the purchasers of such Shares
will have good and marketable title to such Shares and the Shares will be freely tradable
on the Trading Market.
(g) Capitalization.
The capitalization of the Company is as set forth in the SEC Reports. The Company has not
issued any capital stock since its most recently filed periodic report under the Exchange
Act, other than pursuant to the exercise of employee stock options under the Company’s
stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s
employee stock purchase plan and pursuant to the conversion and/or exercise of securities
exercisable, exchangeable or convertible into Common Stock (“Common Stock Equivalents”)
outstanding as of the date of the most recently filed periodic report under the Exchange
Act. No Person has any right of first refusal, preemptive right, right of participation,
or any similar right to participate in the transactions contemplated by this Agreement. Except
as set forth in the SEC Reports, there are no outstanding options, warrants, scrip rights
to subscribe to, calls or commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exercisable or exchangeable for, or giving any
Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock
of any Subsidiary, or contracts, commitments, understandings or arrangements by which the
Company or any Subsidiary is or may become bound to issue additional shares of Common Stock
or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of
the Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock
or other securities to any Person. There are no outstanding securities or instruments of
the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange
or reset price of such security or instrument upon an issuance of securities by the Company
or any Subsidiary. There are no outstanding securities or instruments of the Company or any
Subsidiary that contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any Subsidiary is or
may become bound to redeem a security of the Company or such Subsidiary. The Company does
not have any stock appreciation rights or “phantom stock” plans or agreements
or any similar plan or agreement. All of the outstanding shares of capital stock of the Company
are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and none of such outstanding shares was issued
in violation of any preemptive rights or similar rights to subscribe for or purchase securities.
No further approval or authorization of any stockholder, the Board or others is required
for the issuance and sale of the Shares. There are no stockholders agreements, voting agreements
or other similar agreements with respect to the Company’s capital stock to which the
Company is a party or, to the knowledge of the Company, between or among any of the Company’s
stockholders.
(h) Registration
Statement. The Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission the Registration Statement, including the related
Base Prospectus, for registration under the Act of the offering and sale of the Shares. Such
Registration Statement is effective and available for the offer and sale of the Shares as
of the date hereof. As filed, the Base Prospectus contains, in all material respects, all
information required by the Act and the rules thereunder, and, except to the extent the Manager
shall agree in writing to a modification, shall be in all substantive respects in the form
furnished to the Manager prior to the Execution Time or prior to any such time this representation
is repeated or deemed to be made. The Registration Statement, at the Execution Time, each
such time this representation is repeated or deemed to be made, and at all times during which
a prospectus is required by the Act to be delivered (whether physically or through compliance
with Rule 172, 173 or any similar rule) in connection with any offer or sale of the Shares,
meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the
Registration Statement was not earlier than the date three (3) years before the Execution
Time. The Company meets the transaction requirements set forth in General Instructions I.B.1
of Form S-3.
(i) Accuracy
of Incorporated Documents. The Incorporated Documents, when they were filed with the
Commission, conformed in all material respects to the requirements of the Exchange Act and
the rules thereunder, and none of the Incorporated Documents, when they were filed with the
Commission, contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances under which
they were made not misleading; and any further documents so filed and incorporated by reference
in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus,
when such documents are filed with the Commission, will conform in all material respects
to the requirements of the Exchange Act and the rules thereunder, as applicable, and will
not contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which they were made,
not misleading.
(j) Ineligible
Issuer. (i) At the earliest time after the filing of the Registration Statement that
the Company or another offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2)) of the Shares and (ii) as of the Execution Time and on each such time this
representation is repeated or deemed to be made (with such date being used as the determination
date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer
(as defined in Rule 405), without taking account of any determination by the Commission pursuant
to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(k) Free
Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses.
Each Issuer Free Writing Prospectus does not include any information the substance of which
conflicts with the information contained in the Registration Statement, including any Incorporated
Documents and any prospectus supplement deemed to be a part thereof that has not been superseded
or modified; and each Issuer Free Writing Prospectus does not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The
foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information furnished to the Company
by the Manager specifically for use therein. Any Issuer Free Writing Prospectus that the
Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the
Commission in accordance with the requirements of the Act and the rules thereunder. Each
Issuer Free Writing Prospectus that the Company has filed, or is required to file, pursuant
to Rule 433(d) or that was prepared by or behalf of or used by the Company complies or will
comply in all material respects with the requirements of the Act and the rules thereunder.
The Company will not, without the prior consent of the Manager, prepare, use or refer to,
any Issuer Free Writing Prospectuses.
(l) Proceedings
Related to Registration Statement. The Registration Statement is not the subject of a
pending proceeding or examination under Section 8(d) or 8(e) of the Act, and the Company
is not the subject of a pending proceeding under Section 8A of the Act in connection with
the offering of the Shares. The Company has not received any notice that the Commission has
issued or intends to issue a stop-order with respect to the Registration Statement or that
the Commission otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened in writing to
do so.
(m) SEC
Reports. The Company has filed or furnished all reports, schedules, forms, statements
and other documents required to be filed or furnished by the Company under the Act and the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding
the date hereof (or such shorter period as the Company was required by law or regulation
to file such material) (the foregoing materials, including the exhibits thereto and documents
incorporated by reference therein, together with the Prospectus and the Prospectus Supplement,
being collectively referred to herein as the “SEC Reports”) on a timely
basis or has received a valid extension of such time of filing and has filed any such SEC
Reports prior to the expiration of any such extension. As of their respective dates, the
SEC Reports complied in all material respects with the requirements of the Act and the Exchange
Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. The financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of filing. The
interactive data in eXtensible Business Reporting Language included or incorporated by reference
in the Registration Statement fairly presents the information called for in all material
respects and has been prepared in accordance with the Commission’s rules and guidelines
applicable thereto. No other financial statements or supporting schedules are required to
be included in the Registration Statement, the Base Prospectus, any Prospectus Supplement,
or the Prospectus. Such financial statements have been prepared in accordance with United
States generally accepted accounting principles applied on a consistent basis during the
periods involved (“GAAP”), except as may be otherwise specified in such
financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects
the financial position of the Company and its consolidated Subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods then ended, subject,
in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(n) [RESERVED]
(o) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest
audited financial statements included within the SEC Reports and unless otherwise publicly
disclosed in the SEC Reports, (i) there has been no event, occurrence or development that
has had or that could reasonably be expected to result in a Material Adverse Effect, (ii)
the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade
payables and accrued expenses incurred in the ordinary course of business consistent with
past practice and (B) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company
has not altered its method of accounting, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or purchased, redeemed or made
any agreements to purchase or redeem any shares of its capital stock, (v) the Company has
not issued any equity securities to any officer, director or “Affiliate”
(defined as any Person that, directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person, as such terms are used in and
construed under Rule 144 under the Act), except pursuant to existing Company stock option
plans, and (vi) no executive officer of the Company or member of the Board has resigned from
any position with the Company. The Company does not have pending before the Commission any
request for confidential treatment of information. Except for the issuance of the Shares
contemplated by this Agreement or as set forth in the SEC Reports, no event, liability, fact,
circumstance, occurrence or development has occurred or exists or is reasonably expected
to occur or exist with respect to the Company or its Subsidiaries or their respective businesses,
prospects, properties, operations, assets or financial condition that would be required to
be disclosed by the Company under applicable securities laws at the time this representation
is made or deemed made that has not been publicly disclosed at least one (1) Trading Day
prior to the date that this representation is made.
(p) Litigation.
Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation,
proceeding or investigation pending or, to the knowledge of the Company, threatened against
or affecting the Company, any Subsidiary or any of their respective properties before or
by any court, arbitrator, governmental or administrative agency or regulatory authority (federal,
state, county, local or foreign) (collectively, an “Action”) that, if
determined unfavorably against the Company or such Subsidiary, would reasonably be expected
to result in a Material Adverse Effect. None of the Actions set forth in the SEC Reports
adversely affects or challenges the legality, validity or enforceability of this Agreement
or the Shares. Neither the Company nor any Subsidiary, nor any director or officer thereof,
is or has been the subject of any Action involving a claim of violation of or liability under
federal or state securities laws or a claim of breach of fiduciary duty. There has not been,
and to the knowledge of the Company, there is not pending or contemplated, any investigation
by the Commission involving the Company or any current or former director or officer of the
Company. The Commission has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company or any Subsidiary under the Exchange Act
or the Act.
(q) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with
respect to any of the employees of the Company, which could reasonably be expected to result
in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees
is a member of a union that relates to such employee’s relationship with the Company
or such Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective
bargaining agreement, and the Company and its Subsidiaries believe that their relationships
with their employees are good. To the knowledge of the Company, no executive officer of the
Company or any Subsidiary, is, or is now expected to be, in violation of any material term
of any employment contract, confidentiality, disclosure or proprietary information agreement
or non-competition agreement, or any other contract or agreement or any restrictive covenant
in favor of any third party, and the continued employment of each such executive officer
does not subject the Company or any of its Subsidiaries to any liability with respect to
any of the foregoing matters. The Company and its Subsidiaries are in compliance with all
applicable U.S. federal, state, local and foreign laws and regulations relating to employment
and employment practices, terms and conditions of employment and wages and hours, except
where the failure to be in compliance could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(r) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no
event has occurred that has not been waived that, with notice or lapse of time or both, would
result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary
received notice of a claim that it is in default under or that it is in violation of, any
indenture, loan or credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its properties is bound (whether or not such default or violation
has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule,
ordinance or regulation of any governmental authority, including without limitation all foreign,
federal, state and local laws relating to taxes, environmental protection, occupational health
and safety, product quality and safety and employment and labor matters, except in each case
as could not have or reasonably be expected to result in a Material Adverse Effect.
(s) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state,
local and foreign laws relating to pollution or protection of human health or the environment
(including ambient air, surface water, groundwater, land surface or subsurface strata), including
laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous
Materials”) into the environment, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered,
promulgated or approved thereunder (“Environmental Laws”); (ii) have received
all permits licenses or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses; and (iii) are in compliance with all terms and conditions
of any such permit, license or approval where in each clause (i), (ii) and (iii), the failure
to so comply could be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect.
(t) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state, local or foreign regulatory authorities
necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not reasonably be expected to result in a
Material Adverse Effect (“Material Permits”), and neither the Company
nor any Subsidiary has received any notice of proceedings relating to the revocation or modification
of any Material Permit.
(u) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple
to all real property owned by them and good and marketable title in all personal property
owned by them that is material to the business of the Company and the Subsidiaries, in each
case free and clear of all Liens, except for (i) Liens as do not materially affect the value
of such property and do not materially interfere with the use made and proposed to be made
of such property by the Company and the Subsidiaries and (ii) Liens for the payment of federal,
state or other taxes, for which appropriate reserves have been made therefor in accordance
with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real
property and facilities held under lease by the Company and the Subsidiaries are held by
them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries
are in compliance.
(v) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents,
patent applications, trademarks, trademark applications, service marks, trade names, trade
secrets, inventions, copyrights, licenses and other intellectual property rights and similar
rights necessary or required for use in connection with their respective businesses as described
in the SEC Reports and which the failure to so have could have a Material Adverse Effect
(collectively, the “Intellectual Property Rights”). None of, and neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any of,
the Intellectual Property Rights has expired, terminated or been abandoned, or is expected
to expire or terminate or be abandoned, within two (2) years from the date of this Agreement.
Neither the Company nor any Subsidiary has received, since the date of the latest audited
financial statements included within the SEC Reports, a written notice of a claim or otherwise
has any knowledge that the Intellectual Property Rights violate or infringe upon the rights
of any Person, except as could not have or reasonably be expected to not have a Material
Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are
enforceable and there is no existing infringement by another Person of any of the Intellectual
Property Rights. The Company and its Subsidiaries have taken reasonable security measures
to protect the secrecy, confidentiality and value of all of their intellectual properties,
except where failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Company has no knowledge of any facts that
would preclude it from having valid license rights or clear title to the Intellectual Property
Rights. The Company has no knowledge that it lacks or will be unable to obtain any rights
or licenses to use all Intellectual Property Rights that are necessary to conduct its business.
(w) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and customary in the businesses
in which the Company and the Subsidiaries are engaged, including, but not limited to, directors
and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to
believe that it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business without a significant increase in cost.
(x) Affiliate
Transactions. Except as set forth in the SEC Reports, none of the officers or directors
of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees
of the Company or any Subsidiary is presently a party to any transaction with the Company
or any Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to
or by, providing for rental of real or personal property to or from, providing for the borrowing
of money from or lending of money to or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer, director, trustee,
stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred
on behalf of the Company and (iii) other employee benefits, including stock option agreements
under any stock option plan of the Company.
(y) Sarbanes
Oxley Compliance. The Company and the Subsidiaries are in compliance, in all material
respects, with any and all applicable requirements of the Sarbanes-Oxley Act of 2002, as
amended, that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective. The Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance
that: (i) transactions are executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management’s general or specific authorization,
and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company and
the Subsidiaries have established disclosure controls and procedures (as defined in Exchange
Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such
disclosure controls and procedures to ensure that information required to be disclosed by
the Company in the reports it files or submits under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in the Commission’s rules
and forms. The Company’s certifying officers have evaluated the effectiveness of the
disclosure controls and procedures of the Company and the Subsidiaries as of the end of the
period covered by the most recently filed periodic report under the Exchange Act (such date,
the “Evaluation Date”), and the disclosure controls and procedures are
effective in all material respects to perform the functions for which they were established.
The Company presented in its most recently filed periodic report under the Exchange Act the
conclusions of the certifying officers about the effectiveness of the disclosure controls
and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no changes in the internal control over financial reporting (as such
term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially
affected, or is reasonably likely to materially affect, the internal control over financial
reporting of the Company and its Subsidiaries.
(z) Certain
Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees
or commissions are or will be payable by the Company or any Subsidiary to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or other Person with
respect to the transactions contemplated by this Agreement. The Manager shall have no obligation
with respect to any fees or with respect to any claims made by or on behalf of other Persons
for fees of a type contemplated in this Section that may be due in connection with the transactions
contemplated by this Agreement.
(aa) No
Other Sales Agency Agreement. The Company has not entered into any other sales agency
agreements or other similar arrangements with any agent or any other representative in respect
of at the market offerings of the Shares.
(bb) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt
of payment for the Shares, will not be or be an Affiliate of, an “investment company”
within the meaning of the Investment Company Act of 1940, as amended. The Company shall conduct
its business in a manner so that it will not become an “investment company” subject
to registration under the Investment Company Act of 1940, as amended.
(cc) Listing
and Maintenance Requirements. The Common Stock is listed on the Trading Market and the
issuance of the Shares as contemplated by this Agreement does not contravene the rules and
regulations of the Trading Market. The Common Stock is registered pursuant to Section 12(b)
or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to
its knowledge is likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act nor has the Company received any notification that the Commission
is contemplating terminating such registration. The Company has not, in the 12 months preceding
the date hereof, received notice from any Trading Market on which the Common Stock is or
has been listed or quoted to the effect that the Company is not in compliance with the listing
or maintenance requirements of such Trading Market, except where any failure to company would
not reasonably be expected to have a Material Adverse Effect. The Company is, and has no
reason to believe that it will not in the foreseeable future continue to be, in compliance
with all such listing and maintenance requirements. The Common Stock is currently eligible
for electronic transfer through the DTC or another established clearing corporation and the
Company is current in payment of the fees to the Depository Trust Company (or such other
established clearing corporation) in connection with such electronic transfer.
(dd) Application
of Takeover Protections. The Company and the Board have taken all necessary action, if
any, in order to render inapplicable any control share acquisition, business combination,
poison pill (including any distribution under a rights agreement) or other similar anti-takeover
provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable to the Shares.
(ee) Solvency.
Based on the consolidated financial condition of the Company as of the date hereof, (i) the
fair saleable value of the Company’s assets exceeds the amount that will be required
to be paid on or in respect of the Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute
unreasonably small capital to carry on its business as now conducted and as proposed to be
conducted including its capital needs taking into account the particular capital requirements
of the business conducted by the Company, consolidated and projected capital requirements
and capital availability thereof, and (iii) the current cash flow of the Company, together
with the proceeds the Company would receive, were it to liquidate all of its assets, after
taking into account all anticipated uses of the cash, would be sufficient to pay all amounts
on or in respect of its liabilities when such amounts are required to be paid. The Company
does not intend to incur debts beyond its ability to pay such debts as they mature (taking
into account the timing and amounts of cash to be payable on or in respect of its debt) within
one (1) year from the date hereof. The Company has no knowledge of any facts or circumstances
which lead it to believe that it will file for reorganization or liquidation under the bankruptcy
or reorganization laws of any jurisdiction within one year from the date hereof. The SEC
Reports set forth as of the date hereof all outstanding secured and unsecured Indebtedness
of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.
For the purposes of this Agreement, “Indebtedness” means (x) any liabilities
for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable
incurred in the ordinary course of business), (y) all guaranties, endorsements and other
contingent obligations in respect of indebtedness of others, whether or not the same are
or should be reflected in the Company’s consolidated balance sheet (or the notes thereto),
except guaranties by endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; and (z) the present value of any lease payments
in excess of $50,000 due under leases required to be capitalized in accordance with GAAP.
Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(ff) Tax
Status. Except for matters that would not, individually or in the aggregate, have or
reasonably be expected to result in a Material Adverse Effect, the Company and its Subsidiaries
each (i) has made or filed all United States federal, state and local income and all foreign
income and franchise tax returns, reports and declarations required by any jurisdiction to
which it is subject, (ii) has paid all taxes and other governmental assessments and charges
that are material in amount, shown or determined to be due on such returns, reports and declarations
and (iii) has set aside on its books provision reasonably adequate for the payment of all
material taxes for periods subsequent to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority
of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis
for any such claim.
(gg) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the
Company or any Subsidiary, any agent or other person acting on behalf of the Company or any
Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic political activity,
(ii) made any unlawful payment to foreign or domestic government officials or employees or
to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed
to disclose fully any contribution made by the Company or any Subsidiary (or made by any
person acting on its behalf of which the Company is aware) which is in violation of law,
or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act
of 1977, as amended.
(hh) Accountants.
The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and
belief of the Company, such accounting firm (i) is a registered public accounting firm as
required by the Exchange Act and (ii) shall express its opinion with respect to the financial
statements to be included in the Company’s Annual Report for the fiscal year ending
December 31, 2026.
(ii) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has,
(i) taken, directly or indirectly, any action designed to cause or to result in the stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale
of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting
purchases of, any of the Shares, or (iii) paid or agreed to pay to any Person any compensation
for soliciting another to purchase any other securities of the Company, other than, in the
case of clauses (ii) and (iii), compensation paid to the Manager in connection with the Shares.
(jj) FDA.
As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”)
under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder
(“FDCA”) that is manufactured, packaged, labeled, tested, distributed,
sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical
Product”), such Pharmaceutical Product is being manufactured, packaged, labeled,
tested, distributed, sold and/or marketed by the Company in compliance with all applicable
requirements under FDCA and similar laws, rules and regulations relating to registration,
investigational use, premarket clearance, licensure, or application approval, good manufacturing
practices, good laboratory practices, good clinical practices, product listing, quotas, labeling,
advertising, record keeping and filing of reports, except where the failure to be in compliance
would not have a Material Adverse Effect. There is no pending, completed or, to the Company’s
knowledge, threatened, action (including any lawsuit, arbitration, or legal or administrative
or regulatory proceeding, charge, complaint, or investigation) against the Company or any
of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any
notice, warning letter or other communication from the FDA or any other governmental entity,
which (i) contests the premarket clearance, licensure, registration, or approval of, the
uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale
of, or the labeling and promotion of any Pharmaceutical Product, (ii) withdraws its approval
of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal
of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii)
imposes a clinical hold on any clinical investigation by the Company or any of its Subsidiaries,
(iv) enjoins production at any facility of the Company or any of its Subsidiaries, (v) enters
or proposes to enter into a consent decree of permanent injunction with the Company or any
of its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations
by the Company or any of its Subsidiaries, and which, either individually or in the aggregate,
would have a Material Adverse Effect. The properties, business and operations of the Company
that are subject to the jurisdiction of the FDA as of the date of this Agreement have been
and are being conducted in all material respects in accordance with all applicable laws,
rules and regulations of the FDA. Except in connection with any suspended or discontinued
research and/or clinical development activities otherwise publicly disclosed in the Company’s
SEC Reports, the Company has not been informed by the FDA that the FDA will prohibit the
marketing, sale, license or use in the United States of any product proposed to be developed,
produced or marketed by the Company nor has the FDA expressed any concern as to approving
or clearing for marketing any product being developed or proposed to be developed by the
Company.
(kk) ERISA
Compliance. Except as otherwise disclosed in the Registration Statement and the Prospectus,
the Company and its Subsidiaries and any “employee benefit plan” (as defined
under the Employee Retirement Income Security Act of 1974, as amended, and the regulations
and published interpretations thereunder (collectively, “ERISA”)) established
or maintained by the Company, its Subsidiaries or their “ERISA Affiliates” (as
defined below) are in compliance in all material respects with ERISA. “ERISA Affiliate”
means, with respect to the Company or any of its Subsidiaries, any member of any group of
organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code
of 1986, as amended, and the regulations and published interpretations thereunder (the “Code”)
of which the Company or such Subsidiary is a member. No “reportable event” (as
defined under ERISA) has occurred or is reasonably expected to occur with respect to any
“employee benefit plan” established or maintained by the Company, its Subsidiaries
or any of their ERISA Affiliates. No “employee benefit plan” established or maintained
by the Company, its Subsidiaries or any of their ERISA Affiliates, if such “employee
benefit plan” were terminated, would have any “amount of unfunded benefit liabilities”
(as defined under ERISA). Neither the Company, its Subsidiaries nor any of their ERISA Affiliates
has incurred or reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any “employee benefit plan” or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan”
established or maintained by the Company, its Subsidiaries or any of their ERISA Affiliates
that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing
has occurred, whether by action or failure to act, which would cause the loss of such qualification.
(ll) Stock
Option Plans. Each stock option granted by the Company under the Company’s stock
option plan was granted (i) in accordance with the terms of the Company’s stock option
plan and (ii) with an exercise price at least equal to the fair market value of the Common
Stock on the date such stock option would be considered granted under GAAP and applicable
law. No stock option granted under the Company’s stock option plan has been backdated.
The Company has not knowingly granted, and there is no and has been no Company policy or
practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the
grant of stock options with, the release or other public announcement of material information
regarding the Company or its Subsidiaries or their financial results or prospects.
(mm) Cybersecurity.
(i)(x) There has been no security breach or other compromise of or relating to any of the
Company’s or any Subsidiary’s information technology and computer systems, networks,
hardware, software, data (including the data of its respective customers, employees, suppliers,
vendors and any third party data maintained by or on behalf of it), equipment or technology
(collectively, “IT Systems and Data”) and (y) the Company and the Subsidiaries
have not been notified of, and has no knowledge of any event or condition that would reasonably
be expected to result in, any security breach or other compromise to its IT Systems and Data;
(ii) the Company and the Subsidiaries are presently in compliance with all applicable laws
or statutes and all judgments, orders, rules and regulations of any court or arbitrator or
governmental or regulatory authority, internal policies and contractual obligations relating
to the privacy and security of IT Systems and Data and to the protection of such IT Systems
and Data from unauthorized use, access, misappropriation or modification, except as would
not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Company
and the Subsidiaries have implemented and maintained commercially reasonable safeguards to
maintain and protect its material confidential information and the integrity, continuous
operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the
Subsidiaries have implemented backup and disaster recovery technology consistent with industry
standards and practices.
(nn) Compliance
with Data Privacy Laws. (i) Except as otherwise disclosed in the SEC Reports, the Company
and its Subsidiaries are, and at all times during the past three years have been, in compliance
in all material respects with all applicable data privacy and security laws and regulations,
including, to the extent applicable to the Company and its Subsidiaries, the European Union
General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, “Privacy
Laws”); (ii) the Company and its Subsidiaries have in place, comply in all material
respects with, and take commercially reasonable steps designed to ensure compliance in all
material respects with, their written policies and procedures relating to data privacy and
security and the collection, storage, use, disclosure, handling and analysis of Personal
Data (the “Policies”); (iii) the Company and its Subsidiaries provide notices
of their applicable Policies to customers, employees, third-party vendors and representatives,
in each case as required by applicable Privacy Laws; and (iv) the applicable Policies provide
notices that are accurate in all material respects and are reasonably designed to satisfy
the requirements of applicable Privacy Laws with respect to the Company’s and its Subsidiaries’
then-current privacy practices relating to their subject matter. “Personal Data”
means information that constitutes “personal information,” “personally
identifiable information,” “personal data,” or any analogous term under
applicable Privacy Laws, including, to the extent subject to applicable Privacy Laws, a natural
person’s name, street address, telephone number, email address, photograph, Social
Security number, bank information, customer or account number, health information, sexual-orientation
information, or other information that identifies or is reasonably capable of being linked
to an identified or identifiable natural person. To the knowledge of the Company, none of
the disclosures made or contained in the Policies is materially inaccurate, misleading, or
deceptive in violation of applicable Privacy Laws, and the execution, delivery and performance
of this Agreement will not result in any material breach of applicable Privacy Laws or the
Policies. Neither the Company nor any of its Subsidiaries (i) has received written notice
of any material actual or potential liability under, or material actual or potential violation
of, any Privacy Laws; (ii) is currently conducting or paying for, in whole or in part, any
material investigation, remediation or other corrective action in response to a written regulatory
request or demand under any Privacy Law; or (iii) is subject to any material order, decree,
or agreement with any court, arbitrator, governmental authority, or regulatory authority
that imposes material obligations or liabilities under any Privacy Law.
(oo) Office
of Foreign Assets Control. Neither the Company nor any of its Subsidiaries, nor to the
knowledge of the Company, any of the directors, officers or employees of the Company or its
Subsidiaries, is an individual or entity that is, or is owned or controlled by an individual
or entity that is: (i) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control, the United Nations Security
Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority
(collectively, the “Sanctions”), nor (ii) located, organized or resident in a
country or territory that is the subject of Sanctions. Neither the Company nor any of its
Subsidiaries will, directly or indirectly, use the proceeds of the transactions contemplated
hereby, or lend, contribute or otherwise make available such proceeds to any Subsidiary,
joint venture partner or other Person: (i) to fund or facilitate any activities or business
of or with any Person or in any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions or (ii) in any other manner that will result in
a violation of Sanctions by any Person (including any Person participating in the transactions
contemplated hereby, whether as underwriter, advisor, investor or otherwise). For the past
five years, neither the Company nor any of its Subsidiaries has knowingly engaged in, and
is not now knowingly engaged in, any dealings or transactions with any Person, or in any
country or territory, that at the time of the dealing or transaction is or was the subject
of Sanctions.
(pp) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real
property holding corporation within the meaning of Section 897 of the Internal Revenue Code
of 1986, as amended, and the Company shall so certify upon the Manager’s request.
(qq) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is
subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”)
and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or
controls, directly or indirectly, five percent (5%) or more of the outstanding shares of
any class of voting securities or twenty-five percent (25%) or more of the total equity of
a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
Neither the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence
over the management or policies of a bank or any entity that is subject to the BHCA and to
regulation by the Federal Reserve.
(rr) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted
at all times in compliance with applicable financial record-keeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money
laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no Action or Proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any Subsidiary with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any
Subsidiary, threatened.
(ss) FINRA
Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s
officers, directors or, to the knowledge of the Company, any five percent (5%) or greater
stockholder of the Company, except as set forth in the Registration Statement, the Base Prospectus,
any Prospectus Supplement or the Prospectus.
(tt) Forward-Looking
Statements. Each financial or operational projection or other “forward-looking
statement” (as defined by Section 27A of the Act or Section 21E of the Exchange Act)
contained in the Registration Statement or the Prospectus (i) was so included by the Company
in good faith and with reasonable basis after due consideration by the Company of the underlying
assumptions, estimates and other applicable facts and circumstances and (ii) as required,
is accompanied by meaningful cautionary statements identifying those factors that could cause
actual results to differ materially from those in such forward-looking statement. No such
statement was made that was false or misleading with the knowledge of a director or senior
manager of the Company that it was false or misleading.
4. Agreements.
The Company agrees with the Manager that:
(a) Right
to Review Amendments and Supplements to Registration Statement and Prospectus. During
any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any
similar rule) to be delivered under the Act in connection with the offering or the sale of
Shares, the Company will not file any amendment to the Registration Statement or supplement
(including any Prospectus Supplement) to the Base Prospectus unless the Company has furnished
to the Manager a copy for its review prior to filing and will not file any such proposed
amendment or supplement to which the Manager reasonably objects (provided, however, that
the Company will have no obligation to provide the Manager any advance copy of such filing
or to provide the Manager an opportunity to object to such filing if (i) the filing does
not name the Manager and does not relate to the transaction herein provided or (ii) the filing
relates to the termination of the Agreement or the Prospectus Supplement). The Company will
cause any supplement to the Prospectus filed after the Effective Time to be properly completed,
in a form approved by the Manager, and will file such supplement with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and
will provide evidence reasonably satisfactory to the Manager of such timely filing. The Company
will promptly advise the Manager (i) when the Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, during
any period when the delivery of a prospectus (whether physically or through compliance with
Rule 172, 173 or any similar rule) is required under the Act in connection with the offering
or sale of the Shares, any amendment to the Registration Statement shall have been filed
or become effective (other than any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act), (iii) of any request by the Commission or its staff
for any amendment of the Registration Statement, or for any supplement to the Prospectus
or for any additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any notice objecting to
its use or the institution or threatening of any proceeding for that purpose and (v) of the
receipt by the Company of any notification with respect to the suspension of the qualification
of the Shares for sale in any jurisdiction or the institution or threatening of any proceeding
for such purpose. The Company will use its commercially reasonable efforts to prevent the
issuance of any such stop order or the occurrence of any such suspension or objection to
the use of the Registration Statement and, upon such issuance, occurrence or notice of objection,
to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence
or objection, including, if necessary, by filing an amendment to the Registration Statement
or a new registration statement and using its commercially reasonable efforts to have such
amendment or new registration statement declared effective as soon as practicable.
(b) Subsequent
Events. If, at any time on or after an Applicable Time but prior to the related Settlement
Date, any event occurs as a result of which the Registration Statement or Prospectus would
include any untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which they were made
or the circumstances then prevailing not misleading, the Company will (i) notify promptly
the Manager so that any use of the Registration Statement or Prospectus may cease until such
are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus
to correct such statement or omission; and (iii) supply any such amendment or supplement
to the Manager in such quantities as the Manager may reasonably request.
(c) Notification
of Subsequent Filings. During any period when the delivery of a prospectus relating to
the Shares is required (including in circumstances where such requirement may be satisfied
pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement, file a new registration statement or supplement
the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder,
including in connection with use or delivery of the Prospectus, the Company promptly will
(i) notify the Manager of any such event, (ii) subject to Section 4(a), prepare and file
with the Commission an amendment or supplement or new registration statement which will correct
such statement or omission or effect such compliance, (iii) use its best efforts to have
any amendment to the Registration Statement or new registration statement declared effective
as soon as practicable in order to avoid any disruption in use of the Prospectus and (iv)
supply any supplemented Prospectus to the Manager in such quantities as the Manager may reasonably
request.
(d) Earnings
Statements. As soon as practicable, the Company will make generally available to its
security holders and to the Manager an earnings statement or statements of the Company and
its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
For the avoidance of doubt, the Company’s compliance with the reporting requirements
of the Exchange Act shall be deemed to satisfy the requirements of this Section 4(d).
(e) Delivery
of Registration Statement. Upon the request of the Manager, the Company will furnish
to the Manager and counsel for the Manager, without charge, signed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Manager
or dealer may be required by the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172, 173 or any similar rule), as many copies of the Prospectus
and each Issuer Free Writing Prospectus and any supplement thereto as the Manager may reasonably
request. The Company will pay the expenses of printing or other production of all documents
relating to the offering.
(f) Qualification
of Shares. The Company will arrange, if necessary, for the qualification of the Shares
for sale under the laws of such jurisdictions as the Manager may designate and will maintain
such qualifications in effect so long as required for the distribution of the Shares; 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 that would subject it to service of
process in suits, other than those arising out of the offering or sale of the Shares, in
any jurisdiction where it is not now so subject.
(g) Free
Writing Prospectus. The Company agrees that, unless it has or shall have obtained the
prior written consent of the Manager, and the Manager agrees with the Company that, unless
it has or shall have obtained, as the case may be, the prior written consent of the Company,
it has not made and will not make any offer relating to the Shares that would constitute
an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission
or retained by the Company under Rule 433. Any such free writing prospectus consented to
by the Manager or the Company is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company agrees that (i) it has treated and will treat, as the
case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus
and (ii) it has complied and will comply, as the case may be, with the requirements of Rules
164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping.
(h) Subsequent
Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales
Notice previously delivered shall not apply during such three (3) Business Days) for at least
three (3) Business Days prior to any date on which the Company or any Subsidiary offers,
sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or
indirectly, any other shares of Common Stock or any Common Stock Equivalents (other than
the Shares), subject to Manager’s right to waive this obligation, provided that, without
compliance with the foregoing obligation, the Company may issue and sell Common Stock or
any Common Stock Equivalents pursuant to any employee equity plan, stock ownership plan or
dividend reinvestment plan of the Company from time to time and the Company may issue Common
Stock issuable upon the conversion or exercise of Common Stock Equivalents outstanding from
time to time.
(i) Market
Manipulation. Until the termination of this Agreement, the Company will not take, directly
or indirectly, any action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation
in violation of the Act, Exchange Act or the rules and regulations thereunder of the price
of any security of the Company to facilitate the sale or resale of the Shares or otherwise
violate any provision of Regulation M under the Exchange Act.
(j) Notification
of Incorrect Certificate. The Company will, at any time during the term of this Agreement,
as supplemented from time to time, advise the Manager immediately after it shall have received
notice or obtained knowledge thereof, of any information or fact that would alter or affect
any opinion, certificate, letter and other document provided to the Manager pursuant to Section
6 herein.
(k) Certification
of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this
Agreement (and upon the recommencement of the offering of the Shares under this Agreement
following the termination of a suspension of sales hereunder lasting more than thirty (30)
Trading Days), and each time that (i) the Registration Statement or Prospectus shall be amended
or supplemented, other than by means of Incorporated Documents, (ii) the Company files its
Annual Report on Form 10-K under the Exchange Act, (iii) the Company files its quarterly
reports on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form
8-K containing amended financial information (other than information that is furnished and
not filed), if the Manager reasonably determines that the information in such Form 8-K is
material, or (v) the Shares are delivered to the Manager as principal at the Time of Delivery
pursuant to a Terms Agreement (such commencement or recommencement date and each such date
referred to in (i), (ii), (iii), (iv) and (v) above, a “Representation Date”),
unless waived by the Manager, the Company shall furnish or cause to be furnished to the Manager
within two (2) Business Days after the applicable Representation Date (or such later time
as the Manager may reasonably agree), a certificate dated as of the date of delivery of such
certificate, in form reasonably satisfactory to the Manager to the effect that the statements
contained in the certificate referred to in Section 6 of this Agreement which were last furnished
to the Manager are true and correct as of the date of such certificate, as though made at
and as of such date (except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in said Section
6, modified as necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the date of delivery of such certificate.
(l) Bring
Down Opinions; Negative Assurance. At each Representation Date, unless waived by the
Manager, the Company shall furnish or cause to be furnished within two (2) Business Days
after such Representation Date (or such later time as the Manager may reasonably agree) to
the Manager and to counsel to the Manager a written opinion of counsel to the Company (“Company
Counsel”) addressed to the Manager and dated and delivered on such Representation Date,
in form and substance reasonably satisfactory to the Manager, including a negative assurance
representation. The requirement to furnish or cause to be furnished an opinion (but not with
respect to a negative assurance representation) under this Section 4(l) shall be waived for
any Representation Date other than a Representation Date on which a material amendment to
the Registration Statement or Prospectus is made or the Company files its Annual Report on
Form 10-K or a material amendment thereto under the Exchange Act, unless the Manager reasonably
requests such deliverable required this Section 4(l) in connection with a Representation
Date, upon which request such deliverable shall be deliverable hereunder. The Manager hereby
agrees that Company Counsel may provide a reliance letter for a previously delivered opinion
or negative assurance representation stating that such opinion or negative assurance representation
may continue to be relied on, in lieu of providing an opinion or negative assurance representation
on any such date.
(m) Auditor
Bring Down “Comfort” Letter. At each Representation Date, unless waived by
the Manager, the Company shall cause (1) the Company’s auditors (the “Accountants”),
or other independent accountants satisfactory to the Manager, to furnish the Manager a letter,
and (2) the Chief Financial Officer of the Company to furnish the Manager a certificate,
in each case within two (2) Business Days after such Representation Date (or such later time
as the Manager may reasonably agree), dated as of the date of delivery thereof, in form satisfactory
to the Manager, of the same tenor as the letters and certificate referred to in Section 6
of this Agreement but modified to relate to the Registration Statement and the Prospectus,
as amended and supplemented through the date of delivery of such letter or certificate, as
applicable.
(n) Due
Diligence Session. Upon commencement of the offering of the Shares under this Agreement
(and upon the recommencement of the offering of the Shares under this Agreement following
the termination of a suspension of sales hereunder lasting more than thirty (30) Trading
Days), and promptly following each Representation Date, the Company will conduct a due diligence
session, in form and substance, reasonably satisfactory to the Manager, which shall include
representatives of management and Accountants. The Company shall cooperate timely with any
reasonable due diligence request from or review conducted by the Manager or its agents from
time to time in connection with the transactions contemplated by this Agreement, including,
without limitation, providing information and available documents and access to appropriate
corporate officers and the Company’s agents during regular business hours, and timely
furnishing or causing to be furnished such certificates, letters and opinions from the Company,
its officers and its agents, as the Manager may reasonably request. The Company shall reimburse
the Manager for Manager’s counsel’s actually incurred and documented fees in
each such due diligence update session, up to a maximum of $5,000 and $3,500 per update for
which the Company is obligated to deliver a certification pursuant to clause (iii) of Section
4(k) and clauses (iv)-(vi) of Section 4(k), respectively, plus any incidental expense incurred
by the Manager in connection therewith.
(o) Acknowledgment
of Trading. The Company consents to the Manager trading in the Common Stock for the Manager’s
own account and for the account of its clients at the same time as sales of the Shares occur
pursuant to this Agreement or pursuant to a Terms Agreement.
(p) Disclosure
of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly
Reports on Form 10-Q, as applicable, the number of Shares sold through the Manager under
this Agreement, the Net Proceeds to the Company and the compensation paid by the Company
with respect to sales of Shares pursuant to this Agreement during the relevant quarter; provided
that the Manager shall provide the Company with any relevant information reasonably requested
by the Company for purposes of such disclosure within one (1) Business Day following such
request; and, if required by any subsequent change in Commission policy or request, more
frequently by means of a Current Report on Form 8-K or a further Prospectus Supplement.
(q) Rescission
Right. If to the knowledge of the Company, the conditions set forth in Section 6 shall
not have been satisfied as of the applicable Settlement Date, the Company will offer to any
person who has agreed to purchase Shares from the Company as the result of an offer to purchase
solicited by the Manager the right to refuse to purchase and pay for such Shares.
(r) Bring
Down of Representations and Warranties. Each acceptance by the Company of an offer to
purchase the Shares hereunder, and each execution and delivery by the Company of a Terms
Agreement, shall be deemed to be an affirmation to the Manager that the representations and
warranties of the Company contained in or made pursuant to this Agreement are true and correct
as of the date of such acceptance or of such Terms Agreement as though made at and as of
such date, and an undertaking that such representations and warranties will be true and correct
as of the Settlement Date for the Shares relating to such acceptance or as of the Time of
Delivery relating to such sale, as the case may be, as though made at and as of such date
(except that such representations and warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented relating to such Shares).
(s) Reservation
of Shares. The Company shall ensure that there are at all times sufficient shares of
Common Stock to provide for the issuance, free of any preemptive rights, out of its authorized
but unissued shares of Common Stock or shares of Common Stock held in treasury, of the maximum
aggregate number of Shares authorized for issuance by the Board pursuant to the terms of
this Agreement. The Company will use its commercially reasonable efforts to cause the Shares
to be listed for trading on the Trading Market and to maintain such listing.
(t) Obligation
Under Exchange Act. During any period when the delivery of a prospectus relating to the
Shares is required (including in circumstances where such requirement may be satisfied pursuant
to Rule 172, 173 or any similar rule) to be delivered under the Act, the Company will file
all documents required to be filed with the Commission pursuant to the Exchange Act within
the time periods required by the Exchange Act and the regulations thereunder.
(u) DTC
Facility. The Company shall cooperate with the Manager and use its reasonable efforts
to permit the Shares to be eligible for clearance and settlement through the facilities of
DTC.
(v) Use
of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the
manner set forth in the Prospectus.
(w) Filing
of Prospectus Supplement. If any sales are made pursuant to this Agreement which are
not made in “at the market” offerings as defined in Rule 415, including, without
limitation, any Placement pursuant to a Terms Agreement, the Company shall file a Prospectus
Supplement describing the terms of such transaction, the amount of Shares sold, the price
thereof, the Manager’s compensation, and such other information as may be required
pursuant to Rule 424 and Rule 430B, as applicable, within the time required by Rule 424.
(x) Additional
Registration Statement. To the extent that the Registration Statement is not available
for the sales of the Shares as contemplated by this Agreement, the Company may elect to file
a new registration statement, in its sole discretion, with respect to any additional shares
of Common Stock necessary to complete such sales of the Shares and shall cause such registration
statement to become effective as promptly as practicable. After the effectiveness of any
such registration statement, all references to “Registration Statement”
included in this Agreement shall be deemed to refer to such new registration statement, including
all documents incorporated by reference therein pursuant to Item 12 of Form S-3, and all
references to “Base Prospectus” included in this Agreement shall be deemed
to refer to the final form of prospectus, including all documents incorporated therein by
reference, included in any such registration statement at the time such registration statement
became effective.
(y) Payment
of Expenses. The Company agrees to pay the costs and expenses incident to the performance
of its obligations under this Agreement, whether or not the transactions contemplated hereby
are consummated, including without limitation: (i) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement (including financial statements
and exhibits thereto), the Prospectus and each Issuer Free Writing Prospectus, and each amendment
or supplement to any of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such copies of the
Registration Statement, the Prospectus, and each Issuer Free Writing Prospectus, and all
amendments or supplements to any of them, as may, in each case, be reasonably requested for
use in connection with the offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including any stamp
or transfer taxes in connection with the original issuance and sale of the Shares; (iv) the
printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all
other agreements or documents printed (or reproduced) and delivered in connection with the
offering of the Shares; (v) the registration of the Shares under the Exchange Act, if applicable,
and the listing of the Shares on the Trading Market; (vi) any registration or qualification
of the Shares for offer and sale under the securities or blue sky laws of the several states
(including filing fees and the reasonable fees and expenses of counsel for the Manager relating
to such registration and qualification); (vii) the transportation and other expenses incurred
by or on behalf of Company representatives in connection with presentations to prospective
purchasers of the Shares; (viii) the fees and expenses of the Company’s accountants
and the fees and expenses of counsel (including local and special counsel) for the Company;
(ix) the filing fee under FINRA Rule 5110; (x) the reasonable fees and expenses of the Manager’s
counsel, not to exceed $50,000 (excluding any periodic due diligence fees provided for under
Section 4(n)), which shall be paid upon the Execution Time; and (xi) all other costs and
expenses incident to the performance by the Company of its obligations hereunder.
5. [RESERVED]
6. Conditions
to the Obligations of the Manager. The obligations of the Manager under this Agreement
and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties
on the part of the Company contained herein as of the Execution Time, each Representation
Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance
by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) Effectiveness
of the Registration Statement; Filing of Prospectus Supplement. The Registration Statement
shall have been declared effective by the Commission and the Prospectus, and any supplement
thereto, required by Rule 424 to be filed with the Commission have been filed in the manner
and within the time period required by Rule 424(b) with respect to any sale of Shares; each
Prospectus Supplement filed after the Effective Time shall have been filed in the manner
required by Rule 424(b) within the time period required hereunder and under the Act; any
other material required to be filed by the Company pursuant to Rule 433(d) under the Act,
shall have been filed with the Commission within the applicable time periods prescribed for
such filings by Rule 433; and no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) Delivery
of Opinion. The Company shall have caused the Company Counsel to furnish to the Manager
its opinion and negative assurance statement, dated as of such date and addressed to the
Manager in form and substance acceptable to the Manager.
(c) Delivery
of Officer’s Certificate. The Company shall have furnished or caused to be furnished
to the Manager a certificate of the Company signed by the Chief Executive Officer or the
President and the principal financial or accounting officer of the Company, dated as of such
date, to the effect that the signers of such certificate have carefully examined the Registration
Statement, the Prospectus, any Prospectus Supplement and any documents incorporated by reference
therein and any supplements or amendments thereto and this Agreement and that:
i. the
representations and warranties of the Company in this Agreement are true and correct on and
as of such date with the same effect as if made on such date and the Company has complied
with all the agreements and satisfied all the conditions on its part to be performed or satisfied
at or prior to such date;
ii. no
stop order suspending the effectiveness of the Registration Statement or any notice objecting
to its use has been issued and no proceedings for that purpose have been instituted or, to
the Company’s knowledge, threatened; and
iii. since
the date of the most recent financial statements included in the Registration Statement,
the Prospectus and the Incorporated Documents, there has been no Material Adverse Effect
on the condition (financial or otherwise), earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Registration Statement
and the Prospectus.
(d) The
Company shall have furnished to the Manager a certificate of the Company signed by the Secretary
of the Company, dated as of such date, certifying on behalf of the Company and not in an
individual capacity: (a) that the Certificate of Incorporation of the Company filed as an
exhibit to the Registration Statement is true and complete, has not been modified and is
in full force and effect; (b) that the resolutions of the Board of Directors relating to
this Agreement and the issuance and sale of Shares as contemplated hereby have been duly
adopted, are in full force and effect and have not been modified; (c) as to the accuracy
and completeness of all correspondence between the Company or its counsel and the Commission;
and (d) as to the incumbency of the officers of the Company. The documents referred to in
such certificate shall be attached to such certificate.
(e) Delivery
of Accountants’ “Comfort” Letter. The Company shall have requested
and caused the Accountants to have furnished to the Manager letters (which may refer to letters
previously delivered to the Manager), dated as of such date, in form and substance satisfactory
to the Manager, confirming that they are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable rules and regulations adopted by the
Commission thereunder and that they have performed a review of any unaudited interim financial
information of the Company included or incorporated by reference in the Registration Statement
and the Prospectus and provide customary “comfort” as to such review in form
and substance satisfactory to the Manager.
(f) No
Material Adverse Event. Since the respective dates as of which information is disclosed
in the Registration Statement, the Prospectus and the Incorporated Documents, except as otherwise
stated therein, there shall not have been (i) any change or decrease in previously reported
results specified in the letter or letters referred to in paragraph (d) of this Section 6
or (ii) any change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Registration Statement, the Prospectus
and the Incorporated Documents (exclusive of any amendment or supplement thereto) the effect
of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of
the Manager, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Shares as contemplated by the Registration Statement
(exclusive of any amendment thereof), the Incorporated Documents and the Prospectus (exclusive
of any amendment or supplement thereto).
(g) Payment
of All Fees. The Company shall have paid the required Commission filing fees relating
to the Shares within the time period required by Rule 456(b)(1)(i) of the Act without regard
to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act
and, if applicable, shall have updated the “Calculation of Filing Fee” table
in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration
Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(h) No
FINRA Objections. FINRA shall not have raised any objection with respect to the fairness
and reasonableness of the terms and arrangements under this Agreement.
(i) Shares
Listed on Trading Market. The Shares shall have been listed and admitted and authorized
for trading on the Trading Market, and satisfactory evidence of such actions shall have been
provided to the Manager.Other Assurances. Prior to each Settlement Date and Time of
Delivery, as applicable, the Company shall have furnished to the Manager such further information,
certificates and documents as the Manager may reasonably request.
If
any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance
to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any
time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to
the Company in writing or by telephone and confirmed in writing by email.
The
documents required to be delivered by this Section 6 shall be delivered to the office of Haynes and Boone, LLP, counsel for the Manager,
at 30 Rockefeller Plaza, 22nd Floor, New York, New York 10112, email: rick.werner@haynesboone.com, on each such date as provided in this
Agreement.
7. Indemnification
and Contribution.
(a) Indemnification
by Company. The Company agrees to indemnify and hold harmless the Manager, the directors,
officers, employees and agents of the Manager and each person who controls the Manager within
the meaning of either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement for the registration of the Shares
as originally filed or in any amendment thereof, or in the Base Prospectus, any Prospectus
Supplement, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading or arise out of or are based upon any Proceeding, commenced or threatened
(whether or not the Manager is a target of or a party to such Proceeding) or result from
or relate to any breach of any of the representations, warranties, covenants or agreements
made by the Company in this Agreement, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by the Manager specifically for inclusion
therein. This agreement will be in addition to any liability that the Company may otherwise
have.
(b) Indemnification
by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to the Manager, but only with reference
to written information relating to the Manager furnished to the Company by the Manager specifically
for inclusion in the documents referred to in the foregoing indemnity; provided, however,
that in no case shall the Manager be responsible for any amount in excess of the Broker Fee
applicable to the Shares and paid hereunder. This indemnity agreement will be in addition
to any liability which the Manager may otherwise have.
(c) Indemnification
Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice
of the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 7, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results in the forfeiture
by the indemnifying party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party or parties except
as set forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election
to appoint counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate counsel if (i)
the use of counsel chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the expense of
the indemnifying party. An indemnifying party will not, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) Contribution.
In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company and the Manager agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending the same) (collectively “Losses”) to which the Company and
the Manager may be subject in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and by the Manager on the other from the offering
of the Shares; provided, however, that in no case shall the Manager be responsible
for any amount in excess of the Broker Fee applicable to the Shares and paid hereunder. If
the allocation provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Manager severally shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the Company on
the one hand and of the Manager on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by it, and benefits received by the Manager shall be
deemed to be equal to the Broker Fee applicable to the Shares and paid hereunder as determined
by this Agreement. Relative fault shall be determined by reference to, among other things,
whether any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the Company
on the one hand or the Manager on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such untrue statement
or omission. The Company and the Manager agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls the Manager within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of the Manager shall have the same rights
to contribution as the Manager, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who shall have signed
the Registration Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and conditions
of this paragraph (d).
8. Termination.
(a) The
Company shall have the right, by giving written notice as hereinafter specified, to terminate
the provisions of this Agreement relating to the solicitation of offers to purchase the Shares
in its sole discretion at any time upon ten (10) Business Days’ prior written notice.
Any such termination shall be without liability of any party to any other party except that
(i) with respect to any pending sale, through the Manager for the Company, the obligations
of the Company, including in respect of compensation of the Manager, shall remain in full
force and effect notwithstanding the termination and (ii) the provisions of Sections 5, 6,
7, 8, 9, 10, 12, the second sentence of 13, 14 and 15 of this Agreement shall remain in full
force and effect notwithstanding such termination.
(b) The
Manager shall have the right, by giving written notice as hereinafter specified, to terminate
the provisions of this Agreement relating to the solicitation of offers to purchase the Shares
in its sole discretion at any time. Any such termination shall be without liability of any
party to any other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12, the
second sentence of 13, 14 and 15 of this Agreement shall remain in full force and effect
notwithstanding such termination.
(c) This
Agreement shall remain in full force and effect until such date that this Agreement is terminated
pursuant to Sections 8(a) or (b) above or otherwise by mutual agreement of the parties, provided
that any such termination by mutual agreement shall in all cases be deemed to provide that
Sections 5, 6, 7, 8, 9, 10, 12, the second sentence of 13, 14 and 15 shall remain in full
force and effect.
(d) Any
termination of this Agreement shall be effective on the date specified in such notice of
termination, provided that such termination shall not be effective until the close of business
on the date of receipt of such notice by the Manager or the Company, as the case may be.
If such termination shall occur prior to the Settlement Date or Time of Delivery for any
sale of the Shares, such sale of the Shares shall settle in accordance with the provisions
of Section 2(b) of this Agreement.
(e) In
the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations
of the Manager pursuant to such Terms Agreement shall be subject to termination, in the absolute
discretion of the Manager, by prompt oral notice given to the Company prior to the Time of
Delivery relating to such Shares, if any, and confirmed promptly by electronic mail, if since
the time of execution of the Terms Agreement and prior to such delivery and payment, (i)
trading in the Common Stock shall have been suspended by the Commission or the Trading Market
or trading in securities generally on the Trading Market shall have been suspended or limited
or minimum prices shall have been established on such exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the United States
of a national emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Manager, impractical or inadvisable
to proceed with the offering or delivery of the Shares as contemplated by the Prospectus
(exclusive of any amendment or supplement thereto).
9. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the Manager set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of any investigation
made by the Manager or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 7, and will survive delivery of and payment for
the Shares.
10. Notices.
All communications hereunder will be in writing and effective only on receipt, and will be
mailed, delivered, or e-mailed to the addresses of the Company and the Manager, respectively,
set forth on the signature page hereto.
11. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors, employees, agents and controlling persons
referred to in Section 7, and no other person will have any right or obligation hereunder.
12. No
Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the
Shares pursuant to this Agreement is an arm’s-length commercial transaction between
the Company, on the one hand, and the Manager and any affiliate through which it may be acting,
on the other, (b) the Manager is acting solely as sales agent and/or principal in connection
with the purchase and sale of the Company’s securities and not as a fiduciary of the
Company and (c) the Company’s engagement of the Manager in connection with the offering
and the process leading up to the offering is as independent contractors and not in any other
capacity. Furthermore, the Company agrees that it is solely responsible for making its own
judgments in connection with the offering (irrespective of whether the Manager has advised
or is currently advising the Company on related or other matters). The Company agrees that
it will not claim that the Manager has rendered advisory services of any nature or respect,
or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction
or the process leading thereto.
13. Integration.
This Agreement and any Terms Agreement supersede all prior agreements and understandings
(whether written or oral) between the Company and the Manager with respect to the subject
matter hereof. Notwithstanding anything herein to the contrary, the letter agreement, dated
June 8, 2026, by and between the Company and the Manager shall continue to be effective and
the terms therein shall continue to survive and be enforceable by the Manager in accordance
with their respective terms.
14. Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended
except in a written instrument signed, in the case of an amendment, by the Company and the
Manager. No waiver of any default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any subsequent default or a waiver of any other provision, condition or requirement hereof,
nor shall any delay or omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right.
15. Applicable
Law. This Agreement and any Terms Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within
the State of New York. Each of the Company and the Manager: (i) agrees that any legal suit,
action or proceeding arising out of or relating to this Agreement shall be instituted exclusively
in New York Supreme Court, County of New York, or in the United States District Court for
the Southern District of New York, (ii) waives any objection which it may have or hereafter
to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the
exclusive jurisdiction of the New York Supreme Court, County of New York, and the United
States District Court for the Southern District of New York in any such suit, action or proceeding.
Each of the Company and the Manager further agrees to accept and acknowledge service of any
and all process which may be served in any such suit, action or proceeding in the New York
Supreme Court, County of New York, or in the United States District Court for the Southern
District of New York and agrees that service of process upon the Company mailed by certified
mail to the Company’s address shall be deemed in every respect effective service of
process upon the Company, in any such suit, action or proceeding, and service of process
upon the Manager mailed by certified mail to the Manager’s address shall be deemed
in every respect effective service process upon the Manager, in any such suit, action or
proceeding. If either party shall commence an action or proceeding to enforce any provision
of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed
by the other party for its reasonable attorney’s fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such action or proceeding.
16. Waiver
of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement, any Terms Agreement or the transactions contemplated hereby
or thereby.
17. Counterparts.
This Agreement and any Terms Agreement may be executed in one or more counterparts, each
one of which shall be an original, with the same effect as if the signatures thereto and
hereto were upon one and the same agreement. Counterparts may be delivered via electronic
mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform
Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable
law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered
shall be deemed to have been duly and validly delivered and be valid and effective for all
purposes.
18. Headings.
The section headings used in this Agreement and any Terms Agreement are for convenience only
and shall not affect the construction hereof.
****************************************
If
the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement among the Company and the Manager.
Very
truly yours,
INDAPTUS
THERAPEUTICS, INC.
By:
/s/
Junyi Dai
Name:
Junyi
Dai
Title:
Chief
Executive Officer
Address
for Notice:
3
Columbus Circle, 15th Floor
New
York, New York 10019
Attention:
Junyi Dai, Chief Executive Officer
The
foregoing Agreement is hereby confirmed and accepted as of the date first written above.
H.C.
WAINWRIGHT & CO., LLC
By:
/s/
Edward Silvera
Name:
Edward Silvera
Title:
Co-Chief
Executive Officer
Address
for Notice:
430
Park Avenue
New York, New York 10022
Attention: Chief Executive Officer
Annex
I
FORM
OF
TERMS
AGREEMENT
INDAPTUS
THERAPEUTICS, INC.
Dear
Sirs/Madams:
Indaptus
Therapeutics, Inc. (the “Company”) proposes, subject to the terms and conditions stated herein and in the Amended
and Restated At The Market Offering Agreement, dated _____, 2026 (the “At The Market Offering Agreement”), between
the Company and H.C. Wainwright & Co., LLC (“Manager”), to issue and sell to Manager the securities specified
in the Schedule I hereto (the “Purchased Shares”).
Each
of the provisions of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent of the
Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery, except that
each representation and warranty in Section 3 of the At The Market Offering Agreement which makes reference to the Prospectus (as therein
defined) shall be deemed to be a representation and warranty as of the date of the At The Market Offering Agreement in relation to the
Prospectus, and also a representation and warranty as of the date of this Terms Agreement and the Time of Delivery in relation to the
Prospectus as amended and supplemented to relate to the Purchased Shares.
An
amendment to the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the
case may be, relating to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed with the Securities
and Exchange Commission.
Subject
to the terms and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference,
the Company agrees to issue and sell to the Manager and the latter agrees to purchase from the Company the number of shares of the Purchased
Shares at the time and place and at the purchase price set forth in the Schedule I hereto.
If
the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement,
including those provisions of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement
between the Manager and the Company.
[Signature
page follows]
INDAPTUS
THERAPEUTICS, INC.
By:
Name:
Title:
ACCEPTED
as of the date first written above.
H.C.
WAINWRIGHT & CO., LLC
By:
Name:
Title:
EX-5.1
EX-5.1
Filename: ex5-1.htm · Sequence: 3
Exhibit
5.1
McCarter
& English, LLP
250
W 55th St
13th
Fl
New
York, NY 10019
www.mccarter.com
September
1, 2026
Indaptus
Therapeutics, Inc.
3
Columbus Circle 15th Floor
New
York, New York 10019
Re:
Indaptus
Therapeutics, Inc.
To
Whom It May Concern:
We
have acted as counsel to Indaptus Therapeutics, Inc., a Delaware corporation (the “Company”), in connection
with the Amended and Restated At the Market Offering Agreement dated August 28, 2026 (the “Sales Agreement”),
by and between the Company and H.C. Wainwright & Co., LLC (“Wainwright”), which amends and restates
in its entirety, and supersedes and replaces, the At The Market Offering Agreement, dated June 1, 2022, between the Company and Wainwright,
relating to the issuance and sale by or through Wainwright, from time to time, of shares (the “Shares”)
of the Company’s common stock, par value $0.01 per share, having an aggregate maximum offering price of up to $100,000,000, subject
to the limitations set forth in the Sales Agreement.
This
opinion letter is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of
1933, as amended (the “Securities Act”).
In
connection with this opinion letter, we have examined the Registration Statement (as defined below) and originals, or copies certified
or otherwise identified to our satisfaction, of the following:
(1)
the Company’s Amended and Restated Certificate of Incorporation, as amended and in effect as of the date hereof;
(2)
the Company’s Amended and Restated Bylaws, as amended and in effect as of the date hereof;
(3)
the executed Sales Agreement;
(4)
the Registration Statement on Form S-3 (File No. 333-289573) filed by the Company with the Securities and Exchange Commission (the “Commission”)
on August 13, 2025, which was declared effective by the Commission on August 20, 2025 (the “Registration Statement”)
pursuant to the Securities Act;
(5)
the prospectus supplement filed with the Commission on August 31, 2026 pursuant to Rule 424(b)(5) promulgated under the Securities
Act (the “Prospectus Supplement”), together with the base prospectus dated August 20, 2025 contained in the
Registration Statement; and
(6)
the resolutions or written consent of the Board of Directors of the Company, or a duly authorized committee thereof, approving the Sales
Agreement, the issuance and sale of the Shares, the filing of the Prospectus Supplement and the transactions contemplated thereby.
We
have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such
agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others,
and such other documents as we have deemed necessary or appropriate as a basis for the opinion stated below.
In
our examination, we have assumed the genuineness of all signatures, including endorsements, the legal capacity and competency of all
natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents
submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. In making
our examination of executed documents, we have assumed (i) that the parties thereto, other than the Company, had the power, corporate
or other, to enter into and perform all obligations thereunder and (ii) the due authorization by all requisite action, corporate or other,
and the execution and delivery by such parties of such documents, and the validity and binding effect thereof on such parties.
Based
upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth herein, it is our opinion that,
when the Shares have been duly issued and sold in accordance with the Sales Agreement, the Registration Statement and the Prospectus
Supplement, and delivered to and paid for in accordance therewith, the Shares will be validly issued, fully paid and nonassessable.
Our
opinion concerning the due authorization of the issuance of the Shares and the validity of the Shares when issued, fully paid and nonassessable,
is rendered under the General Corporation Law of the State of Delaware. We express no opinion as to the laws of any other jurisdiction
or as to any federal or state securities laws or regulations except as expressly set forth herein. This opinion letter is limited to
the specific legal matters expressly set forth herein and is limited to present statutes, regulations and administrative and judicial
interpretations as of the date hereof. We assume no obligation to revise or supplement this opinion in the event of future changes in
such laws or regulations.
We
hereby consent to the filing of this opinion with the Commission as an exhibit to the Company’s Current Report on Form 8-K being
filed on the date hereof and to the incorporation by reference of this opinion into the Registration Statement. We also hereby consent
to the reference to our firm under the caption “Legal Matters” in the Prospectus Supplement. In giving this consent, we do
not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules
and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof unless otherwise expressly
stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent
changes in applicable laws
Very
truly yours,
/s/
McCarter & English, LLP
McCarter
& English, LLP
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