Exhibit 1.1
AMENDED AND RESTATED PLACEMENT AGENCY
AGREEMENT
This Amended and
Restated Placement Agency Agreement (this “Agreement”)
is made and entered into as of March 30, 2004 (the
“Effective Date”), by and between GenVec, Inc., a
Delaware corporation (the “Company”), and Stonegate
Securities, Inc., a Texas corporation
(“Stonegate”).
WHEREAS, the
Company and Stonegate have previously entered into that certain
Placement Agency Agreement as of February 5, 2004 whereby the
Company appointed Stonegate as its non-exclusive placement agent,
and Stonegate has agreed to act in such capacity, in each case
subject to the terms and conditions set forth in such
agreement;
WHEREAS, pursuant
to the terms hereof, the parties desire to effect certain
amendments to such agreement and to amended and restate such
agreement pursuant to the terms hereof.
NOW, THEREFORE, in
consideration of the premises and the mutual covenants herein
contained, the Company and Stonegate (each a “Party”
and collectively, the “Parties”) hereby agree as
follows:
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1.
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RETENTION OF STONEGATE; SCOPE OF
SERVICES.
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(a)
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Subject to the terms and conditions
set forth herein, the Company hereby retains Stonegate to act as
the non-exclusive placement agent to the Company during the
Contract Period (as defined in Section 2 below), and Stonegate
hereby agrees to be so retained.
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(b)
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As
the non-exclusive placement agent to the Company, Stonegate will
have the non-exclusive right during the Contract Period to identify
for the Company prospective purchasers (collectively, the
“Purchasers” and each individually, a
“Purchaser”) in a placement (the
“Placement”) of equity securities to be issued by the
Company, the type and dollar amount being as mutually agreed to by
the Parties (the “Securities”).
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(c)
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Terms of the Placement shall be as
set forth in subscription documents, including any stock purchase
or subscription agreement, escrow agreement, registration rights
agreement, warrant agreement and/or other documents to be executed
and delivered in connection with the Placement (collectively, the
“Subscription Documents).
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(d)
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Stonegate will have no obligation to
purchase any of the Securities offered in the Placement. During the
Contract Period, Stonegate shall have the non-exclusive right to
arrange for sales of Securities in the Placement, including without
limitation the non-exclusive right to identify potential buyers for
the Securities. Stonegate is not authorized to act on behalf of the
Company in accepting any terms or conditions associated with the
Placement of Securities. The Company
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shall not be obligated to issue any
Securities or accept any offer therefore. All sales of Securities
in the Placement and the terms of such Placement shall be subject
to the approval of the Company, which approval may be withheld in
the Company’s sole discretion.
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(e)
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Stonegate and the Company will
arrange for the deposit of all funds received from the Purchasers
for the purchase of the Securities into an escrow account to be
established by the Placement Agent and the Company (the
“Escrow”) with a recognized bank or trust company
acting as the escrow agent (“Escrow Agent”). The terms
of such Escrow shall be pursuant to an Escrow Agreement,
substantially in the form attached hereto as
Exhibit A.
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2.
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CONTRACT PERIOD AND
TERMINATION.
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(a)
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Stonegate shall act as the
Company’s non-exclusive placement agent under this Agreement
for a period commencing on the Effective Date, and continuing until
terminated by either Party upon 30 days notice to the other
Party (the “Contract Period”).
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(b)
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Upon termination, neither party will
have any further obligation under this Agreement, except as
provided in Sections 5, 6, 7, 8, 9 and 10 hereof.
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3.
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REPRESENTATIONS AND WARRANTIES OF
THE COMPANY.
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The
representations and warranties of the Company made to the
Purchasers as set forth in the Subscription Documents are hereby
incorporated by reference as of the date of consummation of the
sale of the Securities (the “Closing”) and all such
representations and warranties are hereby deemed made by the
Company directly to Stonegate as though set forth in full herein.
Without limiting the foregoing, the Company represents and warrants
that it has filed, in accordance with the provisions of Securities
Act of 1933, as amended and the rules and regulations promulgated
thereunder (the “Act”), with the Securities and
Exchange Commission (the “SEC”) a registration
statement (the “Registration Statement”) on Form S-3
(File No. 333-101963), including a prospectus, which relates
to the Securities, that this Registration Statement has been
declared effective by the SEC and no stop-order suspending its
effectiveness has been issued by the SEC.
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4.
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COVENANTS OF THE
COMPANY.
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The Company covenants and agrees
as follows:
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(a)
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Neither the Company nor any
affiliate of the Company (as defined in Rule 501(b) of
Regulation D) will sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as defined
in the Securities Act) of the Company which will be integrated with
the sale of the Securities in a manner which would require the
registration under the Securities Act of the Securities unless the
Securities are the subject of an effective registration statement
filed under the Securities Act. If the Company, in its sole
discretion, determines to sell
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Securities in a Placement, the
Company shall prepare a prospectus supplement to the Registration
Statement as required by the rules of the SEC in order to effect
the issuance of the Securities and will not file such supplement or
amendment without the prior written consent of Stonegate, which
consent shall not be unreasonably withheld. The Company will timely
make all filings required in accordance with the Act relating to
the offering of the Securities in such Placement. The Company
understands and agrees that Stonegate shall reasonably determine
whether the conditions to the subscribers obligations under any
Subscription Documents in connection with any such Placement have
been satisfied.
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(b)
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Any
and all filings and documents required to be filed in connection
with or as a result of the Placement pursuant to federal and state
securities laws are the responsibility of the Company and will be
filed by the Company.
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(c)
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Any
press release to be issued by the Company announcing or referring
to the Placement shall be subject to the prior review of Stonegate,
and each such press release shall, at the request of Stonegate,
identify Stonegate as the placement agent. Stonegate shall be
permitted to publish a tombstone or similar advertisement upon
completion of the Placement identifying itself as the
Company’s placement agent with respect thereto with the prior
consent of the Company, which consent shall not be unreasonably
withheld. This Agreement shall not be filed publicly by the Company
without the prior written consent of Stonegate, unless required by
applicable law or regulation.
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5.
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FURNISHING OF COMPANY INFORMATION;
CONFIDENTIALITY.
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(a)
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In
connection with Stonegate’s activities hereunder on the
Company’s behalf, the Company shall furnish Stonegate with
all reasonable information concerning the Company and its
operations that Stonegate deems necessary or appropriate (the
“Company Information”) and shall provide Stonegate with
reasonable access to the Company’s books, records, officers,
directors, employees, accountants and counsel. The Company
acknowledges and agrees that, in rendering its services hereunder,
Stonegate will be using and relying upon the Company Information
without independent verification thereof and may, in its sole
discretion, use additional information contained in public reports
of the Company or other information furnished or approved by the
Company for Stonegate’s use in the Placement.
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(b)
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Stonegate agrees that the Company
Information will be used solely for the purpose of performing its
services hereunder. Subject to the limitations set forth in
subsection (c) below, Stonegate will keep the Company
Information provided hereunder confidential and will not disclose
such Company Information or any portion thereof, except (i) to
a third party contacted by Stonegate on behalf of, and with the
prior approval of, the Company pursuant hereto who has agreed to be
bound by a confidentiality agreement satisfactory in form and
substance to the
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Company, or (ii) to any other
person for which the Company’s consent to disclose such
Company Information has been obtained.
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(c)
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Stonegate’s confidentiality
obligations under this Agreement shall not apply to any portion of
the Company Information which (i) at the time of disclosure to
Stonegate or thereafter is generally available to and known by the
public (other than as a result of a disclosure directly or
indirectly by Stonegate in violation of this Agreement);
(ii) was available to Stonegate on a non-confidential basis
from a source other than the Company, provided that such source is
not and was not bound by a confidentiality agreement with the
Company; (iii) has been independently acquired or developed by
Stonegate without violating any of its obligations under this
Agreement; or (iv) the disclosure of which is legally
compelled (whether by deposition, interrogatory, request for
documents, subpoena, civil or administrative investigative demand
or other similar process). In the event that Stonegate becomes
legally compelled to disclose any of the Company Inform
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