Exhibit 1.1
COMBIMATRIX
CORPORATION
Common Stock and
Warrants
PLACEMENT AGENT
AGREEMENT
April 28, 2009
Emerging Growth Equities,
Ltd.
1150 First Avenue
Suite 600
King of Prussia, Pennsylvania
19406
Ladies and Gentlemen:
CombiMatrix Corporation, a Delaware
corporation (the “Company”), proposes to issue and sell
to certain investors (collectively, the “Investors”) up
to an aggregate of 1,100,000 shares (the “Shares”) of
the Company’s common stock, $0.001 par value per share (the
“Common Stock”) and warrants (the
“Warrants” and, together with the Shares, the
“Securities”) to purchase up to an aggregate of
1,100,000 shares of Common Stock (the “Warrant Shares”)
. The Company desires to engage Emerging Growth Equities,
Ltd. as its placement agent (the “Placement Agent”) in
connection with the issuance and sale of the Securities to the
Investors.
The Company confirms its agreement
with the Placement Agent as follows:
1.
Agreement to Act as Placement
Agent .
(a)
On the basis of the representations,
warranties and agreements of the Company herein contained and
subject to all of the terms and conditions of this Agreement, the
Company engages the Placement Agent to act as its exclusive
placement agent in connection with the issuance and sale of the
Securities, and the Placement Agent hereby agrees, as an agent of
the Company, to use reasonable efforts to solicit offers to
purchase the Securities upon the terms and conditions set forth in
the Prospectus (as defined below).
(b)
As compensation for the services
rendered hereunder, upon the sale of any Securities by the Company
under this Agreement, whether at a single closing or from time to
time, the Company shall pay to the Placement Agent, by wire
transfer of immediately available funds payable to the order of the
Placement Agent, to an account or accounts designated by the
Placement Agent, an amount equal to 7.0% of the gross proceeds
received by the Company from each such sale of Securities (the
“Fee”). The Placement Agent may, in its discretion,
retain other brokers or dealers to act as subagents on the
Placement Agent’s behalf in connection with the offering of
the Securities, payment to whom shall be solely the responsibility
of the Placement Agent.
(c)
This Agreement shall not give rise
to a commitment by the Placement
Agent or any of its affiliates to
underwrite or purchase any of the Securities or otherwise provide
any financing, and the Placement Agent shall have no authority to
bind the Company in respect of the sale of any Securities. The
Company shall have the sole right to accept offers to purchase the
Securities and may reject any such offer in whole or in part. The
sale of the Securities shall be made pursuant to purchase
agreements (the “Purchase Agreements”).
2.
Delivery and Payment
. Delivery and payment of the
Securities sold to Investors shall be as provided in the Purchase
Agreements. Each date of delivery and payment of any Securities
shall be a “Closing Date.”
3.
Representations and Warranties of
the Company. As of each
Closing Date and as to the Securities sold on such Closing Date,
the Company represents, warrants and covenants to the Placement
Agent that:
(a)
The Company meets the requirements
for the use of Form S-3 for a sale of the Securities by the
Company, the registration statement (Registration
No. 333-153434) on Form S-3 relating to the Securities
being offered by the Company, including a base prospectus relating
to the Securities being offered by the Company (the “Base
Prospectus”) and such amendments thereof as may have been
required to the date of this Agreement, has been prepared by the
Company under the provisions of the Securities Act of 1933, as
amended (the “Act”), and the rules and regulations
(collectively referred to as the “Rules and
Regulations”) of the Securities and Exchange Commission (the
“Commission”) thereunder, and has been filed with and
has been declared effective by the Commission, and the offering of
the Securities by the Company complies with Rule 415 under the
Act. A final prospectus supplement to the Base Prospectus relating
to the Securities being offered by the Company and the offering
thereof will be filed promptly by the Company with the Commission
in accordance with Rule 424(b) of the Rules and
Regulations. Such registration statement at any given time,
including the amendments thereto to such time and the documents and
information incorporated by reference therein, the exhibits and any
schedules thereto at such time, the documents otherwise deemed to
be a part thereof or included therein by the Rules and
Regulations, and any registration statement relating to the
offering of Securities by the Company contemplated by this
Agreement and filed pursuant to Rule 462(b) of the
Rules and Regulations, is herein called the
“Registration Statement.” The term “Prospectus
Supplement” means the final prospectus supplement to the Base
Prospectus relating to the Securities being offered by the Company
and the offering thereof as first filed with the Commission
pursuant to Rule 424(b) of the Rules and
Regulations. The term “Prospectus” means the Base
Prospectus together with the Prospectus Supplement, except that if
such Base Prospectus is amended or supplemented on or prior to the
date on which the Prospectus Supplement was first filed pursuant to
Rule 424(b) of the Rules and Regulations, the term
“Prospectus” shall mean the Base Prospectus as so
amended or supplemented and as supplemented by the Prospectus
Supplement. Any reference herein to the Registration Statement, the
Base Prospectus, the Prospectus Supplement or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein, and any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the filing of
any document under the Securities Exchange Act of 1934, as amended
(the
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“Exchange Act”), after
the time the Registration Statement initially became effective (the
“Effective Date”), the date of any preliminary
prospectus or the date of the Prospectus, as the case may be, and
deemed to be incorporated therein by reference. The term
“Issuer Free Writing Prospectus” means an “issuer
free writing prospectus” as defined in Rule 433 of the
Rules and Regulations.
(b)
No order preventing or suspending
the use of the Base Prospectus, the Prospectus Supplement, the
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and no stop order suspending the effectiveness of
the Registration Statement (including any related registration
statement filed pursuant to Rule 462(b) under the Act) or
any post-effective amendment thereto has been issued, and no
proceeding for that purpose has been initiated or threatened by the
Commission. On the Effective Date, on the date (if any) the Base
Prospectus, the Prospectus Supplement, or the Prospectus are first
filed with the Commission pursuant to Rule 424(b), at all
times during the period through and including any Closing Date and
when any post-effective amendment to the Registration Statement
becomes effective or any amendment or supplement to the Prospectus
is filed with the Commission, the Registration Statement and the
Prospectus (as amended or as supplemented if the Company shall have
filed with the Commission any amendment or supplement thereto),
including the financial statements included or incorporated by
reference in the Prospectus, did and will comply in all material
respects with all applicable provisions of the Act, the Exchange
Act, the rules and regulations under the Exchange Act (the
“Exchange Act Rules and Regulations”), and the
Rules and Regulations did and will contain all statements
required to be stated therein in accordance with the Act, the
Exchange Act, the Exchange Act Rules and Regulations, and the
Rules and Regulations. On the Effective Date and when any
post-effective amendment to the Registration Statement becomes
effective, no part of the Registration Statement, the Base
Prospectus or any such amendment or supplement thereto did or will
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein not misleading. At the Effective
Date, the date the Base Prospectus or any amendment or supplement
to the Base Prospectus, including the Prospectus Supplement, is
filed with the Commission, the date of first use of the Prospectus
Supplement, and any Closing Date, the Prospectus did not 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
the light of the circumstances under which they were made, not
misleading. The foregoing representations and warranties in this
Section 3(b) do not apply to any statements or omissions
made in reliance on and in conformity with information relating to
the Placement Agent furnished in writing to the Company by the
Placement Agent specifically for inclusion in the Registration
Statement, the Base Prospectus, the Prospectus Supplement or
Prospectus or any amendment or supplement thereto. The
Company acknowledges that the statement set forth in the last
sentence of the second paragraph under the heading “Plan of
Distribution” in the Prospectus Supplement constitute the
only information relating to the Placement Agent furnished in
writing to the Company by the Placement Agent specifically for
inclusion in the Registration Statement, the Base Prospectus, the
Prospectus Supplement, or the Prospectus or any amendment or
supplement thereto.
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(c)
The documents that are incorporated
by reference in the Base Prospectus, the Prospectus Supplement and
the Prospectus or from which information is so incorporated by
reference, when they became or become effective or were or are
filed with the Commission, as the case may be, complied or will
comply in all material respects with the requirements of the Act or
the Exchange Act, as applicable, and the Rules and Regulations
or the Exchange Act Rules and Regulations, as applicable; and
any documents so filed and incorporated by reference subsequent to
the Effective Date shall, when they are filed with the Commission,
comply in all material respects with the requirements of the Act or
the Exchange Act, as applicable, and the Rules and Regulations
or the Exchange Act Rules and Regulations, as
applicable.
(d)
No Issuer Free Writing Prospectus
includes or shall include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated by reference therein that has not been
superseded or modified or includes or shall include an 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 then prevailing, not misleading. Without the
prior written consent of the Placement Agent, the Company has not
made and will not make any offer relating to the Securities that
would constitute a “free writing prospectus” as defined
in Rule 405 of the Rules and Regulations.
(e)
The financial statements and
schedule included or incorporated by reference in the Registration
Statement or the Prospectus present fairly in all material respects
the financial condition of the Company and its consolidated
subsidiaries as of the respective dates thereof and the results of
operations and cash flows of the Company and its consolidated
subsidiaries for the respective periods covered thereby, all in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the entire period involved, except as
otherwise disclosed in the Prospectus. No other financial
statements or schedules of the Company are required by the Act, the
Exchange Act, the Exchange Act Rules and Regulations or the
Rules and Regulations to be included in the Registration
Statement or the Prospectus. Peterson Sullivan LLP (the
“Accountants”), who have reported on such financial
statements and schedule, are independent accountants with respect
to the Company as required by the Act and the Rules and
Regulations and rules of the Public Company Accounting
Oversight Board (“PCAOB”). The summary and selected
consolidated financial and statistical data included or
incorporated by reference in the Registration Statement present
fairly the information shown therein and have been compiled on a
basis consistent with the audited financial statements presented in
the Registration Statement.
(f)
Subsequent to the respective dates
as of which information is given in the Registration Statement and
the Prospectus and prior to or on any Closing Date, except as set
forth in or contemplated by the Registration Statement and the
Prospectus, (i) there has not been and will not have been any
material change in the outstanding Common Stock of the Company
(other than in connection with (A) the exercise of options to
purchase the Company’s Common Stock granted pursuant to the
Company’s stock option plans from the shares reserved
therefor and (B) the exercise or conversion of outstanding
warrants or debt (including interest), in each case as described or
deemed included in or incorporated by reference into the
Registration Statement), or any material and adverse effect on the
Company and its subsidiaries, taken as a whole, or their respective
businesses, properties, business prospects, conditions (financial
or
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other) or results of operations,
taken as a whole (such effect is referred to herein as a
“Material Adverse Effect”) arising for any reason
whatsoever, (ii) neither the Company nor any of its
Subsidiaries has incurred nor will any of them incur, except in the
ordinary course of business as described in the Prospectus, any
material liabilities or obligations, direct or contingent, nor has
the Company or any of its Subsidiaries entered into nor will it
enter into, except in the ordinary course of business as described
in the Prospectus, any material transactions other than pursuant to
this Agreement and the transactions referred to herein and
(iii) the Company has not and will not have paid or declared
any dividends or other distributions of any kind on any class of
its capital stock.
(g)
No consent, approval, authorization
or order of, or any filing or declaration with, any court or
governmental agency or body is required for the consummation by the
Company of the transactions on its part contemplated herein, except
such as have been obtained under the Act or the Rules and
Regulations and such as may be required under state securities or
Blue Sky laws or the by-laws and rules of the Financial
Industry Regulatory Authority (“FINRA”) or any
applicable stock exchange in connection with the offering of the
Securities.
(h)
The Company has full corporate power
and authority to enter into this Agreement and each Purchase
Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable against the Company in
accordance with the terms hereof. Each Purchase Agreement has been
duly authorized and, as of the applicable Closing Date, will have
been executed and delivered by the Company and will constitute a
valid and binding agreement of the Company, enforceable against the
Company in accordance with the terms thereof. The performance of
this Agreement and the Purchase Agreements and the consummation of
the transactions contemplated hereby and thereby will not result in
the creation or imposition of any material lien, charge or
encumbrance upon any of the assets of the Company pursuant to the
terms or provisions of, or result in a breach or violation of any
of the terms or provisions of, or conflict with or constitute a
default under, the articles of incorporation, by-laws or other
organizational documents of the Company or any of its subsidiaries,
any indenture, mortgage, deed of trust, voting trust agreement,
loan agreement, bond, debenture, note agreement or other evidence
of indebtedness, lease, contract or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by
which the Company, any of its subsidiaries or any of its or their
properties is bound or affected, or violate or conflict with any
judgment, ruling, decree, order, statute, rule or regulation
of any court or other governmental agency or body applicable to the
business or properties of the Company or any of its
subsidiaries.
(i)
The Company has not dist
