|
|
Exhibit 10.2
|
|
|
CONFIDENTIAL
|
Placement Agent
Agreement
Oppenheimer & Co.
Inc.
125 Broad Street
New York, NY 10004
Dear Sirs:
The undersigned, NovaDel Pharma
Inc., a Delaware corporation (the “Company”), hereby
agrees (the “Agreement”) with Oppenheimer & Co.
Inc. (“Oppenheimer” or “Placement Agent”)
as follows:
1. Best Efforts Offering .
The Company hereby engages Oppenheimer to act as its lead-placement
agent during the term of the offering as outlined herein to sell
shares of Common Stock and Warrants (the “Securities”),
on a “best efforts” basis (the “Offering”
or “PIPE”). Oppenheimer intends to market the Offering
on the terms as set forth in the Term Sheet attached hereto as
Exhibit A. The Securities shall be offered without registration
under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the “Act”) pursuant
to the exemption from registration created by Regulation D
thereof.
2. Offering Materials . The
Company shall, as soon as practicable, prepare a public offering
package (the "Offering Materials"), if necessary, which shall meet
the anti-fraud and other requirements of the federal and state
securities laws, be in form and substance reasonably satisfactory
to the parties and will include the Company's public documents and
any other appropriate updated information.
3. Compensation .
(a) Oppenheimer will be paid at
closing of the Offering a cash commission of 7.0% of the aggregate
amount of the proceeds received at closing for the Securities sold
to investors. In addition, Oppenheimer shall receive five year
non-callable warrants to purchase such number of shares of the
Company’s Common Stock equal to 5.0% of the number of Common
Stock sold hereunder (excluding any warrants issued in the
Offering) (if convertible securities are sold instead of common
stock, the calculation will include the common stock underlying the
convertible securities on an as converted basis), exercisable at
120% of the Market Price (as defined in the Term Sheet) at closing
of the Offering, and on the same form as used for the Offering, if
any. The Company and Oppenheimer agree that the Company, during the
term of the Offering, may instruct Oppenheimer to give up to 15% of
Oppenheimer’s cash and equity compensation, as described in
this Section 3, to an investment bank of the Company’s
choice.
(b) Notwithstanding anything to the
contrary herein, if, during the term of the Offering hereunder, an
institutional investor is informed of the Offering by Oppenheimer
and if (i) the Offering hereunder does not close and such investor
purchases any private securities of the Company within 9 months
after the termination of the Offering or (ii) the Offering
hereunder closes and such investor makes an investment in the
Offering and subsequently purchases within 9 months after the
closing of the Offering any private securities of the Company,
Oppenheimer shall be entitled to compensation as set forth in the
prior paragraph. Upon termination of this Agreement or termination
of the Offering, the Company and Oppenheimer shall agree on a list
of such investors subject to this provision. Notwithstanding the
foregoing, upon closing of the Offering, this Section 3(b) shall be
deemed null and void.
4. Expenses . Whether or not
the Offering is successfully completed, it shall be the
Company’s obligation to bear all of its expenses in
connection with the proposed Offering. In addition, the Company
shall reimburse Oppenheimer for its reasonable actual out of pocket
expenses, including (i) up to $35,000 for reasonable legal fees, of
which $25,000 is payable to Oppenheimer upon execution of this
Agreement; and (ii) up to $15,000 in other expenses with
Oppenheimer, not to incur any expense in an amount greater than
$5,000 in the aggregate without the prior written consent of the
Company.
5. Further Representations and
Agreements of the Company . The Company further represents and
agrees that (i) it is authorized to enter into this Agreement and
to carry out the Offering contemplated hereunder and this Agreement
constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, (ii) the Company shall
not issue any additional shares (other than shares pursuant to the
exercise of warrants), options (other than pursuant to its existing
stock option plan or successor plan covering no more securities
than the existing plan) or warrants during the term of the
Offering, (iii) the Company will, during the course of the
Offering, provide Oppenheimer with all information and copies of
documentation with respect to the Company's business, financial
condition and other matters as Oppenheimer may reasonably deem
relevant, including copies of all documents sent to stockholders or
filed with any federal authorities, and will make reasonably
available to Oppenheimer, its auditors, counsel, and officers and
directors to discuss with Oppenheimer any aspect of the Company or
its business which Oppenheimer may reasonably deem relevant, (iv)
all executive officers, directors and affiliates of the Company
shall enter into a lock up agreement with Oppenheimer, in a form
reasonably acceptable to all parties, in which they will agree not
to sell any shares held by them under Rule 144 or otherwise for a
period from the date hereof until the later of (y) 90 days from the
closing hereunder or (z) 30 days following the effective date of a
Registration Statement (as defined below) in which the Securities
are included, (v) the Company agrees that for a period of 90 days
after the effectiveness of the Registration Statement, it shall not
issue or sell any equity linked securities of the Company, unless
the issuance or sale is related to a strategic transaction or an
employee, consultant, supplier, lender, lessor or option grant or
issuance, (vi) the Company shall use its best efforts to file with
the SEC a Form S-3 registration statement (the “Registration
Statement”) for the Securities within 30 days of the Closing
Date (as defined in Exhibit A) and to have such Registration
Statement declared effective within 90 days of the Closing Date; if
the Company does not have the Registration Statement filed within
30 days of the Closing Date or declared effective within 90 days of
the Closing Date, the Company shall pay the investors a cash
penalty of 1.0% of the value of their investment per month until
the Registration Statement is initially declared effective by the
SEC, such penalty not to exceed an amount equal to 10% of the value
of the Offering in the aggregate, and (vii) the Company will
deliver at the closing of the Offering (a) a certificate of each of
the Company's CEO and CFO to the effect that the Offering Materials
meets the requirements hereof and does not contain any untrue
statement of material fact or fail to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and all necessary corporate approvals have
been obtained to enable the Company to deliver the Securities in
accordance with the terms of the Offering and (b) an opinion of
counsel for the Company in customary form.
6. Registered Direct
Transaction . –If the Company decides to go forward with
a Registered Direct offering instead of a PIPE offering then
Oppenheimer shall enter into a placement agent agreement (the
"Placement Agent Agreement") with the Company at that time. The
Placement Agent Agreement shall contain such terms and conditions
as are customary in such agreements including representations and
warranties of the Company and indemnification of Oppenheimer for
certain liabilities. The Placement Agent Agreement shall be in form
and substance satisfactory to counsel for Oppenheimer and the
Company. In addition to the documents mentioned in Section 5 above,
Oppenheimer will require (a) an opinion of counsel for the Company
in customary form for Registered Direct offerings, and (b) a
comfort letter from the Company’s auditors. Also the
Registration Rights agreed between the Company and Oppenheimer in
Section 5 above, will be null and void.
7. Indemnification. –
See Exhibit B attached hereto and incorporated herein by
reference
8. No-Shop Provision. Until
the Offering contemplated hereby is closed or terminated, the
Company agrees that it will not negotiate with any other person
relating to a possible public or private offering or pla
