CONFIDENTIAL Dr. Robert Kirkman President & CEO Oncothyreon Inc. 2601 Fourth Avenue Suite 500 Seattle, WA 98121 Dear Dr. Kirkman:
Exhibit 99.1
August 4, 2009
CONFIDENTIAL
Dear ▇▇. ▇▇▇▇▇▇▇:
This letter (the “Agreement”) constitutes the agreement between ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC
(“▇▇▇▇▇▇” or the “Placement Agent”) and Oncothyreon Inc. (the “Company”),
that ▇▇▇▇▇▇ shall serve as the exclusive placement agent for the Company, on a “reasonable best
efforts” basis, in connection with the proposed placement (the “Placement”) of shares (the
“Shares”) of the Company’s common stock, par value $.0001 per share (the “Common
Stock”) and warrants (the “Warrants,” and together with the Shares, the
“Units”) to purchase shares of Common Stock. The shares of Common Stock of the Company to
be issued upon exercise of the Warrants are herein referred to as the “Warrant Shares.” The terms
of such Placement and the Units shall be mutually agreed upon by the Company and the purchasers
(each, a “Purchaser” and collectively, the “Purchasers”) and nothing herein
constitutes that ▇▇▇▇▇▇ would have the power or authority to bind the Company or any Purchaser or
an obligation for the Company to issue any securities or complete the Placement. The date of the
closing of the Placement shall be referred to herein as the “Closing Date.” The Company
expressly acknowledges and agrees that ▇▇▇▇▇▇’▇ obligations hereunder are on a reasonable best
efforts basis only and that the execution of this Agreement does not constitute a commitment by
▇▇▇▇▇▇ to purchase the Shares, Warrants or Units and does not ensure the successful placement
thereof or any portion thereof or the success of ▇▇▇▇▇▇ with respect to securing any other
financing on behalf of the Company.
SECTION 1. COMPENSATION AND OTHER FEES.
(A) As compensation for the services provided by ▇▇▇▇▇▇ hereunder, the Company agrees to pay
to ▇▇▇▇▇▇ ▇ ▇▇▇▇ fee payable immediately upon the closing of the Placement and equal to 5% of the
aggregate gross proceeds raised in the Placement. Additionally, a cash fee payable within 48 hours
of (but only in the event of) the receipt by the Company of any proceeds from the exercise of the
warrants sold in the Placement that are solicited by the Placement Agent and otherwise in
compliance with Financial Industry Regulatory Authority (“FINRA”) Rule 5110 equal to 5% of
the aggregate cash exercise price received by the Company upon such exercise, if any (the
“Warrant Solicitation Fee”).
(B) The Company also agrees to reimburse ▇▇▇▇▇▇’▇ reasonable expenses (with supporting
invoices/receipts) up to a maximum of 1% of the aggregate gross proceeds raised in the placement,
but in no event more than $50,000. Such reimbursement shall be payable on the day of the closing of
the Placement.
(C) If at anytime during the six-month period following the earlier of the expiration and
termination of its engagement (the “Tail Period”), the Company consummates any public or
private offering or other financing or capital-raising transaction of any kind (“Tail
Financing”) and investors to
whom ▇▇▇▇▇▇ had introduced, directly or indirectly, to the Company during the Tail Period,
subject to any restrictions imposed by FINRA, ▇▇▇▇▇▇ shall be entitled to fees, calculated as
provided in Section 1(A), with respect to securities sold by the Company to such investors.
SECTION 2. REGISTRATION STATEMENT.
(A) The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “Securities Act”), a registration statement
(File No. 333-149837) including a prospectus, relating to the Units. Such registration statement,
as amended at the time of its effectiveness, including the information, if any, deemed pursuant to
Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the
time of its effectiveness (“Rule 430 Information”), is referred to herein as the
“Registration Statement”; the term “Basic Prospectus” means the prospectus dated as of
August 12, 2008 in the form first used (or made available upon request of purchasers pursuant to
Rule 173 under the Securities Act) in connection with confirmation of sales of the Units; the term
“Prospectus” means the Basic Prospectus, as supplemented by the prospectus supplement specifically
relating to the Units in the form first used (or made available upon request of purchasers pursuant
to Rule 173 under the Securities Act) in connection with confirmation of sales of the Units. If
the Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the
Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the
term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement. Any
reference in this Agreement to the Registration Statement or the Prospectus shall be deemed to
refer to and include documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, and any reference to “amend,” “amendment” or “supplement” with respect to
the Registration Statement or the Prospectus shall be deemed to refer to and include any documents
filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Exchange Act”) that are deemed
to be incorporated therein. Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Registration Statement and the Prospectus.
(B) At or prior to the time when sales of the Units were first made, which, for the purposes
of this Agreement shall mean 3:10 pm ET on the date hereof (the “Time of Sale”), the
Company had prepared the following information: the Basic Prospectus and each “free-writing
prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A
hereto (collectively with the form of Subscription Agreement, form of Warrant, Section 3 hereof,
the pricing information set forth on Annex A and the Current Report on Form 8-K, filed by
the Company with the Commission on the date hereof, the “Time of Sale Information”).
(C) The Company is eligible to use free writing prospectuses in connection with the Placement
pursuant to Rules 164 and 433 under the Securities Act. Any free writing prospectus that the
Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be,
filed with the Commission in accordance with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. The Company will not, without the
prior consent of the Placement Agent, prepare, use or refer to, any free writing prospectus.
(D) The Company has made available to the Placement Agent complete conformed copies of the
Registration Statement and of each consent and certificate of experts, as applicable, filed as a
part thereof, and conformed copies of the Registration Statement (without exhibits), the Basic
Prospectus, the Time of Sale Prospectus, if any, and the Prospectus, as amended or supplemented, in
such quantities and at such places as the Placement Agent reasonably requests. Neither the Company
nor any of its directors
and officers has distributed and none of them will distribute, prior to
the Closing Date, any offering material in connection with the offering and sale of the Shares
other than the Basic Prospectus, the Time of Sale
Information, the Prospectus, the Registration Statement, copies of the documents incorporated
by reference therein, the Issuer Free Writing Prospectus and any other materials permitted by the
Securities Act.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
the Placement Agent that:
A. Time of Sale Information. The Time of Sale Information, at the Time of Sale did not
contain any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information relating to the
Placement Agent furnished to the Company in writing by the Placement Agent expressly for use in
such Time of Sale Information. No order preventing or suspending the use of any of the Time of
Sale Information has been issued by the Commission.
B. Issuer Free Writing Prospectus. The Company (including its agents and representatives,
other than the Placement Agent in its capacity as such) has not made, used, prepared, authorized,
approved or referred to and will not prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer
to sell or solicitation of an offer to buy the Units (each such communication by the Company or its
agents and representatives (other than a communication referred to in clause (i) below) an
“Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii)
the documents listed on Annex A hereto and other written communications approved in writing in
advance by the Placement Agent. Each such Issuer Free Writing Prospectus, as of its issue date and
at all subsequent times through the completion of the offer and sale of the Units (or until any
earlier date that the Company notifies the Placement Agent) did not, does not and will not include
any information that conflicted, conflicts or will conflict with the information contained in the
Registration Statement, the Time of Sale Information or the Prospectus; provided that the Company
makes no representation and warranty with respect to any statements or omissions made in each such
Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to the
Placement Agent furnished to the Company in writing by the Placement Agent expressly for use in any
Issuer Free Writing Prospectus.
C. Registration Statement and Prospectus. The Registration Statement has been declared
effective by the Commission. The Company and the offering of the Units contemplated by this
Agreement meet the requirements for use of Form S-3 under the Securities Act, and the Company has
filed with the Commission, the Registration Statement on such form, including the Basic Prospectus,
for registration under the Securities Act of the offering and sale of the Units. No order
suspending the effectiveness of the Registration Statement has been issued by the Commission and no
proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or
related to the offering has, to the knowledge of the Company, been initiated or threatened by the
Commission; as of the applicable effective date of the Registration Statement and any amendment
thereto, the Registration Statement complied and will comply in all material respects with the
Securities Act, and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement
thereto and as of the Closing Date, the Prospectus will not contain any 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, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information relating to the
Placement Agent furnished to the Company in writing by the Placement Agent expressly for use in the
Registration Statement and the Prospectus and any amendment or
supplement thereto. There are no
contracts or documents which are required
to be described in the Registration Statement or the Prospectus or to be filed as exhibits
thereto which have not been so described and filed as required.
D. Incorporated Documents. The documents incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, when they become effective or were filed
with the Commission, as the case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable.
E. Financial Statements. The financial statements and the related notes thereto of the
Company and its consolidated subsidiaries incorporated by reference or included in the Registration
Statement, the Time of Sale Information and the Prospectus comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act, as applicable, and present
fairly the consolidated financial position of the Company and its subsidiaries as of the dates
indicated and the results of their operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis throughout the periods
covered thereby, and the other financial information included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus has been derived from the
accounting records of the Company and its subsidiaries and presents fairly the information shown
thereby.
F. No Material Adverse Change. Subsequent to the respective dates as of which information is
given or incorporated by reference into the Time of Sale Information, (i) there has not been any
material adverse change, or any development involving a prospective material adverse change, in or
affecting the business, properties, management, financial position, stockholders’ equity, or
results of operations of the Company and its subsidiaries taken as a whole and (ii) neither the
Company nor any of its subsidiaries has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance, except
in each case as otherwise disclosed in the Registration Statement, the Time of Sale Information and
the Prospectus.
G. Organization and Good Standing. Other than ProlX Pharmaceuticals Corporation, Oncothyreon
Canada, Inc. and Biomira Management, Inc., the Company has no significant subsidiaries. The
Company and each of its subsidiaries have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of organization, are duly qualified to do
business and are in good standing in each jurisdiction in which their respective ownership or lease
of property or the conduct of their respective businesses requires such qualification, and have all
power and authority necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to be so qualified or have such
power or authority would not, individually or in the aggregate, have a material adverse effect on
the business, properties, management, financial position, stockholders’ equity or results of
operations of the Company and its subsidiaries taken as a whole (a “Material Adverse
Effect”). The Company does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in Exhibit 21 to the Company’s
Annual Report on Form 10-K for the year ended December 31, 2008.
F. Capitalization. All outstanding shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable and are not subject to any
pre-emptive or similar rights; except as described in or expressly contemplated by the Time of Sale
Information and the Prospectus, there are no outstanding rights (including, without limitation,
pre-emptive rights), warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding or arrangement of any kind
relating to the issuance of any capital stock of the Company or any such subsidiary, any such
convertible or exchangeable securities or any such rights, warrants or options; the capital stock
of the Company conforms in all material respects to the description thereof contained in the
Registration Statement, the
Time of Sale Information and the Prospectus; and all the outstanding shares of capital stock
or other equity interests of each subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company,
free and clear of any lien, charge, encumbrance, security interest, restriction on voting or
transfer or any other claim of any third party.
G. Due Authorization. This Agreement has been duly authorized, executed and delivered by the
Company, and all action required to be taken by the Company prior to or as of the date hereof for
the consummation by the Company of the transactions contemplated hereby has been duly and validly
taken.
H. Capital Stock. The Shares to be issued and sold by the Company hereunder and the Warrant
Shares have been duly authorized by the Company and, when issued and delivered and paid for as
provided herein or in the Warrants, as applicable, will be duly and validly issued and will be
fully paid and nonassessable and will conform to the descriptions thereof in the Time of Sale
Information and the Prospectus; and the issuance of the Units, the Shares and the Warrant Shares is
not subject to any preemptive or similar rights.
I. No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its subsidiaries is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii)
above, for any such default or violation that would not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
J. No Conflicts. The execution, delivery and performance by the Company of this Agreement,
the issuance by the Company of each of the Units, the Shares, the Warrants and the Warrant Shares
and the consummation by the Company of the transactions contemplated by this Agreement will not (i)
conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the charter or by-laws or similar
organizational documents of the Company or any of its subsidiaries or (iii) result in the violation
of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except in the cases of clauses (i) and (iii) above as would
not be reasonably expected to have a Material Adverse Effect.
K. No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of this Agreement, the issuance
by the Company of any of the Units, the Shares, the Warrants or the Warrant Shares or the
consummation of any of the transactions contemplated by this Agreement, except for such additional
steps as may be required by the FINRA, the registration of the offer and sale of the Units, Shares,
Warrants and Warrant Shares under the Securities Act and such consents, approvals, authorizations,
orders and registrations or qualifications as may be required under applicable state securities
laws in connection with the placement of the Units by the Placement Agent.
L. Legal Proceedings. Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal, governmental or regulatory investigations,
actions, suits or
proceedings pending to which the Company or any of its subsidiaries is or may be a party or to
which any property of the Company or any of its subsidiaries is or may be the subject that,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or
materially and adversely affect the ability of the Company to perform its obligations under this
Agreement; no such investigations, actions, suits or proceedings are, to the knowledge of the
Company, threatened or contemplated by any governmental or regulatory authority or threatened by
others; and (i) there are no current or pending legal, governmental or regulatory actions, suits or
proceedings that are required under the Securities Act to be described in the Registration
Statement that are not so described in the Registration Statement, the Time of Sale Information and
the Prospectus and (ii) there are no statutes, regulations or contracts or other documents that are
required under the Securities Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement or the Prospectus that are not so filed as exhibits to the
Registration Statement or described in the Registration Statement, the Time of Sale Information and
the Prospectus.
M. Independent Accountants. Deloitte & Touche LLP (United States), which has certified
certain financial statements of the Company, is an independent registered public accountant, and
Deloitte & Touche LLP (Canada), which has certified certain financial statements of the Company, is
an independent registered chartered accountant with respect to the Company and its subsidiaries
within the applicable rules and regulations adopted by the Commission and the rules and regulations
of the Public Accounting Oversight Board (United States) and as required by the Securities Act.
N. Title to Real and Personal Property. The Company and its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of
real and personal property reflected in the financial statements included or incorporated by
reference in the Registration Statement or described in the Registration Statement or the
Prospectus that are material to the businesses of the Company and its subsidiaries taken as a
whole, in each case free and clear of all liens, encumbrances, claims and defects and imperfections
of title except those that (i) do not materially interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries or (ii) could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
O. Possession of Intellectual Property. Except as described in the Registration Statement,
the Time of Sale Information and the Prospectus, (i) the Company owns, possesses or has adequate
rights to use the Company Intellectual Property (as defined below), (ii) the Company has not
received any written notice of any infringement of, or conflict with, any Intellectual Property of
any third party, (iii) the Company is not aware of any third party intellectual property rights
that would have a materially adverse effect on the ability of the Company to make, use or sell its
products, (iv) no third party, including any academic or governmental organization, possesses or
could obtain rights to the Company Intellectual Property which, if exercised, could enable such
party to develop products competitive with those of the Company, and (v) neither the Company nor
any of its subsidiaries is obligated to pay a material royalty, grant a material license, or
provide other material consideration to any third party in connection with the Company Intellectual
Property. Except as described in the Registration Statement, the Time of Sale Information and the
Prospectus or as would not have a Material Adverse Effect, (x) the Company is not aware of any
facts or circumstances that constitute an infringement by the Company of any valid claim of a
third-party patent, (y) the Company is not aware of any facts or circumstances that constitute an
infringement by the Company of, or conflict with, any non-patented Intellectual Property right of
any third party, and (z) the Company is not aware of any facts or circumstances that would render
any Company Intellectual Property invalid or unenforceable. For purposes of this Agreement,
“Intellectual Property” means patents, patent rights, patent applications, licenses,
inventions, copyrights, know how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks, service marks and
trade names, and “Company Intellectual Property” means Intellectual Property that is
necessary to carry on the business now operated by the Company as described in the Prospectus.
P. PTO Matters. The Company has duly and properly filed or caused to be filed with the United
States Patent and Trademark Office (the “PTO”) and applicable foreign and international
patent authorities all patent applications owned or exclusively licensed by the Company (the
“Company Patent Applications”). To the knowledge of the Company, the Company has complied
with the PTO’s duty of candor and disclosure and best mode requirement for the Company Patent
Applications, and all other requirements for patentability and enforceability of any resultant
patents, and has made no material misrepresentation in the Company Patent Applications. To the
knowledge of the Company, the Company has complied with the relevant foreign filing requirements
underlying patentability and enforceability of any resultant patents for the Company Patent
Applications pending in countries outside the United States. The Company is not aware of any
information material to a determination of patentability regarding the Company Patent Applications
not called to the attention of the PTO or similar foreign authority. The Company is not aware of
any information not called to the attention of the PTO or similar foreign authority which would
preclude the grant of a patent for the Company Patent Applications. The Company has no knowledge of
any information which would preclude the Company from having clear title to the Company Patent
Applications.
Q. No Undisclosed Relationships. No relationship, direct or indirect, exists between or among
the Company or any of its subsidiaries, on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company or any of its subsidiaries, on the other, that is required by
the Securities Act to be described in the Registration Statement and the Prospectus and that is not
so described in such documents and in the Time of Sale Information.
R. Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Units and the application of the proceeds thereof as described in the Time of Sale
Information and the Prospectus, will not be required to register as an “investment company” within
the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder.
S. Taxes. Except as would not have a Material Adverse Effect, the Company and its
subsidiaries have paid all federal, state, local and foreign taxes and filed all tax returns
required to be paid or filed through the date hereof to the extent that such taxes have become due
and are not being contested in good faith; and except as otherwise disclosed in the Registration
Statement, the Time of Sale Information and the Prospectus, there is no tax deficiency that has
been, or could reasonably be expected to be, asserted against the Company or any of its
subsidiaries or any of their respective properties or assets except as would not have a Material
Adverse Effect.
T. Licenses and Permits. The Company and each of its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business of the Company as described in the Prospectus, including
without limitation, all such registrations, approvals, certificates, authorizations and permits
required by the United States Food and Drug Administration (the “FDA”) or any other
federal, state, local or foreign agencies or bodies engaged in the regulation of clinical trials,
pharmaceuticals, biologics or biohazardous substances or materials, except where the failure so to
possess would not, singly or in the aggregate, result in a Material Adverse Effect; the Company and
each of its subsidiaries are in compliance with the requirements of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate, result in a Material
Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not, singly or in the aggregate, result in a Material Adverse
Effect; and neither the Company nor any of its subsidiaries have received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect. The Company has no reason to believe that any party granting any such
Governmental Licenses is considering limiting, suspending or revoking the same in any material
respect. The Company has not failed to submit to the FDA an
Investigational New Drug Application for a clinical trial it is
conducting or sponsoring,
except where such failure would not, singly or in the aggregate, have a Material Adverse Effect;
all such submissions were in material compliance with applicable laws when submitted and no
material deficiencies have been asserted by the FDA with respect to any such submissions, except
any deficiencies which could not, singly or in the aggregate, have a Material Adverse Effect.
U. Tests and Preclinical and Clinical Studies. The Company and each of its subsidiaries have
operated and currently are in compliance with all applicable rules and regulations of the FDA or
any other federal, state, local or foreign governmental body exercising comparable authority,
except where the failure to so operate or be in compliance would not have a Material Adverse
Effect. The tests and preclinical and clinical studies conducted by or, to the Company’s knowledge,
on behalf of the Company that are described in the Registration Statement and the Prospectus were
and, if still pending, are being, conducted in all material respects in accordance with the
protocols submitted to the FDA or any foreign government exercising comparable authority,
procedures and controls pursuant to, where applicable, accepted professional and scientific
standards, and all applicable laws and regulations; the descriptions of the tests and preclinical
and clinical studies, and results thereof, conducted by or, to the Company’s knowledge, on behalf
of the Company contained in the Registration Statement and the Prospectus are accurate and complete
in all material respects; the Company is not aware of any other trials, studies or tests, the
results of which reasonably call into question the results described or referred to in the
Registration Statement and the Prospectus; and the Company has not received any written notice or
correspondence from the FDA or any foreign, state or local governmental body exercising comparable
authority requiring the termination, suspension, or clinical hold of any tests or preclinical or
clinical studies, or such written notice or correspondence from any Institutional Review Board or
comparable authority requiring the termination or suspension of a clinical study, conducted by or
on behalf of the Company, which termination, suspension, or clinical hold would reasonably be
expected to have a Material Adverse Effect.
V. No Labor Disputes. No labor disturbance by or dispute with employees of the Company or any
of its subsidiaries exists or, to the knowledge of the Company, is contemplated or threatened.
W. Compliance With Environmental Laws. (i) The Company and its subsidiaries (x) are in
compliance with any and all applicable federal, state, local and foreign laws, rules, regulations,
requirements, decisions and orders relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or contaminants (collectively,
“Environmental Laws”); (y) have received and are in compliance with all permits, licenses,
certificates or other authorizations or approvals required of them under applicable Environmental
Laws to conduct their respective businesses; and (z) have not received written notice of any actual
or potential liability for the investigation or remediation of any disposal or release of hazardous
or toxic substances or wastes, pollutants or contaminants, and (ii) there are no costs or
liabilities associated with Environmental Laws of or relating to the Company or its subsidiaries,
except in the case of each of clauses (aa)(i)(x), (aa)(i)(y) and (aa)(ii)(y) above, for any such
failure to comply, or failure to receive required permits, licenses or approvals, or cost or
liability, as would not, individually or in the aggregate, have a Material Adverse Effect.
X. Compliance With ERISA. Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is
maintained, administered or contributed to by the Company or any of its affiliates for employees or
former employees of the Company and its affiliates has been maintained in compliance with its terms
and the requirements of any applicable statutes, orders, rules and regulations in all material
respects, including but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the
“Code”); no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of
the Code, has occurred with respect to any such plan excluding transactions effected pursuant to a
statutory or administrative exemption; and for each such plan that is subject to the funding rules
of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined
in Section 412 of the
Code has been incurred, whether or not waived, and the fair market value of the assets of each
such plan (excluding for these purposes accrued but unpaid
contributions) exceeds the present value
of all benefits accrued under such plan determined using reasonable actuarial assumptions.
Y. Disclosure Controls. The Company maintains “disclosure controls and procedures” (as
defined in Rule 13a-15(e) of the Exchange Act) that are reasonably designed to ensure that
information required to be disclosed by the Company in reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time periods specified in
the Exchange Act, and that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required disclosure. The Company has
carried out evaluations of the effectiveness of its disclosure controls and procedures as required
by Rule 13a-15 of the Exchange Act.
Z. Accounting Controls. The Company maintains systems of “internal control over financial
reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of
the Exchange Act and have been designed by, or under the supervision of the Company’s principal
executive and principal financial officers, or persons performing similar functions, 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 generally accepted accounting principles 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. Except as disclosed in the Registration Statement, the Time of Sale Information and
the Prospectus, there are no material weaknesses in the Company’s internal control over financial
reporting.
AA. Insurance. The Company and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including business interruption insurance, which
insurance is in amounts and insures against such losses and risks as are reasonable and prudent to
protect the Company and its subsidiaries and their respective businesses; and neither the Company
nor any of its subsidiaries has (i) received notice from any insurer or agent of such insurer that
capital improvements or other expenditures are required or necessary to be made in order to
continue such insurance or (ii) 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 at
reasonable cost from similar insurers as may be necessary to continue its business.
BB. No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the best
knowledge of the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
CC. No Restrictions on Subsidiaries. No subsidiary of the Company is currently prohibited,
directly or indirectly, under any agreement or other instrument to which it is a party or is
subject, from paying any dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s properties or assets to the Company
or any other subsidiary of the Company.
DD. No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement and the engagement
letter between the Placement Agent and the Company) that would give rise to a valid claim against
the Company or any of its
subsidiaries or the Placement Agent for a brokerage commission, finder’s fee or like payment
in connection with the offering and sale any of the Units, the Shares, the Warrants or the Warrant
Shares.
EE. Exchange Listing. As of the date hereof, the Shares and Warrant Shares have been approved
for listing on the NASDAQ Global Market, and as of the Closing Date, the Shares and Warrant Shares
will be approved for listing on the Toronto Stock Exchange, in each case subject to official notice
of issuance. Except as described in the Registration Statement, the Time of Sale Information and
the Prospectus, the Company has not (i) taken, directly or indirectly, any action designed to, or
that could reasonably be expected to have the effect of, terminating the registration of the Shares
and Warrant Shares under the Exchange Act or the quotation of the Shares and Warrant Shares on the
Nasdaq Global Market or the Toronto Stock Exchange or (ii) received any notification that the
Commission, the Nasdaq Global Market or the Toronto Stock Exchange is contemplating terminating
such registration or quotation.
FF. No Registration Rights. No person has the right to require the Company or any of its
subsidiaries to register any securities for sale under the Securities Act by reason of the filing
of the Registration Statement with the Commission or the issuance and sale of any of the Units, the
Shares, the Warrants or the Warrant Shares.
GG. No Stabilization or Integration. The Company has not (i) taken, directly or indirectly,
any action designed to or that could reasonably be expected to cause or result in any stabilization
or manipulation of the price of the Units or (ii) sold or issued any securities that would be
integrated with the offering of any of the Units, the Shares, the Warrants or the Warrant Shares
pursuant to the Securities Act or the interpretations thereof by the Commission.
HH. Business With Cuba. The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing business with the Government
of Cuba or with any person or affiliate located in Cuba.
II. Margin Rules. The application of the proceeds of the sale of the Units by the Company as
described in the Time of Sale Information and the Prospectus will not violate Regulation T, U or X
of the Board of Governors of the Federal Reserve System or any other regulation of such Board of
Governors.
JJ. Forward Looking Statements. No forward looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration
Statement, the Time of Sale Information and the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
KK. Statistical and Market Data. Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data included in the
Registration Statement, the Time of Sale Information and the Prospectus is not based on or derived
from sources that are reliable and accurate in all material respects.
LL. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no failure on the part of the Company or any of
the Company’s directors or officers, in their capacities as such, to comply with any provision of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in connection therewith
(the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including Section 402 related to loans and Sections 302 and 906
related to certifications to the extent that the Company is or has been required to comply with the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and such rules.
MM. Status under the Securities Act. The Company is not an ineligible issuer as defined under
the Securities Act, in each case at the times specified in the Securities Act in connection with
the offering of the Units.
SECTION 4. ENGAGEMENT TERM. Unless earlier terminated in accordance with the
immediately following sentence, this Agreement will terminate on September 4, 2009. The engagement
may be terminated, with our without cause, by either the Company or ▇▇▇▇▇▇ at any time upon 10
days’ written
notice. Notwithstanding anything to the contrary contained herein, the provisions
concerning confidentiality, indemnification and contribution contained herein will survive any
expiration or termination of this Agreement, and the Company’s obligation to pay fees actually
earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section
1 hereof, will survive any expiration or termination of this Agreement.
SECTION 5. CONFIDENTIALITY.
▇. ▇▇▇▇▇▇ agrees to maintain the confidentiality of all confidential information provided to
it by the Company regarding the Company and shall not disclose any such confidential information to
any person other than employees and agents of ▇▇▇▇▇▇ without the prior consent of the Company or
use such information other than as expressly contemplated by this Agreement, other than pursuant to
any governmental, judicial or administrative order, subpoena or discovery request or request or
inquiry of a regulatory or self-regulatory body.
B. The Company agrees that any information or advice rendered by ▇▇▇▇▇▇ in connection with
this engagement is for the confidential use of the Company only in their evaluation of the
Placement and, other than pursuant to any governmental, judicial or administrative order, subpoena
or discovery request or request or inquiry of a regulatory or self-regulatory body, the Company
will not disclose or otherwise refer to the advice or information in any manner without ▇▇▇▇▇▇’▇
prior written consent.
SECTION 6. NO FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall
not be construed as creating rights enforceable by any person or entity not a party hereto, except
those entitled hereto by virtue of the indemnification provisions hereof. The Company acknowledges
and agrees that ▇▇▇▇▇▇ is not and shall not be construed as a fiduciary of the Company and shall
have no duties or liabilities to the equity holders or the creditors of the Company or any other
person by virtue of this Agreement or the retention of ▇▇▇▇▇▇ hereunder, all of which are hereby
expressly waived.
SECTION 7. CLOSING. The obligations of the Placement Agent and the Purchasers,
and the closing of the sale of the Units hereunder are subject to the accuracy, when made and on
the Closing Date, of the representations and warranties on the part of the Company contained
herein, to the accuracy of the statements made on behalf of the Company in any certificates
delivered pursuant to the provisions hereof, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(A) No stop order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been initiated or threatened by the
Commission, and any request for additional information on the part of the Commission (to be
included in the Registration Statement, the Prospectus or otherwise) shall have been complied with
to the reasonable satisfaction of the Placement Agent.
(B) The Placement Agent shall not have discovered and disclosed to the Company on or prior to
the Closing Date that the Registration Statement, the Time of Sale Information or the Prospectus or
any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion
of counsel for the Placement Agent, is material or omits to state any fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(C) All corporate proceedings and other legal matters incident to the authorization, form,
execution, delivery and validity of each of this Agreement, the Shares and Warrants and all other
legal matters relating to this Agreement and the transactions contemplated hereby shall be
reasonably
satisfactory in all material respects to counsel for the Placement Agent, and the
Company shall have furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(D) The Placement Agent shall have received from outside counsel to the Company such counsel’s
written “10b-5” statement, addressed to the Placement Agent and dated as of the Closing Date, in
form and substance reasonably satisfactory to the Placement Agent.
(E) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by reference in the Basic Prospectus,
any loss or interference with its business from fire, explosion, flood, terrorist act or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or incorporated by reference in or
contemplated by the Basic Prospectus and (ii) since such date there shall not have been any change
in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the business, general affairs,
management, financial position, stockholders’ equity, results of operations or prospects of the
Company and its subsidiaries, taken together, otherwise than as set forth or incorporated by
reference in or contemplated by the Basic Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the Placement Agent, so material and
adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the
Units on the terms and in the manner contemplated by the Basic Prospectus, the Time of Sale
Information, and the Prospectus.
(F) The Common Stock is registered under the Exchange Act and, as of the Closing Date, the
Shares shall be listed and admitted and authorized for trading on The NASDAQ Global Market, and
satisfactory evidence of such actions shall have been provided to the Placement Agent. The Company
shall have taken no action designed to, or likely to have the effect of terminating the
registration of the Common Stock under the Exchange Act or delisting or suspending from trading the
Common Stock from The NASDAQ Global Market, nor has the Company received any information suggesting
that the Commission, The NASDAQ Global Market is contemplating terminating such registration or
listing.
(G) Subsequent to the execution and delivery of this Agreement, there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock Exchange or The
NASDAQ Global Market, or trading in any securities of the Company on The NASDAQ Global Market,
shall have been suspended or minimum or maximum prices or maximum ranges for prices shall have been
established on any such exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by federal or state authorities or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, (iii) the United
States shall have become engaged in hostilities in which it is not currently engaged, the subject
of an act of terrorism, there shall have been an escalation in hostilities involving the United
States, or there shall have been a declaration of a national emergency or war by the United States,
or (iv) there shall have occurred any other calamity or crisis or any change in general economic,
political or financial conditions in the United States or elsewhere, if the effect of any such
event in clause (iii) or (iv) makes it, in the sole judgment of the Placement Agent, impracticable
or inadvisable to proceed with the sale or delivery of the Units on the terms and in the
manner contemplated by the Basic Prospectus, the Time of Sale Information and the Prospectus.
(H) No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Units or materially and adversely affect or potentially and
adversely affect the business or operations of the Company; and no injunction, restraining order or
order of any other nature by any federal or state court of competent jurisdiction shall have been
issued as of the
Closing Date which would prevent the issuance or sale of the Units or materially
and adversely affect or potentially and adversely affect the business or operations of the Company.
(I) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K
with respect to the Placement, including as an exhibit thereto this Agreement.
(J) The Company shall have entered into subscription agreements with each of the Purchasers
and such agreements shall be in full force and effect and shall contain or incorporate
representations and warranties of the Company as agreed between the Company and the Purchasers.
(K) FINRA shall have raised no objection to the fairness and reasonableness of the terms and
arrangements of this Agreement. In addition, the Company shall, if requested by the Placement
Agent, make or authorize Placement Agent’s counsel to make on the Company’s behalf, an Issuer
Filing with FINRA pursuant to FINRA Rule 5110 with respect to the Registration Statement and pay
all filing fees required in connection therewith.
(L) Prior to the Closing Date, the Company shall have furnished to the Placement Agent such
further information, certificates and documents as the Placement Agent may reasonably request.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Placement Agent.
SECTION 8. INDEMNIFICATION. (A) To the extent permitted by law, the Company will
indemnify ▇▇▇▇▇▇ and its affiliates, stockholders, directors, officers, employees and controlling
persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
(each, an “Indemnified Person” and collectively, the “Indemnified Persons”)
against all losses, claims, damages, expenses and liabilities, as the same are incurred (including
the reasonable fees and expenses of counsel), relating to or arising out of its activities
hereunder or arising out of this engagement letter, except to the extent that any losses, claims,
damages, expenses or liabilities (or actions in respect thereof) are found in a final judgment (not
subject to appeal) by a court of law to have resulted primarily and directly from ▇▇▇▇▇▇’▇ willful
misconduct or gross negligence in performing the services described herein or any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in conformity with
any information relating to the Placement Agent furnished to the Company by the Placement Agent
expressly for use therein.
(B) Promptly after receipt by ▇▇▇▇▇▇ of notice of any claim or the commencement of any action
or proceeding with respect to which an Indemnified Person is entitled to indemnity hereunder,
▇▇▇▇▇▇ will notify the Company in writing of such claim or of the commencement of such action or
proceeding, and the Company will assume the defense of such action or proceeding and will pay the
fees and expenses of such counsel. Notwithstanding the preceding sentence, ▇▇▇▇▇▇ will be entitled
to employ counsel separate from counsel for the Company and from any other party in such action if
counsel for
▇▇▇▇▇▇ reasonably determines that it would be inappropriate under the applicable rules of
professional responsibility for the same counsel to represent both the Company and ▇▇▇▇▇▇. In such
event, the reasonable fees and disbursements of no more than one such separate counsel, in addition
to local counsel, will be paid by the Company. The Company shall not effect any settlement of any
pending or threatened proceeding in respect of which ▇▇▇▇▇▇ is or could have been a party and
indemnification could have been sought hereunder by ▇▇▇▇▇▇, unless such settlement (i)(x) includes
an unconditional release of ▇▇▇▇▇▇, in form and substance reasonably satisfactory to ▇▇▇▇▇▇, from
all liability on claims that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or on behalf of
▇▇▇▇▇▇ or (ii) is consented to by
▇▇▇▇▇▇, which consent shall not be unreasonably withheld. The
Company will have the exclusive right to settle any other claim or proceeding.
(C) The Company agrees to notify ▇▇▇▇▇▇ promptly of the assertion against it or any other
person of any claim or the commencement of any action or proceeding relating to a transaction
contemplated by this engagement letter.
(D) If for any reason the foregoing indemnity is unavailable to ▇▇▇▇▇▇ or insufficient to hold
▇▇▇▇▇▇ harmless, then the Company shall contribute to the amount paid or payable by ▇▇▇▇▇▇ as a
result of such losses, claims, damages or liabilities in such proportion as is appropriate to
reflect not only the relative benefits received by the Company on the one hand and ▇▇▇▇▇▇ on the
other, but also the relative fault of the Company on the one hand and ▇▇▇▇▇▇ on the other that
resulted in such losses, claims, damages or liabilities, as well as any relevant equitable
considerations. The amounts paid or payable by a party in respect of losses, claims, damages and
liabilities referred to above shall be deemed to include any legal or other fees and expenses
incurred in defending any litigation, proceeding or other action or claim. Notwithstanding the
provisions hereof, ▇▇▇▇▇▇’▇ share of the liability hereunder shall not be in excess of the amount
of fees actually received, or to be received, by ▇▇▇▇▇▇ under this engagement letter (excluding any
amounts received as reimbursement of expenses incurred by ▇▇▇▇▇▇).
(E) These indemnification provisions shall remain in full force and effect whether or not the
transaction contemplated by this engagement letter is completed and shall survive the termination
of this engagement letter, and shall be in addition to any liability that the Company might
otherwise have to any indemnified party under this engagement letter or otherwise.
SECTION 9. GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York applicable to agreements made and to be
performed entirely in such State. This Agreement may not be assigned by either party without the
prior written consent of the other party. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and permitted assigns. Any right to
trial by jury with respect to any dispute arising under this Agreement or any transaction or
conduct in connection herewith is waived. Any dispute arising under this Agreement may be brought
into the courts of the State of New York or into the Federal Court located in New York, New York
and, by execution and delivery of this Agreement, the Company hereby accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of aforesaid courts. Each
party hereto hereby irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by delivering a copy thereof via overnight delivery
(with evidence of delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law.
SECTION 10. ENTIRE AGREEMENT/MISC. This Agreement (including the attached
Indemnification Provisions) embodies the entire agreement and understanding between the parties
hereto, and supersedes all prior agreements and understandings, relating to the subject matter
hereof. If any provision of this Agreement is determined to be invalid or unenforceable in any
respect, such determination will not affect such provision in any other respect or any other
provision of this Agreement, which will remain in full force and effect. This Agreement may not be
amended or otherwise modified or waived except by an instrument in writing signed by both ▇▇▇▇▇▇
and the Company. The covenants contained in Sections 1 and 8 shall survive the closing of the
Placement and delivery and/or exercise of the Shares and Warrants, as applicable. This Agreement
may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party, it being understood that both parties need not sign the
same counterpart. If any signature is delivered by facsimile transmission or a .pdf format file,
such signature shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such facsimile or .pdf
signature page were an original thereof.
SECTION 11. NOTICES. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified on the signature pages attached hereto
prior to 6:30 p.m. (New York City time) on a business day, (b) the next business day after the date
of transmission, if such notice or communication is delivered via facsimile at the facsimile number
on the signature pages attached hereto on a day that is not a business day or later than 6:30 p.m.
(New York City time) on any business day, (c) the business day following the date of mailing, if
sent by U.S. nationally recognized overnight courier service, and (d) upon actual receipt by the
party to whom such notice is required to be given. The address for such notices and communications
shall be as set forth on the signature pages hereto.
Please confirm that the foregoing correctly sets forth our agreement by signing and returning
to ▇▇▇▇▇▇ a copy of this Agreement.
| Very truly yours, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇ | |||
| Title: | Sr. Managing Director | |||
| Address for notice: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇ Fax (▇▇▇) ▇▇▇-▇▇▇▇ Attention: General Counsel |
||||
Accepted and Agreed to as of
the date first written above:
the date first written above:
| ONCOTHYREON INC. | ||||
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D.
|
|||
| Title: President & Chief Executive Officer | ||||
Annex A
Time of Sale Information
a. Issuer Free Writing Prospectus dated August 4, 2009.
b. Pricing Information Provided Orally by the Placement Agent
Number of Units: 2,280,502
Number of Shares: 2,280,502
Warrant Coverage: 30%
Price per Unit: $6.5775
Warrant Exercise Price: $6.5775