As filed with the Securities and Exchange
Commission on December 15, 2014
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ROCK
CREEK PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction
of incorporation or
organization) |
|
52-1402131
(I.R.S. Employer
Identification Number) |
2040 Whitfield Avenue, Suite 300
Sarasota, Florida 34243
844-727-0727
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Park A. Dodd, III
Chief Financial Officer
Rock Creek Pharmaceuticals, Inc.
2040 Whitfield Avenue, Suite 300
Sarasota, Florida 34243
844-727-0727
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
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with a copy to: |
Curt P. Creely, Esquire
Foley & Lardner LLP
100 North Tampa Street, Suite 2700
Tampa, Florida 33602
Phone: (813) 229-2300
Fax: (813) 221-4210 |
|
Approximate date of
commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities
being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box. ¨
If any of the securities
being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.x
If this Form is filed
to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration
statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.
See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act.
Large accelerated filer ¨ |
Accelerated filer x |
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|
Non-accelerated filer ¨ |
Smaller reporting company ¨ |
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered | |
Amount to be Registered(1)(2) | | |
Proposed Maximum Offering Price Per Security(2) | | |
Proposed Maximum Aggregate Offering Price(2)(3) | | |
Amount of Registration Fee(2) | |
Common Stock, $0.0001 par value per share | |
| | | |
| | | |
| | | |
| | |
Preferred Stock, $0.0001 par value per share | |
| | | |
| | | |
| | | |
| | |
Warrants | |
| | | |
| | | |
| | | |
| | |
Stock Purchase Contracts | |
| | | |
| | | |
| | | |
| | |
Stock Purchase Units | |
| | | |
| | | |
| | | |
| | |
Total | |
| | | |
| | | |
$ | 50,000,000 | (4) | |
$ | 5,810.00 | (4) |
| (1) | Includes an unspecified number of each identified
class of securities up to a proposed aggregate offering price of $50,000,000, which may be offered by the registrant from time
to time in unspecified numbers and at indeterminate prices, and as may be issued upon conversion, redemption, repurchase, exchange
or exercise of any securities registered hereunder, including any applicable anti-dilution provisions. This registration statement
also covers delayed delivery contracts that may be issued by the registrant under which the party purchasing such contracts may
be required to purchase common stock or preferred stock. Such contracts may be issued together with the specific securities to
which they relate. Securities registered hereunder to be sold by the registrant may be sold either separately or as units comprised
of more than one type of security registered hereunder. |
| (2) | Pursuant to General Instruction II.D. of
Form S-3, the table lists each of the classes of securities being registered and the aggregate proceeds to be raised but does not
specify by each class information as to the amount to be registered, the proposed maximum offering price per security, and the
proposed maximum aggregate offering price. |
| (3) | If applicable, includes consideration to
be received by the registrant for registered securities that are issuable upon exercise, conversion or exchange of other registered
securities or that are issued in units. |
| (4) | The proposed maximum aggregate offering price
has been estimated solely for purposes of calculating the registration fee pursuant to Rule 457(o) and General Instruction II.
D. of Form S-3. |
The registrant hereby
amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the
Commission acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This registration statement contains two prospectuses:
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• |
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a base prospectus which covers the offering, issuance and sale by us of up to $50.0 million in the aggregate of the securities identified above from time to time in one or more offerings; and |
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• |
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a sales agreement prospectus covering the offering, issuance and sale by us of up to a maximum aggregate offering price of $16.5 million of our common stock that may be issued and sold under a sales agreement with MLV & Co. LLC. |
The base prospectus immediately follows this
explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus
supplement to the base prospectus. The sales agreement prospectus immediately follows the base prospectus. The $16.5 million of
common stock that may be offered, issued and sold under the sales agreement prospectus is included in the $50.0 million of securities
that may be offered, issued and sold by us under the base prospectus.
The information in this
prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting
an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to Completion,
dated December 15, 2014
Rock Creek
Pharmaceuticals, Inc.
$50,000,000
Common
Stock
Preferred Stock
Warrants
Stock Purchase Contracts
Stock Purchase Units
We may offer and sell
from time to time up to $50 million of any combination of the securities described in this prospectus, in one or more classes or
series and in amounts, at prices and on terms that we will determine at the times of the offerings. This prospectus provides you
with a general description of the securities we may offer.
Each time securities are
sold using this prospectus, we will provide a supplement to this prospectus and possibly other offering material containing specific
information about the offering and the terms of the securities being sold, including the offering price. The supplement or other
offering material may also add, update or change information contained or incorporated by reference in this prospectus. You should
read this prospectus, the supplement, any other offering material and the information incorporated by reference carefully before
you invest.
We may offer the securities
independently or together in any combination for sale directly to purchasers or through underwriters, dealers or agents to be designated
at a future date. The supplements to this prospectus will provide the specific terms of the plan of distribution.
Our common stock is traded
on The Nasdaq Global Market under the symbol “RCPI.” The aggregate market value of our common stock held by non-affiliates
is approximately $49.5 million based on the closing price of one share of our common stock on The Nasdaq Global Market of $0.32
per share on October 17, 2014. We have sold no shares of our common stock pursuant to General Instruction I.B.6 of Form S-3 during
the twelve-month period preceding the date of this prospectus.
Investing in our securities
involves risks. Please read carefully the section entitled “Risk Factors” in our most recent Annual Report on Form
10-K, in any applicable prospectus supplement and/or other offering material and in such other documents as we refer you to in
any prospectus supplement for a discussion of certain risks that prospective investors should consider before investing in our
securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities
or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2014.
table of
contents
about this
prospectus
Unless the context otherwise
requires, in this prospectus, “our company,” “the Company,” “we,” “us,” and “our”
refer to Rock Creek Pharmaceuticals, Inc. (f/k/a Star Scientific, Inc.) and its consolidated subsidiaries, Star Tobacco, Inc. and
RCP Development, Inc. (f/k/a Rock Creek Pharmaceuticals, Inc.).
This prospectus is part
of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) utilizing a “shelf”
registration process. Under this shelf registration process, we may, from time to time, sell the securities or combinations of
the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of
the securities that we may offer. Each time we offer securities, we will provide a prospectus supplement and/or other offering
material that will contain specific information about the terms of that offering. The prospectus supplement and/or other offering
material may also add, update or change information contained or incorporated by reference in this prospectus. You should read
this prospectus, any prospectus supplement and any other offering material together with the additional information described under
the heading “Where You Can Find More Information.”
You should rely only on
the information contained or incorporated by reference in this prospectus, in any prospectus supplement and in any other offering
material. We have not authorized any other person to provide you with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. We are not making offers to sell or solicitations to buy the securities
in any jurisdiction in which an offer or solicitation is not authorized or in which the person making that offer or solicitation
is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should not assume that the
information in this prospectus, any prospectus supplement or any other offering material, or the information we previously filed
with the SEC that we incorporate by reference in this prospectus or any prospectus supplement, is accurate as of any date other
than its respective date. Our business, financial condition, results of operations and prospects may have changed since those dates.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the
documents incorporated by reference herein contain certain “forward-looking statements” within the meaning of the Private
Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended. We have tried, whenever possible, to identify these forward-looking statements using words such
as “anticipates,” “believes,” “estimates,” “continues,” “likely,” “may,”
“opportunity,” “potential,” “projects,” “will,” “expects,” “plans,”
“intends” and similar expressions to identify forward-looking statements, whether in the negative or the affirmative.
These statements reflect our current beliefs and are based on information currently available to us. Accordingly, such forward-looking
statements involve known and unknown risks, uncertainties and other factors which could cause our actual results, performance or
achievements to differ materially from those expressed in, or implied by, such statements. These risks, uncertainties, factors
and contingencies include, without limitation, the challenges inherent in new product development initiatives, the effect of any competitive products, our ability to license
and protect our intellectual property, our ability to raise additional capital in the future that is necessary to maintain our
business, changes in government policy and/or regulation, potential litigation by or against us, any governmental review of our
products or practices, the outcome of ongoing investigations, and related items discussed herein and in the documents incorporated
by reference herein.
Forward-looking statements
reflect our management’s expectations or predictions of future conditions, events or results based on various assumptions
and management’s estimates of trends and economic factors in the markets in which we are active, as well as our business
plans. They are not guarantees of future performance. By their nature, forward-looking statements are subject to risks and uncertainties.
Our actual results and financial condition may differ, possibly materially, from the anticipated results and financial condition
indicated in these forward-looking statements. There are a number of factors that could cause actual conditions, events or results
to differ materially from those described in the forward-looking statements contained in this prospectus and the documents incorporated
by reference into this prospectus.
See an additional discussion
under “Risk Factors” beginning on page 2 of this prospectus, and other factors detailed from time to time in our other
filings with the SEC. These forward-looking statements are representative only as of the date they are made, and we undertake no
obligation to update any forward-looking statement as a result of new information, future events or otherwise.
ROCK CREEK
PHARMACEUTICALS, INC.
Our Business
In recent years, we have
engaged primarily in the sale of dietary supplements and related cosmetic products, and in pursuing ongoing research and development
of related dietary supplements and pharmaceutical products. In December 2013, we received a warning letter from the U.S. Food and
Drug Administration (the “FDA”) indicating the dietary supplement products required the filing of a New Dietary Ingredient
Notification (“NDIN”) to be legally marketed. In June 2014, we filed an NDIN with the FDA. On August 8, 2014, we determined
to voluntarily suspend the sale of CigRx® and Anatabloc® for an indeterminate period of time, and
at that time anticipated this would bring the FDA warning letter matter to a close. This action was taken in connection with an
ongoing review of the extent to which our dietary supplement business, whether conducted by us or through future licenses and whether
conducted in the United States (“U.S.”) or overseas, will impact our primary focus of developing pharmaceutical products
from our anatabine-based compounds. On August 25, 2014, we received a response to the NDIN from the FDA. The letter indicated that
the FDA considers anatabine, a principal ingredient in these products, to be a drug, because anatabine is intended to provide anti-inflammatory
support, and is the subject of a previously filed Investigational New Drug Application (“INDA”). Based on the FDA position,
we permanently exited the dietary supplement business in the U.S. However, we will continue to seek opportunities to license the
product for overseas markets. All of our revenues, cost of goods sold, marketing and sales, inventory and manufacturing machinery
related to the dietary supplement business were accounted for as discontinued operations effective September 2014, since we exited
the U.S. market. The FDA notified us in a close out letter dated October 21, 2014 that the FDA has completed its evaluation of
our corrective actions in response to the warning letter issued on December 24, 2013. In this notification, the FDA stated that,
based on its evaluation, we have addressed the putative violations in the warning letter.
We historically have focused
on utilizing certain alkaloids found in the Solanacea family of plants, which includes potatoes, tomatoes, and eggplants, initially
to address issues related to the desire to smoke or use other traditional tobacco products. More recently, we have concentrated
on the anti-inflammatory aspects of one of those alkaloids, anatabine. We also expect that, by leveraging the underlying science
and clinical data accumulated by us in relation to our existing products, we will focus our operations on the research and development
of drug candidates. We expect much of these research and development efforts will initially focus on developing our anatabine based
compounds as potential drug candidates. Our subsidiary, RCP Development, also has been involved in the development of a cosmetic
line of products that utilizes our anatabine based compound to improve the appearance of the skin. We introduced Anatabloc®
Facial Crème in September 2012 and related line extensions in 2013. From the introduction of Anatabloc® to the date of its discontinuance in the U.S. market,
our revenues were derived almost exclusively from the sale of our anatabine based dietary supplement products and, more particularly,
Anatabloc®. We do not expect to recognize any revenues related to our drug development initiatives in the foreseeable
future.
Corporate Information
Our principal executive
offices are located at 2040 Whitfield Avenue, Suite 300, Sarasota, Florida 34243, and our telephone number is (844) 727-0727. Our
website is www.rockcreekpharmaceuticals.com. The information contained on our website is not incorporated by reference into this prospectus,
and such information should not be considered to be part of this prospectus.
Risk Factors
Investing in our securities
involves significant risks. Before making an investment decision, you should carefully consider the risks and other information
we include or incorporate by reference in this prospectus and any prospectus supplement. In particular, you should consider the
risk factors under the heading “Risk Factors” included in our most recent Annual Report on Form 10-K, as revised or
supplemented by our subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, each of which are on file with the
SEC and are incorporated herein by reference, and which may be amended, supplemented or superseded from time to time by other reports
we file with the SEC in the future. The risks and uncertainties we have described are not the only ones facing our company. Additional
risks and uncertainties not currently known to us or that we currently deem immaterial may also affect our business operations.
Additional risk factors may be included in a prospectus supplement relating to a particular offering of securities.
ratio of
earnings to fixed charges
The following table shows
our ratio of earnings to fixed charges(1) for the periods presented:
Nine Months Ended | |
Years Ended December 31, | |
September 30, 2014 | |
2013 | | |
2012 | | |
2011 | | |
2010 | | |
2009 | |
— | |
| —
| | |
| —
| | |
| —
| | |
| —
| | |
| —
| |
| (1) | Our earnings were inadequate to cover fixed charges for the years ended December 31, 2013, 2012,
2011, 2010 and 2009 by $33.2 million, $18.1 million, $35.9 million, $25.6 million and $17.4 million, respectively, and by
$28.0 million for the nine months ended September 30, 2014. |
For purposes of calculating
these ratios, earnings consist of pre-tax income from continuing operations and fixed charges. Fixed charges consist of interest
expensed and capitalized; amortized premiums, discounts and capitalized expenses related to debt; and estimated interest within
rental expense.
We did not have any preferred
stock outstanding and we did not pay or accrue any preferred stock dividends during the periods presented above.
Use of Proceeds
We will describe the use
of the net proceeds from the sales of the securities in the applicable prospectus supplement.
description
of capital stock
General
The following description
of our capital stock is not complete and may not contain all the information you should consider before investing in our capital
stock. This description is summarized from, and qualified in its entirety by reference to, our amended and restated certificate
of incorporation, which has been publicly filed with the SEC. See “Where You Can Find More Information.”
Our authorized capital
stock consists of:
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• |
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314,800,000 shares of common stock, $0.0001 par value; and |
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• |
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100,000 shares of preferred stock, $0.0001 par value. |
Common Stock
As of November 3, 2014,
there were 192,997,235 shares of our common stock outstanding and held of record by 597 stockholders. The holders of our common
stock are entitled to one vote per share on all matters to be voted upon by our stockholders. Subject to any preferences that may
be applicable to any preferred stock issued in the future, the holders of our common stock are entitled to receive ratably any
dividends that may be declared from time to time by our board of directors out of funds legally available for that purpose. In
the event of our liquidation, dissolution or winding up, the holders of our common stock are entitled to share ratably in all assets
remaining after the payment of liabilities, subject to the prior distribution rights of any preferred stock then outstanding. Our
common stock has no preemptive or conversion rights. There are no redemption or sinking fund provisions applicable to our common
stock.
Preferred Stock
We currently have no outstanding
shares of preferred stock. We are authorized to issue 100,000 shares of “blank check” preferred stock, which may be
issued from time to time in one or more series upon authorization by our board of directors. Our board of directors, without further
approval of the stockholders, is authorized to fix the designations, powers, including voting powers, preferences and the relative,
participating, optional or other special rights of the shares of each series and any qualifications, limitations and restrictions
thereof.
If we offer preferred
stock, we will file the terms of the preferred stock with the SEC and the prospectus supplement and/or other offering material
relating to that offering will include a description of the specific terms of the offering, including any of the following applicable
terms:
| · | the series, the number of shares offered and the liquidation value of the preferred stock; |
| · | the price at which the preferred stock will be issued; |
| · | the dividend rate, the dates on which the dividends will be payable and other terms relating to
the payment of dividends on the preferred stock; |
| · | the liquidation preference of the preferred stock; |
| · | the voting rights of the preferred stock; |
| · | whether the preferred stock is redeemable or subject to a sinking fund, and the terms of any such
redemption or sinking fund; |
| · | whether the preferred stock is convertible or exchangeable for any other securities, and the terms
of any such conversion; and |
| · | any additional rights, preferences, qualifications, limitations and restrictions of the preferred
stock. |
It is not possible to
state the actual effect of the issuance of any shares of preferred stock upon the rights of holders of our common stock until our
board of directors determines the specific rights of the holders of the preferred stock. However, these effects might include:
| · | decreasing the amount of earnings and assets available for distribution to holders of common stock; |
| · | restricting dividends on the common stock; |
| · | diluting the voting power of the common stock; |
| · | impairing the liquidation rights of the common stock; and |
| · | delaying, deferring or preventing a change in control of our company. |
Warrants
As of December 9, 2014,
there were outstanding warrants to purchase 27,137,580 shares of our common stock. The warrants contain customary anti-dilution
and net issuance provisions and are not callable by us.
Anti-Takeover Provisions
Some provisions of Delaware
law, our Tenth Amended and Restated Certificate of Incorporation (as amended) and our Bylaws contain provisions that could make
the following transactions more difficult: an acquisition of us by means of a tender offer; an acquisition of us by means of a
proxy contest or otherwise; or the removal of our incumbent officers and directors. It is possible that these provisions could
make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest
or in our best interests, including transactions which provide for payment of a premium over the market price for our shares.
These provisions, summarized
below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed
to encourage persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the benefits
of the increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to
acquire or restructure us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could
result in an improvement of their terms.
Undesignated Preferred Stock
The ability of our board
of directors, without action by the stockholders, to issue up to 100,000 shares of undesignated preferred stock with voting or
other rights or preferences as designated by our board of directors could impede the success of any attempt to change control of
us. These and other provisions may have the effect of deferring hostile takeovers or delaying changes in control or management
of our company.
Stockholders Not Entitled to Cumulative
Voting
Our Tenth Amended and
Restated Certificate of Incorporation (as amended) does not permit stockholders to cumulate their votes in the election of directors.
Accordingly, the holders of a majority of the outstanding shares of our common stock entitled to vote in any election of directors
can elect all of the directors standing for election, if they choose, other than any directors that holders of our preferred stock
may be entitled to elect.
Liability Limitations and Indemnification
Tenth Amended and Restated Certificate
of Incorporation (as amended)
Our Tenth Amended and
Restated Certificate of Incorporation (as amended) provides that a director of our company shall not be personally liable to our
company or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director, except for liability
(a) for any breach of the director’s duty of loyalty to our company or its stockholders, (b) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the Delaware General
Corporation Law (“DGCL”), or (d) for any transaction from which the director derived an improper personal benefit.
Our Tenth Amended and Restated Certificate of Incorporation further provides that, to the full extent permitted by Section 145
of the DGCL, as amended from time to time, our company shall indemnify all persons whom it may indemnify pursuant thereto as to
action in his official capacity and as to action in another capacity while holding such office, with respect to any expenses, liabilities
or other matters referred to in or covered by such action.
Bylaws
Our Bylaws provide for
indemnification of directors and, if authorized by our board of directors, officers, employees and agents and any and all persons
whom the board of directors has the power to indemnify to the full extent and in the manner permitted by the DGCL.
Indemnification Agreements
In addition to the indemnification
required in our Tenth Amended and Restated Certificate of Incorporation (as amended) and Bylaws, we have entered into indemnification
agreements with each of our directors. These agreements provide for the indemnification of such directors, subject to certain conditions
and exclusions, against certain costs actually and reasonably incurred in connection with an action, suit, proceeding or investigation
to which such director is a party or is threatened to be made a party by reason of the fact that such person is or was a director.
The director must have acted in good faith and in a manner the director reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. We also agreed, under the indemnification agreements, to advance expenses reasonably incurred by these directors
in connection with a proceeding provided the applicable director agrees to repay the advance to the extent that it is determined
that such director is not entitled to be indemnified by us. These rights of indemnification and to receive advancement of expenses
are not exclusive of any other rights to which such directors are entitled. In addition, such rights shall continue, under certain
circumstances, after the term of such directors’ service to us has ended.
Liability Insurance
We maintain directors’
and officers’ insurance coverage for our directors and officers.
Delaware Law
Section 145 of the DGCL,
which was adopted by our company as described above, provides that a corporation may indemnify any persons, including officers
and directors, who were, are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason
of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such officer,
director, employee or agent acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s
best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was
unlawful. A Delaware corporation, such as our company, may indemnify officers or directors in an action by or in the right of the
corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in
the defense of any action, suit or proceeding referred to above, the corporation must indemnify him against expenses (including
attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers or persons controlling
the registrant pursuant to the foregoing provisions, the registrant has been informed that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable.
Trading
Our common stock is listed
on The Nasdaq Global Market under the symbol “RCPI.”
Transfer Agent and Registrar
The transfer agent and
registrar for our common stock is Wells Fargo Shareowner Services. The transfer agent’s address is 1110
Centre Pointe Curve, Suite 101, Mendota Heights MN 55120-4100, and its telephone number is (800)
468-9716.
description
of warrants
We may issue warrants
for the purchase of preferred stock, common stock or other securities. Warrants may be issued independently or together with preferred
stock or common stock offered by any prospectus supplement and/or other offering material and may be attached to or separate from
any such offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between
us and a bank or trust company, as warrant agent, all as will be set forth in the prospectus supplement and/or other offering material
relating to the particular issue of warrants. The warrant agent will act solely as our agent in connection with the warrants and
will not assume any obligation or relationship of agency or trust for or with any holders of warrants or beneficial owners of warrants.
The following summary
of certain provisions of the warrants does not purport to be complete and is subject to, and is qualified in its entirety by reference
to, all provisions of the warrant agreements.
Reference is made to the
prospectus supplement and/or other offering material relating to the particular issue of warrants offered pursuant to such prospectus
supplement and/or other offering material for the terms of and information relating to such warrants, including, where applicable:
| · | the number of shares of common stock purchasable upon the exercise of warrants to purchase common
stock and the price at which such number of shares of common stock may be purchased upon such exercise; |
| · | the number of shares and series of preferred stock purchasable upon the exercise of warrants to purchase
preferred stock and the price at which such number of shares of such series of preferred stock may be purchased upon such exercise; |
| · | the designation and number of units of other securities purchasable upon the exercise of warrants
to purchase other securities and the price at which such number of units of such other securities may be purchased upon such exercise; |
| · | the date on which the right to exercise such warrants shall commence and the date on which such right
shall expire; |
| · | U.S. federal income tax consequences applicable to such warrants; |
| · | the number of warrants outstanding as of the most recent practicable date; and |
| · | any other terms of such warrants. |
Warrants will be issued
in registered form only. The exercise price for warrants will be subject to adjustment in accordance with provisions described
in the applicable prospectus supplement and/or other offering material.
Each warrant will entitle
the holder thereof to purchase such number of shares of preferred stock, common stock or other securities at such exercise price
as shall in each case be set forth in, or calculable from, the prospectus supplement and/or other offering material relating to
the warrants, which exercise price may be subject to adjustment upon the occurrence of certain events as set forth in such prospectus
supplement and/or other offering material. After the close of business on the expiration date, or such later date to which such
expiration date may be extended by us, unexercised warrants will become void. The place or places where, and the manner in which,
warrants may be exercised shall be specified in the prospectus supplement and/or other offering material relating to such warrants.
Prior to the exercise
of any warrants to purchase preferred stock, common stock or other securities, holders of such warrants will not have any of the
rights of holders of preferred stock, common stock or other securities, as the case may be, purchasable upon such exercise, including
the right to receive payments of dividends, if any, on the preferred stock, or common stock purchasable upon such exercise, or
to exercise any applicable right to vote.
DESCRIPTION
OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase
contracts, including contracts obligating holders to purchase from us, and obligating us to sell to the holders, a specified number
of shares of common stock or other securities at a future date or dates, which we refer to in this prospectus as “stock purchase
contracts.” The price per share of the securities and the number of shares of the securities may be fixed at the time the
stock purchase contracts are issued or may be determined by reference to a specific formula set forth in the stock purchase contracts.
The stock purchase contracts may be issued separately or as part of units consisting of a stock purchase contract and preferred
securities, warrants, other securities or debt obligations of third parties, including U.S. treasury securities, securing the holders’
obligations to purchase the securities under the stock purchase contracts, which we refer to herein as “stock purchase units.”
The stock purchase contracts may require holders to secure their obligations under the stock purchase contracts in a specified
manner. The stock purchase contracts also may require us to make periodic payments to the holders of the stock purchase units or
vice versa, and those payments may be unsecured or refunded on some basis.
The stock purchase contracts,
and, if applicable, collateral or depositary arrangements, relating to the stock purchase contracts or stock purchase units, will
be filed with the SEC in connection with the offering of stock purchase contracts or stock purchase units. The prospectus supplement
and/or other offering material relating to a particular issue of stock purchase contracts or stock purchase units will describe
the terms of those stock purchase contracts or stock purchase units, including the following:
| · | if applicable, a discussion of material U.S. federal income tax considerations; and |
| · | any other information we think is important about the stock purchase contracts or the stock purchase
units. |
If we issue stock purchase
units where debt obligations of third parties are used as security for your obligations to purchase or sell shares of common stock
or preferred stock or other securities, we will include in the prospectus supplement and/or other offering material relating to
the offering information about the issuer of the debt securities. Specifically, if the issuer has a class of securities registered
under the Exchange Act is either eligible to register its securities on Form S-3 under the Securities Act of 1933 or meets the
listing criteria to be listed on a national securities exchange, we will include a brief description of the business of the issuer,
the market price of its securities and how you can obtain more information about the issuer. If the issuer does not meet the criteria
described in the previous sentence, we will include substantially all of the information that would be required if the issuer were
making a public offering of the debt securities.
PLAN OF
DISTRIBUTION
We may sell securities
in any one or more of the following ways from time to time: (1) through agents; (2) to or through underwriters; (3) through brokers
or dealers; (4) directly to purchasers, including through a specific bidding, auction or other process; or (5) through a combination
of any of these methods of sale. The applicable prospectus supplement and/or other offering material will contain the terms of
the transaction, the name or names of any underwriters, dealers, or agents and the respective amounts of securities underwritten
or purchased by them, the initial public offering price of the securities, and the applicable agent’s commission, dealer’s
purchase price or underwriter’s discount. Any dealers and/or agents participating in the distribution of the securities may
be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts.
Any initial offering price,
dealer purchase price, discount or commission may be changed from time to time.
The securities may be
distributed from time to time in one or more transactions, at negotiated prices, at a fixed price or fixed prices (that may be
subject to change), at market prices prevailing at the time of sale, at various prices determined at the time of sale or at prices
related to prevailing market prices.
Offers to purchase securities
may be solicited directly by us or by agents designated by us from time to time. Any such agent may be deemed to be an underwriter,
as that term is defined in the Securities Act of 1933, as amended (the “Securities Act”), of the securities so offered
and sold.
If underwriters are utilized
in the sale of any securities in respect of which this prospectus is being delivered, such securities will be acquired by the underwriters
for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at fixed
public offering prices or at varying prices determined by the underwriters at the time of sale. Securities may be offered to the
public either through underwriting syndicates represented by managing underwriters or directly by one or more underwriters. If
any underwriter or underwriters are utilized in the sale of securities, unless otherwise indicated in the applicable prospectus
supplement and/or other offering material, the obligations of the underwriters are subject to certain conditions precedent, and
the underwriters will be obligated to purchase all such securities if they purchase any of them.
If a dealer is utilized
in the sale of the securities in respect of which this prospectus is delivered, we will sell such securities to the dealer, as
principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer at the time
of resale. Transactions through brokers or dealers may include block trades in which brokers or dealers will attempt to sell shares
as agent but may position and resell as principal to facilitate the transaction or in cross trades, in which the same broker or
dealer acts as agent on both sides of the trade. Any such dealer may be deemed to be an underwriter, as such term is defined in
the Securities Act, of the securities so offered and sold.
Offers to purchase securities
may be solicited directly by us and the sale thereof may be made by us directly to institutional investors or others, who may be
deemed to be underwriters within the meaning of the Securities Act with respect to any resale thereof.
If so indicated in the
applicable prospectus supplement and/or other offering material, we may authorize agents and underwriters to solicit offers by
certain institutions to purchase securities from us at the public offering price set forth in the applicable prospectus supplement
and/or other offering material pursuant to delayed delivery contracts providing for payment and delivery on the date or dates stated
in the applicable prospectus supplement and/or other offering material. Such delayed delivery contracts will be subject only to
those conditions set forth in the applicable prospectus supplement and/or other offering material.
Agents, underwriters and
dealers may be entitled under relevant agreements with us to indemnification by us against certain liabilities, including liabilities
under the Securities Act, or to contribution with respect to payments which such agents, underwriters and dealers may be required
to make in respect thereof. The terms and conditions of any indemnification or contribution will be described in the applicable
prospectus supplement and/or other offering material.
We may also sell shares
of our common stock through various arrangements involving mandatorily or optionally exchangeable securities, and this prospectus
may be delivered in connection with those sales.
We may enter into derivative,
sale or forward sale transactions with third parties, or sell securities not covered by this prospectus to third parties in privately
negotiated transactions. If the applicable prospectus supplement and/or other offering material indicates, in connection with those
transactions, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement and/or
other offering material, including in short sale transactions and by issuing securities not covered by this prospectus but convertible
into, exchangeable for or representing beneficial interests in securities covered by this prospectus, or the return of which is
derived in whole or in part from the value of such securities. The third parties may use securities received under derivative,
sale or forward sale transactions or securities pledged by us or borrowed from us or others to settle those sales or to close out
any related open borrowings of stock, and may use securities received from us in settlement of those transactions to close out
any related open borrowings of stock. The third party in such sale transactions will be an underwriter and will be identified in
the applicable prospectus supplement (or a post-effective amendment) and/or other offering material.
Underwriters, broker-dealers
or agents may receive compensation in the form of commissions, discounts or concessions from us. Underwriters, broker-dealers or
agents may also receive compensation from the purchasers of shares for whom they act as agents or to whom they sell as principals,
or both. Compensation as to a particular underwriter, broker-dealer or agent will be in amounts to be negotiated in connection
with transactions involving shares and might be in excess of customary commissions. In effecting sales, broker-dealers engaged
by us may arrange for other broker-dealers to participate in the resales.
Any securities offered
other than common stock will be a new issue and, other than the common stock, which is listed on The Nasdaq Global Market, will
have no established trading market. We may elect to list any series of securities on an exchange, and in the case of the common
stock, on any additional exchange, but, unless otherwise specified in the applicable prospectus supplement and/or other offering
material, we shall not be obligated to do so. No assurance can be given as to the liquidity of the trading market for any of the
securities.
Agents, underwriters and
dealers may engage in transactions with, or perform services for, us and/or our subsidiaries in the ordinary course of business.
Any underwriter may engage
in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under
the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions
permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering
transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions.
Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer
are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to be
higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time. An underwriter
may carry out these transactions on The Nasdaq Global Market, in the over-the-counter market or otherwise.
The place and time of
delivery for securities will be set forth in the accompanying prospectus supplement and/or other offering material for such securities.
Legal Matters
The validity of the securities
offered by this prospectus will be passed upon for us by Foley & Lardner LLP. The validity of the securities offered by this
prospectus will be passed upon for any underwriters or agents by counsel named in the applicable prospectus supplement. The opinions
of Foley & Lardner LLP and counsel for any underwriters or agents may be conditioned upon and may be subject to assumptions
regarding future action required to be taken by us and any underwriters, dealers or agents in connection with the issuance of any
securities. The opinions of Foley & Lardner LLP and counsel for any underwriters or agents may be subject to other conditions
and assumptions, as indicated in the prospectus supplement.
Experts
Cherry Bekaert LLP, our
independent registered public accounting firm, has audited our consolidated financial statements included in our Annual Report
on Form 10-K for the year ended December 31, 2013, which is incorporated by reference in this prospectus and elsewhere in the registration
statement. Our consolidated financial statements are incorporated by reference in reliance on their report given upon their authority
as experts in accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly
and current reports, proxy statements and other information with the SEC. We also filed a registration statement on Form S-3, including
exhibits, under the Securities Act with respect to the securities offered by this prospectus. This prospectus is a part of the
registration statement, but does not contain all of the information included in the registration statement or the exhibits. You
may read and copy the registration statement and any other document that we file with the SEC at the SEC’s Public Reference
Room located at 100 F Street, N.E., Washington, D.C. 20549. You may call the SEC at 1-800-SEC-0330 for further information regarding
the operation of the Public Reference Room. Our SEC filings are also available to the public at the SEC’s web site at http://www.sec.gov.
We are “incorporating
by reference” specified documents that we file with the SEC, which means:
| · | incorporated documents are considered part of this prospectus; |
| · | we are disclosing important information to you by referring you to those documents; and |
| · | information we file with the SEC will automatically update and supersede information contained in
this prospectus. |
We incorporate by reference
the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act (i) after the date of the registration statement on Form S-3 filed under the Securities Act with respect to securities
offered by this prospectus and prior to the effectiveness of such registration statement and (ii) after the date of this prospectus
and before the end of the offering of the securities pursuant to this prospectus:
| · | our Annual Report on Form 10-K for the fiscal year ended December 31, 2013 filed with the SEC on
March 17, 2014, as amended by Amendment No. 1 on Form 10-K/A filed with the SEC on April 30, 2014; |
| · | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2014 filed with the SEC on May
12, 2014; our Quarterly Report on Form 10-Q for the quarter ended June 30, 2014 filed with the SEC on August 11, 2014, as amended
by Amendment No. 1 on Form 10-Q/A filed with the SEC on August 18, 2014; and our Quarterly Report on Form 10-Q for the quarter
ended September 30, 3014 filed with the SEC on November 10, 2014; |
| · | our Current Reports on Form 8-K filed with the SEC on January 2, 2014, February 14, 2014, April 7,
2014, May 2, 2014, May 23, 2014, June 4, 2014, June 26, 2014, July 11, 2014, August 6, 2014, November 3, 2014, November 25, 2014
and December 11, 2014; and |
| · | the description of our common stock as set forth in our Registration Statement on Form 8-A/A filed
pursuant to Section 12(b) of the Exchange Act, filed with SEC on June 21, 2001, and any amendment or report updating that description. |
Notwithstanding the foregoing,
information furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits under Item 9.01,
is not incorporated by reference in this prospectus.
Information in this prospectus
supersedes related information in the documents listed above, and information in subsequently filed documents supersedes related
information in both this prospectus and the incorporated documents.
We will promptly provide,
without charge to you, upon written or oral request, a copy of any or all of the documents incorporated by reference in this prospectus,
other than exhibits to those documents, unless the exhibits are specifically incorporated by reference in those documents. Requests
should be directed to:
Rock Creek Pharmaceuticals,
Inc.
Attn: Investor Relations
2040 Whitfield Avenue, Suite 300
Sarasota, Florida 34243
(844) 727-0727
You can also find these
filings on our website at www.rockcreekpharmaceuticals.com. The information on our website is not incorporated by reference into this prospectus.
You should not assume
that the information in this prospectus, any prospectus supplement and/or other offering material, as well as the information we
file or previously filed with the SEC that we incorporate by reference in this prospectus, any prospectus supplement and/or other
offering material, is accurate as of any date other than its respective date. Our business, financial condition, results of operations
and prospects may have changed since that date.
The information in this
prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting
an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to Completion,
Dated December 15, 2014
Rock Creek
Pharmaceuticals, Inc.
$16,500,000
Common
Stock
We have entered into an
At Market Issuance Sales Agreement, or sales agreement, with MLV & Co. LLC, or MLV, dated December 15, 2014, relating to the
sale of shares of our common stock offered by this prospectus. In accordance with the terms of the sales agreement, under this
prospectus we may offer and sell shares of our common stock, $0.0001 par value per share, having an aggregate offering price of
up to $16.5 million from time to time through MLV, acting as agent.
Our common stock is traded
on The Nasdaq Global Market under the symbol “RCPI.” Sales of our common stock, if any, under this prospectus will
be made by any method permitted that is deemed an “at the market offering” as defined in Rule 415 under the Securities
Act of 1933, as amended, or the Securities Act, including sales made directly on or through The Nasdaq Global Market, the existing
trading market for our common stock, sales made to or through a market maker other than on an exchange or otherwise, in negotiated
transactions at market prices, or any other method permitted by law. MLV is not required to sell any specific amount, but will
act as our sales agent using commercially reasonable efforts consistent with its normal trading and sales practices. There is no
arrangement for funds to be received in any escrow, trust or similar arrangement.
MLV will be entitled to
compensation at a commission rate equal to 3% of the gross sales price per share sold. In connection with the sale of the common
stock on our behalf, MLV may be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation
of MLV may be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution
to MLV with respect to certain liabilities, including liabilities under the Securities Act.
The aggregate market value
of our common stock held by non-affiliates is approximately $49.5 million based on the closing price of one share of our common
stock on The Nasdaq Global Market of $0.32 per share on October 17, 2014. We have sold no shares of our common stock pursuant to
General Instruction I.B.6 of Form S-3 during the twelve-month period preceding the date of this prospectus.
Investing in our
securities involves risks. See the section entitled “Risk Factors” on page 3 of this prospectus for a discussion
of certain risks that prospective investors should consider before investing in our securities.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2014.
table of
contents
about this
prospectus
Unless the context otherwise requires, in
this prospectus, “our company,” “the Company,” “we,” “us,” and “our”
refer to Rock Creek Pharmaceuticals, Inc. (f/k/a Star Scientific, Inc.) and its consolidated subsidiaries, Star Tobacco, Inc. and
RCP Development, Inc. (f/k/a Rock Creek Pharmaceuticals, Inc.).
This prospectus relates
to the offering of our common stock. Before buying any of the common stock that we are offering, we urge you to carefully read
this prospectus, together with the information incorporated by reference as described under the heading “Where You Can Find
More Information.” These documents contain important information that you should consider when making your investment decision.
We provide information
to you about this offering of our common stock in two separate documents that are bound together: (1) this sales agreement prospectus,
which describes the specific details regarding this offering; and (2) the accompanying base prospectus, which provides general
information, some of which may not apply to this offering. Generally, when we refer to this “prospectus,” we are referring
to both documents combined. If information in this sales agreement prospectus is inconsistent with the accompanying base prospectus,
you should rely on this prospectus. To the extent there is a conflict between the information contained in this prospectus, on
the one hand, and the information contained in any document incorporated by reference in this prospectus, on the other hand, you
should rely on the information in this prospectus. If any statement in one of these documents is inconsistent with a statement
in another document having a later date—for example, a document incorporated by reference into this prospectus—the
statement in the document having the later date modifies or supersedes the earlier statement.
You should rely only
on the information contained in or incorporated by reference in this prospectus and any free writing prospectus that we may authorize
for use in connection with this offering. We have not, and MLV has not, authorized anyone to provide you with different information.
If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and MLV is not, making
an offer to sell these securities in any jurisdiction where the offer or sale is not permitted or in which the person making that
offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should
assume that the information appearing in this prospectus, the documents incorporated by reference in this prospectus and any free
writing prospectus that we have authorized for use in connection with this offering, is accurate only as of the date of those respective
documents. Our business, financial condition, results of operations and prospects may have changed since those dates. You should
read this prospectus, the documents incorporated by reference in this prospectus and any free writing prospectus that we have authorized
for use in connection with this offering, in their entirety before making an investment decision.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated
by reference herein contain certain “forward-looking statements” within the meaning of the Private Securities Litigation
Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934,
as amended. We have tried, whenever possible, to identify these forward-looking statements using words such as “anticipates,”
“believes,” “estimates,” “continues,” “likely,” “may,” “opportunity,”
“potential,” “projects,” “will,” “expects,” “plans,” “intends”
and similar expressions to identify forward-looking statements, whether in the negative or the affirmative. These statements reflect
our current beliefs and are based on information currently available to us. Accordingly, such forward-looking statements involve
known and unknown risks, uncertainties and other factors which could cause our actual results, performance or achievements to differ
materially from those expressed in, or implied by, such statements. These risks, uncertainties, factors and contingencies include,
without limitation, the challenges inherent in new product development initiatives, the effect of any competitive products, our ability to license and protect our intellectual
property, our ability to raise additional capital in the future that is necessary to maintain our business, changes in government
policy and/or regulation, potential litigation by or against us, any governmental review of our products or practices, the outcome
of ongoing investigations, and related items discussed herein and in the documents incorporated by reference herein.
Forward-looking statements reflect our management’s
expectations or predictions of future conditions, events or results based on various assumptions and management’s estimates
of trends and economic factors in the markets in which we are active, as well as our business plans. They are not guarantees of
future performance. By their nature, forward-looking statements are subject to risks and uncertainties. Our actual results and
financial condition may differ, possibly materially, from the anticipated results and financial condition indicated in these forward-looking
statements. There are a number of factors that could cause actual conditions, events or results to differ materially from those
described in the forward-looking statements contained in this prospectus and the documents incorporated by reference into this
prospectus.
See an additional discussion under
“Risk Factors” beginning on page 3 of this prospectus, and other factors detailed from time to time in our other
filings with the SEC. These forward-looking statements are representative only as of the date they are made, and we undertake
no obligation to update any forward-looking statement as a result of new information, future events or otherwise.
ROCK CREEK
PHARMACEUTICALS, INC.
Our Business
In recent years, we have engaged primarily
in the sale of dietary supplements and related cosmetic products, and in pursuing ongoing research and development of related dietary
supplements and pharmaceutical products. In December 2013, we received a warning letter from the U.S. Food and Drug Administration
(the “FDA”) indicating the dietary supplement products required the filing of a New Dietary Ingredient Notification
(“NDIN”) to be legally marketed. In June 2014, we filed an NDIN with the FDA. On August 8, 2014, we determined to voluntarily
suspend the sale of CigRx® and Anatabloc® for an indeterminate period of time, and at that time anticipated
this would bring the FDA warning letter matter to a close. This action was taken in connection with an ongoing review of the extent
to which our dietary supplement business, whether conducted by us or through future licenses and whether conducted in the United
States (“U.S.”) or overseas, will impact our primary focus of developing pharmaceutical products from our anatabine-based
compounds. On August 25, 2014, we received a response to the NDIN from the FDA. The letter indicated that the FDA considers anatabine,
a principal ingredient in these products, to be a drug, because anatabine is intended to provide anti-inflammatory support, and
is the subject of a previously filed Investigational New Drug Application (“INDA”). Based on the FDA position, we permanently
exited the dietary supplement business in the U.S. However, we will continue to seek opportunities to license the product for overseas
markets. All of our revenues, cost of goods sold, marketing and sales, inventory and manufacturing machinery related to the dietary
supplement business were accounted for as discontinued operations effective September 2014, since we exited the U.S. market. The
FDA notified us in a close out letter dated October 21, 2014 that the FDA has completed its evaluation of our corrective actions
in response to the warning letter issued on December 24, 2013. In this notification, the FDA stated that, based on its evaluation,
we have addressed the putative violations in the warning letter.
We historically have focused
on utilizing certain alkaloids found in the Solanacea family of plants, which includes potatoes, tomatoes, and
eggplants, initially to address issues related to the desire to smoke or use other traditional tobacco products. More
recently, we have concentrated on the anti-inflammatory aspects of one of those alkaloids, anatabine. We also expect that, by
leveraging the underlying science and clinical data accumulated by us in relation to our existing products, we will focus our
operations on the research and development of drug candidates. We expect much of these research and development efforts will
initially focus on developing our anatabine based compounds as potential drug candidates. Our subsidiary, RCP Development,
also has been involved in the development of a cosmetic line of products that utilizes our anatabine based compound to
improve the appearance of the skin. We introduced Anatabloc® Facial Crème in September 2012 and related
line extensions in 2013. From the introduction of Anatabloc® to the date of its discontinuance in the U.S.
market, our revenues were derived almost exclusively from the sale of our anatabine based dietary supplement products
and, more particularly, Anatabloc®. We do not expect to recognize any revenues related to our drug development
initiatives in the foreseeable future.
Corporate Information
Our principal executive offices are located
at 2040 Whitfield Avenue, Suite 300, Sarasota, Florida 34243, and our telephone number is (844) 727-0727. Our website is www.rockcreekpharmaceuticals.com.
The information contained on our website is not incorporated by reference into this prospectus, and such information should not
be considered to be part of this prospectus.
the Offering |
|
The following summary contains basic information about this offering. The summary is not intended to be complete. You should read the full text and more specific details contained elsewhere in this prospectus. |
|
|
Issuer
|
Rock Creek Pharmaceuticals, Inc. |
Common stock offered by us pursuant to
this prospectus
|
Shares of our common stock having an aggregate offering price of up to $16.5 million. |
|
|
Manner of offering |
“At the market offering” that may be made from time to time on The Nasdaq Global Market or other market for our common stock in the United States through our agent, MLV & Co. LLC. See the section entitled “Plan of Distribution” on page 5 of this prospectus. |
|
|
Use of proceeds |
Use
the net proceeds of this offering to fund clinical development of our anatabine-based compounds and for working capital and general
corporate purposes. See “Use of Proceeds” on page 4 of this prospectus for additional information.
|
|
|
Nasdaq Global Market Symbol
|
“RCPI” |
Risk factors |
Investing in our common stock
involves risks. See “Risk Factors” on page 3 of this prospectus and the other information included or
incorporated by reference in this prospectus for a discussion of certain factors you should carefully consider before
deciding to invest in shares of our common stock.
|
Risk Factors
Investing in our securities
involves significant risks. Before making an investment decision, you should carefully consider the risks and other information
we include or incorporate by reference in this prospectus. In particular, you should consider the risk factors under the heading
“Risk Factors” included in our most recent Annual Report on Form 10-K, as revised or supplemented by our subsequent
Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, each of which are on file with the SEC and are incorporated herein
by reference, and which may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the
future. The risks and uncertainties we have described are not the only ones facing our company. Additional risks and uncertainties
not currently known to us or that we currently deem immaterial may also affect our business operations. The occurrence of any of
these risks might cause you to lose all or part of your investment in our common stock.
Risks Relating to this Offering
If you purchase shares of our common
stock sold in this offering, you will experience immediate and substantial dilution in the net tangible book value of your shares.
In addition, we may issue additional equity or convertible debt securities in the future, which may result in additional dilution
to our investors.
The price per share of our common stock
being offered may be higher than the net tangible book value per share of our outstanding common stock prior to this offering.
Assuming that an aggregate of 97,058,823 shares of our common stock are sold at a price of $0.17 per share, the last reported sale
price of our common stock on The Nasdaq Global Market on December 9, 2014, for aggregate gross proceeds of approximately $16.5
million, and after deducting commissions and estimated offering expenses payable by us, new investors in this offering will incur
immediate dilution of $0.136 per share. For a more detailed discussion of the foregoing, see the section entitled “Dilution”
below. To the extent outstanding stock options or warrants are exercised, there will be further dilution to new investors. In addition,
to the extent we need to raise additional capital in the future and we issue additional shares of common stock or securities convertible
or exchangeable for our common stock, our then existing stockholders may experience dilution and the new securities may have rights
senior to those of our common stock offered in this offering.
We have broad discretion in the use
of proceeds from this offering.
Our management will have broad discretion
in the application of the net proceeds from this offering, including for any of the purposes described in the section entitled
“Use of Proceeds,” and you will not have the opportunity as part of your investment decision to assess whether the
net proceeds are being used appropriately. Because of the number and variability of factors that will determine our use of the
net proceeds from this offering, their ultimate use may vary substantially from their currently intended use. Our management might
not apply our net proceeds in ways that ultimately increase the value of your investment. We expect to use the net proceeds from
this offering to fund the clinical development of anatabine-based compounds as potential drug candidates and for working capital
and general corporate purposes. The failure by our management to apply these funds effectively could harm our business. Pending
their use, we may invest the net proceeds from this offering in short-term, investment-grade, interest-bearing securities. These
investments may not yield a favorable return to our stockholders. If we do not invest or apply the proceeds from this offering
in ways that enhance stockholder value, we may fail to achieve expected financial results, which could cause our stock price to
decline.
Use of Proceeds
We may issue and sell shares of our common
stock having aggregate sales proceeds of up to $16.5 million from time to time. Because there is no minimum offering amount required
as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not
determinable at this time.
We intend to use the net proceeds of this
offering to fund clinical development of our anatabine-based compounds and for working capital and general corporate purposes.
The amounts and timing of our actual expenditures
will depend on numerous factors, including the progress of our clinical trials and other development efforts for our anatabine-based
compounds and other factors described under “Risk Factors” in this prospectus and in the documents incorporated by
reference herein, as well as the amount of cash used in our operations. We may find it necessary or advisable to use the net proceeds
for other purposes, and we will have broad discretion in the application of the net proceeds. Pending the uses described above,
we plan to invest the net proceeds from this offering in short- and intermediate-term, interest-bearing obligations, investment-grade
instruments, certificates of deposit or direct or guaranteed obligations of the U.S. government.
dividend
policy
We have never declared or paid any cash
dividends on our capital stock. We intend to retain future earnings, if any, to finance the operation of our business and do not
anticipate paying any cash dividends in the foreseeable future. Any future determination related to our dividend policy will be
made at the discretion of our board of directors after considering our financial condition, results of operations, capital requirements,
business prospects and other factors the board of directors deems relevant, and subject to the restrictions contained in any future
financing instruments.
dilution
If you invest in our
common stock, your interest will be diluted to the extent of the difference between the price per share you pay in this offering
and the net tangible book value per share of our common stock immediately after this offering. Our net tangible book value of our
common stock as of September 30, 2014 was approximately $(6,089,000), or approximately $(0.032) per share of common stock based
upon 192,997,235 shares outstanding. Net tangible book value per share is equal to our total tangible assets, less our total liabilities,
divided by the total number of shares outstanding as of September 30, 2014.
After giving effect to
the sale of our common stock in the aggregate amount of $16.5 million at an assumed offering price of $0.17 per share, the last
reported sale price of our common stock on The Nasdaq Global Market on December 9, 2014 and after deducting estimated offering
commissions and estimated offering expenses payable by us, our net tangible book value as of September 30, 2014 would have been
$9,846,000, or $0.034 per share of common stock. This represents an immediate increase in net tangible book value of $0.066 per
share to our existing stockholders and an immediate dilution in net tangible book value of $0.136 per share to new investors in
this offering.
The following table illustrates
this calculation on a per share basis:
Assumed public offering price per share | |
$ | 0.17 | |
Net tangible book value per share | |
$ | (0.032 | ) |
Increase in net tangible book value per share attributable to the offering | |
$ | 0.066 | |
As adjusted net tangible book value per share after giving effect to the offering | |
$ | 0.034 | |
Dilution in net tangible book value per share to new investors in this offering | |
$ | 0.136 | |
| |
| | |
The number of shares
of our common stock to be outstanding immediately after this offering is based on 192,997,235 shares of our common stock outstanding
as of September 30, 2014. The number of shares outstanding as of September 30, 2014 excludes:
|
• |
|
25,425,000 shares of common stock issuable upon exercise of stock options outstanding as of September 30, 2014, at a weighted exercise price of $2.12 per share; |
|
• |
|
17,775,000 shares of our common stock reserved for future issuance under our 2008 incentive award plan, as amended; |
|
• |
|
27,137,580 shares of common stock issuable upon exercise of warrants outstanding as of September 30, 2014, at a weighted average exercise price of $1.17 per share; and |
|
• |
|
units, each consisting of a share of our common stock and a warrant to purchase a share of our common stock, issuable upon the optional conversion of any amount loaned to us under a credit facility under which we may borrow up to $5.8 million at a conversion price of $1.00 per unit. |
The foregoing table does
not give effect to the exercise of any outstanding options or warrants or other securities subject to exercise issued or issuable
by us. To the extent any such securities are exercised, there may be further dilution to new investors.
PLAN OF
DISTRIBUTION
We have entered into
an At Market Issuance Sales Agreement with MLV & Co. LLC, or MLV, under which we may issue and sell our common stock from time
to time through MLV acting as agent, subject to certain limitations, including the number of shares registered under the registration
statement to which the offering relates. The form of the sales agreement is filed as Exhibit 1.2 to this prospectus, and is incorporated
by reference in this prospectus. The sales, if any, of shares made under the sales agreement will be made by any method that is
deemed an “at the market offering” as defined in Rule 415 promulgated under the Securities Act, including sales made
directly on or through The Nasdaq Global Market, the existing trading market for our common stock, sales made to or through a market
maker other than on an exchange or otherwise, in negotiated transactions at market prices, and/or any other method permitted by
law. We may instruct MLV not to sell common stock if the sales cannot be effected at or above the price designated by us from time
to time. We or MLV may suspend the offering of common stock upon notice and subject to other conditions.
Each time we wish to
issue and sell common stock under the sales agreement, we will notify MLV of the number of shares to be issued, the dates on which
such sales are anticipated to be made, any minimum price below which sales may not be made and other sales parameters as we deem
appropriate. Once we have so instructed MLV, unless MLV declines to accept the terms of the notice, MLV has agreed to use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell such shares up to the amount specified on such
terms. The obligations of MLV under the sales agreement to sell our common stock are subject to a number of conditions that we
must meet.
We will pay MLV commissions
for its services in acting as agent in the sale of common stock. MLV will be paid a commission in an amount equal to 3% of the
gross sales price per share sold. In addition, we have agreed to reimburse MLV for fees and disbursements related to its legal
counsel in an amount not to exceed $25,000, and for certain other expenses. We estimate that the total expenses for the offering,
excluding compensation payable to MLV under the terms of the sales agreement, will be approximately $70,000.
Settlement for sales
of common stock will generally occur on the third business day following the date on which any sales are made, or on some other
date that is agreed upon by us and MLV in connection with a particular transaction, in return for payment of the net proceeds to
us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
In connection with the
sale of the common stock on our behalf, MLV may, and will with respect to sales effected in an “at the market offering,”
be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of MLV may be deemed
to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to MLV against certain
civil liabilities, including liabilities under the Securities Act. We have also agreed to reimburse MLV for certain other specified
expenses.
The offering of our common
stock pursuant to the sales agreement will terminate upon the earlier of (i) the sale of all of our common stock provided
for in this prospectus or (ii) termination of the sales agreement as provided therein.
MLV and its affiliates
may in the future provide various investment banking and other financial services for us and our affiliates, for which services
they may in the future receive customary fees. To the extent required by Regulation M, MLV will not engage in any market making
activities involving our common stock while the offering is ongoing under this prospectus.
Legal Matters
The validity of the securities offered by
this prospectus will be passed upon for us by Foley & Lardner LLP. LeClairRyan, a Professional Corporation, New York, New York,
is counsel for MLV in connection with this offering.
Experts
Cherry Bekaert LLP, our independent registered
public accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K for the year
ended December 31, 2013, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our
consolidated financial statements are incorporated by reference in reliance on their report given upon their authority as experts
in accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. We also filed a registration statement on Form S-3, including exhibits, under
the Securities Act with respect to the securities offered by this prospectus. This prospectus is a part of the registration statement,
but does not contain all of the information included in the registration statement or the exhibits. You may read and copy the registration
statement and any other document that we file with the SEC at the SEC’s Public Reference Room located at 100 F Street, N.E.,
Washington, D.C. 20549. You may call the SEC at 1-800-SEC-0330 for further information regarding the operation of the Public Reference
Room. Our SEC filings are also available to the public at the SEC’s web site at http://www.sec.gov.
We are “incorporating by reference”
specified documents that we file with the SEC, which means:
| · | incorporated documents are considered part of this prospectus; |
| · | we are disclosing important information to you by referring you to those documents; and |
| · | information we file with the SEC will automatically update and supersede information contained in
this prospectus. |
We incorporate by reference the documents
listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after
the date of the registration statement on Form S-3 filed under the Securities Act with respect to securities offered by this prospectus
and prior to the effectiveness of such registration statement and (ii) after the date of this prospectus and before the end
of the offering of the securities pursuant to this prospectus:
| · | our Annual Report on Form 10-K for the fiscal year ended December 31, 2013 filed with the SEC on March
17, 2014, as amended by Amendment No. 1 on Form 10-K/A filed with the SEC on April 30, 2014; |
| · | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2014 filed with the SEC on May 12,
2014; our Quarterly Report on Form 10-Q for the quarter ended June 30, 2014 filed with the SEC on August 11, 2014, as amended by
Amendment No. 1 on Form 10-Q/A filed with the SEC on August 18, 2014; and our Quarterly Report on Form 10-Q for the quarter ended
September 30, 3014 filed with the SEC on November 10, 2014; |
| · | our Current Reports on Form 8-K filed with the SEC on January 2, 2014, February 14, 2014, April 7,
2014, May 2, 2014, May 23, 2014, June 4, 2014, June 26, 2014, July 11, 2014, August 6, 2014, November 3, 2014, November 25, 2014
and December 11, 2014; and |
| · | the description of our common stock as set forth in our Registration Statement on Form 8-A/A filed
pursuant to Section 12(b) of the Exchange Act, filed with SEC on June 21, 2001, and any amendment or report updating that description. |
Notwithstanding the foregoing, information
furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits under Item 9.01, is not incorporated
by reference in this prospectus.
Information in this prospectus supersedes
related information in the documents listed above, and information in subsequently filed documents supersedes related information
in both this prospectus and the incorporated documents.
We will promptly provide, without charge
to you, upon written or oral request, a copy of any or all of the documents incorporated by reference in this prospectus, other
than exhibits to those documents, unless the exhibits are specifically incorporated by reference in those documents. Requests should
be directed to:
Rock Creek Pharmaceuticals, Inc.
Attn: Investor Relations
2040 Whitfield Avenue, Suite 300
Sarasota, Florida 34243
(844) 727-0727
You can also find these filings on our website
at www.rockcreekpharmaceuticals.com. The information on our website is not incorporated by reference into this prospectus.
You should not assume that the information
in this prospectus, any prospectus supplement and/or other offering material, as well as the information we file or previously
filed with the SEC that we incorporate by reference in this prospectus, any prospectus supplement and/or other offering material,
is accurate as of any date other than its respective date. Our business, financial condition, results of operations and prospects
may have changed since that date.
Rock Creek Pharmaceuticals, Inc.
$16,500,000
Common Stock
Prospectus
, 2014
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other
Expenses of Issuance and Distribution. |
The following table sets forth the costs
and expenses payable by the registrant in connection with the registration of the securities being registered hereby. All amounts
shown are estimates, with the exception of the Securities and Exchange Commission registration fee.
Securities and Exchange Commission registration fee | |
$ | 5,810.00 | |
| |
| | |
Printing and engraving expenses | |
$ | 5,000.00 | * |
| |
| | |
Accounting fees and expenses | |
$ | 15,000.00 | * |
| |
| | |
Legal fees and expenses | |
$ | 30,000.00 | * |
| |
| | |
Miscellaneous (including any applicable listing fees and trustee and transfer agent fees and expenses) | |
$ | 14,190.00 | * |
| |
| | |
Total | |
$ | 70,000.00 | * |
| * | Fees and expenses (other than the Securities and Exchange
Commission registration fee to be paid upon filing of this registration statement) will depend on the number of issuances and
the nature of the offerings, and cannot be estimated at this time. |
| Item 15. | Indemnification
of Directors and Officers. |
Delaware Law
We are a Delaware corporation.
Subsection (b)(7) of Section 102 of the Delaware General Corporation Law (the “DGCL”), enables a corporation in its
original certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall
not eliminate or limit the liability of a director: (i) for any breach of the director’s duty of loyalty to the corporation
or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law; (iii) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful
stock purchases or redemptions); or (iv) for any transaction from which the director derived an improper personal benefit.
Subsection (a) of Section 145 of the DGCL
empowers a corporation to indemnify any present or former director, officer, employee or agent of the corporation, or any individual
who is or was serving at the corporation’s request as a director, officer, employee or agent of another organization, partnership,
joint venture, trust or other enterprise, who was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation), against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action, suit or proceeding provided that such director,
officer, employee or agent acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or proceeding, provided further that such director, officer,
employee or agent had no reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 empowers a
corporation to indemnify any present or former director, officer, employee or agent of the corporation, or any individual who is
or was serving at the request of the corporation as a director, officer, employee or agent of another organization, partnership,
joint venture, trust or other enterprise, who was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably
incurred by the person in connection with the defense or settlement of such action or suit provided that such person acted in good
faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification
may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Subsection (c) of Section 145 provides that,
to the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145 or in the defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred
by such person in connection therewith. Subsection (f) of Section 145 also provides that indemnification and advancement of expenses
provided by, or granted pursuant to, Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled. Subsection (g) of Section 145 also empowers the corporation to purchase and maintain
insurance on behalf of a present or former director, officer, employee or agent of the corporation, or any individual who is or
was serving at the corporation’s request as a director, officer or employee of another organization, partnership, joint venture,
trust or other enterprise, against any liability asserted against such person or incurred by such person in any such capacity,
or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person
against such liabilities under Section 145.
Certificate of Incorporation and Bylaws
Our Tenth Amended and Restated Certificate
of Incorporation (as amended) provides that no director shall be personally liable to us or our stockholders for monetary damages
for any breach of fiduciary duty by such director as a director, to the fullest extent permitted by the DGCL. Our Bylaws (as amended
and restated) provide for indemnification of directors and, if authorized by our board of directors, officers, employees and agents
and any and all persons whom the board of directors has the power to indemnify to the full extent and in the manner permitted by
the DGCL. Section 145 of the DGCL makes provision for such indemnification in terms sufficiently broad to cover officers and directors
under certain circumstances for liabilities arising under the Securities Act.
Liability Insurance
The Company maintains directors’ and
officers’ insurance coverage for its directors and officers.
Indemnification Agreements
In addition to the indemnification required
in the Company’s Tenth Amended and Restated Certificate of Incorporation (as amended) and Bylaws, the Company has entered
into indemnification agreements with each of its directors. These agreements provide for the indemnification of such directors,
subject to certain conditions and exclusions, against certain costs actually and reasonably incurred in connection with an action,
suit, proceeding or investigation to which such director is a party or is threatened to be made a party by reason of the fact that
such person is or was a director. The director must have acted in good faith and in a manner the director reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The indemnification agreements also provide that the Company will advance expenses reasonably
incurred by these directors in connection with a proceeding provided the applicable director agrees to repay the advance to the
extent that it is determined that such director is not entitled to be indemnified by the Company. These rights of indemnification
and to receive advancement of expenses are not exclusive of any other rights to which such directors are entitled. In addition,
such rights shall continue, under certain circumstances, after the term of such directors’ service to us has ended.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the
foregoing provisions, the registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable.
The exhibits listed in the accompanying
Exhibit Index are filed or incorporated by reference as part of this Registration Statement.
| (a) | The undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Securities and Exchange Commission (the “Commission”) pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (iii) | To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement or any material change to such information in
the registration statement; |
provided, however, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| (2) | That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof. |
| (3) | To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser: |
| (i) | Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and |
| (ii) | Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant
to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act
of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus
is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall
be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to
which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date. |
| (5) | That, for the purpose of determining liability of
the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating
to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering
made by the undersigned registrant to the purchaser. |
| (b) | The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue. |
| (d) | The undersigned registrant hereby undertakes that, |
| (1) | For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
| (2) | For the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. |
| (e) | The undersigned registrant hereby undertakes to file
an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Sarasota, on December 15, 2014.
|
ROCK CREEK PHARMACEUTICALS, INC. |
|
|
|
|
By: |
/s/ Michael J. Mullan |
|
|
Michael J. Mullan |
|
|
Chief Executive Officer |
|
|
(Principal Executive Officer) |
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Each person whose signature appears below constitutes and appoints Michael J. Mullan and Park A. Dodd, III and each of them individually,
as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement and any Rule 462(b) registration statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Signature |
|
Title |
|
Date |
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|
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|
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/s/ Michael J. Mullan |
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Chief Executive Officer and |
|
December 15, 2014 |
Michael J. Mullan |
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Chairman of the Board of Directors |
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(Principal Executive Officer) |
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/s/ Park A. Dodd, III |
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Chief Financial Officer |
|
December 15, 2014 |
Park A. Dodd, III |
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(Principal Financial Officer and |
|
|
|
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Principal Accounting Officer) |
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/s/ Christopher C. Chapman |
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President and Director |
|
December 15, 2014 |
Christopher C. Chapman |
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/s/ Benjamin M. Dent |
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Director |
|
December 15, 2014 |
Benjamin M. Dent |
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/s/ Scott P. Sensenbrenner |
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Director |
|
December 15, 2014 |
Scott P. Sensenbrenner |
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/s/ Lee M. Canaan |
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Director |
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December 15, 2014 |
Lee M. Canaan |
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/s/ Edward J. McDonnell |
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Director |
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December 15, 2014 |
Edward J. McDonnell |
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EXHIBIT INDEX
In reviewing the agreements included
as exhibits to this registration statement, please remember they are included to provide you with information regarding their terms
and are not intended to provide any other factual disclosure or information about the Company, its subsidiaries or other parties
to the agreements. The agreements contain representations and warranties by each of the parties to the applicable agreement. These
representations and warranties have been made solely for the benefit of the other parties to the applicable agreement and:
| h | should not in all instances be treated as categorical statements of fact, but rather as a way
of allocating the risk to one of the parties if those statements prove to be inaccurate; |
| h | have been qualified by disclosures that were made to the other party in connection with the
negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement; |
| h | may apply standards of materiality in a way that is different from what may be viewed as material
to you or other investors; and |
| h | were made only as of the date of the applicable agreement or such other date or dates as may
be specified in the agreement and are subject to more recent developments. |
Accordingly, these representations and
warranties may not describe the actual state of affairs as of the date they were made or at any other time. We acknowledge that,
notwithstanding the inclusion of the foregoing cautionary statements, we are responsible for considering whether additional specific
disclosures of material information regarding material contractual provisions are required to make the statements in this report
not misleading. Additional information about the Company may be found elsewhere in this registration statement and the Company’s
other public filings, which are available without charge through the SEC’s website at http://www.sec.gov.
Exhibit |
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No. |
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Description |
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1.1* |
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Form of Underwriting Agreement. |
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1.2 |
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At Market Issuance Sales Agreement, dated as of December 15, 2014, between the Registrant and MLV & Co. LLC. |
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3.1 |
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Tenth Amended and Restated Certificate of Incorporation, as amended. (Incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K, filed on November 25, 2014 and Exhibit 3.1 to the Current Report on Form 8-K filed on June 4, 2014). |
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3.2 |
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By-laws of Rock Creek Pharmaceuticals, Inc., effective as of June 4, 2014 (Incorporated herein by reference to Exhibit 3.2 to the Current Report on Form 8-K filed on June 4, 2014). |
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3.3* |
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Form of Certificate of Designations, Powers, Preferences and Rights of Preferred Stock of Rock Creek Pharmaceuticals, Inc. |
4.1 |
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Specimen Common Stock Certificate (Incorporated herein by reference to Exhibit 4.1 to the Current Report on Form 8-K filed on June 4, 2014). |
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4.2* |
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Specimen Preferred Stock Certificate. |
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4.3* |
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Form of Warrant. |
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4.4* |
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Form of Warrant Agreement. |
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4.5* |
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Form of Stock Purchase Contract. |
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4.6* |
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Form of Stock Purchase Unit. |
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4.7 |
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See Exhibits 3.1 and 3.2 of this registration statement for provisions of our Tenth Amended and Restated Certificate of Incorporation and our Bylaws defining certain rights of security holders. |
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5.1 |
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Opinion of Foley & Lardner LLP. |
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5.2 |
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Opinion of Foley & Lardner LLP. |
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12.1 |
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Computation of Ratio of Earnings to Fixed Charges. |
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23.1 |
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Consent of Cherry Bekaert LLP. |
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23.2 |
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Consent of Foley & Lardner LLP (included in Exhibit 5.1). |
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23.3 |
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Consent of Foley & Lardner LLP (included in Exhibit 5.2). |
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24.1 |
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Power of Attorney (included on signature page). |
| * | If applicable, to be filed by amendment or as an Exhibit to a Current Report on Form 8-K and incorporated
herein by reference. |
Exhibit 1.2
EXECUTION VERSION
ROCK CREEK PHARMACEUTICALS, INC.
Common Stock
(par value $0.0001 per share)
At Market Issuance
Sales Agreement
December 15, 2014
MLV & Co. LLC
1251 Avenue of the Americas
41st Floor
New York, New York 10020
Ladies and Gentlemen:
Rock Creek Pharmaceuticals,
Inc., a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”),
with MLV & Co. LLC (“MLV”), as follows:
1. Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and
subject to the conditions set forth herein, it may issue and sell through MLV, shares (the “Placement
Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), provided however, that in no event shall the Company issue or sell through MLV such number of
Placement Shares that (a) would cause the Company not to satisfy the eligibility requirements for use of Form S-3, (b)
exceeds the number of shares of Common Stock registered on the effective Registration Statement and included in the
Prospectus (each as defined below) pursuant to which the offering is being made, or (c) exceeds the number of authorized but
unissued shares of Common Stock (the lesser of (a), (b) and (c), the “Maximum Amount”). Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section
1 on the number or amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of
the Company and that MLV shall have no obligation in connection with such compliance. The issuance and sale of Placement
Shares through MLV will be effected pursuant to the Registration Statement (as defined below), although nothing in this
Agreement shall be construed as requiring the Company to use the Registration Statement to issue any Placement Shares.
The Company shall file,
in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities
Act”), with the Securities and Exchange Commission (the “Commission”), a registration statement on
Form S-3, including a prospectus relating to the Placement Shares to be issued from time to time by the Company, and which incorporates
by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”). The Company will, if necessary,
prepare a prospectus supplement to the prospectus included as part of such registration statement specifically relating to the
Placement Shares (the “Prospectus Supplement”). The Company will furnish to MLV, for use by MLV, copies of the
prospectus included as part of such registration statement, as supplemented, if at all, by the Prospectus Supplement, relating
to the Placement Shares. Except where the context otherwise requires, such registration statement, including all documents filed
as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below)
subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration
statement pursuant to Rule 430B of the Securities Act, is herein called the “Registration Statement.” The prospectus
relating to the Placement Shares, including all documents incorporated or deemed incorporated therein by reference to the extent
such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule
430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented by the Prospectus Supplement,
in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission
pursuant to Rule 424(b) under the Securities Act, is herein called the “Prospectus.” Any reference herein to
the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents
incorporated or deemed incorporated by reference therein, and any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include
the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein (the “Incorporated
Documents”).
For purposes
of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall
be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval
System, or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”).
| | 2. Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each,
a “Placement”), it will notify MLV by email notice (or other method
mutually agreed to in writing by the parties) of the number of Placement Shares, the
time period during which sales are requested to be made, any limitation on the number
of Placement Shares that may be sold in any one day and any minimum price below which
sales may not be made (a “Placement Notice”), the form of which is
attached hereto as Schedule 1. The Placement Notice shall originate from any of
the individuals from the Company set forth on Schedule 3 (with a copy to each
of the other individuals from the Company listed on such schedule), and shall be addressed
to each of the individuals from MLV set forth on Schedule 3, as such Schedule
3 may be updated from time to time with respect to the individuals of each party,
by such party providing written notice to the other party of the addition or deletion
of individuals of such party. Provided that the Company is otherwise in compliance with
the terms of this Agreement, the Placement Notice shall be effective immediately upon
receipt by MLV unless and until (i) MLV declines to accept the terms contained therein
for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares
thereunder has been sold, (iii) the Company suspends or terminates the Placement Notice
or (iv) this Agreement has been terminated under the provisions of Section 13.
The amount of any discount, commission or other compensation to be paid by the Company
to MLV in connection with the sale of the Placement Shares shall be calculated in accordance
with the terms set forth in Schedule 2. It is expressly acknowledged and agreed
that neither the Company nor MLV will have any obligation whatsoever with respect to
a Placement or any Placement Shares unless and until the Company delivers a Placement
Notice to MLV and MLV does not decline such Placement Notice pursuant to the terms set
forth above, and then only upon the terms specified therein and herein. In the event
of a conflict between the terms of Sections 2 or 3 of this Agreement and
the terms of a Placement Notice, the terms of the Placement Notice will control. |
| 3. | Sale of Placement Shares by MLV. |
a. Subject
to the terms and conditions of this Agreement, for the period specified in a Placement Notice, MLV will use its commercially reasonable
efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and
the rules of such national securities exchange that the Company’s Common Stock is listed on (the “Exchange”),
to sell the Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice.
MLV will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately
following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares
sold on such day, the compensation payable by the Company to MLV pursuant to Section 2 with respect to such sales, and the
Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by MLV (as set forth in Section
5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice, MLV may sell Placement
Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 of the Securities
Act, including without limitation sales made directly on the Exchange, on any other existing trading market for the Common Stock
or to or through a market maker. Subject to the terms of a Placement Notice, MLV may also sell Placement Shares by any other method
permitted by law and the rules and regulations of the Exchange, including but not limited to negotiated transactions, with the
Company’s prior written consent, which shall be set forth in the Placement Notice. “Trading Day” means
any day on which Common Stock is purchased and sold on the Exchange.
b. During
the term of this Agreement, neither MLV nor any of its affiliates or subsidiaries shall engage in (i) any short sale of any security
of the Company or (ii) any sale of any security of the Company that MLV does not own or any sale which is consummated by the delivery
of a security of the Company borrowed by, or for the account of, MLV or (iii) if such activity would be prohibited under Regulation
M or other anti-manipulation rules under the Securities Act, any market making, bidding, purchasing, stabilization or other trading
activity with regard to the Common Stock, or attempting to induce another person to do any of the foregoing. Neither MLV nor any
of its affiliates or subsidiaries shall engage in any proprietary trading or trading for MLV’s (or its affiliates’
or subsidiaries’) own account.
| | 4. Suspension
of Sales. The Company or MLV may, upon notice to the other party in writing (including by email correspondence to each of
the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3),
suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or impair any party’s
obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees
that no such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals
named on Schedule 3 hereto and acknowledged in accordance with the prior sentence, as such Schedule may be amended from
time to time. |
| 5. | Sale and Delivery to MLV; Settlement. |
a. Sale
of Placement Shares. The Company acknowledges and agrees that (i) there can be no assurance that MLV will be successful in
selling Placement Shares, (ii) MLV will incur no liability or obligation to the Company or any other person or entity if it does
not sell Placement Shares for any reason other than a failure by MLV to use its commercially reasonable efforts consistent with
its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this
Agreement and (iii) MLV shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement,
except as otherwise agreed by MLV and the Company.
b. Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the third (3rd) Trading Day (or such earlier day as is industry practice for regular-way trading) following
the date on which such sales are made (each, a “Settlement Date”). The amount of proceeds to be delivered to
the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal
to the aggregate sales price received by MLV for the Placement Shares, after deduction for
(i) MLV’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof,
and (ii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales.
c. Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting MLV’s or its designee’s account (provided MLV shall have given
the Company written notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository Trust Company
through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the
parties hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement
Date, MLV will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the
Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver
Placement Shares on a Settlement Date, then in addition to and in no way limiting the rights and obligations set forth in Section
11(a) hereto, it will (i) hold MLV harmless against any loss, claim, damage, or reasonable, documented expense (including reasonable
and documented legal fees and expenses), as incurred, arising out of or in connection with such default by the Company or its transfer
agent (if applicable) and (ii) pay to MLV (without duplication) any commission, discount, or other compensation to which it would
otherwise have been entitled absent such default.
d.
Limitations on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement
Shares if, after giving effect to the sale of such Placement Shares, the aggregate number or aggregate gross sales proceeds of
Placement Shares sold pursuant to this Agreement would exceed the lesser of (A) together with all sales of Placement Shares under
this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement
and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors,
a duly authorized committee thereof or a duly authorized executive committee, and notified to MLV in writing. Under no circumstances
shall the Company cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the
minimum price authorized from time to time by the Company’s board of directors, a duly authorized committee thereof or a
duly authorized executive committee, and notified to MLV in writing. Further, under no circumstances shall the Company cause or
permit the aggregate offering amount of Placement Shares sold pursuant to this Agreement to exceed the Maximum Amount.
| | 6. Representations
and Warranties of the Company. Except as disclosed in the Registration Statement
or Prospectus (including the Incorporated Documents), the Company represents and warrants
to, and agrees with MLV that as of the date of this Agreement and as of each Applicable
Time (as defined below), unless such representation, warranty or agreement specifies
a different date or time: |
a. Registration
Statement and Prospectus. The Company and, assuming no act or omission on the part of MLV that would make such statement untrue,
the transactions contemplated by this Agreement meet the requirements for and comply with the conditions for the use of Form S-3
under the Securities Act. The Registration Statement has been filed with the Commission. The Prospectus will name MLV as the agent
in the section entitled “Plan of Distribution.” The Company has not received, and has no notice of, any order of the
Commission preventing or suspending the use of the Registration Statement, or threatening or instituting proceedings for that purpose.
The Registration Statement and the offer and sale of Placement Shares as contemplated hereby meet the requirements of Rule 415
under the Securities Act and comply in all material respects with said Rule. Any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration
Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and any amendments or supplements
thereto and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this
Agreement have been delivered, or are available through EDGAR, to MLV and its counsel. The Company has not distributed and, prior
to the later to occur of each Settlement Date and completion of the distribution of the Placement Shares, will not distribute any
offering material in connection with the offering or sale of the Placement Shares other than the Registration Statement and the
Prospectus and any Issuer Free Writing Prospectus (as defined below) to which MLV has consented,
such consent not to be unreasonably withheld, conditioned or delayed. The Common Stock is currently listed on the Exchange.
The Company has not, in the 12 months preceding the date hereof, received notice from the Exchange to the effect that the Company
is not in compliance with the listing or maintenance requirements of the Exchange. The Company has no reason to believe that it
will not in the foreseeable future continue to be in compliance with all such listing and maintenance requirements.
b. No
Misstatement or Omission. The Registration Statement, when it becomes effective, and the Prospectus, and any amendment or supplement
thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with the
requirements of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will
conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes
effective, did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. The Prospectus and any amendment and supplement thereto,
on the date thereof and at each Applicable Time (defined below), did not or will not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading. The documents incorporated by reference in the Prospectus or any Prospectus Supplement did not, and
any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement
of a material fact or omit to state a material fact required to be stated in such document or necessary to make the statements
in such document, in light of the circumstances under which they were made, not misleading. The foregoing shall not apply to statements
in, or omissions from, any such document made in reliance upon, and in conformity with, information furnished to the Company by
MLV specifically for use in the preparation thereof.
c. Conformity
with Securities Act and Exchange Act. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any
amendment or supplement thereto, and the Incorporated Documents, when such documents were or are filed with the Commission under
the Securities Act or the Exchange Act or became or become effective under the Securities Act, as the case may be, conformed or
will conform in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable.
d. Financial
Information. The consolidated financial statements of the Company included or incorporated by reference in the Registration
Statement and the Prospectus, together with the related notes and schedules, present fairly, in all material respects, the consolidated
financial position of the Company and the Subsidiaries (as defined below) as of the dates indicated and the consolidated statement
of operations, consolidated statement of cash flows and consolidated statement of stockholders’ equity (deficit) of the Company
for the periods specified and have been prepared in compliance with the requirements of the Securities Act and Exchange Act, as
applicable, and in conformity with generally accepted accounting principles (“GAAP”) in the United States as
in effect as of the time of filing applied on a consistent basis (except for such adjustments to accounting standards and practices
as are noted therein and except for year-end adjustments and the absence of footnotes with respect to quarterly financial statements)
during the periods involved; the other financial and statistical data with respect to the Company and the Subsidiaries contained
or incorporated by reference in the Registration Statement and the Prospectus, are accurately and fairly presented in all material
respects and prepared on a basis materially consistent with the financial statements and books and records of the Company; there
are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration
Statement, or the Prospectus that are not included or incorporated by reference as required; the Company and the Subsidiaries do
not have any material liabilities or obligations, direct or contingent (including any off balance sheet obligations), not described
in the Registration Statement, and the Prospectus which are required to be described in the Registration Statement or Prospectus;
and all disclosures contained or incorporated by reference in the Registration Statement and the Prospectus, if any, regarding
“non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all
material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
e. Conformity
with EDGAR Filing. The Prospectus delivered to MLV for use in connection with the sale of the Placement Shares pursuant to
this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via EDGAR,
except to the extent permitted by Regulation S-T.
f. Organization.
The Company and any subsidiary that is a significant subsidiary (as such term is defined in Rule 1-02 of Regulation S-X promulgated
by the Commission) (each, a “Subsidiary”, collectively, the “Subsidiaries”), are, and will
be, duly organized, validly existing and in good standing under the laws of their respective jurisdictions of organization. The
Company and the Subsidiaries are, and will be, duly licensed or qualified for transaction of business and in good standing under
the laws of each other jurisdiction in which their respective ownership or lease of property or the conduct of their respective
businesses requires such license or qualification, and have all corporate power and authority necessary to own or hold their respective
properties and to conduct their respective businesses as described in the Registration Statement and the Prospectus, except where
the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate,
have a material adverse effect or would reasonably be expected to have a material adverse effect on the assets, business, operations,
earnings, properties, condition (financial or otherwise), prospects, stockholders’ equity or results of operations of the
Company and the Subsidiaries taken as a whole, or prevent the consummation of the transactions contemplated hereby (a “Material
Adverse Effect”).
g. Subsidiaries.
As of the date hereof, the Company’s only Subsidiaries are set forth on Schedule 6(g). The Company owns directly or
indirectly, all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance,
right of first refusal or other restriction, and all the equity interests of the Subsidiaries are validly issued and are fully
paid, nonassessable and free of preemptive and similar rights.
h. No
Violation or Default. Neither the Company nor any Subsidiary 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 material agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or
any Subsidiary is bound or to which any of the property or assets of the Company or any Subsidiary 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
having jurisdiction over the Company, except, in the case of each of clauses (ii) and (iii) above, for any such violation
or default that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the Company’s
knowledge, no other party under any material contract or other material agreement to which it or any Subsidiary is a party is in
default in any respect thereunder where such default would reasonably be expected to have a Material Adverse Effect. The terms
“Company’s knowledge,” “knowledge of the Company” and similar expressions used in this Agreement
shall mean the actual knowledge of an executive officer of the Company.
i. No
Material Adverse Effect. Since the date of the most recent financial statements of the Company included or incorporated by
reference in the Registration Statement and Prospectus, there has not been (other than those noted below in this paragraph) (i)
any Material Adverse Effect, or any development that would reasonably be expected to have a Material Adverse Effect, (ii) any transaction
which is material to the Company and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or contingent
(including any off-balance sheet obligations), incurred by the Company or the Subsidiaries, which is material to the Company and
the Subsidiaries taken as a whole, (iv) any material change in the capital stock (other than (A) the grant of additional options
under the Company’s existing equity incentive plans, (B) changes in the number of outstanding shares of Common Stock of the
Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into, Common
Stock outstanding on the date hereof, (C) as a result of the issuance of Placement Shares, (D) any repurchases of capital stock
of the Company, (E) as described in a proxy statement filed on Schedule 14A or a Registration Statement on Form S-4, or (F) otherwise
publicly announced) or outstanding long-term indebtedness of the Company or the Subsidiaries or (v) any dividend or distribution
of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, other than in each case above
(1) in the ordinary course of business. (2) as otherwise disclosed in the Registration Statement or Prospectus or (3) where
such matter, item, change, or development would not make the statements in the Registration Statement or the Prospectus contain
an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
j. Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and non-assessable and,
other than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights, rights of first
refusal or similar rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration
Statement and the Prospectus as of the dates referred to therein (other than (i) the grant of additional options or other equity
awards under the Company’s existing equity incentive plans, (ii) changes in the number of outstanding shares of Common Stock
of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into,
Common Stock outstanding on the date hereof, (iii) as a result of the issuance of Placement Shares, or (iv) any repurchases of
capital stock of the Company) and such authorized capital stock conforms in all material respects to the description thereof set
forth in the Registration Statement and the Prospectus. The description of the Common Stock in the Registration Statement and the
Prospectus is complete and accurate in all material respects. As of the date referred to therein, except for awards pursuant to
the Company’s equity incentive plans and except as otherwise set forth in the Company’s charter, the Company did not
have outstanding any options to purchase, or any rights or warrants to subscribe for, or any securities or obligations convertible
into, or exchangeable for, or any contracts or commitments to issue or sell, any shares of capital stock or other securities.
k. S-3
Eligibility. (i) At the time of filing the Registration Statement and (ii) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), the Company met the then
applicable requirements for use of Form S-3 under the Securities Act, including compliance with General Instruction I.B.6 of Form
S-3.
l. Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable against the Company in accordance with its terms, except to the extent that (i) enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally
and by general equitable principles and (ii) the indemnification and contribution provisions of Section 11 hereof may be
limited by federal or state securities laws and public policy considerations in respect thereof.
m. Authorization
of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the board of directors
of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided
herein, will be duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance,
security interest or other claim (other than any pledge, lien, encumbrance, security interest or other claim arising from an act
or omission of MLV or a purchaser), including any statutory or contractual preemptive rights, resale rights, rights of first refusal
or other similar rights, and will be registered pursuant to Section 12 of the Exchange Act. The Placement Shares, when issued,
will conform in all material respects to the description thereof set forth in or incorporated into the Prospectus.
n. No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator
or any governmental or regulatory authority having jurisdiction over the Company is required for the execution, delivery and performance
by the Company of this Agreement, and the issuance and sale by the Company of the Placement Shares as contemplated hereby, except
for the registration of the Placement Shares under the Securities Act and pursuant to the Registration Statement and such consents,
approvals, authorizations, orders and registrations or qualifications as may be required under applicable state securities laws
or by the by-laws and rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Exchange,
including any notices that may be required by the Exchange, in connection with the sale of the Placement Shares by MLV.
o. No
Preferential Rights. (i) No person, as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities
Act (each, a “Person”), has the right, contractual or otherwise, to cause the Company to issue or sell to such
Person any Common Stock or shares of any other capital stock or other securities of the Company (other than upon the exercise of
options or warrants to purchase Common Stock or upon the exercise of options or other equity awards that may be granted from time
to time under the Company’s equity incentive plans), (ii) no Person has any preemptive rights, rights of first refusal, or
any other rights (whether pursuant to a “poison pill” provision or otherwise) to purchase any Common Stock or shares
of any other capital stock or other securities of the Company from the Company which have not been duly waived with respect to
the offering contemplated hereby, (iii) no Person has the right to act as an underwriter or as a financial advisor to the Company
in connection with the offer and sale of the Placement Shares as contemplated by this Agreement, (iv) no Person has the right,
contractual or otherwise, to require the Company to register under the Securities Act any Common Stock or shares of any other capital
stock or other securities of the Company as a result of the filing or effectiveness of the Registration Statement or the sale of
the Placement Shares as contemplated thereby, except for such rights as have been waived or satisfied as of the date hereof, and
(v) no Person has the right, contractual or otherwise, to require the Company to include any Common Stock or shares of any other
capital stock or other securities of the Company in the Registration Statement as a result of the filing or effectiveness of the
Registration Statement or the sale of the Placement Shares as contemplated thereby, except for such rights as have been waived
or satisfied as of the date hereof.
p. Independent
Public Accountant. Cherry Bekaert LLP (the “Accountant”), whose report on the consolidated financial statements
of the Company is filed with the Commission as part of the Company’s most recent Annual Report on Form 10-K filed with the
Commission and incorporated into the Registration Statement, are and, during the periods covered by their report, were independent
public accountants within the meaning of the Securities Act and the Public Company Accounting Oversight Board (United States).
To the Company’s knowledge, with due inquiry, the Accountant is not in violation of the auditor independence requirements
of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company.
q. Enforceability
of Agreements. All agreements between the Company and third parties expressly referenced in the Prospectus, other than such
agreements that have expired by their terms or whose termination is disclosed in documents filed by the Company on EDGAR, are legal,
valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except
to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions of certain agreements
may be limited by federal or state securities laws or public policy considerations in respect thereof, and except for any unenforceability
that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
r. No
Litigation. There are no legal, governmental or regulatory actions, suits or proceedings pending, nor, to the Company’s
knowledge, any legal, governmental or regulatory investigations, to which the Company or a Subsidiary is a party or to which any
property of the Company or any Subsidiary is the subject that, individually or in the aggregate, if determined adversely to the
Company or any Subsidiary, would 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; and (i) there are no current or pending legal, governmental
or regulatory actions, suits or proceedings or, to the knowledge of the Company, investigations that are required under the Securities
Act to be described in the Prospectus that are not described in the Prospectus including any Incorporated Document, and (ii) there
are no contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement
that are not so filed.
s. Licenses
and Permits. The Company and the Subsidiaries possess or have obtained, all licenses, certificates, consents, orders, approvals,
permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local
or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties
or the conduct of their respective businesses as described in the Registration Statement and the Prospectus (the “Permits”),
except where the failure to possess, obtain or make the same would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. Neither the Company nor any Subsidiary has received written notice of any proceeding relating
to revocation or modification of any such Permit or has any reason to believe that such Permit will not be renewed in the ordinary
course, except where the revocation, modification or failure to obtain the renewal of any such Permit would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
t. No
Material Defaults. Neither the Company nor any Subsidiary has defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since
the filing of its last Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment
on preferred stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more
long-term leases, which defaults, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
u. Certain
Market Activities. Neither the Company, nor any Subsidiary, nor any of their respective directors, officers or controlling
persons has taken, directly or indirectly, any action designed, or that has constituted or would reasonably be expected to cause
or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Placement Shares.
v. Broker/Dealer
Relationships. Neither the Company nor any Subsidiary or any related entities (i) is required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more
intermediaries, controls or is a “person associated with a member” or “associated person of a member” (within
the meaning set forth in the FINRA Manual).
w. No
Reliance. The Company has not relied upon MLV or legal counsel for MLV for any legal, tax or accounting advice in connection
with the offering and sale of the Placement Shares.
x. Taxes.
The Company and the Subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed
and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being contested
in good faith, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect. Except as
otherwise disclosed in or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined adversely
to the Company or any Subsidiary which has had, or would reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency, penalty or assessment
which has been or might be asserted or threatened against it which would reasonably be expected to have a Material Adverse Effect.
y. Title
to Real and Personal Property. The Company and the Subsidiaries have good and valid title in fee simple to all items of real
property and good and valid title to all personal property described in the Registration Statement or Prospectus as being owned
by them that are material to the businesses of the Company or such Subsidiary, in each case free and clear of all liens, encumbrances
and claims, except those that (i) do not materially interfere with the use made and proposed to be made of such property by the
Company and the Subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect. Any real property described in the Registration Statement or Prospectus as being leased by the Company and the Subsidiaries
is held by them under valid, existing and enforceable leases, except those that (A) do not materially interfere with the use made
or proposed to be made of such property by the Company or the Subsidiaries or (B) would not be reasonably expected, individually
or in the aggregate, to have a Material Adverse Effect.
z. Intellectual
Property. To the Company’s knowledge, the Company and the Subsidiaries own or possess adequate enforceable rights to
use all patents, patent applications, trademarks (both registered and unregistered), service marks, trade names, trademark registrations,
service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) (collectively, the “Intellectual Property”),
necessary for the conduct of their respective businesses as conducted as of the date hereof, except to the extent that the failure
to own or possess adequate rights to use such Intellectual Property would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; the Company and the Subsidiaries have not received any written notice of any claim
of infringement or conflict which asserted Intellectual Property rights of others, which infringement or conflict, if the subject
of an unfavorable decision, would reasonably be expected to result in a Material Adverse Effect; there are no pending, or to the
Company’s knowledge, threatened judicial proceedings or interference proceedings against the Company or its Subsidiaries
challenging the Company’s or any of its Subsidiary’s rights in or to or the validity of the scope of any of the Company’s
or any Subsidiary’s patents, patent applications or proprietary information, except for such right or claim that would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; to the Company’s knowledge
no other entity or individual has any right or claim in any of the Company’s or any of its Subsidiary’s patents, patent
applications or any patent to be issued therefrom by virtue of any contract, license or other agreement entered into between such
entity or individual and the Company or any Subsidiary or by any non-contractual obligation, other than by written licenses granted
by the Company or any Subsidiary, except for such right or claim that would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect; the Company and the Subsidiaries have not received
any written notice of any claim challenging the rights of the Company or its Subsidiaries in or to any Intellectual Property owned,
licensed or optioned by the Company or any Subsidiary which claim, if the subject of an unfavorable decision would reasonably be
expected to result in a Material Adverse Effect.
aa. Environmental
Laws. The Company and the Subsidiaries (i) are in compliance with any and all applicable federal, state, local and foreign
laws, rules, regulations, 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”); (ii) have received
and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct
their respective businesses as described in the Registration Statement and the Prospectus; and (iii) have not received 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, except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to
comply or failure to receive required permits, licenses, other approvals or liability as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
bb. Disclosure
Controls. The Company maintains a system of disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and
15d-15) designed to provide reasonable assurance that information required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the
Commission's rules and forms and to ensure that information required to be disclosed by the Company in the reports it files or
submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive
and principal financial officers, or other persons performing similar functions, as appropriate to allow timely decisions regarding
required disclosure.
cc. Sarbanes-Oxley
Act. There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s
directors or officers, in their capacities as such, to comply with any applicable provisions of the Sarbanes-Oxley Act and the
rules and regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer of the
Company (or each former principal executive officer of the Company and each former principal financial officer of the Company as
applicable) has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports,
schedules, forms, statements and other documents required to be filed by it or furnished by it to the Commission during the past
12 months. For purposes of the preceding sentence, “principal executive officer” and “principal financial officer”
shall have the meanings given to such terms in the Exchange Act Rules 13a-15 and 15d-15.
dd. Finder’s
Fees. Neither the Company nor any Subsidiary has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to MLV
pursuant to this Agreement.
ee. Labor
Disputes. No labor disturbance by or dispute with employees of the Company or any Subsidiary exists or, to the knowledge of
the Company, is threatened which would reasonably be expected to result in a Material Adverse Effect.
ff. Investment
Company Act. Neither the Company nor any Subsidiary is or, after giving effect to the offering and sale of the Placement Shares,
will be an “investment company” or an entity “controlled” by an “investment company,” as such
terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
gg. Operations.
The operations of the Company and the Subsidiaries are and have been conducted at all times in compliance with applicable financial
record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions to which the Company or the Subsidiaries are subject, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”), except as would not reasonably be expected to result in a Material Adverse Effect;
and no action, suit or proceeding by or before any court or governmental agency having jurisdiction over the Company, authority
or body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
hh. Off-Balance
Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, and/or,
to the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited to, any structured
finance, special purpose or limited purpose entity (each, an “Off Balance Sheet Transaction”) that would reasonably
be expected to affect materially the Company’s liquidity or the availability of or requirements for its capital resources,
including those Off Balance Sheet Transactions described in the Commission’s Statement about Management’s Discussion
and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described
in the Registration Statement or the Prospectus which have not been described as required.
ii. Underwriter
Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at the market”
or continuous equity transaction.
jj. ERISA.
To the knowledge of the Company, (i) each material 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 the Subsidiaries has been maintained in material
compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited
to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); (ii) 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 (iii) 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) equals or exceeds the present value of all benefits accrued under such plan determined
using reasonable actuarial assumptions other than, in the case of (i), (ii) and (iii) above, as would not reasonably be expected
to have a Material Adverse Effect.
kk. Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) (a “Forward-Looking Statement”) contained in the Registration Statement and the Prospectus has been made
or reaffirmed without a reasonable basis or has been disclosed other than in good faith. The Forward-Looking Statements incorporated
by reference in the Registration Statement and the Prospectus from the Company’s Annual Report on Form 10-K for the fiscal
year most recently ended (i) except for any Forward-Looking Statement included in any financial statements and notes thereto, are
within the coverage of the safe harbor for forward looking statements set forth in Section 27A of the Securities Act, Rule 175(b)
under the Securities Act or Rule 3b-6 under the Exchange Act, as applicable, (ii) were made by the Company with a reasonable basis
and in good faith and reflect the Company’s good faith commercially reasonable estimate of the matters described therein
as of the respective dates on which such statements were made, and (iii) have been prepared in accordance with Item 10 of Regulation
S-K under the Securities Act.
ll. Margin
Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company
as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
mm. Insurance.
The Company and the Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company and
the Subsidiaries reasonably believe are adequate for the conduct of their business and as is customary for companies of similar
size engaged in similar businesses in similar industries.
nn. No
Improper Practices. (i) Neither the Company nor the Subsidiaries, nor to the Company’s knowledge, any of their respective
executive officers as of the date hereof has, in the past five years, made any unlawful contributions to any candidate for any
political office (or failed fully to disclose any contribution in violation of law) or made any contribution or other payment to
any official of, or candidate for, any federal, state, municipal, or foreign office or other person charged with similar public
or quasi-public duty in violation of any law or of the character required to be disclosed in the Prospectus; (ii) no relationship,
direct or indirect, exists between or among the Company or, to the Company’s knowledge, the Subsidiaries or any affiliate
of any of them, on the one hand, and the directors, officers and stockholders of the Company or, the Subsidiaries, on the other
hand, that is required by the Securities Act to be described in the Registration Statement and the Prospectus that is not so described;
(iii) no relationship, direct or indirect, exists between or among the Company or, to the Company’s knowledge, the Subsidiaries
or any affiliate of them, on the one hand, and the directors, officers, stockholders or directors of the Company or, the Subsidiaries,
on the other hand, that is required by the rules of FINRA to be described in the Registration Statement and the Prospectus that
is not so described; (iv) there are no material outstanding loans or advances or material guarantees of indebtedness by the Company
or, to the Company’s knowledge, the Subsidiaries to or for the benefit of any of their respective officers or directors or
any of the members of the families of any of them; and (v) the Company has not offered, or caused any placement agent to offer,
Common Stock to any person with the intent to influence unlawfully (A) a customer or supplier of the Company or the Subsidiaries
to alter the customer’s or supplier’s level or type of business with the Company or the Subsidiaries or (B) a trade
journalist or publication to write or publish favorable information about the Company or the Subsidiaries or any of their respective
products or services, and, (vi) neither the Company nor the Subsidiaries nor, to the Company’s knowledge, any employee or
agent of the Company or the Subsidiaries has made any payment of funds of the Company or the Subsidiaries or received or retained
any funds in violation of any law, rule or regulation (including, without limitation, the Foreign Corrupt Practices Act of 1977),
which payment, receipt or retention of funds is of a character required to be disclosed in the Registration Statement or the Prospectus.
oo. Status Under the
Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 at the times specified in Rules
164 and 433 under the Securities Act in connection with the offering of the Placement Shares.
pp. No
Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and
as of each Applicable Time (as defined in Section 25 below), did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including
any incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not
apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by MLV specifically for use therein.
qq. No
Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor the consummation
of any of the transactions contemplated herein, nor the compliance by the Company with the terms and provisions hereof will conflict
with, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute a default under,
or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets
of the Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which any of the
property or assets of the Company is subject, except (i) such conflicts, breaches or defaults as may have been waived and (ii)
such conflicts, breaches and defaults that would not reasonably be expected to have a Material Adverse Effect; nor will such action
result (x) in any violation of the provisions of the organizational or governing documents of the Company, or (y) in any material
violation of the provisions of any statute or any order, rule or regulation applicable to the Company or of any court or of any
federal, state or other regulatory authority or other government body having jurisdiction over the Company, except where such violation
would not reasonably be expected to have a Material Adverse Effect.
rr. Compliance
with Applicable Laws. The Company and the Subsidiaries: (A) are and at all times have been in material compliance with all
statutes, rules and regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution,
marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product under development, manufactured
or distributed by the Company or the Subsidiaries (“Applicable Laws”), (b) have not received any Form 483 from
the FDA, notice of adverse finding, warning letter, or other written correspondence or notice from the FDA, the European Medicines
Agency (the “EMA”), or any other federal, state, local or foreign governmental or regulatory authority alleging
or asserting material noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations,
permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”), which
would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (C) possess all material
Authorizations, and such Authorizations are valid and in full force and effect and neither the Company nor the Subsidiaries is
in material violation of any term of any such Authorizations; (D) have not received written notice of any claim, action, suit,
proceeding, hearing, enforcement, investigation, arbitration or other action from the FDA, the EMA, or any other federal, state,
local or foreign governmental or regulatory authority or third party alleging that any Company product, operation or activity is
in material violation of any Applicable Laws or Authorizations and the Company has no knowledge that the FDA, the EMA, or any other
federal, state, local or foreign governmental or regulatory authority or third party is considering any such claim, litigation,
arbitration, action, suit, investigation or proceeding against the Company; (E) have not received notice that the FDA, EMA, or
any other federal, state, local or foreign governmental or regulatory authority has taken, is taking or intends to take action
to limit, suspend, modify or revoke any material Authorizations and has no knowledge that the FDA, EMA, or any other federal, state,
local or foreign governmental or regulatory authority is considering such action; and (F) have filed, obtained, maintained or submitted
all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by
any Applicable Laws or Authorizations, except where the failure to file such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments would not result in a Material Adverse Effect, and that all such reports,
documents, forms, notices, applications, records, claims, submissions and supplements or amendments were materially complete and
correct on the date filed (or were corrected or supplemented by a subsequent submission).
ss. Clinical
Studies. All animal and other preclinical studies and clinical trials conducted by the Company or on behalf of the Company
were, and, if still pending are, to the Company’s knowledge, being conducted in all material respects in compliance with
all Applicable Laws and in accordance with experimental protocols, procedures and controls generally used by qualified experts
in the preclinical study and clinical trials of new drugs and biologics as applied to comparable products to those being developed
by the Company, except where such noncompliance would not reasonably be expected to have a Material Adverse Effect; the descriptions
of the results of such preclinical studies and clinical trials contained in the Registration Statement and the Prospectus are accurate
in all material respects, and the Company has no knowledge of any other clinical trials or preclinical studies, the results of
which reasonably call into question the clinical trial or preclinical study results described or referred to in the Registration
Statement and the Prospectus when viewed in the context in which such results are described, except where such results of such
preclinical studies or clinical trials would not reasonably be expected to have a Material Adverse Effect; and the Company has
not received any written notices or correspondence from the FDA, the EMA, or any other domestic or foreign governmental agency
requiring the termination or suspension of any preclinical studies or clinical trials conducted by or on behalf of the Company
that are described in the Registration Statement and the Prospectus or the results of which are referred to in the Registration
Statement and the Prospectus.
tt. Compliance
Program. The Company has established and administers a compliance program applicable to the Company, to assist the Company
and the directors, officers and employees of the Company in complying with applicable regulatory guidelines (including, without
limitation, those administered by the FDA, the EMA, and any other foreign, federal, state or local governmental or regulatory authority
having jurisdiction over the Company and performing functions similar to those performed by the FDA or EMA); except where such
noncompliance would not reasonably be expected to have a Material Adverse Effect.
uu. OFAC.
(i) Neither
the Company nor any Subsidiary (collectively, the “Entity”) or to the Company’s knowledge any director,
officer, employee, agent, affiliate or representative of the Entity, is a government, individual, or entity (in this paragraph
(uu), “Person”) that is, or is owned or controlled by a Person that is:
(a) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s
Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor
(b) located,
organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar,
Cuba, Iran, North Korea, Sudan and Syria).
(ii) The
Entity represents and covenants that it will not, directly or indirectly, knowingly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(a) to
fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding
or facilitation, is the subject of Sanctions; or
(b) in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or otherwise).
(iii) The
Entity represents and covenants that, except as detailed in the Prospectus, for the past 5 years, it has not knowingly engaged
in, is not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any Person, or in any
country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
vv. Stock
Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) which are required to
be paid in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully
paid or provided for by the Company and all laws imposing such taxes will be or will have been fully complied with by the Company
in all material respects.
Any certificate
signed by an officer of the Company and delivered to MLV or to counsel for MLV pursuant to or in connection with this Agreement
shall be deemed to be a representation and warranty by the Company, as applicable, to MLV as to the matters set forth therein.
| 7. | Covenants of the Company. The Company covenants and agrees with MLV
that: |
a. Registration
Statement Amendments. After the date of this Agreement and during any period in which a prospectus relating to any Placement
Shares is required to be delivered by MLV under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act) (the “Prospectus Delivery Period”) (i) the Company will notify
MLV promptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference
or amendments not related to any Placement, has been filed with the Commission and/or has become effective or any subsequent supplement
to the Prospectus, other than documents incorporated by reference, has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus related to the Placement or for additional information related
to the Placement, (ii) the Company will prepare and file with the Commission, promptly upon MLV’s request, any amendments
or supplements to the Registration Statement or Prospectus that, upon the advice of the Company’s legal counsel, may be necessary
or advisable in connection with the distribution of the Placement Shares by MLV (provided, however, that the failure of
MLV to make such request shall not relieve the Company of any obligation or liability hereunder, or affect MLV’s right to
rely on the representations and warranties made by the Company in this Agreement and provided, further, that the only remedy MLV
shall have with respect to the failure to make such filing shall be to cease making sales under this Agreement until such amendment
or supplement is filed); and (iii) the Company will cause each amendment or supplement to the Prospectus to be filed with the Commission
as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated
therein by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed
(the determination to file or not file any amendment or supplement with the Commission under this Section 7(a), based on
the Company’s reasonable opinion or reasonable objections, shall be made exclusively by the Company). Notwithstanding the
foregoing, the Company will not file any amendment or supplement to the Registration Statement or Prospectus, other than documents
incorporated by reference, relating to the Placement Shares or a security convertible into the Placement Shares unless a copy thereof
has been submitted to MLV within a reasonable period of time before the filing and MLV has not reasonably and in good faith objected
thereto (provided, however, that (A) the failure of MLV to make such objection shall not relieve the Company of any obligation
or liability hereunder, or affect MLV’s right to rely on the representations and warranties made by the Company in this Agreement
and (B) the Company has no obligation to provide MLV any advance copy of such filing or to provide MLV an opportunity to object
to such filing if the filing does not name MLV or does not relate to the transaction herein provided; and provided, further, that
the only remedy MLV shall have with respect to the failure by the Company to obtain such consent shall be to cease making sales
under this Agreement) and the Company will furnish to MLV at the time of filing thereof a copy of any document that upon filing
is deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those documents available via
EDGAR.
b. Notice
of Commission Stop Orders. The Company will advise MLV, promptly after it receives notice or obtains knowledge thereof, of
the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. The Company will advise MLV promptly
after it receives any request by the Commission for any amendments to the Registration Statement or any amendment or supplements
to the Prospectus or any Issuer Free Writing Prospectus or for additional information related to the offering of the Placement
Shares or for additional information related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
c. Delivery
of Prospectus; Subsequent Changes. During the Prospectus Delivery Period, the Company will use its commercially reasonable
efforts to comply in all material respects with all requirements imposed upon it by the Securities Act, as from time to time in
force, and to file on or before their respective due dates all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under
the Exchange Act. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A under the Securities
Act, it will use its commercially reasonable efforts to comply with the provisions of and make all requisite filings with the Commission
pursuant to said Rule 430A and to notify MLV promptly of all such filings. If during the Prospectus Delivery Period any event occurs
as a result of which the Prospectus as then amended or supplemented would include an 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 then existing, not misleading,
or if during such Prospectus Delivery Period it is necessary to amend or supplement the Registration Statement or Prospectus to
comply with the Securities Act, the Company will promptly notify MLV to suspend the offering of Placement Shares during such period
and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as
to correct such statement or omission or effect such compliance; provided, however, that the Company may delay the filing
of any amendment or supplement, if in the judgment of the Company, it is in the best interest of the Company to do so.
d. Listing
of Placement Shares. During the Prospectus Delivery Period, the Company will use its commercially reasonable efforts to cause
the Placement Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities laws of such
jurisdictions in the United States as MLV reasonably designates and to continue such qualifications in effect so long as required
for the distribution of the Placement Shares; provided, however, that the Company shall not be required in connection therewith
to qualify as a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.
e. Delivery
of Registration Statement and Prospectus. The Company will furnish to MLV and its counsel (at the reasonable expense of the
Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all
amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during the Prospectus
Delivery Period (including all documents filed with the Commission during such period that are deemed to be incorporated by reference
therein), in each case as soon as reasonably practicable and in such quantities as MLV may from time to time reasonably request
and, at MLV’s request, will also furnish copies of the Prospectus to each exchange or market on which sales of the Placement
Shares may be made; provided, however, that the Company shall not be required to furnish any document (other than the Prospectus)
to MLV to the extent such document is available on EDGAR.
f. Earnings
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later
than 15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that
satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act.
g. Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
h. Notice
of Other Sales. Without the prior written consent of MLV, the Company will not, directly or indirectly, offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire,
Common Stock during the period beginning on the date on which any Placement Notice is delivered to MLV hereunder and ending on
the third (3rd) Trading Day immediately following the final Settlement Date with respect to Placement Shares sold pursuant to such
Placement Notice (or, if the Placement Notice has been terminated or suspended prior to the sale of all Placement Shares covered
by a Placement Notice, the date of such suspension or termination); and will not directly or indirectly in any other “at
the market” or continuous equity transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise
dispose of any Common Stock (other than the Placement Shares offered pursuant to this Agreement) or securities convertible into
or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common Stock prior to the termination of this
Agreement; provided, however, that such restrictions will not be required in connection with the Company’s issuance
or sale of (i) Common Stock, options to purchase Common Stock or Common Stock issuable upon the exercise of options or other equity
awards, pursuant to any employee or director stock incentive or benefits plan, stock ownership plan or dividend reinvestment plan
(but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now in
effect or hereafter implemented; (ii) Common Stock issuable upon conversion of securities or the exercise of warrants, options
or other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise in writing to
MLV, and (iii) Common Stock, or securities convertible into or exercisable for Common Stock, offered and sold in a privately negotiated
transaction to vendors, customers, strategic partners or potential strategic partners or other investors conducted in a manner
so as not to be integrated with the offering of Common Stock hereby.
i. Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice advise MLV promptly after it shall
have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect
any opinion, certificate, letter or other document required to be provided to MLV pursuant to this Agreement.
j. Due
Diligence Cooperation. During the term of this Agreement, the Company will cooperate with any reasonable due diligence review
conducted by MLV or its representatives in connection with the transactions contemplated hereby, including, without limitation,
providing information and making available documents and senior corporate officers, during regular business hours and at the Company’s
principal offices, as MLV may reasonably request.
k. Required
Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities Act shall require,
the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities
Act (each and every filing under Rule 424(b), a “Filing Date”), which prospectus supplement will set forth,
within the relevant period, the amount of Placement Shares sold through MLV, the Net Proceeds to the Company and the compensation
payable by the Company to MLV with respect to such Placement Shares (provided that the Company may satisfy its obligations under
this Section 7(k)(i) by effecting a filing in accordance with the Exchange Act with respect to such information), and (ii) deliver
such number of copies of each such prospectus supplement to each exchange or market on which such sales were effected as may be
required by the rules or regulations of such exchange or market.
l. Representation
Dates; Certificate. Each time during the term of this Agreement that the Company:
(i) amends
or supplements (other than a prospectus supplement relating solely to an offering of securities other than the Placement Shares)
the Registration Statement or the Prospectus relating to the Placement Shares by means of a post-effective amendment, sticker,
or supplement but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus relating
to the Placement Shares;
(ii) files
an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial information or a material
amendment to the previously filed Form 10-K);
(iii) files
its quarterly reports on Form 10-Q under the Exchange Act; or
(iv) files
a current report on Form 8-K containing amended financial information (other than information “furnished” pursuant
to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification of
certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the
Exchange Act;
(Each date of filing of
one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation Date.”)
the Company shall furnish MLV
(but in the case of clause (iv) above only if MLV reasonably determines that the information contained in such Form 8-K is material)
with a certificate, in the form attached hereto as Exhibit 7(1). The requirement to provide a certificate under this Section
7(1) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver
shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such calendar
quarter shall be considered a Representation Date) and the next occurring Representation Date on which the Company files its annual
report on Form 10-K. Notwithstanding the foregoing, (i) upon the delivery of the first Placement Notice hereunder and (ii) if the
Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on such waiver and
did not provide MLV with a certificate under this Section 7(1), then before MLV sells any Placement Shares, the Company
shall provide MLV with a certificate, in the form attached hereto as Exhibit 7(1), dated the date of the Placement Notice.
m. Legal
Opinion. On or prior to the date of the first Placement Notice given hereunder the Company shall cause to be furnished to MLV
written opinions and a negative assurance letter of Foley & Lardner LLP (“Company Counsel”), or other counsel
reasonably satisfactory to MLV, in the form attached hereto as Exhibit 7(m)(1) and 7(m)(2), respectively. Thereafter, within five
(5) Trading Days of each Representation Date with respect to which the Company is obligated to deliver a certificate in the form
attached hereto as Exhibit 7(l) for which no waiver is applicable, and not more than once per calendar quarter, the Company shall
cause to be furnished to MLV a written negative assurance letter of Company Counsel in the form attached hereto as Exhibit 7(m)(2),
modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided
that, in lieu of such negative assurance letter for subsequent periodic filings under the Exchange Act, counsel may furnish
MLV with a letter (a “Reliance Letter”) to the effect that MLV may rely on the negative assurance letter previously
delivered under this Section 7(m) to the same extent as if it were dated the date of such letter (except that statements in such
prior letter shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of the date
of the Reliance Letter)
n. Comfort
Letter. On or prior to the date of the first Placement Notice given hereunder and within five (5) Trading Days after each subsequent
Representation Date, other than pursuant to Section 7(l)(iii), with respect to which the Company is obligated to deliver
a certificate in the form attached hereto as Exhibit 7(l) for which no waiver is applicable, the Company shall cause its independent
accountants to furnish MLV a letter (the “Comfort Letter”), dated the date the Comfort Letter is delivered,
which shall meet the requirements set forth in this Section 7(n); provided, that if requested by MLV, the Company shall
cause a Comfort Letter to be furnished to MLV within ten (10) Trading Days of such request following the date of occurrence of
any restatement of the Company’s financial statements. The Comfort Letter from the Company’s independent accountants
shall be in a form and substance reasonably satisfactory to MLV, (i) confirming that they are an independent public accounting
firm within the meaning of the Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such
firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters”
to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”)
and (iii) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter
had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended
and supplemented to the date of such letter.
o. Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or would reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of Common Stock or (ii) sell, bid for, or purchase Common Stock in violation of Regulation M, or
pay anyone any compensation for soliciting purchases of the Placement Shares other than MLV.
p. Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor the Subsidiaries
will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term is
defined in the Investment Company Act.
q. No
Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and MLV in its capacity as agent
hereunder pursuant to Section 23, neither MLV nor the Company (including its agents and representatives, other than MLV
in their capacity as such) will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule
405), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement
Shares hereunder.
r. Sarbanes-Oxley
Act. The Company will use commercially reasonable efforts to comply in all material respects with the effective applicable
provisions of the Sarbanes-Oxley Act.
| | 8. Representations
and Covenants of MLV. MLV represents and warrants that it is duly registered as a
broker-dealer under FINRA, the Exchange Act and the applicable statutes and regulations
of each state in which the Placement Shares will be offered and sold, except such states
in which MLV is exempt from registration or such registration is not otherwise required.
MLV shall continue, for the term of this Agreement, to be duly registered as a broker-dealer
under FINRA, the Exchange Act and the applicable statutes and regulations of each state
in which the Placement Shares will be offered and sold, except such states in which MLV
is exempt from registration or such registration is not otherwise required, during the
term of this Agreement. MLV shall comply with all applicable law and regulations, including
but not limited to Regulation M, in connection with the transactions contemplated by
this Agreement, including the issuance and sale through MLV of the Placement Shares. |
| | 9. Payment
of Expenses. The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, filing, including any
fees required by the Commission, and printing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment and supplement
thereto and each Issuer Free Writing Prospectus, in such number as MLV shall deem reasonably
necessary, (ii) the printing and delivery to MLV of this Agreement and such other documents
as may be reasonably required in connection with the offering, purchase, sale, issuance
or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of
the certificates, if any, for the Placement Shares to MLV, including any stock or other
transfer taxes and any capital duties, stamp duties or other duties or taxes payable
upon the sale, issuance or delivery of the Placement Shares to MLV, (iv) the fees and
disbursements of the counsel, accountants and other advisors to the Company, (v) the
fees and disbursements of counsel to MLV up to $25,000; (vi) the fees and expenses of
the transfer agent and registrar for the Common Stock, (vii) the filing fees incident
to any review by FINRA of the terms of the sale of the Placement Shares, and (viii) the
fees and expenses incurred in connection with the listing of the Placement Shares on
the Exchange. |
| | 10. Conditions
to MLV’s Obligations. The obligations of MLV hereunder with respect to a Placement
will be subject to the continuing accuracy and completeness of the representations and
warranties made by the Company herein, to the due performance by the Company of its obligations
hereunder, to the completion by MLV of a due diligence review satisfactory to it in its
reasonable judgment, and to the continuing satisfaction (or waiver by MLV in its sole
discretion) of the following additional conditions: |
a. Registration
Statement Effective. The Registration Statement shall have become effective and shall be available for the sale of all Placement
Shares contemplated to be issued by any Placement Notice.
b. No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request
for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness
of the Registration Statement, the response to which would require any post-effective amendments or supplements to the Registration
Statement or the Prospectus which have not, as of the time of such Placement, been so made;
(ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company of any notification
with respect to the suspension of the qualification or exemption from qualification of any of the Placement Shares for sale in
any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event that
makes any material statement made in the Registration Statement or the Prospectus or any material document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in the Registration
Statement or the Prospectus so that, in the case of the Registration Statement, it will not contain any materially untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein
not misleading and, that in the case of the Prospectus, it will not contain any materially untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
c. No
Misstatement or Material Omission. MLV shall not have advised the Company that the Registration Statement or Prospectus, or
any amendment or supplement thereto, contains an untrue statement of fact that in MLV’s reasonable opinion is material, or
omits to state a fact that in MLV’s reasonable opinion is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
d. Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there
shall not have been any Material Adverse Effect, or any development that could reasonably be expected to cause a Material Adverse
Effect in each case is so material as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares
on the terms and in the manner contemplated in the Prospectus.
e. Legal
Opinion. MLV shall have received the opinions and negative assurance letter of Company Counsel required to be delivered pursuant
Section 7(m) on or before the date on which such delivery of such opinions are required pursuant to Section 7(m).
f. Comfort
Letter. MLV shall have received the Comfort Letter required to be delivered pursuant to Section 7(n) on or before the
date on which such delivery of such letter is required pursuant to Section 7(n).
g. Representation
Certificate. MLV shall have received the certificate required to be delivered pursuant to Section 7(1) on or before
the date on which delivery of such certificate is required pursuant to Section 7(1).
h. No
Suspension. Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall not have been
delisted from the Exchange.
i. Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company
shall have furnished to MLV such appropriate further information, certificates and documents as MLV may reasonably request. All
such opinions, certificates, letters and other documents will be in compliance with the provisions hereof. The Company will furnish
MLV with such conformed copies of such opinions, certificates, letters and other documents as MLV shall reasonably request.
j. Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to
the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing
by Rule 424.
k. Approval
for Listing. The Placement Shares shall either have been approved for listing on the Exchange, subject only to notice of issuance,
or the Company shall have filed an application for listing of the Placement Shares on the Exchange at, or prior to, the issuance
of any Placement Notice.
l. No
Termination Event. There shall not have occurred any event that would permit MLV to terminate this Agreement pursuant to Section
13(a).
| 11. | Indemnification and Contribution. |
(a) Company Indemnification. The
Company agrees to indemnify and hold harmless MLV, its partners, members, directors, officers, employees and agents and each
person, if any, who controls MLV within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as
follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements
therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in any related
Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 11(d) below) any such settlement is effected with the written consent of the
Company, which consent shall not unreasonably be delayed or withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii) above,
provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made solely in reliance upon and in conformity with written information furnished
to the Company by MLV expressly for use in the Registration Statement (or any amendment thereto), or in any related Issuer Free
Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(b) MLV Indemnification.
MLV agrees to indemnify and hold harmless the Company and its directors and each officer of the Company who signed the Registration
Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act or (ii) is controlled by or is under common control with the Company against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 11(a), as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto)
or in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with information relating to MLV and furnished to the Company in writing by MLV expressly for use therein.
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 11 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section 11, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that
it might have to any indemnified party otherwise than under this Section 11 and (ii) any liability that it may have to any
indemnified party under the foregoing provision of this Section 11 unless, and only to the extent that, such omission results
in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement
of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in
any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on written advice of counsel) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict
exists (based on written advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges
of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all
such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party
promptly after the indemnifying party receives a written invoice relating to fees, disbursements and other charges in reasonable
detail. An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected without its
written consent. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated
by this Section 11 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent
(1) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation,
proceeding or claim and (2) does not include a statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 11 is applicable in accordance with its terms but for any reason is held to be unavailable from
the Company or MLV, the Company and MLV will contribute to the total losses, claims, liabilities, expenses and damages (including
any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other than
MLV, such as persons who control the Company within the meaning of the Securities Act or the Exchange Act, officers of the Company
who signed the Registration Statement and directors of the Company, who also may be liable for contribution) to which the Company
and MLV may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the
one hand and MLV on the other hand. The relative benefits received by the Company on the one hand and MLV on the other hand shall
be deemed to be in the same proportion as the total Net Proceeds from the sale of the Placement Shares (before deducting expenses)
received by the Company bear to the total compensation received by MLV (before deducting expenses) from the sale of Placement Shares
on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law,
the allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative benefits referred
to in the foregoing sentence but also the relative fault of the Company, on the one hand, and MLV, on the other hand, with respect
to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as
well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or MLV, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or omission. The Company and MLV agree that it would
not be just and equitable if contributions pursuant to this Section 11(d) were to be determined by pro rata allocation or
by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof,
referred to above in this Section 11(d) shall be deemed to include, for the purpose of this Section 11(d), any legal
or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or
claim to the extent consistent with Section 11(c) hereof. Notwithstanding the foregoing provisions of this Section 11(d),
MLV shall not be required to contribute any amount in excess of the commissions received by it under this Agreement and no person
found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11(d), any person
who controls a party to this Agreement within the meaning of the Securities Act or the Exchange Act, and any officers, directors,
partners, employees or agents of MLV, will have the same rights to contribution as that party, and each officer and director of
the Company who signed the Registration Statement will have the same rights to contribution as the Company, subject in each case
to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against
such party in respect of which a claim for contribution may be made under this Section 11(d), will notify any such party
or parties from whom contribution may be sought, but the omission to so notify will not relieve that party or parties from whom
contribution may be sought from any other obligation it or they may have under this Section 11(d) except to the extent that
the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution
is sought. Except for a settlement entered into pursuant to the last sentence of Section 11(c) hereof, no party will be
liable for contribution with respect to any action or claim settled without its written consent if such consent is required pursuant
to Section 11(c) hereof.
| | 12. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained
in Section 11 of this Agreement and all representations and warranties of the Company
and MLV herein or in certificates delivered pursuant hereto shall survive, as of their
respective dates, regardless of (i) any investigation made by or on behalf of MLV, any
controlling persons, or the Company (or any of their respective officers, directors or
controlling persons), (ii) delivery and acceptance of the Placement Shares and payment
therefor or (iii) any termination of this Agreement. |
a. MLV
may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there has been, since the time
of execution of this Agreement or since the date as of which information is given in the Prospectus, any Material Adverse Effect,
or any development that is reasonably likely to have a Material Adverse Effect or, in the sole judgment of MLV, is material and
adverse and makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement
Shares, (2) if there has occurred any material adverse change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving
a prospective change in national or international political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of MLV, impracticable or inadvisable to market the Placement Shares or to enforce contracts
for the sale of the Placement Shares, (3) if trading in the Common Stock has been suspended or limited by the Commission or the
Exchange, or if trading generally on the Exchange has been suspended or limited, or minimum prices for trading have been fixed
on the Exchange, (4) if any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market
shall have occurred and be continuing, (5) if a major disruption of securities settlements or clearance services in the United
States shall have occurred and be continuing, or (6) if a banking moratorium has been declared by either U.S. Federal or New York
authorities. Any such termination shall be without liability of any party to any other party except that the provisions of Section
9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations and Agreements
to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction)
hereof shall remain in full force and effect notwithstanding such termination. If MLV elects to terminate this Agreement as provided
in this Section 13(a), MLV shall provide the required notice as specified in Section 14 (Notices).
b. The
Company shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its
sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution),
Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury
Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
c. MLV
shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole discretion
at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except
that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section
12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and
Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
d. Unless
earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate upon the issuance and sale
of all of the Placement Shares through MLV on the terms and subject to the conditions set forth herein except that the provisions
of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations
and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent
to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
e. This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), (c), or
(d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual
agreement shall in all cases be deemed to provide that Section 9 (Payment of Expenses), Section 11 (Indemnification
and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) shall remain in full force and effect. Upon termination
of this Agreement, the Company shall not have any liability to MLV for any discount, commission or other compensation with respect
to any Placement Shares not otherwise sold by MLV under this Agreement.
f. Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by MLV or the Company,
as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement
Shares shall settle in accordance with the provisions of this Agreement.
| | 14. Notices.
All notices or other communications required or permitted to be given by any party
to any other party pursuant to the terms of this Agreement shall be in writing, unless
otherwise specified, and if sent to MLV, shall be delivered to: |
|
MLV & Co. LLC |
|
1251 Avenue of the Americas, 41st |
|
Floor New York, New York 10020 |
|
Attention: |
General Counsel |
|
Telephone: |
(212) 542-5870 |
|
Email: |
dcolucci@mlvco.com |
|
|
|
with a copy to: |
|
|
|
|
LeClairRyan, A Professional Corporation |
|
885 Third Avenue |
|
New York, NY 10022 |
|
Attention: |
James T. Seery |
|
Telephone: |
(973) 491-3315 |
|
Email: |
james.seery@leclairryan.com |
|
|
|
and if to the Company, shall be delivered to: |
|
|
|
|
Rock Creek Pharmaceuticals, Inc. |
|
2040 Whitfield Ave. |
|
Suite 300 |
|
|
Sarasota, Florida 34243 |
|
Attention: |
Theodore Jenkins |
|
Telephone: |
203-216-2028 |
|
Email: |
tjenkins@rockcreekpharmaceuticals.com |
|
|
|
with a copy to: |
|
|
|
|
Foley & Lardner LLP |
|
100 North Tampa Street |
|
Suite 2700 |
|
|
Tampa, FL 33602-5810 |
|
Attention: |
Curt Creely |
|
Telephone: |
813-335-4122 |
|
Email: |
ccreely@foley.com |
Each party to this
Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such
purpose. Each such notice or other communication shall be deemed given (i) when delivered personally, by email, or by verifiable
facsimile transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day
is not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized
overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid). For purposes of this Agreement, “Business Day” shall mean any day
on which the Exchange and commercial banks in the City of New York are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 14 if sent to the electronic
mail address specified by the receiving party herein or under separate cover. Electronic Notice shall be deemed received at the
time the party sending Electronic Notice receives confirmation of receipt by the receiving party. Any party receiving Electronic
Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”)
which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
| | 15. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the
Company and MLV and their respective successors and the affiliates, controlling persons,
officers and directors referred to in Section 11 hereof. References to any of
the parties contained in this Agreement shall be deemed to include the successors and
permitted assigns of such party. Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective successors
and permitted assigns any rights, remedies, obligations or liabilities under or by reason
of this Agreement, except as expressly provided in this Agreement. Neither party may
assign its rights or obligations under this Agreement without the prior written consent
of the other party. |
| | 16. Adjustments
for Stock Splits. The parties acknowledge and agree that all share-related numbers
contained in this Agreement shall be adjusted to take into account any share consolidation,
stock split, stock dividend, corporate domestication or similar event effected with respect
to the Placement Shares. |
| | 17. Entire
Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits
attached hereto and Placement Notices issued pursuant hereto) constitutes the entire
agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof.
Neither this Agreement nor any term hereof may be amended except pursuant to a written
instrument executed by the Company and MLV. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable as written by a court of competent jurisdiction, then
such provision shall be given full force and effect to the fullest possible extent that
it is valid, legal and enforceable, and the remainder of the terms and provisions herein
shall be construed as if such invalid, illegal or unenforceable term or provision was
not contained herein, but only to the extent that giving effect to such provision and
the remainder of the terms and provisions hereof shall be in accordance with the intent
of the parties as reflected in this Agreement. |
| | 18. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES
OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. |
| | 19. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION
OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN,
FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED
HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH
COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT
THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY
WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT,
ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED) 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. |
| | 20. Use
of Information. MLV may not use any information gained in connection with this Agreement
and the transactions contemplated by this Agreement, including due diligence, to advise
any party with respect to transactions not expressly approved by the Company. |
| | 21. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
Delivery of an executed Agreement by one party to the other may be made by facsimile
transmission. |
| | 22. Effect of Headings. The section and Exhibit headings herein are for
convenience only and shall not affect the construction hereof. |
| 23. | Permitted Free Writing Prospectuses. |
The
Company represents, warrants and agrees that, unless it obtains the prior consent of MLV, which consent shall not be unreasonably
withheld, conditioned or delayed, and MLV represents, warrants and agrees that, unless it obtains the prior consent of the Company,
which consent shall not be unreasonably withheld, conditioned or delayed, it has not made and will not make any offer relating
to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented
to by MLV or by the Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as
an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements
of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending
and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in
Exhibit 23 hereto are Permitted Free Writing Prospectuses.
| 24. | Absence of Fiduciary Relationship. The Company acknowledges and agrees
that: |
a. MLV
is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between
the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party,
on the one hand, and MLV, on the other hand, has been or will be created in respect of any of the transactions contemplated by
this Agreement, irrespective of whether or not MLV has advised or is advising the Company on other matters, and MLV has no obligation
to the Company with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this
Agreement;
b. it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
c. MLV
has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this Agreement
and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
d. it
is aware that MLV and its affiliates are engaged in a broad range of transactions which may involve interests that differ from
those of the Company and MLV has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary,
advisory or agency relationship or otherwise; and
e. it
waives, to the fullest extent permitted by law, any claims it may have against MLV for breach of fiduciary duty or alleged breach
of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that MLV shall not have any liability
(whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting
a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect
of MLV’s obligations under this Agreement and to keep information provided by the Company to MLV and MLV’s counsel
confidential to the extent not otherwise publicly-available.
As used
in this Agreement, the following terms have the respective meanings set forth below:
“Applicable
Time” means (i) each Representation Date and (ii) the time of each sale of any Placement Shares pursuant to this Agreement.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to
the Placement Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that
is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission,
or (3) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the
offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or,
if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act.
“Rule 164,”
“Rule 172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule
424(b),” “Rule 430B,” and “Rule 433” refer to such rules under the Securities Act.
All references
in this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other information that is incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
All references
in this Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing
Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the
Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this
Agreement to “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers”
or similar materials prepared in connection with any offering, sale or private placement of any Placement Shares by MLV outside
of the United States.
[Remainder of the page intentionally left
blank]
If the foregoing correctly sets forth the understanding between
the Company and MLV, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company and MLV.
|
Very truly yours, |
|
|
|
|
ROCK CREEK
PHARMACEUTICALS, INC. |
|
|
|
|
By: |
/s/ Michael J. Mullan |
|
Name: |
Michael J. Mullan |
|
Title: |
Chairman and Chief Executive Officer |
|
|
|
|
ACCEPTED as
of the date first-above written: |
|
|
|
|
MLV &
CO. LLC |
|
|
|
|
By: |
/s/ Dean Colucci |
|
|
Dean Colucci |
|
|
President |
SCHEDULE 1
FORM OF PLACEMENT NOTICE
From: |
Rock Creek Pharmaceuticals, Inc. |
|
|
To: |
MLV & Co. LLC |
|
|
Attention: |
Patrice McNicoll |
|
|
Subject: |
At Market Issuance--Placement Notice |
Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the At Market Issuance Sales Agreement between Rock Creek Pharmaceuticals,
Inc., a Delaware corporation (the “Company”), and MLV & Co. LLC (“MLV”), dated December 15,
2014, the Company hereby requests that MLV sell up to [_______] shares of the Company’s Common Stock, $0.0001 par value per
share, at a minimum market price of $ per share, during the time period beginning [month, day, time] and ending [month, day,
time].
SCHEDULE 2
Compensation
The
Company shall pay to MLV in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to 3.0% of the
gross proceeds from each sale of Placement Shares.
SCHEDULE 3
Notice Parties
The Company
Michael J. Mullan |
mmullan@rockcreekpharmaceuticals.com |
|
|
Park Dodd |
pdodd@rockcreekpharmaceuticals.com |
|
|
Theodore Jenkins |
tjenkins@rockcreekpharmaceuticals.com |
|
|
|
|
MLV |
|
|
|
Randy Billhardt |
rbillhardt@mlvco.com |
|
|
Dean Colucci |
dcolucci@mlvco.com |
|
|
Ryan Loforte |
rloforte@mlvco.com |
|
|
Patrice McNicoll |
pmcnicoll@mlvco.com |
|
|
Miranda Toledano |
mtoledano@mlvco.com |
|
|
With a copy to |
mlvatmdesk@mlvco.com |
SCHEDULE 6(g)
Subsidiaries
Star Tobacco, Inc.
RCP Development, Inc.
EXHIBIT 7(1)
Form of Representation Date Certificate
This Representation Date Certificate (this
“Certificate”) is executed and delivered in connection with Section 7(1) of the At Market Issuance Sales
Agreement (the “Agreement”), dated December 15, 2014, and entered into between Rock Creek Pharmaceuticals, Inc.
(the “Company”) and MLV & Co. LLC. All capitalized terms used but not defined herein shall have the meanings
given to such terms in the Agreement.
The Company hereby
certifies as follows:
1. As of the date of this
Certificate (i) the Registration Statement does 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 (ii) neither the Registration
Statement nor the Prospectus 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 light of the circumstances under which they were made, not misleading
and (iii) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the
statements therein not untrue or misleading for this paragraph 1 to be true.
2. Each of the representations
and warranties of the Company contained in the Agreement were, when originally made, and are, as of the date of this Certificate,
true and correct in all material respects.
3. Except as waived by MLV
in writing, each of the covenants required to be performed by the Company in the Agreement on or prior to the date of the Agreement,
this Representation Date, and each such other date prior to the date hereof as set forth in the Agreement, has been duly, timely
and fully performed in all material respects and each condition required to be complied with by the Company on or prior to the
date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the Agreement
has been duly, timely and fully complied with in all material respects.
4. Subsequent to the date
of the most recent financial statements in the Prospectus, and except as described in the Prospectus, including Incorporated Documents,
there has been no Material Adverse Effect.
5. No stop order suspending
the effectiveness of the Registration Statement or of any part thereof has been issued, and no proceedings for that purpose have
been instituted or are pending or threatened by any securities or other governmental authority (including, without limitation,
the Commission).
6. No order suspending the
effectiveness of the Registration Statement or the qualification or registration of the Placement Shares under the securities or
Blue Sky laws of anyjurisdiction are in effect and no proceeding
for such purpose is pending before, or threatened, to the Company’s knowledge or in writing by, any securities or other governmental
authority (including, without limitation, the Commission).
The undersigned has executed this
Officer’s Certificate as of the date first written above.
|
ROCK CREEK PHARMACEUTICALS, INC. |
|
|
|
|
By: |
|
|
|
|
|
Name: |
|
|
|
|
|
Title: |
|
EXHIBIT 23
Permitted Issuer Free Writing Prospectuses
None.
Exhibit 5.1
|
ATTORNEYS AT LAW
100 North Tampa Street, Suite 2700
Tampa, FL 33602-5810
P.O. Box 3391
Tampa, FL 33601-3391
813.229.2300 TEL
813.221.4210 FAX
www.foley.com |
|
|
December 15, 2014
Rock Creek Pharmaceuticals, Inc.
2040 Whitfield Avenue, Suite 300
Sarasota, Florida 34243
Ladies and Gentlemen:
We have acted as counsel
for Rock Creek Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the preparation of
a Registration Statement on Form S-3 (the “Registration Statement”), including the prospectus constituting a part thereof
(the “Prospectus”), to be filed with the Securities and Exchange Commission (the “SEC”) under the Securities
Act of 1933, as amended (the “Securities Act”), relating to the potential issuance and sale by the Company from time
to time of up to $50,000,000 in aggregate amount of any of the following: (i) shares of the Company’s common stock, $0.0001
par value (the “Common Stock”); (ii) shares of the Company’s preferred stock, $0.0001 par value (the “Preferred
Stock”); (iii) warrants (the “Warrants”) to purchase Preferred Stock, Common Stock or other securities of the
Company; (iv) contracts (the “Stock Purchase Contracts”) that obligate holders to purchase from the Company, and the
Company to sell to these holders, shares of Common Stock or other securities of the Company at a future date; and (v) stock purchase
units (the “Stock Purchase Units”) consisting of a Stock Purchase Contract and either Preferred Stock, Warrants or
other securities of the Company or debt obligations of third parties that are pledged to secure the holder’s obligations
to purchase the Common Stock or other securities of the Company under Stock Purchase Contracts (the Common Stock, the Preferred
Stock, the Warrants, the Stock Purchase Contracts and the Stock Purchase Units are referred to herein as the “Securities”).
The Prospectus provides that it will be supplemented in the future by one or more supplements to such Prospectus and/or other offering
material (each, a “Prospectus Supplement”).
As counsel to the Company,
we have examined
the following: (i) the Registration Statement, including the Prospectus, and the exhibits (including those incorporated by reference),
each constituting a part of the Registration Statement; (ii) the Company’s Tenth Amended and Restated Certificate of Incorporation
and By-laws, each as amended to date; (iii) certain resolutions of the Board of Directors of the Company relating to the registration
of the Securities; and (iv) such other proceedings, documents and records as we have deemed necessary to enable us to render this
opinion. With your consent, we have also relied upon certificates and other assurances of officers of the Company and others as
to factual matters without having independently verified such factual matters.
Boston
Brussels
CHICAGO
Detroit |
JACKSONVILLE
LOS ANGELES
MADISON
MIAMI |
MILWAUKEE
NEW YORK
ORLANDO
SACRAMENTO |
SAN DIEGO
SAN DIEGO/DEL MAR
SAN FRANCISCO
SHANGHAI |
SILICON VALLEY
TALLAHASSEE
TAMPA
TOKYO
WASHINGTON, D.C. |
December 15, 2014
Page 2
We are opining herein
as to the General Corporation Law of the State of Delaware and we express no opinion with respect to the applicability thereto,
or the effect thereon, of the laws of any other jurisdiction or any other laws, or as to any matters of municipal law or the laws
of any local agencies within any state.
In our examination of
the above-referenced documents, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates
and instruments submitted to us as originals and the conformity with the originals of all documents submitted to us as copies.
We have also assumed that (i) the Registration Statement, and any amendments thereto (including post-effective amendments), will
have become effective and will comply with all applicable laws; (ii) a Prospectus Supplement, if required, will have been prepared
and filed with the SEC describing the Securities offered thereby; (iii) all Securities will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in the Registration Statement and any applicable Prospectus
Supplement; (iv) a definitive purchase, underwriting or similar agreement with respect to any Securities offered will have been
duly authorized and validly executed and delivered by the Company and the other parties thereto; (v) any Securities issuable upon
conversion, exchange or exercise of any Security being offered will have been duly authorized, created and, if appropriate, reserved
for issuance upon such conversion, exchange or exercise; (vi) with respect to shares of Common Stock or Preferred Stock offered,
there will be sufficient shares of Common Stock or Preferred Stock authorized under the Company’s Tenth Amended and Restated
Certificate of Incorporation, as amended, and not otherwise reserved for issuance; and (vii) the Company will comply with all applicable
notice requirements regarding uncertificated shares provided in the General Corporation Law of the State of Delaware.
Based upon and subject
to the foregoing, we are of the opinion that:
1. All
requisite action necessary to make any shares of Common Stock validly issued, fully paid and nonassessable will have been taken
when:
a. The
Company’s Board of Directors, or a committee thereof duly authorized by the Board of Directors, shall have adopted appropriate
resolutions to authorize the issuance and sale of the Common Stock; and
b. Such
shares of Common Stock shall have been issued and sold for the consideration, in an amount not less than the par value thereof,
contemplated by, and otherwise in conformity with, the Registration Statement, as supplemented by a Prospectus Supplement with
respect to such issuance and sale, and the acts, proceedings and documents referred to above.
2. All
requisite action necessary to make any shares of Preferred Stock validly issued, fully paid and nonassessable will have been taken
when:
a. The
Company’s Board of Directors, or a committee thereof duly authorized by the Board of Directors, shall have adopted appropriate
resolutions to establish the powers, designations, preferences, and relative, participating, optional or other rights, if any,
the qualifications, limitations or restrictions, if any, and the other terms of such shares as set forth in or contemplated by
the Registration Statement, the exhibits thereto and any Prospectus Supplement relating to the Preferred Stock, and to authorize
the issuance and sale of such shares of Preferred Stock;
December 15, 2014
Page 3
b. A
Certificate of Designations with respect to the powers, designations, preferences, and relative, participating, optional or other
rights, if any, the qualifications, limitations or restrictions, if any, and the other terms of such shares shall have been filed
with the Secretary of State of the State of Delaware in the form and manner required by law; and
c. Such
shares of Preferred Stock shall have been issued and sold for the consideration, in an amount not less than the par value thereof,
contemplated by, and otherwise in conformity with, the Registration Statement, as supplemented by a Prospectus Supplement with
respect to such issuance and sale, and the acts, proceedings and documents referred to above.
3. All
requisite action necessary to make any Warrants valid, legal and binding obligations of the Company will have been taken when:
a. The
Company’s Board of Directors, or a committee thereof duly authorized by the Board of Directors, shall have taken action to
approve and establish the terms and form of the Warrants and the documents, including any warrant agreements, evidencing and used
in connection with the issuance and sale of the Warrants, and to authorize the issuance and sale of such Warrants;
b. The
terms of such Warrants and of their issuance and sale have been established so as not to violate any applicable law or result in
a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirements or
restrictions imposed by any court or governmental entity having jurisdiction over the Company;
c. Any
such warrant agreements shall have been duly executed and delivered;
d. Such
Warrants shall have been duly executed and delivered in accordance with the terms and provisions of the applicable warrant agreement;
and
e. Such
Warrants shall have been issued and sold for the consideration contemplated by, and otherwise in conformity with, the Registration
Statement, as supplemented by a Prospectus Supplement with respect to such issuance and sale, and the acts, proceedings and documents
referred to above.
4. All
requisite action necessary to make any Stock Purchase Contracts and Stock Purchase Units valid, legal and binding obligations of
the Company will have been taken when:
December 15, 2014
Page 4
a. The
Company’s Board of Directors, or a committee thereof duly authorized by the Board of Directors, shall have taken action to
approve and establish the terms of the Stock Purchase Contracts and the documents evidencing and used in connection with the issuance
and sale of the Stock Purchase Units, and to authorize the issuance and sale of such Stock Purchase Contracts and Stock Purchase
Units;
b. The
terms of such Stock Purchase Contracts and Stock Purchase Units and of their issuance and sale have been established so as not
to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and
so as to comply with any requirements or restrictions imposed by any court or governmental entity having jurisdiction over the
Company;
c. Such
Stock Purchase Contracts and Stock Purchase Units shall have been duly executed and delivered in accordance with their respective
terms and provisions; and
d. Such
Stock Purchase Contracts and Stock Purchase Units shall have been issued and sold for the consideration contemplated by, and otherwise
in conformity with, the Registration Statement, as supplemented by a Prospectus Supplement with respect to such issuance and sale,
and the acts, proceedings and documents referred to above.
Our opinions are subject
to: (i) the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors; (ii) the effect of general principles of equity, whether
considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief),
concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which a proceeding
is brought; (iii) the invalidity under certain circumstances under law or court decisions of provisions providing for the
indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary
to public policy; and (iv) we express no opinion as to (a) any provision for liquidated damages, default interest, late
charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute
a penalty, (b) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies or judicial relief,
(c) waivers of rights or defenses, (d) any provision requiring the payment of attorneys’ fees, where such payment
is contrary to law or public policy, (e) the creation, validity, attachment, perfection, or priority of any lien or security
interest, (f) advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary
requirements, statutes of limitation, trial by jury or at law, or other procedural rights, (g) waivers of broadly or vaguely
stated rights, (h) provisions for exclusivity, election or cumulation of rights or remedies, (i) provisions authorizing
or validating conclusive or discretionary determinations, (j) grants of setoff rights, (k) proxies, powers and trusts,
(l) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property, (m) any
provision to the extent it requires that a claim with respect to a security denominated in other than U.S. dollars (or a judgment
in respect of such a claim) be converted into U.S. dollars at a rate of exchange at a particular date, to the extent applicable
law otherwise provides, and (n) the severability, if invalid, of provisions to the foregoing effect.
December 15, 2014
Page 5
We hereby consent to
the reference to our firm under the caption “Legal Matters” in the Prospectus which is filed as part of the Registration
Statement, and to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit
that we are “experts” within the meaning of Section 11 of the Securities Act or within the category of persons whose
consent is required by Section 7 of the Securities Act.
|
Very truly yours, |
|
|
|
/s/ Foley & Lardner LLP |
Exhibit 5.2
|
ATTORNEYS AT LAW |
|
100 North Tampa Street, Suite 2700 |
Tampa, FL 33602-5810 |
P.O. Box 3391 |
Tampa, FL 33601-3391 |
813.229.2300 TEL |
813.221.4210 FAX |
www.foley.com |
December 15, 2014
Rock Creek Pharmaceuticals, Inc.
2040 Whitfield Avenue, Suite 300
Sarasota, Florida 34243 |
|
Ladies and Gentlemen:
We have acted as
counsel to Rock Creek Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the sale,
through MLV & Co. LLC (“MLV”) as the sales agent, from time to time by the Company of shares (the
“Offering Shares”) of common stock of the Company, par value $0.0001 per share (the “Common Stock”),
having an aggregate offering price of up to $16,500,000, to be issued pursuant to a registration statement on Form S-3 filed
by the Company with the Securities and Exchange Commission (the “Commission”) on December 15, 2014 (the
“Registration Statement”), the base prospectus included in the Registration Statement (the “Base
Prospectus”) and the related sales agreement prospectus included in the Registration Statement (the “Sales
Agreement Prospectus,” and together with the Base Prospectus, the “Prospectus”), and that certain At Market
Issuance Sales Agreement, dated as of December 15, 2014, by and between the Company and MLV (the
“Sales Agreement”).
As counsel to the Company in connection
with the issuance and sale of the Offering Shares, we have examined such documents, matters of fact and questions of law as we
have considered appropriate for purposes of this letter. With your consent, we have (i) relied upon certificates and other assurances
of officers of the Company and others as to factual matters without having independently verified such factual matters and (ii)
assumed the genuineness of all signatures, the authenticity of all documents, certificates and instruments submitted to us as originals
and the conformity with the originals of all documents submitted to us as copies.
In giving this opinion,
we have assumed that any certificates representing the Offering Shares will conform to the Specimen Common Stock Certificate filed
as Exhibit 4.1 to the Registration Statement.
Subject to the foregoing
and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Offering Shares shall have been
duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers, and have
been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the Sales Agreement,
the Registration Statement and the Prospectus, such Offering Shares will be validly issued, fully paid and nonassessable.
In rendering the foregoing
opinion, we have assumed that (i) the Company will comply with all applicable notice requirements regarding uncertificated
shares provided in the Delaware General Corporation Law and (ii) upon the issue of any of the Offering Shares, the total number
of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is
then authorized to issue under its Tenth Amended and Restated Certificate of Incorporation, as amended, that are not otherwise
reserved for issuance.
Boston
Brussels
CHICAGO
Detroit |
JACKSONVILLE
LOS ANGELES
MADISON
MIAMI |
MILWAUKEE
NEW YORK
ORLANDO
SACRAMENTO |
SAN DIEGO
SAN FRANCISCO
SHANGHAI
SILICON VALLEY |
TALLAHASSEE
TAMPA
TOKYO
WASHINGTON, D.C. |
December 15, 2014
Page 2
The opinions set forth
in this opinion are limited solely to the federal laws of the United States of America and the Delaware General Corporation Law,
and we express no opinion as to the laws of any other jurisdiction.
We hereby consent to
the deemed incorporation by reference of this opinion into the Registration Statement and the Prospectus and to the references
to our firm therein. In giving this consent, we do not admit that we are “experts” within the meaning of Section 11
of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities Act.
|
Very truly yours, |
|
|
|
/s/ Foley & Lardner LLP |
Exhibit 12.1
Rock Creek Pharmaceuticals, Inc. |
Computation of Ratio of Earnings to Fixed Charges |
($ thousands) |
| |
| | |
| | |
| | |
| | |
| | |
| |
| |
Year Ended December 31, | | |
Nine Months ended
September 30, 2014 | |
| |
| | |
| | |
| | |
| | |
| | |
| |
| |
2009 | | |
2010 | | |
2011 | | |
2012 | | |
2013 | | |
| |
Computation of earnings: | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Net loss from continuing operations before provision for income taxes | |
$ | (17,369 | ) | |
$ | (25,629 | ) | |
$ | (35,893 | ) | |
$ | (18,100 | ) | |
$ | (33,229 | ) | |
$ | (27,971 | ) |
Fixed Charges as calculated below | |
| 474 | | |
| 456 | | |
| 345 | | |
| 192 | | |
| 97 | | |
| 62 | |
Total earnings | |
$ | (16,895 | ) | |
$ | (25,173 | ) | |
$ | (35,548 | ) | |
$ | (17,908 | ) | |
$ | (33,132 | ) | |
$ | (27,909 | ) |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Computation of fixed charges: | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Interest expense | |
$ | 404 | | |
$ | 370 | | |
$ | 263 | | |
$ | 104 | | |
$ | - | | |
$ | - | |
Estimated interest expense portion of rental expense | |
| 74 | | |
| 78 | | |
| 80 | | |
| 89 | | |
| 97 | | |
| 62 | |
Total fixed charges | |
$ | 478 | | |
$ | 456 | | |
$ | 343 | | |
$ | 193 | | |
$ | 97 | | |
$ | 62 | |
Ratio of earnings to fixed charges | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | |
(1) Our earnings were inadequate to cover fixed charges for the years
ended December 31, 2009, 2010, 2011, 2012 and 2013 by $17.4 million, $25.6 million, $35.9 million, $18.1 million and $33.2
million, respectively, and for the nine months ended September 30, 2014 by $28.0 million.
For the periods indicated above, we had no outstanding shares of preferred stock with required dividend payment. Therefore, the ratios of earnings to combined fixed charges and preferred stock dividends are identical to the ratios presented in the table above.
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
The Board of Directors
Rock Creek Pharmaceuticals, Inc. and Subsidiaries
We consent to the reference to our firm under the caption “Experts”
in the Registration Statement on Form S-3, filed on the date hereof, and related prospectuses of Rock Creek Pharmaceuticals, Inc.
(f/k/a Star Scientific, Inc.) and its Subsidiaries (the “Company”) and to the incorporation by reference therein of
our report dated March 17, 2014, with respect to the consolidated financial statements and the effectiveness of internal control
over financial reporting of the Company included in the Company’s Annual Report on Form 10-K as of and for the year ended
December 31, 2013, filed on March 17, 2014.
/s/ Cherry Bekaert LLP
Richmond, Virginia
December 15, 2014