This excerpt taken from the TPTX 8-K filed Dec 18, 2009.
Rules and Regulations”)) in any “free writing prospectus” (as defined in Rule 405) used or referred to by the Placement Agent without the prior consent of the Company. The Placement Agent also agrees to provide to each Investor, prior to the Closing (as defined below), a copy of the Prospectus (as defined below) and any amendments or supplements thereto.
(c) Compensation. As compensation for the services provided by the Placement Agent hereunder, the Company agrees to pay to the Placement Agent:
1. A cash fee payable immediately upon the closing of the Placement and equal to 6.5% of the aggregate cash proceeds paid to the Company in the Placement, without taking into account any proceeds from the exercise of the Warrants.
2. Such number of warrants (the “Placement Agent Warrants”) to the Placement Agent or its designees at the Closing to purchase shares of Common Stock equal to 2.0% of the aggregate number of Shares sold on the Closing Date in the Placement, excluding any Shares underlying any Warrants, other convertible Securities or units sold in the Placement. The Placement Agent Warrants shall have the same terms and conditions as the Warrants issued to the Investors in the Placement except that the exercise price shall be 125% of the public offering price per share and the expiration date shall be five years from the effective date of the shelf registration statement referred to in Section 3(a) below. The Placement Agent Warrants shall not be transferable for six months from the Closing Date except as permitted by FINRA Rule 5110, and further, the number of Shares underlying the Placement Agent Warrants shall be reduced if necessary to comply with FINRA rules or regulations.
3. Subject to compliance with FINRA Rule 5110(f)(2)(D), the Company also agrees to reimburse the Placement Agent’s out-of-pocket accountable expenses actually incurred by the Placement Agent or persons associated with the Placement Agent (with supporting invoices/receipts) up to a maximum of 0.5% of the aggregate gross proceeds raised in the placement, but in no event more than $30,000. Such reimbursement shall be payable immediately upon (but only in the event of) the closing of the Placement.
2. Delivery and Payment and Engagement Term.
(a) Closing. Subject to the terms and conditions hereof, delivery of the Units shall be made by the Company to the Investors, and payment of the purchase price shall be made by the Investors by wire transfer of immediately available funds in an amount equal to the product of (x) the number of Units such Investor has agreed to purchase and (y) the purchase price per Unit as set forth in the Purchase Agreement, to the order of the Company, at the offices of Paul, Hastings, Janofsky & Walker LLP, 515 South Flower Street, 25th Floor, Los Angeles, California (or such other place as may be agreed upon among the Placement Agent and the Company), at 10:00 a.m., New York City time, on or before December 22, 2009, or at such time on such other date, not later than ten business days after such date, as may be agreed upon by the Company and the Placement Agent (such time of payment and delivery is hereinafter referred to as the “