Blueprint





 






 Exhibit 10.1



PLACEMENT
AGENCY AGREEMENT


January 11, 2016


Aegis
Capital Corp.


810
Seventh Ave, 18th Floor


New
York, NY 10019


 






Re:            Adgero
Biopharmaceuticals, Inc. and Adgero Biopharmaceuticals Holdings,
Inc.


Ladies
and Gentlemen:





           
    This Placement Agency Agreement ("Agreement") sets forth the terms upon
which Aegis Capital Corp., a New York corporation
(“Aegis” or
“Placement
Agent”), a registered broker-dealer and member of the
Financial Industry Regulatory Authority ("FINRA"), shall be engaged by Adgero
Biopharmaceuticals, Inc., a Delaware corporation
(“OPCO”) and
Adgero Biopharmaceuticals Holdings, Inc., a Delaware corporation
(“Issuer”), to
act as exclusive Placement Agent in connection with the private
placement (the “Offering”) of units
(“Units”) of
securities of Issuer, with each Unit consisting of (i) one (1)
share of common stock, par value $0.0001 per share (the
“Common Stock”),
of Issuer (the “Shares”) and (ii) one (1) warrant
(the “Warrants”), with each Warrant
entitling the holder to purchase one share of Common Stock for a
five-year period at an exercise price of $5.00 per share. The
Offering will consist of a minimum of 600,000 Units ($3,000,000)
(the “Minimum
Amount”) and a maximum of 1,500,000 Units ($7,500,000)
(the “Maximum
Amount”). In the event the Offering is oversubscribed,
OPCO and the Placement Agent may, in their mutual discretion, have
Issuer sell up to 1,500,000 additional Units for an additional
aggregate purchase price of $7,500,000 (the “Over-allotment”).
Concurrently with the initial closing of the Offering (the
“First
Closing”), Adgero Biopharmaceuticals Acquisition,
Inc., a wholly-owned subsidiary of Issuer and a Delaware
corporation (“Merger
Sub”), will merge with and into OPCO and, with the
proceeds of the Offering, will continue the existing operations of
OPCO as a wholly owned subsidiary of Issuer (the
“Merger”).


As part
of or in conjunction with the Merger, Issuer will issue shares of
its Common Stock and a limited number of warrants (currently
estimated to be 30,864 in total) to OPCO’s then-existing
security holders pursuant to the terms of that certain Agreement and Plan of Merger and
Reorganization dated on or about the date hereof among OPCO,
Issuer and Merger Sub (the “Merger Agreement”). As used in
this Agreement, unless the context otherwise requires, the term
“Company” refers
to Issuer and OPCO on a combined basis after giving effect to the
Offering and the Merger.


 


As part
of the Offering, holders of OPCO’s bridge promissory notes of
up to $300,000 of principal amount (the “Bridge Notes”) will be converting
principal and accrued interest thereon for a quantity of Units
equal to the principal amount of their Bridge Notes, plus accrued
interest through the First Closing, divided by the Unit price of
$5.00. Such conversion of Bridge Notes into Units shall be included
in the calculations of whether the Minimum Amount, Maximum Amount
or Over-allotment of the Offering has been reached.


 



 

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The
purchase price for the Units will be $5.00 per Unit (the
“Offering
Price”), with a minimum investment of $250,000;
provided,
however,
that subscriptions for lesser amounts may be accepted in
OPCO’s and Placement Agent’s joint discretion. The
Placement Agent shall accept subscriptions only from
persons or entities who qualify
as “accredited investors,” as such term is defined in
Rule 501 of Regulation D (“Regulation D”) as promulgated by the United States Securities and Exchange
Commission (the “SEC”) under
Section 4(a)(2) of the Securities Act of 1933, as amended (the
“Act”). The Units will be offered until the earlier of (i)
the termination of the Offering as provided herein, (ii) the time
that all Units offered in the Offering are sold or (iii) March 11,
2016 (“Initial Offering
Period”), which date may
be extended by Aegis on behalf of the Placement Agent and OPCO in
their joint discretion until June 9, 2016 (this additional period
and the Initial Offering Period shall be referred to as the
“Offering
Period”). The date on
which the Offering expires or is terminated shall be referred to as
the “Termination
Date.”


With
respect to the Offering, OPCO and Issuer shall provide the
Placement Agent, on terms set forth herein, the right to offer and
sell all of the Units being offered. Purchases of Units may be made
by the Placement Agent and its officers, directors, employees and
affiliates. All such purchases, together with purchases by
officers, directors, employees and affiliates of OPCO or Issuer,
may be used to satisfy the Minimum Amount if the Minimum Amount has
not been subscribed for on or before the end of the Offering
Period. It is understood that no sale shall be regarded as
effective unless and until accepted by the Issuer and OPCO. The
Issuer and OPCO may, in their joint discretion, accept or reject,
in whole or in part, any prospective investment in the Units. OPCO
and the Placement Agent shall mutually agree with respect to
allotting any prospective subscriber less than the number of Units
that such subscriber desires to purchase.


The Offering will be made by Issuer solely
pursuant to the Memorandum, which at all times will be in form and
substance reasonably acceptable to Issuer, OPCO, the Placement
Agent and their respective counsel and contain such legends and
other information as Issuer, OPCO, the Placement Agent and their
respective counsel, may, from time to time, deem necessary and
desirable to be set forth therein. “Memorandum” as used in this Agreement means
Issuer’s Confidential Private Placement Memorandum dated on
or about January 11, 2016, inclusive of all annexes, and all
amendments, supplements and appendices thereto.

1. Appointment
of Placement Agent. On the
basis of the representations and warranties provided herein, and
subject to the terms and conditions set forth herein, the Placement
Agent is appointed as exclusive Placement Agent for OPCO and Issuer
during the Offering Period to assist OPCO and Issuer in finding
qualified subscribers for the Offering. The Placement Agent may
sell Units through other broker-dealers who are FINRA members and
may reallow all or a portion of the Agent Compensation (as defined
in Section 3(b) below) it receives to such other broker-dealers. On
the basis of such representations and warranties and subject to
such terms and conditions, the Placement Agent hereby accepts such
appointment and agrees to perform its services hereunder diligently
and in good faith and in a professional and businesslike manner and
to use its reasonable efforts to assist OPCO and Issuer in
(A) finding subscribers of Units who
qualify as “accredited
investors,” as such term is defined in Rule 501 of Regulation
D, and (B) completing the
Offering. The Placement Agent has no obligation to purchase any of
the Units. Unless sooner terminated in accordance with this
Agreement, the engagement of the Placement Agent hereunder shall
continue until the later of the Termination Date or the Final
Closing (as defined below).


 



 

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2. Representations,
Warranties and Covenants of OPCO. Except as set forth in the schedule of
exceptions delivered to the Placement Agent on the date hereof (the
“Schedule of
Exceptions”) or in the
Memorandum, the representations and warranties of OPCO (as used in
this Section 2, “OPCO” refers to Adgero
Biopharmaceuticals, Inc. and its subsidiaries, if any) contained in
this Section 2 are true and correct as of the date of this
Agreement


 


(a) The Memorandum has been prepared by OPCO in
compliance in all material respects with Regulation D and Section
4(a)(2) of the Act and the requirements of all other rules and
regulations (the “Regulations”) relating to offerings of the type
contemplated by the Offering, and the applicable securities laws
and the rules and regulations of those jurisdictions wherein the
Placement Agent notifies OPCO that the Units are to be offered and
sold excluding any foreign jurisdictions. The Units will be offered
and sold pursuant to the registration exemptions provided by
Regulation D and Section 4(a)(2) of the Act as a transaction not
involving a public offering and the requirements of any other
applicable state securities laws and the respective rules and
regulations thereunder in those United States jurisdictions in
which the Placement Agent notifies OPCO that the Units are being
offered for sale. None of OPCO, its affiliates, or any person
acting on its or their behalf (other than the Placement Agent, its
affiliates or any person acting on its behalf, in respect of which
no representation is made) has taken nor will it take any action
that conflicts with the conditions and requirements of, or that
would make unavailable with respect to the Offering, the
exemption(s) from registration available pursuant to Rule 506(b) of
Regulation D or Section 4(a)(2) of the Act, or knows of any reason why any such exemption
would be otherwise unavailable to it. None of OPCO, its
predecessors or affiliates has been subject to any order, judgment
or decree of any court of competent jurisdiction temporarily,
preliminarily or permanently enjoining such person for failing to
comply with Section 503 of Regulation D. Except as set forth in the
Memorandum, OPCO has not, for a period of six months prior to the
commencement of the offering of Units, sold, offered for sale or
solicited any offer to buy any of its securities in a manner that
would be integrated with the offer and sale of the Units pursuant
to this Agreement and would cause the exemption from registration
set forth in Rule 506(b) of Regulation D to become unavailable with
respect to the offer and sale of the Units pursuant to this
Agreement in the United States.


 

(b) As
to OPCO only, the Memorandum does not include any 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
light of the circumstances under which they were made, not
misleading; provided,
however,
the foregoing does not apply to any statements or omissions made
solely in reliance on and in conformity with written information
furnished to OPCO by Issuer or the Placement Agent specifically for
use in the preparation thereof. To the knowledge of OPCO, none of
the statements, documents, certificates or other items made,
prepared or supplied by OPCO with respect to the transactions
contemplated hereby contains an untrue statement of a material fact
or omits to state a material fact necessary to make the statements
contained therein not misleading in light of the circumstances in
which they were made. There is no fact which OPCO has not disclosed
in the Memorandum and of which OPCO is aware that materially
adversely affects or that could reasonably be expected to have a
material adverse effect on the (i) assets, liabilities, results of
operations, condition (financial or otherwise), business of OPCO or
(ii) the ability of OPCO to perform its obligations under this
Agreement. Notwithstanding anything to the contrary herein, OPCO
makes no representation or warranty with respect to any estimates,
projections and other forecasts and plans (including the
reasonableness of the assumptions underlying such estimates,
projections and other forecasts and plans) that may have been
delivered to the Placement Agent or its representatives or that are
contained in the Memorandum, except that such estimates,
projections and other forecasts and plans have been prepared in
good faith on the basis of assumptions stated therein, which
assumptions were believed to be reasonable at the time of such
preparation.


 



 

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(c) OPCO
is duly organized and validly existing in good standing under the
laws of the jurisdiction in which it was formed, and has the
requisite power and authority to own its properties and to carry on
its business as now being conducted. Except for Remulux
Biopharmaceuticals, Inc., which OPCO intends to dissolve prior the
First Closing, OPCO is not a participant in any joint
venture, partnership or similar arrangement and does not directly or indirectly own any
subsidiaries or otherwise own or hold capital stock or an equity or
similar interest in any entity. OPCO is duly qualified as a foreign
entity to do business and is in good standing in every jurisdiction
in which its ownership of property or the nature of the business
conducted by it makes such qualification necessary, except to the
extent that the failure to be so qualified or be in good standing
would not have a OPCO Material Adverse Effect. As used in this
Agreement, “OPCO Material Adverse
Effect” means any
material adverse effect on the business, properties, assets,
operations, results of operations or condition (financial or
otherwise) of OPCO, taken as a whole, or on the transactions
contemplated hereby and the other OPCO Transaction Documents (as
defined below) or by the agreements and instruments to be entered
into in connection herewith or therewith, or on the authority or
ability of OPCO to perform its obligations under the OPCO
Transaction Documents (as defined below). Except for Remulux
Biopharmaceuticals, Inc., which OPCO intends to dissolve prior the
First Closing, OPCO does not, directly or indirectly, own any
capital stock, membership interests or any other equity interest in
any other person or entity.


 

(d) OPCO
has all requisite corporate power and authority to conduct its
business as presently conducted and as proposed to be conducted (as
described in the Memorandum), to enter into and perform its
obligations under this Agreement, the Subscription Agreement
substantially in the form of Annex A to the Memorandum (the
“Subscription
Agreement”), the
Registration Rights Agreement substantially in the form of Annex B
to the Memorandum (the “Registration Rights
Agreement”), the Escrow
Agreement (as hereinafter defined) and the other agreements
contemplated hereby (this Agreement, the Subscription Agreement,
the Registration Rights Agreement and the other agreements
contemplated hereby that OPCO is executing and delivering hereunder
are collectively referred to herein as the
“OPCO
Transaction Documents”).
Prior to the First Closing, each of the OPCO Transaction Documents
(other than this Agreement, which has already been authorized) will
have been duly authorized. This Agreement has been duly authorized,
executed and delivered and constitutes, and each of the other OPCO
Transaction Documents, upon due execution and delivery, will
constitute, valid and binding obligations of OPCO, enforceable
against OPCO in accordance with their respective terms (i) except
as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect related to laws affecting creditors’
rights generally, including the effect of statutory and other laws
regarding fraudulent conveyances and preferential transfers, and
except that no representation is made herein regarding the
enforceability of OPCO’s obligations to provide
indemnification and contribution remedies under the securities laws
and (ii) subject to the limitations imposed by general equitable
principles (regardless of whether such enforceability is considered
in a proceeding at law or in equity).


 



 

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(e) None
of the execution and delivery of or performance by OPCO under this
Agreement or any of the other OPCO Transaction Documents or the
consummation of the transactions herein or therein contemplated
conflicts with or violates, or will result in the creation or
imposition of, any lien, charge or other encumbrance upon any of
the assets of OPCO under any agreement or other instrument to which
OPCO is a party or by which OPCO or its assets may be bound, or any
term of the certificate of incorporation or by-laws of OPCO, or any
license, permit, judgment, decree, order, statute, rule or
regulation applicable to OPCO or any of its assets, except in the
case of a conflict, violation, lien, charge or other encumbrance
(except with respect to OPCO’s certificate of incorporation
or by-laws) which would not reasonably be expected to have
a OPCO Material Adverse Effect.


 

(f) [Reserved]


 

(g) OPCO’s
unaudited financial statements, together with the related notes, if
any, included in the Memorandum, present fairly, in all material
respects, the financial condition of OPCO as of the dates specified
and the results of operations for the periods covered thereby. Such
unaudited financial statements and related notes were prepared to
conform with United States generally accepted accounting
principles applied on a consistent basis throughout the periods
indicated. Except as set forth in such financial statements or
otherwise disclosed in the Memorandum, OPCO has no known material
liabilities of any kind, whether accrued, absolute or contingent,
or otherwise, and subsequent to the date of the Memorandum and
prior to the date of the First Closing it shall not enter into any
material transactions or commitments without promptly thereafter
notifying the Placement Agent in writing of any such material
transaction or commitment. The other financial and statistical
information with respect to OPCO and any pro forma information and
related notes included in the Memorandum present fairly in all
material respects the information shown therein on a basis
consistent with the financial statements of OPCO included in the
Memorandum. To the knowledge of OPCO there are no facts, circumstances or
conditions that could reasonably be expected to have an OPCO
Material Adverse Effect that have not been fully disclosed in
the Memorandum.


 

(h) Since
the date of OPCO’s most recent financial statements contained
in the Memorandum, there has been no OPCO Material Adverse Effect.
Except as disclosed in the Memorandum, since the date of
OPCO’s most recent financial statements contained in the
Memorandum, OPCO has not (i) declared or paid any dividends, (ii)
sold any assets, individually or in the aggregate, in excess of
$75,000 outside of the ordinary course of business or (iii) had
capital expenditures, individually or in the aggregate, in excess
of $75,000. OPCO has not taken any steps to seek protection
pursuant to any bankruptcy law nor does OPCO have any actual
knowledge or reason to believe that its creditors intend to
initiate involuntary bankruptcy proceedings or any actual knowledge
of any fact which would reasonably lead a creditor to do
so.


 



 

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(i) Except
as described in the Memorandum, OPCO has no outstanding
Indebtedness (as defined below) in excess of $50,000 and is not in
violation of any term of or in default under any contract,
agreement or instrument relating to any Indebtedness, except where
such violations or defaults would not result, individually or in
the aggregate, in a Material Adverse Effect. For purposes of this
Agreement: (i) “Indebtedness” of any Person means without duplication, (A) all
indebtedness for borrowed money, (B) all obligations issued,
undertaken or assumed as the deferred purchase price of property or
services including (without limitation) “Capital
Leases” (as defined under GAAP) (other than trade payables
entered into in the ordinary course of business), (C) all
reimbursement or payment obligations with respect to letters of
credit, surety bonds and other similar instruments, (D) all
obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses,
(E) all indebtedness created or arising under any conditional sale
or other title retention agreement, or incurred as financing, in
either case with respect to any property or assets acquired with
the proceeds of such indebtedness (even though the rights and
remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property), (F)
all monetary obligations under any leasing or similar arrangement
which, in connection with GAAP, consistently applied for the
periods covered thereby, is classified as a capital lease, (G) all
indebtedness referred to in clauses (A) through (F) above secured
by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any mortgage,
lien, pledge, charge, security interest or other encumbrance upon
or in any property or assets (including accounts and contract
rights) owned by any Person, even though the Person which owns such
assets or property has not assumed or become liable for the payment
of such indebtedness, and (H) except for obligations owed to
service providers of OPCO in connection with this Offering, all
Contingent Obligations (as defined below) in respect of
indebtedness or obligations of others of the kinds referred to in
clauses (A) through (G) above of at least $50,000; (y)
“Contingent
Obligation” means, as to
any Person, any direct or indirect liability, contingent or
otherwise, of that Person with respect to any indebtedness, lease,
dividend or other obligation of another Person if the primary
purpose or intent of the Person incurring such liability, or the
primary effect thereof, is to provide assurance to the obligee of
such liability that such liability will be paid or discharged, or
that any agreements relating thereto will be complied with, or that
the holders of such liability will be protected (in whole or in
part) against loss with respect thereto; and (z)
“Person” means an individual, a limited liability
company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or
agency thereof.


 

(j) The
conduct of business by OPCO as presently and proposed to be
conducted is not subject to continuing oversight, supervision,
regulation or examination by any governmental official or body of
the United States, or any other jurisdiction wherein OPCO currently
conducts such business, except as described in the Memorandum. OPCO
has obtained all material licenses, permits and other governmental
authorizations necessary to conduct its business as presently
conducted. OPCO has not received any notice of any violation of, or
noncompliance with, any federal, state, local or foreign laws,
ordinances, regulations and orders (including, without limitation,
those relating to environmental protection, occupational safety and
health, securities laws, equal employment opportunity, consumer
protection, credit reporting, “truth-in-lending”, and
warranties and trade practices) applicable to its business, the
violation of, or noncompliance with, would have an OPCO Material
Adverse Effect, and OPCO knows of no facts or set of circumstances
which could give rise to such a notice.


 



 

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(k) OPCO
has obtained all material licenses,
permits and other governmental authorizations necessary to conduct
its business as presently conducted. OPCO has not received any
written notice of any violation of, or noncompliance with, any
federal, state, local or foreign laws, ordinances, regulations and
orders (including, without limitation, those relating to
environmental protection, occupational safety and health,
securities laws, equal employment opportunity, consumer protection,
credit reporting, “truth-in-lending”, and warranties
and trade practices) applicable to its business, the violation of,
or noncompliance with, would have a Material Adverse
Effect.


 

(l) No
default by OPCO or, to the knowledge of OPCO, any other party,
exists in the due performance under any material agreement to which
OPCO is a party or to which any of its assets is subject
(collectively, the “OPCO
Agreements”). The OPCO
Agreements disclosed in the Memorandum are the only material
agreements to which OPCO is bound or by which its assets are
subject, are accurately described in the Memorandum and are in full
force and effect in accordance with their respective terms, subject
to any applicable bankruptcy, insolvency or other laws affecting
the rights of creditors generally and to general equitable
principles and the availability of specific
performance.


 

(m) OPCO
owns all right, title and interest in, or possesses enforceable
rights to use, all patents, patent applications, trademarks,
service marks, copyrights, rights, licenses, franchises, trade
secrets, confidential information, processes and formulations
necessary for the conduct of its business as now conducted
(collectively, the “Intangibles”). To the knowledge of OPCO, OPCO has not
infringed upon the rights of others with respect to the Intangibles
and, except as disclosed in the Memorandum, OPCO has not received
notice that it has or may have infringed or is infringing upon the
rights of others with respect to the Intangibles, or any written
notice of conflict with the asserted rights of others with respect
to the Intangibles. To the knowledge of OPCO, all such Intangibles
are enforceable and no others have infringed upon the rights of
OPCO with respect to the Intangibles. None of OPCO’
Intangibles have expired or terminated, or are expected to expire
or terminate, within three years from the date of this Agreement.
All current officers,
employees, consultants and independent contractors of OPCO having
access to proprietary information of Company, its customers or
business partners and inventions owned by Company have executed and
delivered to Company an agreement regarding the protection of such
proprietary information. OPCO has secured, by valid written
assignments from all of Company’s current and former
consultants, independent contractors and employees who were
involved in, or who contributed to, the creation or development of
any Intangibles, unencumbered and unrestricted exclusive ownership
of each such third party’s Intangibles in their respective
contributions. To knowledge of OPCO, no current or former employee,
officer, director, consultant or independent contractor of Company
has any right, license, claim or interest whatsoever in or with
respect to any Intangibles.


 



 

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(n) OPCO
is not a party to any collective bargaining agreement nor does it
employ any member of a union. No executive officer of OPCO (as
defined in Rule 501(f) of the Act) has notified OPCO that such
officer intends to leave OPCO or otherwise terminate such officer's
employment with OPCO. No executive officer of OPCO, to the
knowledge of OPCO, is in violation of any material term of any
employment contract, confidentiality, disclosure or proprietary
information agreement, non-competition agreement, or any other
contract or agreement or any restrictive covenant, and the
continued employment of each such executive officer does not
subject OPCO to any liability with respect to any of the foregoing
matters. OPCO is in compliance with all federal, state, local and
foreign laws and regulations respecting labor, employment and
employment practices and benefits, terms and conditions of
employment and wages and hours, except where failure to be in
compliance would not, either individually or in the aggregate,
reasonably be expected to result in an OPCO Material Adverse
Effect.


 

(o) As
to OPCO only, no consent, authorization or filing of or with any
court or governmental authority is required in connection with the
consummation of the transactions contemplated herein or in the
other Transaction Documents, except for required filings with the
SEC and the applicable state securities commissions relating
specifically to the Offering (all of which filings will be duly
made), other than those which are required to be made after the
First Closing (all of which will be duly made on a timely
basis).


 

(p) Subsequent
to the respective dates as of which information is given in the
Memorandum, OPCO has operated its business in the ordinary course
and, except as may otherwise be set forth in the Memorandum, there
has been no: (i) OPCO Material Adverse Effect; (ii) transaction
otherwise than in the ordinary course of business consistent with
past practice; (iii) issuance of any securities (debt or equity) or
any rights to acquire any such securities other than pursuant to
equity incentive plans approved by its Board of Directors; (iv)
damage, loss or destruction, whether or not covered by insurance,
with respect to any asset or property of OPCO; or (v) agreement to
permit any of the foregoing.


 

(q) Except
as set forth in the Memorandum, there are no actions, suits,
claims, hearings or proceedings pending before any court or
governmental authority or, to the knowledge of OPCO, threatened,
against OPCO, or involving its assets or any of its officers or
directors (in their capacity as such) which, if determined
adversely to OPCO or such officer or director, could reasonably be
expected to have an OPCO Material Adverse Effect or adversely
affect the transactions contemplated by this Agreement or the
Merger Agreement or the enforceability thereof.


 

(r) OPCO
is not: (i) in violation of its Certificate of Incorporation or
By-laws; (ii) in default of any indenture, mortgage, deed of trust,
note or other agreement or instrument to which OPCO is a party or
by which it is or may be bound or to which any of its assets may be
subject, the default of which could reasonably be expected to have
an OPCO Material Adverse Effect; (iii) in violation of any statute,
rule or regulation applicable to OPCO, the violation of which would
have an OPCO Material Adverse Effect; or (iv) in violation of any
judgment, decree or order of any court or governmental body having
jurisdiction over OPCO and specifically naming OPCO, which
violation or violations individually, or in the aggregate, could
reasonably be expected to have an OPCO Material Adverse
Effect.


 



 

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(s) Except
as disclosed in the Memorandum, as of the date of this Agreement,
no current or former stockholder, director, officer or employee of
OPCO, nor, to the knowledge of OPCO, any affiliate of any such
person is presently, directly or indirectly through his affiliation
with any other person or entity, a party to any loan from OPCO or
any other transaction (other than as an employee) with OPCO
providing for the furnishing of services by, or rental of any
personal property from, or otherwise requiring cash payments to any
such person.


 

(t) OPCO has filed, on
a timely basis, each federal, state, local and foreign tax return,
report and declarations that were required to be filed, or has
requested an extension therefor and has paid all taxes and all
related assessments, charges, penalties and interest to the extent
that the same have become due. There are no unpaid taxes in any
material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of OPCO know of no basis for any
such claim. OPCO has not executed a waiver with respect to the
statute of limitations relating to the assessment or collection of
any foreign, federal, state or local tax. To OPCO’ knowledge,
none of OPCO’ tax returns is presently being audited by any
taxing authority. No liens have been filed and no claims are being
asserted by or against OPCO with respect to any taxes (other than
liens for taxes not yet due and payable). OPCO has not received
notice of assessment or proposed assessment of any taxes claimed to
be owed by it or any other Person on its behalf. OPCO is not a
party to any tax sharing or tax indemnity agreement or any other
agreement of a similar nature that remains in effect. OPCO has
complied in all material respects with all applicable legal
requirements relating to the payment and withholding of taxes and,
within the time and in the manner prescribed by law, has withheld
from wages, fees and other payments and paid over to the proper
governmental or regulatory authorities all amounts
required.


 

(u) Neither
OPCO, nor any director, officer, agent, employee or other Person
acting on behalf of OPCO has, in the course of its actions for, or
on behalf of, OPCO (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses
relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended; or (iv) made any unlawful bribe, rebate, payoff, influence
payment, kickback or other unlawful payment to any foreign or
domestic government official or employee.


 

(v) OPCO
is not obligated to pay, and has not obligated the Placement Agent
to pay, a finder’s or origination fee in connection with the
Offering (other than to the Placement Agent), and hereby agrees to
indemnify the Placement Agent from any such claim made by any other
person, as more fully set forth in Section 8 hereof. Except as set
forth in the Memorandum, OPCO has not offered for sale or solicited
offers to purchase the Units except for negotiations with the
Placement Agent.


 

(w) Neither
the sale of the Units by the Issuer nor the Company’s use of
the proceeds thereof will violate the Trading with the Enemy Act,
as amended, or any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V,
as amended) or any enabling legislation or executive order relating
thereto. Without limiting the foregoing, OPCO is not (a) a person
whose property or interests in property are blocked pursuant to
Section 1 of Executive Order 13224 of September 23, 2001 Blocking
Property and Prohibiting Transactions with Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079
(2001)) or (b) a person who engages in any dealings or
transactions, or be otherwise associated, with any such person.
OPCO is in compliance, in all material respects, with the USA
Patriot Act of 2001 (signed into law October 26,
2001).


 



 

9







 






 

(x) Until
the Termination Date, OPCO will not issue any press release, grant
any interview, or otherwise communicate with the media in any
manner whatsoever with respect to the Offering without the
Placement Agent’s prior consent, which consent will not
unreasonably be withheld, delayed or conditioned.


 

(y) Neither
OPCO nor any OPCO Related Persons (as defined below) are subject to
any of the disqualifications set forth in Rule 506(d) of Regulation
D (each a “Disqualification
Event”). OPCO
has exercised reasonable
care to determine whether any OPCO Related Person is subject to a
Disqualification Event. The
Memorandum contains a true and complete description of the matters
required to be disclosed with respect to OPCO and OPCO Related
Persons pursuant to the disclosure requirements of Rule 506(e) of
Regulation D, to the extent applicable. As used herein,
“OPCO
Related Persons” means
any predecessor of OPCO, any affiliated issuer, any director,
executive officer, other officer of OPCO participating in the
Offering, any general partner or managing member of OPCO, any
beneficial owner of 20% or more of OPCO’s outstanding voting
equity securities, calculated on the basis of voting power, and any
“promoter” (as defined in Rule 405 under the Act)
connected with OPCO in any capacity. OPCO agrees to promptly notify
the Placement Agent in writing of (i) any Disqualification Event
relating to any OPCO Related Person and (ii) any event that would,
with the passage of time, become a Disqualification Event relating
to any OPCO Related Person.


 

(z) Incorporation
by Reference. For the benefit
of the Placement Agent, OPCO hereby incorporates by reference all
of the representations and warranties contained in Article III, and
its covenants contained in Article V, of the Merger Agreement, in
each case with the same force and effect as if specifically set
forth herein.


 

(aa) Disclosure.
No representation or warranty contained in Section 2 of this
Agreement contains any untrue statement of a material fact or omits
to state a material fact necessary to make the statements herein
not misleading in the context of such representations and
warranties.


 






2A.            Representations,
Warranties and Covenants of Issuer. The representations and warranties of Issuer (as
used in this Section 2A, “Issuer” refers to Adgero
Biopharmaceuticals Holdings, Inc. and its subsidiaries) to the
Placement Agent contained in this Section 2A are true and correct
as of the date of this Agreement.


(a) The Memorandum has been prepared in conformity
with all applicable laws, and is in compliance in all material
respects with Regulation D, the Act and the requirements of all
other Regulations of the SEC relating to offerings of the type
contemplated by the Offering, and the applicable securities laws
and the rules and regulations of those jurisdictions wherein the
Placement Agent notifies Issuer that the Units are to be offered
and sold excluding any foreign jurisdictions. The Units will be
offered and sold pursuant to the registration exemptions provided
by Regulation D and Section 4(a)(2) of the Act as a transaction not
involving a public offering and the requirements of any other
applicable state securities laws and the respective rules and
regulations thereunder in those United States jurisdictions in
which the Placement Agent notifies Issuer that the Units are being
offered for sale. None of Issuer, its affiliates, or any person
acting on its or their behalf (other than the Placement
Agent, its affiliates or any
person acting on its behalf, in respect of which no representation
is made) has taken nor will it
take any action that conflicts with the conditions and requirements
of, or that would make unavailable with respect to the Offering,
the exemption(s) from registration available pursuant to Rule
506(b) of Regulation D or Section 4(a)(2) of the Act,
or knows of any reason why
any such exemption would be otherwise unavailable to it. None of
Issuer, its predecessors or affiliates has been subject to any
order, judgment or decree of any court of competent jurisdiction
temporarily, preliminarily or permanently enjoining such person for
failing to comply with Section 503 of Regulation D. Issuer has not,
for a period of six months prior to the commencement of the
offering of Units, sold, offered for sale or solicited any offer to
buy any of its securities in a manner that would be integrated with
the offer and sale of the Units pursuant to this Agreement, would
cause the exemption from registration set forth in Rule 506(b) of
Regulation D to become unavailable with respect to the offer and
sale of the Units pursuant to this Agreement in the United
States.


 



 

10







 






 


(b) Issuer is duly organized and validly existing in
good standing under the laws of the jurisdiction in which it was
formed, and has the requisite power and authority to own its
properties and to carry on its business as now being conducted.
Issuer is not a participant in any joint venture,
partnership or similar arrangement and
does not directly or indirectly own any subsidiaries or otherwise
own or hold capital stock or an equity or similar interest in any
entity. Issuer is duly qualified as a foreign entity to do business
and is in good standing in every jurisdiction in which its
ownership of property or the nature of the business conducted by it
makes such qualification necessary, except to the extent that the
failure to be so qualified or be in good standing would not have an
Issuer Material Adverse Effect. As used in this Agreement,
“Issuer Material Adverse
Effect” means any
material adverse effect on the business, properties, assets,
operations, results of operations or condition (financial or
otherwise) of Issuer, taken as a whole, or on the transactions
contemplated hereby and the other Issuer Transaction Documents (as
defined below) or by the agreements and instruments to be entered
into in connection herewith or therewith, or on the authority or
ability of Issuer to perform its obligations under the Issuer
Transaction Documents (as defined below).


 

(c) As
to Issuer only, the Memorandum does not include any 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 light of the circumstances under which they were made,
not misleading: provided,
however,
the foregoing does not apply to any statements or omissions made
solely in reliance on and in conformity with written information
furnished to Issuer by OPCO or the Placement Agent specifically for
use in the preparation thereof. To the knowledge of Issuer, none of
the statements, documents, certificates or other items made,
prepared or supplied by Issuer with respect to the transactions
contemplated hereby contains an untrue statement of a material fact
or omits to state a material fact necessary to make the statements
contained therein not misleading in light of the circumstances in
which they were made. There is no fact which Issuer has not
disclosed in the Memorandum and of which Issuer is aware that could
reasonably be expected to have an Issuer Material Adverse Effect.
Notwithstanding anything to the contrary herein, Issuer makes no
representation or warranty with respect to any estimates,
projections and other forecasts and plans (including the
reasonableness of the assumptions underlying such estimates,
projections and other forecasts and plans) that may have been
delivered to the Placement Agent or its representatives by Issuer,
except that such estimates, projections and other forecasts and
plans have been prepared in good faith on the basis of assumptions
stated therein, which assumptions were believed to be reasonable at
the time of such preparation.


 



 

11







 






 

(d) Issuer
has all requisite corporate power and authority to conduct its
business as presently conducted and as proposed to be conducted (as
described in the Memorandum), to enter into and perform its
obligations under this Agreement, the Subscription Agreement, the
Registration Rights Agreement, and the other agreements
contemplated hereby (this Agreement, the Subscription Agreement,
the Registration Rights Agreement and the other agreements
contemplated hereby that Issuer is executing and delivering
hereunder are collectively referred to herein as the
“Issuer Transaction
Documents”) and subject
to necessary Board and stockholder approvals, to issue, sell and
deliver the Units, the shares of Common Stock underlying the Units,
and the shares of Common Stock issuable upon exercise of the
Warrants (the “Warrant
Shares”), the Agent
Warrants (as defined in Section 3(b)) and the Agent Warrant Shares
(as defined in Section 3(b)). Prior to the First Closing, each of
the Issuer Transaction Documents will have been duly authorized.
This Agreement has been duly authorized, executed and delivered and
constitutes, and each of the other Issuer Transaction Documents,
upon due execution and delivery, will constitute, valid and binding
obligations of Issuer, enforceable against Issuer in accordance
with their respective terms (i) except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect related
to laws affecting creditors’ rights generally, including the
effect of statutory and other laws regarding fraudulent conveyances
and preferential transfers, and except that no representation is
made herein regarding the enforceability of Issuer’s
obligations to provide indemnification and contribution remedies
under the securities laws and (ii) subject to the limitations
imposed by general equitable principles (regardless of whether such
enforceability is considered in a proceeding at law or in
equity).


 

(e) None
of the execution and delivery of, or performance by Issuer under
this Agreement or any of the other Issuer Transaction Documents or
the consummation of the transactions herein or therein contemplated
conflicts with or violates, or will result in the creation or
imposition of, any lien, charge or other encumbrance upon any of
the assets of Issuer under any agreement or other instrument to
which Issuer is a party or by which Issuer or its assets may be
bound, or any term of the certificate of incorporation or by-laws
of Issuer, or any license, permit, judgment, decree, order,
statute, rule or regulation applicable to Issuer or any of its
assets, except in the case of a conflict, violation, lien, charge
or other encumbrance (except with respect to Issuer’s
certificate of incorporation or by-laws) which would not, or could
not reasonably be expected to, have an Issuer Material Adverse
Effect.


 



 

12







 






 

(f) As
of the date of the First Closing, Issuer will have the authorized
and outstanding capital stock as set forth under the heading
“Capitalization” in the Memorandum. All outstanding
shares of capital stock of Issuer are duly authorized, validly
issued and outstanding, fully paid and nonassessable. Except as
described in the Memorandum, as of the date of the First Closing:
(i) there will be no outstanding options, stock subscription
agreements, warrants or other rights permitting or requiring Issuer
or others to purchase or acquire any shares of capital stock or
other equity securities of Issuer or to pay any dividend or make
any other distribution in respect thereof; (ii) there will be no
securities issued or outstanding which are convertible into or
exchangeable for any of the foregoing and there are no contracts,
commitments or understandings, whether or not in writing, to issue
or grant any such option, warrant, right or convertible or
exchangeable security; (iii) no shares of stock or other securities
of Issuer are reserved for issuance for any purpose; (iv) there
will be no voting trusts or other contracts, commitments,
understandings, arrangements or restrictions of any kind with
respect to the ownership, voting or transfer of shares of stock or
other securities of Issuer, including, without limitation, any
preemptive rights, rights of first refusal, proxies or similar
rights, and (v) no person holds a right to require Issuer to
register any securities of Issuer under the Act or to participate
in any such registration. As of the date of the First Closing, the
issued and outstanding shares of capital stock of Issuer will
conform in all material respects to all statements in relation
thereto contained in the Memorandum and the Memorandum describes
all material terms and conditions thereof. All issuances by Issuer
of its securities have been, at the times of their issuance, exempt
from registration under the Act and any applicable state securities
laws.


 

(g) Immediately
prior to the First Closing, the shares of Common Stock underlying
the Units, the Warrants, the Warrant Shares and the Agent Warrants
will have been duly authorized and, when issued and delivered
against payment therefor as provided in the Issuer Transaction
Documents, will be validly issued, fully paid and nonassessable. No
holder of any of the shares of Common Stock underlying the Units,
the Warrants, the Warrant Shares, the Agent Warrants or the Agent
Warrant Shares will be subject to personal liability solely by
reason of being such a holder, and except as described in the
Memorandum, none of the shares of Common Stock underlying the
Units, the Warrants, the Warrant Shares, the Agent Warrants or the
Agent Warrant Shares are subject to preemptive or similar rights of any
stockholder or security holder of Issuer or an adjustment under the
antidilution or exercise rights of any holders of any outstanding
shares of capital stock, options, warrants or other rights to
acquire any securities of Issuer. Immediately prior to the First
Closing, a sufficient number of authorized but unissued shares of
Common Stock will have been reserved for issuance upon the exercise
of the Warrants and the Agent Warrants.


 

(h) No
consent, authorization or filing of or with any court or
governmental authority is required in connection with the issuance
or the consummation of the transactions contemplated herein or in
the other Issuer Transaction Documents, except for required filings
with the SEC and the applicable state securities commissions
relating specifically to the Offering (all of which filings will be
duly made by, or on behalf of, Issuer), other than those which are
required to be made after the First Closing (all of which will be
duly made on a timely basis).


 

(i) Subsequent
to the respective dates as of which information is given in the
Memorandum, Issuer has operated its business in the ordinary course
and, except as may otherwise be set forth in the Memorandum, there
has been no: (i) Issuer Material Adverse Effect; (ii) transaction
otherwise than in the ordinary course of business consistent with
past practice; (iii) issuance of any securities (debt or equity) or
any rights to acquire any such securities other than pursuant to
equity incentive plans approved by its Board of Directors; (iv)
damage, loss or destruction, whether or not covered by insurance,
with respect to any asset or property of Issuer; or (v) agreement
to permit any of the foregoing.


 



 

13







 






 

(j) Except
as set forth in the Memorandum, there are no actions, suits,
claims, hearings or proceedings pending before any court or
governmental authority or, to the knowledge of Issuer, threatened,
against Issuer, or involving its assets or any of its officers or
directors (in their capacity as such) which, if determined
adversely to Issuer or such officer or director, could reasonably
be expected to have an Issuer Material Adverse Effect or adversely
affect the transactions contemplated by this Agreement or the
Merger Agreement or the enforceability thereof.


 

(k) Issuer
is not obligated to pay, and has not obligated the Placement Agent
to pay, a finder’s or origination fee in connection with the
Offering (other than to the Placement Agent), and hereby agrees to
indemnify the Placement Agent from any such claim made by any other
person, as more fully set forth in Section 8 hereof. Issuer has not
offered for sale or solicited offers to purchase the Units except
for negotiations with the Placement Agent. Except as set forth in
the Memorandum, no other person has any right to participate in any
offer, sale or distribution of Issuer’s securities to which
the Placement Agent’s rights, described herein, shall
apply.


 

(l) Neither
the sale of the Units by Issuer nor its use of the proceeds thereof
will violate the Trading with the Enemy Act, as amended, or any of
the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or
any enabling legislation or executive order relating thereto.
Without limiting the foregoing, Issuer is not (a) a person whose
property or interests in property are blocked pursuant to Section 1
of Executive Order 13224 of September 23, 2001 Blocking Property
and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) or (b) a
person who engages in any dealings or transactions, or be otherwise
associated, with any such person. Issuer and its subsidiaries, if
any, are in compliance, in all material respects, with the USA
Patriot Act of 2001 (signed into law October 26,
2001).




 

(m) Until
the earlier of (i) the Termination Date and (ii) the Final Closing,
Issuer will not issue any press release, grant any interview, or
otherwise communicate with the media in any manner whatsoever with
respect to the Offering without the Placement Agent’s prior
consent, which consent will not unreasonably be withheld, delayed
or conditioned.


 

(n) Issuer
is in the process of establishing internal accounting controls
sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only
in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.


 



 

14







 






 

(o) Issuer
is in the process of establishing “disclosure controls and
procedures” (as such term is defined in Rule 13a-15(e) and
15d-15(e) under the Securities Exchange Act of 1934 (the
“Exchange Act”)), which (i) are designed to ensure that
material information relating to Issuer is made known to
Issuer’s principal executive officer and its principal
financial officer by others within those entities, particularly
during the periods in which the periodic reports required under the
Exchange Act are being prepared, and (ii) such disclosure controls
and procedures are effective to perform the functions for which
they were established. Issuer is not aware of any fraud, whether or
not material, that involves management or other employees who have
a role in Issuer’s internal controls.


 

(p) Neither Issuer nor
any Issuer Related Persons (as defined below) are subject to any
Disqualification Event. Issuer has exercised reasonable care to
determine whether any Issuer Covered Person is subject to a
Disqualification Event. The Memorandum contains a true and complete
description of the matters required to be disclosed with respect to
Issuer and Issuer Related Persons pursuant to the disclosure
requirements of Rule 506(e) of Regulation D, to the extent
applicable. As used herein, “Issuer Related Persons” means any
predecessor of Issuer, any affiliated issuer, any director,
executive officer, other officer of Issuer participating in the
Offering, any general partner or managing member of Issuer, any
beneficial owner of 20% or more of Issuer’s outstanding
voting equity securities, calculated on the basis of voting power,
and any “promoter” (as defined in Rule 405 under the
Act) connected with Issuer in any capacity. Issuer agrees to
promptly notify the Placement Agent in writing of (i) any
Disqualification Event relating to any Issuer Related Person and
(ii) any event that would, with the passage of time, become a
Disqualification Event relating to any Issuer Related
Person.


 

(q) Incorporation
by Reference. For the benefit
of the Placement Agent, Issuer hereby incorporates by reference all
of the representations and warranties contained in Article IV, and
its covenants contained in Article V, of the Merger Agreement, in
each case with the same force and effect as if specifically set
forth herein.


 

(r) Disclosure.
No representation or warranty contained in Section 2A of this
Agreement contains any untrue statement of a material fact or omits
to state a material fact necessary to make the statements herein
not misleading in the context of such representations and
warranties.


 






2B. Representations,
Warranties and Covenants of Placement Agent. The Placement Agent represents and warrants to
OPCO and Issuer that the following representations and warranties
are true and correct as of the date of this
Agreement:

(a) Aegis
is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York and has all
requisite corporate power and authority to enter into this
Agreement and to carry out and perform its obligations under the
terms of this Agreement.


 



 

15







 






 

(b) This
Agreement has been duly authorized, executed and delivered by the
Placement Agent, and upon due execution and delivery by OPCO and
Issuer, this Agreement will be a valid and binding agreement of the
Placement Agent enforceable against it in accordance with its
terms, except as may be limited by principles of public policy and,
as to enforceability, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or
affecting creditor’s rights from time to time in effect and
subject to general equity principles.


 

(c) None
of the execution and delivery of or performance by Placement Agent
under this Agreement or any other agreement or document entered
into by Placement Agent in connection herewith or the consummation
of the transactions herein or therein contemplated conflicts with
or violates, any agreement or other instrument to which the
Placement Agent is a party or by which its assets may be bound, or
any term of its certificate of incorporation or by-laws, or any
license, permit, judgment, decree, order, statute, rule or
regulation applicable to Placement Agent or any of its assets,
except in each case as would not have a material adverse effect on
the transactions contemplated hereby.


 

(d) The
Placement Agent is a member in good standing of FINRA and is
registered as a broker-dealer under the Exchange Act, and under the
securities acts of each state into which it is making offers or
sales of the Units. The Placement Agent is in compliance with all
applicable rules and regulations of the SEC and FINRA, except to
the extent that such noncompliance would not have a material
adverse effect on the transactions contemplated hereby. None of the
Placement Agent or its affiliates, or any person acting on behalf
of the foregoing (other than Issuer, OPCO, its or their affiliates
or any person acting on its or their behalf, in respect of which no
representation is made) has taken nor will it take any action that
conflicts with the conditions and requirements of, or that would
make unavailable with respect to the Offering, the exemption(s)
from registration available pursuant to Rule 506 of Regulation D or
Section 4(a)(2) of the Act, or knows
of any reason why any such exemption would be otherwise
unavailable to it.


 

(e) Neither Placement
Agent nor any Placement Agent Related Persons (as defined below)
are subject to any Disqualification Event as of the date hereof.
Placement Agent has exercised reasonable care to determine whether
any Placement Agent Covered Person is subject to such a
Disqualification Event. The Memorandum contains a true and complete
description of the matters required to be disclosed with respect to
Placement Agent and Placement Agent Related Persons pursuant to the
disclosure requirements of Rule 506(e) of Regulation D, to the
extent applicable. As used herein, “Placement Agent Related
Persons” means any predecessor of Placement Agent, any
affiliated issuer, any director, executive officer, other officer
of Placement Agent participating in the Offering, any general
partner or managing member of Issuer, any beneficial owner of 20%
or more of Placement Agent’s outstanding voting equity
securities, calculated on the basis of voting power, and any
“promoter” (as defined in Rule 405 under the Act)
connected with Placement Agent in any capacity. Placement Agent
agrees to promptly notify OPCO and Issuer in writing of (i) any
Disqualification Event relating to any Placement Agent Related
Person and (ii) any event that would, with the passage of time,
become a Disqualification Event relating to any Placement Agent
Related Person.


 



 

16







 






 

(f) Disclosure. As to Placement
Agent only, the Memorandum does not include any 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
light of the circumstances under which they were made, not
misleading; provided, however, the foregoing does not apply to any
statements or omissions made solely in reliance on and in
conformity with written information furnished to Placement Agent by
OPCO or Issuer specifically for use in the preparation
thereof.


 

(g) Litigation. There are no
actions, suits, claims, hearings or proceedings pending before any
court or governmental authority or, to the knowledge of Placement
Agent, threatened, against Placement Agent or involving its assets
or to the knowledge of Placement Agent, any of its officers or
directors (in their capacity as such) which, if determined
adversely to Placement Agent or such officer or director, could
reasonably be expected to adversely affect Placement Agent’s
ability to perform its obligations hereunder.


 

3. Placement
Agent Compensation.


 

(a) In
connection with the Offering, the Issuer will pay at each Closing
(as defined in Section 4(e) below) a cash fee (the
“Agent
Cash Fee”) to the
Placement Agent equal to 10% of the gross proceeds from the sale of
the Units consummated at such Closing (subject to reduction at the
sole discretion of the Placement Agent).


 

(b) As
additional compensation, at or within ten (10) business days
following the Final Closing, the Issuer will issue to the Placement
Agent (or its designee(s)) for nominal consideration, warrants (the
“Agent
Warrants”) to purchase
shares of Common Stock (the shares of Common Stock issuable upon
exercise of the Agent Warrants are hereinafter referred to as the
“Agent
Warrant Shares” and the
Agent Warrants and the Agent Warrant Shares are collectively
referred to as the “Agent
Securities”). The Agent
Warrants shall be exercisable for that number of shares of Common
Stock equaling 10% of the number of shares of Common Stock
(i) included in the Units at an exercise price of $5.00 per share
and (ii) issuable upon exercise of the Warrants at an exercise
price of $5.00 per share. The
Agent’s Warrants shall be exercisable until the date that is
five (5) years after the First Closing, shall contain immediate
cashless exercise provisions and shall not be callable by the
Issuer. The Agent Cash Fee and Agent Warrants are sometimes
referred to herein collectively as “Agent
Compensation.” The
Agent Warrants will be in such
authorized denominations and will be registered in such names as
the Placement Agent shall request in an instruction letter (the
“Agent
Warrant Instruction Letter”) to be delivered to the Issuer following
the Final Closing and the Issuer shall deliver such Agent Warrants
to the Placement Agent within ten (10) business days following the
delivery of the Agent Warrant Instruction
Letter.


 

(c) At each Closing, the Issuer will pay Aegis a
non-accountable expense allowance equal to 3% of the gross proceeds
from the sale of the Units consummated at such Closing (the
“Agent
Expense Allowance”). The Placement Agent will not bear any of
Issuer’s or OPCO’s respective legal, accounting,
printing or other expenses in connection with any transaction
contemplated hereby. Aegis will pay for its own expenses, including
its legal fees and expenses, from the Agent Expense Allowance. The
Agent Expense Allowance will be reduced by the $20,000 paid by OPCO
to the Placement Agent upon the execution and delivery of the term
sheet with respect to the Merger and the Offering.


 



 

17







 






 

(d) The Issuer shall
also pay and issue to the Placement Agent the Agent Compensation
calculated according to the percentages set forth in Sections 3(a)
and (b) of this Agreement, if any person or entity contacted by the
Placement Agent and provided with a Memorandum during the Offering
Period (other than existing shareholders of OPCO) and with whom the
Placement Agent has discussions regarding a potential investment in
the Offering, invests in the Issuer (other than through open market
purchases or securities purchased in any underwritten public
offering) and irrespective of whether such potential investor
purchased Units in the Offering (the “Tail Investors”) at any time prior
to the earlier of the date that is eighteen (18) months after the
Termination Date or the Final Closing (“Tail Period”), whichever is
applicable; provided, however, that the Tail Period shall be
reduced to twelve (12) months after the Termination Date or the
Final Closing in the event that Adam K. Stern is no longer employed
by the Placement Agent at any time during the Tail Period.
The names of Tail Investors
shall be provided in writing by the Placement Agent to the Issuer
upon written request within 10 days following the Termination Date
or the Final Closing, as the case may be (the “Tail Investor List”); provided,
that such Tail Investor List shall include persons or entities that
actually received a copy of the Memorandum. The Company
acknowledges and agrees that the Tail Investor List is proprietary
to the Placement Agent, shall be maintained in strict confidence by
the Company and those persons/entities on such list shall not be
contacted by the Company without the Placement Agent’s prior
written consent; provided, however, that such restrictions shall
not apply to ordinary course stockholder communications by the
Company to its stockholders, including those Tail Investors that
are stockholders of the Company. In the event the Placement Agent
exercises its ROFR with respect to an offering pursuant to the
provisions of Section 3(f), the specific compensation terms to the
Placement Agent that are negotiated in such offering shall govern
and the provisions of this Section 3(d) will not be operative with
respect to such offering.


 

(e) In the event the
Issuer elects to redeem the Warrants pursuant to the provisions
thereto, Aegis will be engaged as exclusive warrant solicitation
agent at least 20 calendar days prior to the time notice of
redemption is delivered to holders of Warrants. The engagement
letter will provide for the payment to Aegis of, inter alia, a cash
fee of 5% of the net cash proceeds from the exercise of each
Warrant exercised by a Warrant holder that has been solicited by
Aegis following a redemption notice.


 

(f) Effective
as of the First Closing, the Issuer hereby grants to Aegis, for a
period of eighteen (18) months following the Final Closing (the
“ROFR Term”),
the irrevocable preferential right of first refusal to act as lead
placement agent or underwriter for any proposed private placement
or public offering of the Issuer’s securities (equity or
debt, but excluding any institutional bank debt and any securities
sold directly to investors without the assistance of a registered
broker-dealer). In that regard, it is understood that if the Issuer
determines to pursue a financing during the ROFR Term in which a third party placement agent or
underwriter will be engaged, the Issuer shall promptly
provide Aegis with a written notice of such intention and statement
of terms (the “Notice”). If, within ten (10)
business days of the receipt of the Notice, Aegis does not accept
in writing such offer to act as lead placement agent or underwriter
with respect to such offering upon the terms proposed, then the
Issuer shall be entitled to engage a placement agent or underwriter
other than Aegis; provided that the terms of the compensation to be
paid to such other placement agent or underwriter are not
materially less favorable to the Issuer than the terms included in
the Notice. Aegis’s failure to exercise these preferential
rights in any situation shall not affect its preferential rights to
any subsequent offering during the ROFR Term. Each of OPCO and the
Issuer represent and warrant that no other person has any right to
participate in any offer, sale or distribution of OPCO’s or
the Issuer’s securities to which Aegis’s preferential
rights shall apply.


 



 

18







 






 

(g) At
the First Closing, the Issuer and the Placement Agent shall enter
into a non-exclusive Finder’s Fee Agreement (the
“Finder’s
Agreement”), which will provide that, during the three
(3) year period following the later of the Termination Date or the
First Closing, if the Company or any of its affiliates shall enter
into any of the transactions enumerated in the Finder’s
Agreement (such transactions to include business combinations,
joint ventures, license agreements and related transactions) with
any party introduced to the Company by the Placement Agent, then
the Company shall pay or cause to be paid to the Placement Agent a
cash finder’s fee (the “Finder’s Fee”) payable in
cash at the closing of such transaction, equal to 5% of the first
$1 million of consideration paid by or to the Company, plus 4% of
the next $1 million of consideration paid by or to the Company,
plus 3% of the next $5 million of the consideration paid by or to
the Company, plus 2.5% of any consideration paid by or to the
Company in excess of $7 million; provided, however, that the
Placement Agent will not be entitled to a finder's fee entered into
with any party with whom the Company had a pre-existing
relationship prior to the date of the specific introduction
(including situations where the Company had previously been
introduced to such party by someone other than the Placement Agent
or a party with whom the Company had already commenced
discussions).


 

(h) The
Company hereby grants the Placement Agent the right to appoint one
(1) member of the Company’s board of directors (the
“Aegis
Director”) effective as of the First Closing of the
Offering. The initial Aegis Director shall be David Hochman, with
any successor Aegis Director chosen by the Placement Agent to be
subject to the reasonable approval of the Company. The Aegis
Director shall be entitled to (i) the same indemnification
protections afforded to other directors of the Company, including
the Company’s continued maintenance of an insurance policy
providing liability insurance for directors and officers of the
Company, and (ii) cash and equity compensation in amounts to be determined based on
the amounts made available to other non-employee directors of the
Company. This provision shall terminate two years from the Final
Closing.


 

4. Subscription
and Closing Procedures.


 

(a) OPCO
and Issuer shall cause to be delivered to the Placement Agent
copies of the Memorandum and have each consented, and hereby
consent, to the use of such copies for the purposes permitted by
the Act and applicable securities laws and in accordance with the
terms and conditions of this Agreement, and hereby each authorize
the Placement Agent and its agents and employees to use the
Memorandum in connection with the offering of the Units until the
earlier of (i) the Termination Date or (ii) the Final Closing, and
no person or entity is or will be authorized to give any
information or make any representations other than those contained
in the Memorandum or to use any offering materials other than those
contained in the Memorandum in connection with the sale of the
Units.


 



 

19







 






 

(b) During
the Offering Period, OPCO and Issuer shall make available to the
Placement Agent and its representatives such information as may be
reasonably requested in making a reasonable investigation of OPCO
and Issuer and their respective affairs and shall provide access to
such employees during normal business hours as shall be reasonably
requested by the Placement Agent.


 

(c) Each
prospective purchaser will be required to complete and execute an
original omnibus signature page, for each of the Subscription
Agreement and the Registration Rights Agreement (the
“Subscription Documents”), which will be forwarded or delivered to
the Placement Agent at the Placement Agent’s offices at the
address set forth in Section 12 hereof, together with the
subscriber’s wire transfer in the full amount of the purchase
price for the number of Units desired to be purchased, subject to
the Escrow Agent’s (as defined below) right to accept a check
in lieu of a wire transfer.


 

(d) All
funds for subscriptions received by the Placement Agent from the
Offering (not otherwise wired directly to the Escrow Agent) will be
promptly forwarded by the Placement Agent and deposited into a
non-interest bearing escrow account (the “Escrow
Account”) established for
such purpose with Signature Bank (the “Escrow Agent”). All such funds for subscriptions will be
held in the Escrow Account pursuant to the terms of an escrow
agreement among Issuer, OPCO, the Placement Agent and the Escrow Agent. The
Company will pay all fees related to the establishment and
maintenance of the Escrow Account. Subject to the receipt of
subscriptions for the Minimum Amount, the Company will either
accept or reject, for any or no reason, the Subscription Documents
in a timely fashion and at each Closing Issuer and OPCO will
countersign the Subscription Documents and provide duplicate copies
of such documents to the Placement Agent for distribution to the
subscribers. The Placement Agent on the Company’s behalf,
will promptly return to subscribers incomplete, improperly
completed, improperly executed and rejected
subscriptions.


 

(e) If
subscriptions for at least the Minimum Amount have been accepted
prior to the Termination Date, the funds therefor have been
collected by the Escrow Agent and all of the conditions set forth
elsewhere in this Agreement are fulfilled, the First Closing shall
be held promptly with respect to Units sold. Thereafter
remaining Units will continue to be offered and sold until the Termination Date and additional
closings (each a “Closing”) may from time to time be conducted at
times mutually agreed to between the Placement Agent and the
Company with respect to additional Units sold, with the final
closing (“Final
Closing”) to occur within
ten (10) days after the earlier of the Termination Date and the
date on which the all Units has been fully subscribed for.
Delivery of payment for the accepted subscriptions for Units from
funds held in the Escrow Account will be made at each Closing
against delivery of the Shares and Warrants by the Company.
Executed certificates for the Common
Stock and Warrants will be made available to the Placement Agent
for checking and packaging at least one business day prior to each
Closing. The Company’s transfer agent, to be engaged prior to
the First Closing, shall be instructed by the Company to deliver
such Common Stock certificates and Warrants within a commercially
reasonable time after each Closing.1 




 



 

20







 





 

(f) If
Subscription Documents for the Minimum Amount have not been
received and accepted by the Company on or before the Termination
Date for any reason, the Offering will be terminated, no Units will
be sold, and the Escrow Agent will, at the request of the Placement
Agent, cause all monies received from subscribers for the Units to
be promptly returned to such subscribers without interest, penalty,
expense or deduction.


 

5. Further
Covenants. OPCO and Issuer
hereby covenant and agree that:


 

(a) Except
upon prior written notice to the Placement Agent, neither OPCO nor
Issuer shall, at any time prior to the Final Closing, knowingly
take any action which would cause any of the representations and
warranties made by it in this Agreement not to be complete and
correct in all material respects on and as of each Closing Date
with the same force and effect as if such representations and
warranties had been made on and as of each such date (except to the
extent any representation or warranty relates to an earlier
date).


 

(b) If,
at any time prior to the Final Closing, any event shall occur that
causes (i) a OPCO Material Adverse Effect or (ii) an Issuer
Material Adverse Effect, either of which as a result it becomes
necessary to amend or supplement the Memorandum so that the
representations and warranties herein remain true and correct in
all material respects, or in case it shall be necessary to amend or
supplement the Memorandum to comply with Regulation D or any other
applicable securities laws or regulations, either OPCO or Issuer,
as applicable, will promptly notify the Placement Agent and shall,
at its sole cost, prepare and furnish to the Placement Agent copies
of appropriate amendments and/or supplements in such quantities as
the Placement Agent may reasonably request for delivery by the
Placement Agent to potential subscribers. Neither OPCO nor Issuer
will at any time before the Final Closing prepare or use any
amendment or supplement to the Memorandum of which the Placement
Agent will not previously have been advised and furnished with a
copy, or which is not in compliance in all material respects with
the Act and other applicable securities laws. As soon as OPCO or
Issuer is advised thereof, OPCO or Issuer, as applicable, will
advise the Placement Agent and its counsel, and confirm the advice
in writing, of any order preventing or suspending the use of the
Memorandum, or the suspension of any exemption for such
qualification or registration thereof for offering in any
jurisdiction, or of the institution or threatened institution of
any proceedings for any of such purposes, and OPCO and Issuer, as
applicable, will use their reasonable best efforts to prevent the
issuance of any such order and, if issued, to obtain as soon as
reasonably possible the lifting thereof.


 

(c) OPCO
and Issuer shall comply with the Act, the Exchange Act and the
rules and regulations thereunder, all applicable state securities
laws and the rules and regulations thereunder in the states in
which OPCO's Blue Sky counsel has advised the Placement Agent, OPCO
and/or Issuer that the Units are qualified or registered for sale
or exempt from such qualification or registration, so as to permit
the continuance of the sales of the Units, and will file or cause
to be filed with the SEC, and shall promptly thereafter forward or
cause to be forwarded to the Placement Agent, any and all reports
on Form D as are required.


 


 








1 NTD: Transfer Agent to be
determined.




 

21







 






 

(d) Issuer
shall use best efforts to qualify the Units for sale under the
securities laws of such jurisdictions in the United States as may
be mutually agreed to by OPCO, Issuer and the Placement Agent, and
Issuer will make or cause to be made such applications and furnish
information as may be required for such purposes, provided that
Issuer will not be required to qualify as a foreign corporation in
any jurisdiction or execute a general consent to service of
process. Issuer will, from time to time, prepare and file such
statements and reports as are or may be required to continue such
qualifications in effect for so long a period as the Placement
Agent may reasonably request with respect to the
Offering.


 

(e) The
Issuer shall place a legend on the certificates representing the
Shares, Warrants and the Agent Warrants that the securities
evidenced thereby have not been registered under the Act or
applicable state securities laws, setting forth or referring to the
applicable restrictions on transferability and sale of such
securities under the Act and applicable state laws.


 

(f) The
Company shall apply the net proceeds from the sale of the Units for
the purposes substantially as described under the “Use of
Proceeds” section of the Memorandum. Except as set forth in
the Memorandum, the Company shall not use any of the net proceeds
of the Offering to repay indebtedness to officers (other than
accrued salaries incurred in the ordinary course of business),
directors or stockholders of the Company without the prior written
consent of the Placement Agent.


 

(g) During
the Offering Period, OPCO or Issuer, as applicable, shall afford
each prospective purchaser of Units the opportunity to ask
questions of and receive answers from an officer of OPCO or Issuer
concerning the terms and conditions of the Offering and the
opportunity to obtain such other additional information necessary
to verify the accuracy of the Memorandum to the extent OPCO or
Issuer possesses such information or can acquire it without
unreasonable expense.


 

(h) Except
with the prior written consent of Aegis, which consent shall not be
unreasonably withheld, OPCO and Issuer shall not, at any time prior
to the earlier of the Final Closing or the Termination Date, except
as contemplated by the Memorandum (i) engage in or commit to engage
in any transaction outside the ordinary course of business as
described in the Memorandum, (ii) issue, agree to issue or set
aside for issuance any securities (debt or equity) or any rights to
acquire any such securities; provided that the Company shall be
permitted to issue stock options and/or restricted stock units to
officers, directors and employees of the Company as described in
the Memorandum; and it being acknowledged and agreed that after the
Final Closing or Termination Date, the Issuer may issue, in its
sole discretion, a number of stock options and/or restricted units
in the aggregate in an amount of up to 15% of the fully diluted
outstanding shares of the Issuer pursuant to the Issuer’s
2015 Equity Incentive Plan (the “Plan”), (iii) incur, outside the ordinary course of
business, any material indebtedness, (iv) dispose of any material
assets, (v) make any acquisition or (vi) change its business or
operations.


 



 

22







 






 

(i) OPCO
or the Issuer, as applicable, shall pay all reasonable expenses
incurred in connection with the preparation and printing of all
necessary offering documents and instruments related to the
Offering and the issuance of the Shares, the Warrants and the Agent
Warrants and will also pay OPCO’s and the Issuer's own
expenses for accounting fees, legal fees and other costs involved
with the Offering (provided that OPCO shall not be responsible for
the legal fees of Issuer for the period prior to the First Closing
other than the $20,000 previously paid to the Placement Agent).
OPCO will provide at its own expense such quantities of the
Memorandum and other documents and instruments relating to the
Offering as the Placement Agent may reasonably
request. All Blue Sky filings related to this Offering shall be
prepared by OPCO’s counsel, on behalf of the Issuer, at
OPCO’s expense, with copies of all filings to be promptly
forwarded to the Placement Agent. Further, as promptly as
practicable after the Final Closing, the Company shall prepare, at
its own expense, velobound "closing binders" relating to the
Offering and will distribute one such binder to each of the
Placement Agent and its counsel.


 

(j) Until
the earlier of the Termination Date or the Final Closing, neither
OPCO nor Issuer nor any person or entity acting on such
persons’ behalf will negotiate with any other placement agent
or underwriter with respect to a private offering of such
entity’s debt or equity securities. Neither OPCO nor Issuer
nor anyone acting on such persons’ behalf will, until the
earlier of the Termination Date or the Final Closing, without the
prior written consent of the Placement Agent, offer for sale to, or
solicit offers to subscribe for Shares from, or otherwise approach
or negotiate in respect thereof with, any other
person.


 


5A.            Placement
Agent Further Covenants.


 


The
Placement Agent shall not, at any time during the Offering Period,
knowingly take any action which would cause any of the
representations and warranties made by it in this Agreement not to
be complete and correct in all material respects on and as of each
Closing Date with the same force and effect as if such
representations and warranties had been made on and as of each such
date (except to the extent any representation or warranty relates
to an earlier date).


 

6. Conditions
of Placement Agent’s Obligations. The obligations of the Placement Agent hereunder
to effect a Closing are subject to the fulfillment, at or before
each Closing, of the following additional
conditions:


 

(a) Each
of the representations and warranties made by OPCO and Issuer
qualified as to materiality shall be true and correct at all times
prior to and on each Closing Date, except to the extent any such
representation or warranty expressly speaks as of an earlier date,
in which case such representation or warranty shall be true and
correct as of such earlier date, and the representations and
warranties made by OPCO and Issuer not qualified as to materiality
shall be true and correct in all material respects at all times
prior to and on each Closing Date, except to the extent any such
representation or warranty expressly speaks as of an earlier date,
in which case such representation or warranty shall be true and
correct in all material respects as of such earlier
date.


 



 

23







 






 

(b) OPCO
and Issuer (and the Company following the First Closing) shall have
performed and complied in all material respects with all
agreements, covenants and conditions required to be performed and
complied with by them at or before the Closing.


 

(c) The Memorandum did
not, and as of the date of any amendment or supplement thereto will
not, include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading.


 

(d) The
Company shall have obtained all consents, waivers and approvals
required to be obtained by the Company in connection with the
consummation of the transactions contemplated hereby.


 

(e) No
order suspending the use of the Memorandum or enjoining the
Offering or sale of the Units shall have been issued, and no
proceedings for that purpose or a similar purpose shall have been
initiated or pending, or, to OPCO’s and Issuer’s
knowledge, threatened.


 

(f) The
Placement Agent shall have received a certificate of the Chief
Executive Officer of each of OPCO and Issuer, dated as of the date
of the First Closing (Issuer only for subsequent Closings),
certifying, as to the fulfillment of the conditions set forth in
subparagraphs (a), (b), (c) and (d) above.


 

(g) OPCO
and Issuer shall have delivered to the Placement Agent: (i) a
certified charter document and good standing certificate, each
dated as of a date within ten (10) days prior to the First Closing
from the secretary of state of its jurisdiction of incorporation;
and (ii) resolutions of OPCO's and Issuer's Board of Directors
approving this Agreement and the transactions and agreements
contemplated by this Agreement, the Merger Agreement and the
Memorandum, certified by the Chief Executive Officer of OPCO and
Issuer, and (iii) resolutions of OPCO's, Issuer’s and Merger
Sub’s Board of Directors and shareholders approving the
Merger Agreement and the transactions and agreements contemplated
by the Merger Agreement.


 

(h) At
each Closing, the Company shall pay and/or issue to the Placement
Agent the Agent Cash Fee and Agent Expense Allowance earned in such
Closing. Agent Warrants shall be delivered to the Placement Agent
in accordance with Section 3(b) hereto.


 


(i) At the First Closing, (i) OPCO shall deliver to
the Placement Agent a signed opinion of Lowenstein Sandler
LLP,
counsel to OPCO, dated as of the
Closing Date, substantially in the form annexed hereto as Exhibit
A-1 and (ii) Issuer shall deliver to the Placement Agent a signed
opinion of Meister Seelig & Fein LLP counsel to Issuer, dated
as of the Closing Date, substantially in the form annexed hereto as
Exhibit A-2. At all subsequent Closings, the Issuer shall deliver
to the Placement Agent a signed opinion of Lowenstein Sandler LLP,
counsel to the Company following the First Closing, dated as of the
Closing Date, in form and
substance reasonably satisfactory to the Placement
Agent.


 

(j) All
proceedings taken at or prior to any Closing in connection with the
authorization, issuance and sale of the Shares, the Warrants and
the Agent Warrants will be reasonably satisfactory in form and
substance to the Placement Agent and its counsel, and such counsel
shall have been furnished with all such documents, certificates and
opinions as it may reasonably request upon reasonable prior notice
in connection with the transactions contemplated
hereby.


 



 

24







 






 

(k) With
respect to the First Closing, the Merger per the terms of the
Merger Agreement shall have been consummated.


 

(l) Lock-up
agreements with all of the Company’s officers, directors and
stockholders owning in the aggregate 5% or more of the capital
stock of the Company immediately prior to the time of the First
Closing, in form and substance reasonably acceptable to the
Placement Agent and consistent with the terms set forth in the
Memorandum, shall have been executed and delivered to the Placement
Agent.


 

(m) Employment
Agreements with Dr. Pilkiewicz and Dr. Rychnovsky, in form and
substance acceptable to the Placement Agent and as described in the
Memorandum


 

7. Conditions
of Issuer’s and OPCO’s Obligations. The obligations of Issuer and OPCO hereunder to
effect the First Closing and the obligations of the Company to
effect all subsequent Closings are subject to the fulfillment, at
or before each Closing, of the following additional conditions or
subject to the waiver of such condition or conditions by OPCO in
which case the Issuer shall not be permitted to fail to close as a
result of non-satisfaction of such condition or conditions that
have been waived by OPCO:


 

(a) Each
of the representations and warranties made by the Placement Agent
shall be true and correct at all times prior to and on each Closing
Date;


 

(b) The
Placement Agent shall have performed and complied in all material
respects with all agreements, covenants and conditions required to
be performed and complied with by it at or before the
Closing;


 

(c) The
Company shall have received a certificate of an officer of the
Placement Agent, dated as of the Closing Date, certifying, as to
the fulfillment of the conditions set forth in subparagraphs (a)
and (b) above.


 

(d) No
order suspending the use of the Memorandum or enjoining the
Offering or sale of the Units shall have been issued, and no
proceedings for that purpose or a similar purpose shall have been
initiated or pending, or, to the Company’s knowledge, be
contemplated or threatened;


 

(e) Lock-up
agreements with all stockholders of Issuer pre-Merger, which
include but are not limited to employees and affiliates of the
Placement Agent in form and substance reasonably acceptable
to OPCO and consistent with the terms set forth in the
Memorandum, shall have been executed
and delivered to OPCO and Issuer;


 



 

25







 






 

8. Indemnification.


 

(a) Issuer
and OPCO severally if the Merger does not occur, and jointly and
severally following the consummation of the Merger, will: (i)
indemnify and hold harmless the Placement Agent, their agents and
their respective officers, directors, employees, selected dealers
and each person, if any, who controls the Placement Agent within
the meaning of the Section 15 of the Act or Section 20(a) of the
Exchange Act and such selected dealers (each an
“Indemnitee” or a "Placement Agent
Party") against, and pay or
reimburse each Indemnitee for, any and all losses, claims, damages,
liabilities or expenses whatsoever (or actions or proceedings or
investigations in respect thereof), joint or several (which will,
for all purposes of this Agreement, include, but not be limited to,
all reasonable costs of defense and investigation and all
reasonable attorneys’ fees, including appeals), to which any
Indemnitee may become subject (x) under the Act or otherwise, in
connection with the offer and sale of the Units and (y) as a result
of the breach of any representation, warranty or covenant made by
either OPCO or Issuer herein, regardless of whether such losses,
claims, damages, liabilities or expenses shall result from any
claim by any Indemnitee or by any third party; and (ii) reimburse
each Indemnitee for any legal or other expenses reasonably incurred
in connection with investigating or defending against any such
loss, claim, action, proceeding or investigation;
provided,
however,
that Issuer and OPCO will not be liable in any such case to the
extent that any such claim, damage or liability is finally
judicially determined to have resulted primarily from (A) an untrue
statement or alleged untrue statement of a material fact made in
the Memorandum, or an omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, made solely in reliance upon
and in conformity with written information furnished to Issuer
and/or OPCO by the Placement Agent specifically for use in the
Memorandum, (B) any violations by the Placement Agent of the Act,
state securities laws or any rules or regulations of FINRA, which
does not result from a violation thereof by OPCO, Issuer, or any of
their respective affiliates or (C) the Placement Agent’s
willful misconduct or gross negligence. In addition to the
foregoing agreement to indemnify and reimburse, Issuer and OPCO
jointly and severally will indemnify and hold harmless each
Indemnitee against any and all losses, claims, damages, liabilities
or expenses whatsoever (or actions or proceedings or investigations
in respect thereof), joint or several (which shall, for all
purposes of this Agreement, include, but not be limited to, all
reasonable costs of defense and investigation and all reasonable
attorneys' fees, including appeals) to which any Indemnitee may
become subject insofar as such costs, expenses, losses, claims,
damages or liabilities arise out of or are based upon the claim of
any person or entity that he or it is entitled to broker’s or
finder’s fees from any Indemnitee in connection with the
Offering, other than fees due to the Placement Agent. The foregoing
indemnity agreements will be in addition to any liability Issuer
and OPCO may otherwise have.


 

(b) The
Placement Agent will indemnify and hold harmless Issuer and OPCO,
their respective officers, directors, and each person, if any, who
controls such entity within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act against, and pay or reimburse any
such person for, any and all losses, claims, damages, liabilities
or expenses whatsoever (or actions, proceedings or investigations
in respect thereof) to which Issuer or OPCO or any such person may
become subject under the Act or otherwise, whether such losses,
claims, damages, liabilities or expenses shall result from any
claim of Issuer, OPCO or any such person who controls Issuer or
OPCO within the meaning of the Act or by any third party, but only
to the extent that such losses, claims, damages or liabilities
results from (i) any untrue statement or alleged untrue statement
of any material fact contained in the Memorandum made in reliance
upon and in conformity with information contained in the Memorandum
relating to the Placement Agent, or an omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in either
case, if made or omitted in reliance upon and in conformity with
written information furnished to Issuer or OPCO by the Placement
Agent, specifically for use in the preparation thereof or (ii) any
violations by the Placement Agent of the Act or state securities
laws which does not result from a violation thereof by OPCO, Issuer
or any of their respective affiliates. The Placement Agent will
reimburse the Company or any such person for any legal or other
expenses reasonably incurred in connection with investigating or
defending against any such loss, claim, damage, liability or
action, proceeding or investigation to which such indemnity
obligation applies. The foregoing indemnity agreements are in
addition to any liability which the Placement Agent may otherwise
have. Notwithstanding the foregoing, in no event (except in the
event of gross negligence or willful misconduct by the Placement
Agent to the extent and only to the extent if found in a final
judgment by a court of competent jurisdiction) shall the Placement
Agent’s indemnification obligation hereunder exceed the
amount of Agent Cash Fees actually received by the Placement
Agent.


 



 

26







 






 

(c) Promptly
after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, claim, proceeding or
investigation (the “Action”), such indemnified party, if a claim in
respect thereof is to be made against the indemnifying party under
this Section 8, will notify the indemnifying party of the
commencement thereof, but the omission to so notify the
indemnifying party will not relieve it from any liability that it
may have to any indemnified party under this Section 8 unless the
indemnifying party has been substantially prejudiced by such
omission. The indemnifying party will be entitled to participate in
and, to the extent that it may wish, jointly with any other
indemnifying party, to assume the defense thereof subject to the
provisions herein stated, with counsel reasonably satisfactory to
such indemnified party. The indemnified party will have the right
to employ separate counsel in any such Action and to participate in
the defense thereof, but the fees and expenses of such counsel will
not be at the expense of the indemnifying party if the indemnifying
party has assumed the defense of the Action with counsel reasonably
satisfactory to the indemnified party, provided,
however,
that if the indemnified party shall be requested by the
indemnifying party to participate in the defense thereof or shall
have concluded in good faith and specifically notified the
indemnifying party either that there may be specific defenses
available to it that are different from or additional to those
available to the indemnifying party or that such Action involves or
could have a material adverse effect upon it with respect to
matters beyond the scope of the indemnity agreements contained in
this Agreement, then the counsel representing it, to the extent
made necessary by such defenses, shall have the right to direct
such defenses of such Action on its behalf and in such case the
reasonable fees and expenses of such counsel in connection with any
such participation or defenses shall be paid by the indemnifying
party. No settlement of any Action against an indemnified party
will be made without the consent of the indemnifying party and the
indemnified party, which consent shall not be unreasonably
withheld, delayed or conditioned in light of all factors of
importance to such party, and no indemnifying party shall be liable
to indemnify any person for any settlement of any such claim
effected without such indemnifying party’s
consent.


 



 

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9. Contribution.
To provide for just and equitable contribution, if: (i) an
indemnified party makes a claim for indemnification pursuant to
Section 8 hereof and it is finally determined, by a judgment, order
or decree not subject to further appeal that such claims for
indemnification may not be enforced, even though this Agreement
expressly provides for indemnification in such case; or (ii) any
indemnified or indemnifying party seeks contribution under the Act,
the Exchange Act, or otherwise, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the
one hand and the Placement Agent on the other in connection with
the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses (or actions in respect thereof),
as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Placement Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the Offering (before
deducting expenses) received by the Company bear to the total Agent
Cash Fees received by the Placement Agent. The relative fault, in
the case of an untrue statement, alleged untrue statement, omission
or alleged omission will be determined by, among other things,
whether such statement, alleged statement, omission or alleged
omission relates to information supplied by the Company or by the
Placement Agent, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement, alleged statement, omission or alleged omission. The
Company and the Placement Agent agree that it would be unjust and
inequitable if the respective obligations of the Company and the
Placement Agent for contribution were determined by
pro rata allocation of the aggregate losses, liabilities,
claims, damages and expenses or by any other method or allocation
that does not reflect the equitable considerations referred to in
this Section 9. No person guilty of a fraudulent misrepresentation
(within the meaning of Section 10(f) of the Act) will be entitled
to contribution from any person who is not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each
person, if any, who controls the Placement Agent within the meaning
of the Act will have the same rights to contribution as the
Placement Agent, and each person, if any, who controls the Company
within the meaning of the Act will have the same rights to
contribution as the Company, subject in each case to the provisions
of this Section 9. Anything in this Section 9 to the contrary
notwithstanding, no party will be liable for contribution with
respect to the settlement of any claim or action effected without
its written consent. This Section 9 is intended to supersede, to
the extent permitted by law, any right to contribution under the
Act, the Exchange Act or otherwise available.


 

10. Termination.


 


(a) The Offering may be terminated by the Placement
Agent at any time prior to the expiration of the Offering Period in
the event that: (i) any of the representations, warranties or
covenants of OPCO contained herein or in the Memorandum shall prove
to have been false or misleading in any material respect when
actually made; (ii) OPCO shall have failed to perform any of its
material obligations hereunder or under any other OPCO Transaction
Document, Issuer Transaction Document or any other transaction
document; (iii) there shall occur any event that could reasonably
be expected to result in an OPCO Material Adverse Effect; or (iv)
the Placement Agent determines that it is reasonably likely that
any of the conditions to Closing set forth herein will not, or
cannot, be satisfied. In the event of any such termination by the
Placement Agent pursuant to clauses (i), (ii) or (iii) of this
Section 10(a), the Placement Agent shall be entitled to retain any
Agent Compensation already earned (if any, at such point in time)
and receive from OPCO and/or the Issuer, within five (5) business
days of the Termination Date, in addition to other rights and
remedies it may have hereunder, at law or otherwise, an amount
equal to the sum of $90,000, which shall be offset by the $20,000
the Company advanced to legal counsel for the Placement Agent if
such termination occurs prior to the First Closing (the
“Termination
Amount”) and the
provisions of Section 3(d) shall survive in full force and effect.
In the event of a termination by the Placement Agent under Section
10(a)(iv) that occurs prior to the First Closing, the Placement
Agent shall not be entitled to any further compensation pursuant to
these termination provisions, except for reimbursement of its
out-of-pocket legal expenses incurred in connection with the
Offering (not to exceed $50,000 (inclusive of the $20,000
previously paid)) and the provisions of Section 3(d) shall survive
in full force and effect.


 



 

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(b) This
Offering may be terminated by OPCO or the Company at any time prior
to the expiration of the Offering Period (i) in the event
that the Placement Agent shall
have failed to perform any of its material obligations hereunder or
(ii) on account of the Placement Agent’s fraud, willful
misconduct or gross negligence. In the event of any such
termination pursuant to this Section 10(b), the Placement Agent
shall not be entitled to any further compensation pursuant to these
termination provisions.




(c) In
the event OPCO or the Company unilaterally decides for any reason
(other than pursuant to Section 10(b) above or Section 10(d) below)
to terminate the Offering at any time prior to the First Closing
(the “Unilateral
Termination”), the
Placement Agent shall be entitled to receive from OPCO $100,000
plus the Placement Agent’s out-of-pocket legal expenses not
to exceed $50,000 in connection with the Offering (inclusive of the
$20,000 previously paid) (the “Unilateral Termination
Amount”). In addition, if
within twelve (12) months after the Unilateral Termination, the
Company conducts a public or private offering of its securities or
enters into a letter of intent with respect to the foregoing, then
upon the closing of any such transaction, the terminating party
shall pay the Placement Agent in cash, within five (5) business
days of the closing of any such transaction an amount equal to 2%
of the gross proceeds from such private or public offering (the
“Additional Unilateral
Termination Amount”),
provided that such percentage shall be the applicable percentages
set forth in section 3(d) hereto with respect to any gross proceeds
from Tail Investors.


 

(d) This
Offering may be terminated upon mutual agreement of Issuer, OPCO
and Aegis, on behalf of the Placement Agent, at any time prior to
the expiration of the Offering Period on terms to be negotiated at
such time. In addition, upon the expiration of the Offering Period,
the Offering shall terminate without any further action of the
parties hereto. If the Offering is terminated pursuant to this
Section 10(d), then in cases in which no Closing had been
theretofore consummated, each party shall pay its own respective
expenses, provided that the $20,000 previously advanced to Aegis
toward the Expense Allowance shall be retained by
Aegis.


 



 

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(e) Before
any termination by the Placement Agent under Section 10(a) or by
OPCO or the Company under Section 10(b) shall become effective, the
terminating party shall give written notice to the other party of
its intention to terminate the Offering, which shall set forth the
specific grounds for the proposed termination (the
“Termination
Notice”). If the
specified grounds for termination, or their resulting adverse
effect on the transactions contemplated hereby, are curable, then
the other party shall have ten (10) days from the Termination
Notice within which to remove such grounds or to eliminate all of
their material adverse effects on the transactions contemplated
hereby; otherwise, the Offering shall
terminate.


 

(f) In
the event that a majority of OPCO’s capital stock or assets
is sold, or OPCO is merged with or merges with or into another
entity or otherwise combined with or acquired, or enters into a
letter of intent or memorandum of understanding with respect to any
of the foregoing, within one year following a Unilateral
Termination, then upon the closing of any such transaction, OPCO,
the Company or their successor shall pay the Placement Agent in
cash, within five (5) business days of the closing of any such
transaction, an amount equal to (i) 2% of the total consideration
received or receivable by OPCO, or any of its officers, directors
or stockholders in connection with such transaction.
Notwithstanding the foregoing, however, if an event or transaction
shall occur that would entitle the Placement Agent to receive both
the Additional Unilateral Termination Amount and the Transaction
Fee, then Aegis, on behalf of the Placement Agent may elect which
of the two such fees, but may elect only one of such fees, it shall
collect from OPCO, the Company or their successor. In the event
that the Placement Agent has elected to receive the Additional
Unilateral Termination Amount in accordance with this Section 10,
and subsequently an event or transaction occurs that would have
entitled the Placement Agent to receive a Transaction Fee in excess
of such Contingent Unilateral Termination Amount, then the
Placement Agent may require OPCO or the Company to pay it the
difference between the Additional Unilateral Termination Amount
already paid and the amount of the Transaction Fee to which it
otherwise would have been entitled to receive from OPCO or the
Company.


 


(g) Upon
any termination pursuant to this Section 10, the applicable parties
to this Agreement will instruct Escrow Agent to cause all monies
received with respect to the subscriptions for Units not closed
upon to be promptly returned to such subscribers without interest,
penalty or deduction.


 

11. Survival.


 

(a) The
obligations of the parties to pay any costs and expenses hereunder
and to provide indemnification and contribution as provided herein
shall survive any termination hereunder. In addition, the
provisions of Sections 3(d), 3(f) (only following a termination
after the First Closing) and 8 through 16 shall survive the sale of
the Units or any termination of the Offering
hereunder.


 

(b) The
respective indemnities, covenants, representations, warranties and
other statements of Issuer, OPCO and the Placement Agent set forth
in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of,
and regardless of any access to information by, Issuer, OPCO or the
Placement Agent, or any of their officers or directors or any
controlling person thereof, and will survive the sale of the Units
or any termination of the Offering hereunder for a period of two
(2) years from the earlier to occur of the Final Closing or the
termination of the Offering.




 



 

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12. Notices.
All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been duly given or
made as of the date delivered personally, or the date mailed if
mailed by registered or certified mail (postage prepaid, return
receipt requested) to the parties at the following addresses (or at
such other address for a party as shall be specified by like
changes of address which shall be effective upon receipt) or sent
by facsimile transmission, with confirmation received, if sent to
the Placement Agent, will be mailed, delivered or telefaxed and
confirmed to Aegis Capital Corp., 810 Seventh Ave, 11th
Floor, New York, New York 10019,
Attention: Adam K. Stern, telefax number (646) 390-9122, with a
copy (which shall not constitute notice) to: Littman Krooks LLP,
655 Third Avenue, 20th
floor, New York, NY 10017 Attention:
Steven Uslaner, Esq., telefax number (212) 490-2990, if sent to
OPCO, will be mailed, delivered or telefaxed and confirmed to
Adgero Biopharmaceuticals, Inc., 301 N. Harrison
St., Suite 9F #459, Princeton, NJ 08540, Attention: Frank Pilkiewicz,
CEO with a copy (which shall not
constitute notice) to: Lowenstein Sandler LLP, 1251 Avenue of the
Americas, New York, NY 10020, Attn: Steven M. Skolnick, Esq.,
telefax number (973) 597 2477, and if sent to Issuer, will be
mailed, delivered or telefaxed and confirmed to Adgero
Biopharmaceuticals Holdings, Inc., 60 East 42nd Street, Suite 1160,
New York, NY 10165, Attn: David Hochman, President, with a copy (which shall not constitute notice)
to: Meister Selig & Fein LLP, 121 Park Avenue,
7th floor,
New York, NY 10017, Attn: Kenneth S. Goodwin, Esq., provided,
however, that from and after the First Closing, notices to Issuer
shall be sent in the same manner, and to the same address, as
notices to OPCO, with a copy (which shall not constitute notice)
to: Lowenstein Sandler LLP, 1251 Avenue of the Americas, New York,
NY 10020, Attn: Steven M. Skolnick, Esq., telefax number (973)
597-2477.


 

13. Governing Law,
Jurisdiction. This Agreement
shall be deemed to have been made and delivered in New York City
and shall be governed as to validity, interpretation, construction,
affect and in all other respects by the internal laws of the State
of New York. THE PARTIES
AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY DIRECTLY OR
INDIRECTLY RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE
TERMINATION OR VALIDITY HEREOF, ANY ALLEGED BREACH OF THIS
AGREEMENT OR THE ENGAGEMENT CONTEMPLATED HEREBY (ANY OF THE
FOREGOING, A “CLAIM”) SHALL BE SUBMITTED TO THE
JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC
(“JAMS”), OR ITS SUCCESSOR, IN NEW YORK, FOR FINAL AND
BINDING ARBITRATION IN FRONT OF A PANEL OF THREE ARBITRATORS WITH
JAMS IN NEW YORK, NEW YORK UNDER THE JAMS COMPREHENSIVE ARBITRATION
RULES AND PROCEDURES (WITH EACH OF THE PLACEMENT AGENT AND OPCO
CHOOSING ONE ARBITRATOR, AND THE CHOSEN ARBITRATORS CHOOSING THE
THIRD ARBITRATOR).  THE ARBITRATORS SHALL, IN THEIR AWARD,
ALLOCATE ALL OF THE COSTS OF THE ARBITRATION, INCLUDING THE FEES OF
THE ARBITRATORS AND THE REASONABLE ATTORNEYS’ FEES OF THE
PREVAILING PARTY, AGAINST THE PARTY WHO DID NOT PREVAIL.  THE
AWARD IN THE ARBITRATION SHALL BE FINAL AND BINDING.  THE
ARBITRATION SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9
U.S.C. SEC. 1-16, AND THE JUDGMENT UPON THE AWARD RENDERED BY THE
ARBITRATORS MAY BE ENTERED BY ANY COURT HAVING JURISDICTION
THEREOF.  OPCO AND THE PLACEMENT AGENT AGREE AND CONSENT TO
PERSONAL JURISDICTION, SERVICE OF PROCESS AND VENUE IN ANY FEDERAL
OR STATE COURT WITHIN THE STATE AND COUNTY OF NEW YORK IN
CONNECTION WITH ANY ACTION BROUGHT TO ENFORCE AN AWARD IN
ARBITRATION.


 



 

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14. Miscellaneous.
No provision of this Agreement may be changed or terminated except
by a writing signed by the party or parties to be charged
therewith. Unless expressly so provided, no party to this Agreement
will be liable for the performance of any other party’s
obligations hereunder. Either party hereto may waive compliance by
the other with any of the terms, provisions and conditions set
forth herein; provided, however, that any such waiver shall be in
writing specifically setting forth those provisions waived thereby.
No such waiver shall be deemed to constitute or imply waiver of any
other term, provision or condition of this Agreement. Neither party
may assign its rights or obligations under this Agreement to any
other person or entity without the prior written consent of the
other party.


 

15. Entire
Agreement; Severability. This
Agreement together with any other agreement referred to herein
supersedes all prior understandings and written or oral agreements
between the parties with respect to the Offering and the subject
matter hereof. If any portion of this Agreement shall be held
invalid or unenforceable, then so far as is reasonable and possible
(i) the remainder of this Agreement shall be considered valid and
enforceable and (ii) effect shall be given to the intent manifested
by the portion held invalid or unenforceable.


 

16. Counterparts.
This Agreement may be executed in multiple counterparts, each of
which may be executed by less than all of the parties and shall be
deemed to be an original instrument which shall be enforceable
against the parties actually executing such counterparts and all of
which together shall constitute one and the same instrument. The
exchange of copies of this Agreement and of signature pages by
facsimile transmission shall constitute effective execution and
delivery of this Agreement as to the parties and may be used in
lieu of the original Agreement for all purposes. Signatures of the
parties transmitted by facsimile shall be deemed to be their
original signatures for all purposes.







[Signatures on following page.]








 

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If
the foregoing is in accordance with your understanding of the
agreement among Issuer, OPCO and the Placement Agent, kindly sign
and return this Agreement, whereupon it will become a binding
agreement among Issuer, OPCO and the Placement Agent in accordance
with its terms.



ADGERO BIOPHARMACEUTICALS, INC.


 






By: /s/ Frank G.
Pilkiewicz




Name: Frank G.
Pilkiewicz






Title: Chief Executive Officer


 



ADGERO BIOPHARMACEUTICALS HOLDINGS, INC.


 






By: 
/s/ David Hochman



Name: David
Hochman



Title: President


 





Accepted
and agreed to this


11th
day of January,
2016:


 



AEGIS CAPITAL CORP.


 


 



By: /s/ Roger
Baumberger



Name: 
Roger Baumberger
                    



Title: Senior Managing Director, Private Equity
Banking



 






 




 

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