exv10w2





Exhibit 10.2




PLACEMENT AGENCY AGREEMENT




December 6, 2011




CONFIDENTIAL




Roth Capital Partners, LLC

888 San Clemente Drive

Newport Beach, CA 92660




Ladies and Gentlemen:



Wireless Ronin Technologies, Inc., a Minnesota corporation (the “Company”), proposes to issue
and sell registered securities of the Company, consisting of up to 3,320,500 shares of Common Stock
(the “Shares” or the “Securities”). “Common Stock” means the Company’s common stock, $0.01 par
value per share.



Subject to the terms of this Placement Agency Agreement (the “Agreement”), Roth Capital
Partners, LLC (“Roth” or the “Placement Agent”) shall serve as the exclusive placement agent for
the Company, on a “reasonable best efforts” basis, in connection with the proposed offering of the
Securities (the “Placement”). The terms of such Placement shall be mutually agreed upon by the
Company and the purchasers (each, a “Purchaser” and collectively, the “Purchasers”) and nothing
herein constitutes that the Placement Agent would have the power or authority to bind the Company
or any Purchaser or creates an obligation for the Company to issue any Securities or complete the
Placement. This Agreement and the documents executed and delivered by the Company to the
Purchasers in connection with the Placement shall be collectively referred to herein as the
“Transaction Documents.” The Company expressly acknowledges and agrees that the Placement Agent’s
obligations hereunder are on a reasonable best efforts basis only and that the execution of this
Agreement does not constitute a commitment by the Placement Agent to purchase any of the Securities
and does not ensure the successful placement of the Securities or any portion thereof, or the
success of the Placement Agent with respect to securing any other financing on behalf of the
Company. The Placement Agent shall have no authority to bind the Company with respect to any
prospective offer to purchase Securities and the Company shall have the sole right to accept offers
to purchase Securities and may reject any such offer, in whole or in part.




Section 1. Compensation and Other Fees. As compensation for the services provided by
the Placement Agent hereunder, the Company agrees to pay to the Placement Agent:



(a) A cash fee payable immediately upon (but only in the event of) the closing of the
Placement equal to seven percent (7.0%) of the aggregate gross proceeds from the sale of the Shares
sold at the Closing.



(b) In addition, the Company agrees to pay the Placement Agent, regardless of whether the
Placement is consummated, the reasonable out-of-pocket expenses incurred by the Placement Agent in
connection with its engagement hereunder, including fees and disbursements of its counsel, travel
expenses, and costs relating to FINRA Cobra Desk filings necessary to consummate the Placement;
provided, however, that in no event will the amount of fees and expenses paid to the Placement
Agent in connection with the Placement, if the Placement is consummated, exceed 8% of the aggregate
gross proceeds from the sale of the Shares sold at the Closing.


 


 









 






Section 2. Registration Statement. The Company represents and warrants to, and agrees
with, the Placement Agent that:



(a) The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (Registration File No. 333-161700) under the
Securities Act of 1933, as amended (the “Securities Act”), which became effective on September 29,
2009, for the registration under the Securities Act of securities of the Company, including the
Securities. At the time of such filing, the Company met the requirements of Form S-3 under the
Securities Act pursuant to Instruction B.6 to Form S-3. Such registration statement meets the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule.
The Company will file with the Commission pursuant to Rule 424(b) under the Securities Act, and the
rules and regulations of the Commission promulgated thereunder (the “Rules and Regulations”), a
supplement to the form of prospectus included in such registration statement relating to the
placement of the Securities and the plan of distribution thereof and has advised the Placement
Agent of all further information (financial and other) with respect to the Company that will be set
forth therein. Such registration statement, including the exhibits thereto, as amended at the date
of this Agreement, is hereinafter called the “Registration Statement”; such prospectus in the form
in which it appears in the Registration Statement is hereinafter called the “Base Prospectus”; and
the supplemented form of prospectus, in the form in which it will be filed with the Commission
pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is hereinafter called
the “Prospectus Supplement.” Any reference in this Agreement to the Registration Statement, the
Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the documents
incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or
before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus
Supplement, as the case may be; and any reference in this Agreement to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or the
Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All
references in this Agreement to financial statements and schedules and other information which is
“contained,” “included,” “described,” “referenced,” “set forth” or “stated” in the Registration
Statement, the Base Prospectus or the Prospectus Supplement (and all other references of like
import) shall be deemed to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the Registration Statement,
the Base Prospectus or the Prospectus Supplement, as the case may be. No stop order suspending the
effectiveness of the Registration Statement or the use of the Base Prospectus or the Prospectus
Supplement has been issued, and no proceeding for any such purpose is pending or has been initiated
or, to the Company’s knowledge, is threatened by the Commission. For purposes of this Agreement,
“free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act and the
“Time of Sale Prospectus” means the Base Prospectus and the preliminary prospectus, if any,
together with the free writing prospectuses, if any, used in connection with the Placement,
including any documents incorporated by reference therein. The term “knowledge” as used in this
Agreement with respect to the Company shall mean actual knowledge of the Company’s officers and
directors after due and reasonable inquiry.



(b) The Registration Statement (and any further documents to be filed with the Commission in
connection with the Placement) contains or will contain, as applicable, all exhibits and schedules
as required by the Securities Act. Each of the Registration Statement and any post-effective
amendment thereto, at the time it became effective, complied in all material respects with the
Securities Act and the applicable Rules and Regulations and did not and, as amended or
supplemented, if applicable, will not, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading. The Base Prospectus, the Time


 


2









 






of Sale Prospectus, if any, and the Prospectus Supplement, each as of its respective date,
comply in all material respects with the Securities Act and the applicable Rules and Regulations.
Each of the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement, as
amended or supplemented, did not and will not contain as of the date thereof any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading. Notwithstanding
the foregoing, the Company makes no representation or warranty as to information contained in or
omitted from the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any,
or the Prospectus Supplement, including any amendments or supplements thereto, in reliance upon,
and in conformity with, written information furnished to the Company by or on behalf of the
Placement Agent expressly for use in the preparation thereof, which information the parties hereto
agree is limited to the Placement Agent’s Information (as defined in Section 13). The Incorporated
Documents, when they were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the applicable Rules and Regulations, and none of such
documents, when they were filed with the Commission, contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and any further documents so filed prior
to or on the closing of the Placement and incorporated by reference in the Base Prospectus, the
Time of Sale Prospectus, if any, or Prospectus Supplement, when such documents are filed with the
Commission, will conform in all material respects to the requirements of the Exchange Act and the
applicable Rules and Regulations, as applicable, and will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. No post-effective amendment to
the Registration Statement reflecting any facts or events arising after the date thereof which
represent, individually or in the aggregate, a fundamental change in the information set forth
therein is required to be filed with the Commission. There are no documents required to be filed
with the Commission in connection with the transaction contemplated hereby that (x) have not been
filed as required pursuant to the Securities Act or (y) will not be filed within the requisite time
period. There are no contracts or other documents required to be described in the Base Prospectus,
the Time of Sale Prospectus, if any, or Prospectus Supplement, or to be filed as exhibits or
schedules to the Registration Statement, which have not been described or filed as required.



(c) The Company had a reasonable basis for, and made in good faith, each “forward-looking
statement” (within the meaning of Section 27A of the Securities Act or Section 21E of the Exchange
Act) contained or incorporated by reference in the Registration Statement, the Base Prospectus, the
Time of Sale Prospectus and the Prospectus Supplement.



(d) All statistical or market-related data included or incorporated by reference in the
Registration Statement, the Base Prospectus, the Time of Sale Prospectus and the Prospectus
Supplement are based on or derived from sources that the Company reasonably believes to be reliable
and accurate, and the Company has obtained the written consent to the use of such data from such
sources, except where the failure to have obtained such consent could not have or reasonably be
expected to result in a Material Adverse Effect (as defined below).



(e) The Company is eligible to use free writing prospectuses in connection with the Placement
pursuant to Rules 164 and 433 under the Securities Act. Any free writing prospectus that the
Company is required to file pursuant to Rule 433(d) under the Securities Act in connection with the
Placement has been, or will be, filed with the Commission in accordance with the requirements of
the Securities Act and the applicable rules and regulations of the Commission thereunder, and will
not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were made, not
misleading. Each free writing prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the
Securities Act or that was prepared by, on behalf of or used by the Company in connection with
the Placement complies or will comply in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission thereunder. The Company
will not, without the prior consent of the Placement Agent, prepare, use or refer to any free
writing prospectus.


 


3









 





(f) The Company has delivered, or will as promptly as practicable deliver, to the Placement
Agent complete conformed copies of the Registration Statement and of each consent and certificate
of experts, as applicable, filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits), the Base Prospectus, the Time of Sale Prospectus, if any, and the
Prospectus Supplement, as amended or supplemented, in such quantities and at such places as the
Placement Agent reasonably requests. Neither the Company nor any of its directors and officers has
distributed and none of them will distribute, prior to the Closing Date (as defined below), any
offering material in connection with the offering and sale of the Securities other than the Base
Prospectus, the Time of Sale Prospectus, if any, the Prospectus Supplement, the Registration
Statement, copies of the documents incorporated by reference therein and any other materials
permitted by the Securities Act.



(g) The Company represents that the aggregate market value of securities to be sold in the
Placement shall not exceed the lesser of (i) the aggregate market value of securities remaining
available for issuance under the Registration Statement and (ii) one-third of the aggregate market
value of the Company’s public float less the aggregate market value of securities sold pursuant to
the Registration Statement during the 12 calendar months immediately prior to and including the
month of the Placement, in each case calculated in accordance with the requirements of Form S-3 and
the rules and regulations relating thereto. The Company further represents that the number of
shares of Common Stock, including Common Stock equivalents, sold in the Placement will not exceed
20% of the Company’s outstanding Common Stock, with the relevant calculations made in accordance
with Nasdaq Marketplace Rule 5635(d) and the interpretations and guidance relating thereto.




Section 3. Representations Warranties and Certain Agreements. The Company represents
and warrants to, and agrees with, the Placement Agent that:



(a) Organization and Qualification. All of the direct and indirect subsidiaries
(individually, a “Subsidiary”) of the Company are set forth in the SEC Reports (as defined below).
Except as set forth in the SEC Reports, the Company owns, directly or indirectly, all of the
capital stock or other equity interests of each Subsidiary free and clear of any “Liens” (which for
purposes of this Agreement shall mean a lien, charge, security interest, encumbrance, right of
first refusal, preemptive right or other restriction, other than restrictions imposed by applicable
securities laws). All the issued and outstanding shares of capital stock of each Subsidiary are
validly issued and are fully paid, non-assessable and free of preemptive and similar rights to
subscribe for or purchase securities. The Company and each of the Subsidiaries is an entity duly
incorporated or otherwise organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the requisite power and
authority to own and use its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation or default of any of the
provisions of its respective certificate or articles of incorporation, bylaws or other
organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to
conduct business and is in good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good standing, as the
case may be, could not have or reasonably be expected to result in (i) a material adverse effect on
the legality, validity or enforceability of any Transaction Document, (ii) a material adverse
effect on the results of operations, assets, business or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s
ability to perform in any material respect its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and, to the Company’s
knowledge, no “Proceeding” (which for purposes of this Agreement shall mean any action, claim,
suit, investigation or proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened) has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and
authority or qualification.


 


4









 





(b) Authorization; Enforcement. The Company has the requisite corporate power and
authority to enter into each of the Transaction Documents, to consummate the transactions
contemplated hereby and thereby, and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Company and no further action is required by the Company, its
board of directors or its shareholders in connection therewith other than in connection with the
Required Approvals (as defined in Section 3(d) below). Each Transaction Document has been (or upon
delivery will have been) duly executed by the Company and, when delivered in accordance with the
terms hereof and thereof, will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable remedies.



(c) No Conflicts. The execution, delivery and performance of the Transaction
Documents by the Company, the issuance and sale of the Securities and the consummation by the
Company of the other transactions contemplated hereby and thereby do not and will not (i) conflict
with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both would become a default)
under, result in the creation of any Lien upon any of the properties or assets of the Company or
any Subsidiary, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any property or asset
of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the Company or a
Subsidiary is subject (including federal and state securities laws and regulations), or by which
any property or asset of the Company or a Subsidiary is bound or affected; except in the case of
each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a
Material Adverse Effect.



(d) Filings, Consents and Approvals. The Company is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or make any filing or registration
with, any court or other federal, state, local or other governmental authority or other “Person”
(defined as an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company, government (or an
agency or subdivision thereof) or other entity of any kind, including, without limitation, any
Trading Market (as defined below)) in connection with the execution, delivery and performance by
the Company of the Transaction Documents, other than such filings as are required to be made under
applicable federal and state securities laws, rules and regulations promulgated by the Company’s
Trading Market and rules and regulations promulgated by FINRA (collectively, the “Required
Approvals”), all of which will be made in a timely manner to the extent such filings are required
or desirable to be made by the Company, with the exception of filings with FINRA, which the parties
have agreed will be made by Roth.


 


5









 





(e) Issuance of the Securities; Registration. The Securities are duly authorized and,
when issued and paid for in accordance with the applicable Transaction Documents, will be duly and
validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Company has reserved from its duly authorized capital stock the maximum number of shares of
Common Stock issuable pursuant to the Transaction Documents. The issuance by the Company of the
Securities has been registered under the Securities Act and all of such shares are freely
transferable and tradable by the Purchasers without restriction (other than any restrictions
arising solely from an act or omission of a Purchaser). The Securities are being issued pursuant
to the Registration Statement and the issuance of the Securities has been registered by the Company
under the Securities Act. The Registration Statement was declared effective on September 29, 2009
and is available for the issuance of the Securities thereunder and the Company has not received any
notice that the Commission has issued or intends to issue a stop-order with respect to the
Registration Statement or that the Commission otherwise has suspended or withdrawn the
effectiveness of the Registration Statement, either temporarily or permanently, or intends or has
threatened in writing to do so. The “Plan of Distribution” section under the Registration
Statement permits the issuance and sale of the Securities hereunder. The Purchasers will have good
and marketable title to the Shares upon receipt of such Shares, and such securities will be freely
tradable on the “Trading Market” (which, for purposes of this Agreement shall mean the Nasdaq
Capital Market, or any of the following markets or exchanges if the Common Stock is listed or
quoted for trading on such markets or exchanges on the date in question: the Nasdaq Global Market,
the Nasdaq Global Select Market, the NYSE Amex Equities Market or the New York Stock Exchange).



(f) Capitalization. The capitalization of the Company is as set forth in the
Prospectus Supplement. As of the date of this Agreement, the Company has not issued any capital
stock since it filed its most recently filed periodic report under the Exchange Act, other than
pursuant to the exercise of employee stock options under the Company’s stock option plans, the
issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase
plan and pursuant to restricted stock awards and the conversion or exercise of securities
exercisable, exchangeable or convertible into Common Stock (“Common Stock Equivalents”), which
plans are described in the SEC Reports and which awards and exercisable, exchangeable or
convertible securities are indicated as being outstanding in the SEC Reports. No Person has any
right of first refusal, preemptive right, right of participation, or any similar right to
participate in the transactions contemplated by the Transaction Documents. Except as disclosed in
the SEC Reports or pursuant to equity compensation plans or agreements filed as exhibits to the SEC
Reports, there are no outstanding options, warrants, script rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities, rights or obligations
convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe
for or acquire, any shares of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become bound to issue additional
shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Securities will
not obligate the Company to issue shares of Common Stock or other securities to any Person (other
than the Purchasers) and will not result in a right of any holder of Company securities to adjust
the exercise, conversion, exchange or reset price under such securities. All of the outstanding
shares of capital stock of the Company are duly authorized, validly issued, fully paid and
nonassessable, have been issued in compliance with all federal and state securities laws, and none
of such outstanding shares was issued in violation of any preemptive rights or similar rights to
subscribe for or purchase securities. No further approval or authorization of any shareholder, the
Board of Directors of the Company or others is required for the issuance and sale of the
Securities. There are no shareholders agreements, voting agreements or other similar agreements
with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company’s shareholders.


 


6









 





(g) SEC Reports; Financial Statements. The Company has complied in all material
respects with requirements to file reports, schedules, forms, statements and other documents under
the
Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for
the one year preceding the date hereof (the foregoing materials, including the exhibits thereto and
documents incorporated by reference therein, being collectively referred to herein as the “SEC
Reports”). For the past twelve months, the Company has filed on a timely basis, or has received a
valid extension of such time of filing and has filed any such reports prior to the expiration of
any such extension, all reports, schedules, forms, statements and other documents required to be
filed by it under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or
15(d) thereof. As of their respective dates, the SEC Reports complied in all material respects
with the requirements of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of
a material fact or omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the SEC Reports comply in all
material respects with applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of filing. Such financial statements have
been prepared in accordance with United States generally accepted accounting principles applied on
a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in
such financial statements or the notes thereto and except that unaudited financial statements may
not contain all footnotes required by GAAP, and fairly present in all material respects the
financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof
and the results of operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit adjustments.



(h) Material Changes; Undisclosed Events, Liabilities or Developments. Since the date
of the latest audited financial statements included within the SEC Reports, except as specifically
disclosed in the SEC Reports, (i) there has been no event, occurrence or development that has had
or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has
not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued
expenses incurred in the ordinary course of business consistent with past practice and (B)
liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or
required to be disclosed in filings made with the Commission, (iii) the Company has not altered its
method of accounting, (iv) the Company has not declared or made any dividend or distribution of
cash or other property to its shareholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity
securities to any officer, director or “Affiliate” (defined as any Person that, directly or
indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed under Rule 144 under the Securities
Act), except pursuant to existing Company stock option or other equity incentive plans or the
Company’s stock purchase plan. Except for the issuance of the Securities contemplated by this
Agreement, no event, liability or development has occurred or exists with respect to the Company or
its Subsidiaries or their respective business, properties, operations or financial condition, that
would be required to be disclosed by the Company under applicable securities laws at the time this
representation is made that has not been publicly disclosed prior to the date that this
representation is made.



(i) Litigation. Except as disclosed in the SEC Reports, there is no action, suit,
inquiry, notice of violation, Proceeding or investigation pending or, to the knowledge of the
Company, threatened against or affecting the Company, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or administrative agency or regulatory
authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i)
adversely affects or challenges the legality, validity or enforceability of any of the Transaction
Documents or the Securities, or (ii) could reasonably be expected to result in a Material Adverse
Effect. Except as disclosed to the Placement Agent in writing, neither the Company nor any
Subsidiary, nor, to the Company’s knowledge, any director or officer thereof, is or has been the
subject of any Action involving a claim of violation of or liability under federal
or state securities laws or a claim of breach of fiduciary duty. There has not been, and to
the knowledge of the Company, there is not pending or contemplated, any investigation by the
Commission involving the Company or, to the Company’s knowledge, any director or officer of the
Company. The Commission has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the
Securities Act.


 


7









 





(j) Employment and Labor Relations. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company, and
neither the Company or any of its Subsidiaries is a party to a collective bargaining agreement, and
the Company and its Subsidiaries believe that their relationships with their employees are
satisfactory. No executive officer, to the knowledge of the Company, is, or is now expected to be,
in violation of any material term of any employment contract, confidentiality, disclosure or
proprietary information agreement or non-competition agreement, or any other contract or agreement
or any restrictive covenant, and, to the Company’s knowledge, the continued employment of each such
executive officer does not subject the Company or any of its Subsidiaries to any liability with
respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with
all U.S. federal, state, local and foreign laws and regulations relating to employment and
employment practices, terms and conditions of employment and wages and hours, except where the
failure to be in compliance could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. No material labor dispute exists or, to the knowledge of the
Company, is imminent with respect to any of the employees of the Company which could reasonably be
expected to result in a Material Adverse Effect.



(k) Compliance. Neither the Company nor any Subsidiary (i) is in default under or in
violation of (and no event has occurred that has not been waived that, with notice or lapse of time
or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation
of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its properties is bound (whether or not such default or violation
has been waived), (ii) is in violation of any order of any court, arbitrator or governmental body,
or (iii) is or has been in violation of, or has received any notice of violation relating to, any
statute, rule or regulation of any governmental authority, including without limitation (A) all
foreign, federal, state and local laws applicable to its business or the ownership or operation of
its property and assets, (B) all such laws related to health, safety or the environment, including
those relating to the regulation of hazardous substances, (C) the Currency and Foreign Transactions
Reporting Act of 1970, as amended, or any money laundering laws, rules or regulations, (D) the
Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission thereunder, (E) the
Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (F) the
Employment Retirement Income Security Act of 1974 and the rules and regulations thereunder, except
in each case as could not have a Material Adverse Effect.



(l) Regulatory Permits. The Company and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state, local or foreign regulatory
authorities necessary to conduct their respective businesses as described in the SEC Reports,
except where the failure to possess such permits could not have or reasonably be expected to result
in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has
received any notice of proceedings relating to the revocation or modification of any Material
Permit, except where such potential revocation or modification would not reasonably be expected to
result in a Material Adverse Effect.


 


8









 





(m) Title to Assets. The Company and the Subsidiaries have good and marketable title
in fee simple to all real property owned by them that is material to the business of the Company
and the Subsidiaries and good and marketable title in all personal property owned by them that is
material to the business of the Company and the Subsidiaries, in each case free and clear of all
Liens, except as set
forth in the SEC Reports and except for Liens created under license or collaboration
agreements relating to the Company’s products or Intellectual Property Rights and Liens as do not
materially affect the value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and the Subsidiaries and Liens for the payment
of federal, state or other taxes, the payment of which is neither delinquent nor subject to
penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases of which the Company and the
Subsidiaries are in compliance with the provisions thereof, except where such non-compliance would
not have a Material Adverse Effect.



(n) Patents and Trademarks. The Company and the Subsidiaries have, or have rights to
use, all patents, patent applications, trademarks, trademark applications, service marks, trade
names, trade secrets, inventions, copyrights, licenses and other similar intellectual property
rights necessary or material for use in connection with their respective businesses as described in
the SEC Reports (collectively, the “Intellectual Property Rights”). To the knowledge of the
Company, all such Intellectual Property Rights are enforceable and there is no existing
infringement by another Person of any of the Intellectual Property Rights of the Company which
would reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company,
none of the Intellectual Property Rights used by the Company or any Subsidiary violates or
infringes upon the rights of any Person. The Company and its Subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality and value of all of their intellectual
properties, except where failure to do so could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.



(o) Insurance. The Company and the Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent and
customary in the businesses in which the Company and the Subsidiaries are engaged, including, but
not limited to, directors and officers insurance coverage at least equal to the aggregate
subscription amount under the Transaction Documents. Neither the Company nor any Subsidiary has
any reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse Effect.



(p) Transactions With Affiliates and Employees. Except as set forth in the SEC
Reports, none of the officers or directors of the Company is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the furnishing of services to
or by, providing for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge of the Company, any
entity in which any officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner, in each case in excess of $120,000, other than for (i)
payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company and (iii) other employee benefits, including but not limited to
stock option agreements under any stock option or other equity incentive plan of the Company.



(q) Internal Accounting Controls. The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are executed
in accordance with management’s general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance with management’s
general or specific authorization, and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.


 


9









 





(r) Sarbanes-Oxley; Disclosure Controls. The Company is in material compliance with
all provisions of the Sarbanes-Oxley Act of 2002 which are applicable to it as of the Closing Date.
The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that are effective in ensuring that information required to be
disclosed by the Company in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported, within the time periods specified in the rules and
forms of the Commission, including, without limitation, controls and procedures designed to ensure
that information required to be disclosed by the Company in the reports that it files or submits
under the Exchange Act is accumulated and communicated to the Company’s management, including its
principal executive officer or officers and its principal financial officer or officers, as
appropriate, to allow timely decisions regarding required disclosure.



(s) Certain Fees. Except as otherwise provided in this Agreement or as set forth in
the Prospectus Supplement, no brokerage or finder’s fees or commissions are or will be payable by
the Company to any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated by the Transaction
Documents, and there are no other arrangements, agreements, understandings, payments or issuances
with respect to the Company that may affect the Placement Agent’s compensation, as determined by
FINRA. Except in connection with the Company’s November 2010 sale of securities under the
Registration Statement, the terms of which were set forth in a prospectus supplement dated November
16, 2010, within the 12-month period immediately prior to the date of this Agreement, the Company
has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person,
as a finder’s fee, investing fee or otherwise, in consideration of such person raising capital for
the Company or introducing to the Company persons who provided capital to the Company, (ii) any
FINRA member, or (iii) any person or entity that has any direct or indirect affiliation or
association with any FINRA member. The Purchasers shall have no obligation with respect to any
fees or with respect to any claims made by or on behalf of other Persons for fees of a type
contemplated in this Section 3(s) that may be due in connection with the transactions contemplated
by the Transaction Documents. Other than Roth, no person has the right to act as a placement
agent, underwriter or as a financial advisor in connection with the sale of the Securities
contemplated hereby.



(t) Trading Market Rules. The issuance and sale of the Securities hereunder does not
contravene the rules and regulations of the Company’s Trading Market.



(u) Investment Company. The Company is not, and is not an Affiliate of, and
immediately after receipt of payment for the Securities, will not be or be an Affiliate of, an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.



(v) Registration Rights. No Person has any right to cause the Company to effect the
registration under the Securities Act of any securities of the Company.



(w) Listing and Maintenance Requirements. The Company’s Common Stock is registered
pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to, or
which to its knowledge is likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act nor has the Company received any notification that the Commission is
contemplating terminating such registration. Except as specified in the SEC Reports, the Company
has not, in the twelve months preceding the date hereof, received written notice from any Trading
Market on which the Common Stock is or has been listed or quoted to the effect that the Company is
not in compliance with the listing or maintenance requirements of such Trading Market. The Company
is, and has no reason to believe that it will not in the foreseeable future continue to be, in
compliance with all such listing and maintenance requirements.


 


10









 





(x) Application of Takeover Protections. The Company and its board of directors have
taken all necessary action, if any, in order to render inapplicable any control share acquisition,
business combination, poison pill (including any distribution under a rights agreement) or other
similar anti-takeover provision under the Company’s charter documents or the laws of its state of
incorporation that is or could reasonably be expected to become applicable to any of the Purchasers
as a result of the Purchasers and the Company fulfilling their obligations or exercising their
rights under the Transaction Documents, including, without limitation, the Company’s issuance of
the Securities and the Purchasers’ ownership of the Securities. The Company has not adopted a
shareholder rights plan or similar arrangement relating to accumulations of beneficial ownership of
Common Stock or a change in control of the Company.



(y) Tax Status. Except for matters that would not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse Effect, the Company and each
Subsidiary has filed all necessary federal, state and foreign income and franchise tax returns and
has paid or accrued all taxes shown as due thereon, and the Company has no knowledge of a tax
deficiency which has been asserted or threatened against the Company or any Subsidiary.



(z) Foreign Corrupt Practices. Neither the Company, nor to the knowledge of the
Company, any agent or other person acting on behalf of the Company, has (i) directly or indirectly,
used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related
to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic political parties or campaigns from
corporate funds, (iii) failed to disclose fully any contribution made by the Company (or made by
any person acting on its behalf of which the Company is aware) which is in violation of law, or
(iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977,
as amended.



(aa) OFAC. Neither the Company nor any of its Subsidiaries nor, to the Company’s
knowledge, any director, officer, employee, representative, agent or affiliate of the Company or
any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly
or indirectly use the proceeds of the Placement contemplated hereby, or lend, contribute or
otherwise make available such proceeds to any person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by OFAC.



(bb) Accountants. The Company’s accountants are Baker Tilly Virchow Krause, LLP,
independent registered public accountants. To the knowledge of the Company, such accountants, who
the Company expects will express their opinion with respect to the financial statements to be
included in the Company’s next Annual Report on Form 10-K, are a registered public accounting firm
as required by the Securities Act.



(cc) Regulation M Compliance. The Company has not, and to its knowledge no one acting
on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result in
the stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation
for soliciting purchases of, any of the Securities or (iii) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of the Company other than, in
the case of clauses (ii) and (iii), services under this Agreement.



(dd) Approvals. The issuance and listing on the Company’s Trading Market of the
Shares requires no approvals (other than the Required Approvals), including, but not limited to,
the approval of shareholders.


 


11









 





(ee) FINRA Affiliations. There are no affiliations with any FINRA member firm among
the Company’s officers, directors or, to the knowledge of the Company, any five percent (5%) or
greater shareholder of the Company or any owner of any amount of the Company’s unregistered
securities acquired on or after May 1, 2011, except as set forth in the Base Prospectus. The
Company will advise Roth and its counsel if it becomes aware that any officer, director or
shareholder of the Company or its subsidiaries is or becomes an affiliate or associated person of a
FINRA member participating in the Placement.



(ff) Business Relationships. No supplier, customer, distributor or sales agent of the
Company has notified the Company that it intends to discontinue or decrease the rate of business
done with the Company, except where such decrease is not reasonably likely to result in a Material
Adverse Effect or has been set forth in the SEC Reports.




Section 4. Closing and Settlement. Subject to the terms and conditions hereof, payment
of the purchase price for, and delivery of, the Securities shall be made at one or more
closings (each a “Closing” and the date on which each Closing occurs, a “Closing Date”) at the
offices of Roth Capital Partners, LLC (or at such other place as shall be agreed upon by Roth
and the Company), the first such Closing to take place at 7:00 a.m. Pacific time on
December 12, 2011 (unless another time shall be agreed to by Roth and the Company). Prior to the
Closing Date, each Purchaser will confirm its purchase price and the number of Shares such
Purchaser has purchased with such Purchaser’s custodian bank or prime broker. On the Closing
Date, (a) each Purchaser will provide their purchase price by delivery of immediately
available funds versus receipt of their Shares through such Purchaser’s executing broker’s
delivery versus payment account established at Roth, (b) the Company will deliver, or cause to
be delivered, to Roth, the aggregate number of Shares purchased by all Purchasers on such
Closing Date by authorizing the release of the Shares to Roth’s clearing firm, Ridge Clearing
& Outsourcing Solutions DTC 0158, via DWAC delivery prior to the release of the federal funds
wire to the Company for payment for such Shares, (c) Roth will deliver, or cause to be
delivered, to each Purchaser, such Purchaser’s Shares in accordance with the instructions
provided by such Purchaser on its executing broker’s account versus payment for such Shares
and (d) Roth will deliver, or cause to be delivered, to the Company, the aggregate purchase
price of the Shares sold on such Closing Date to all Purchasers, minus applicable fees and
disbursements.




Section 5. Restriction on Issuances. The Company hereby agrees that, without the prior
written consent of the Placement Agent, it will not, during the period ending 90 days after
the date hereof (“Lock-Up Period”), (i) offer, pledge, issue, sell, contract to sell,
purchase, contract to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock; or (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise; or (iii) file any
registration statement with the Commission relating to the offering of any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for Common Stock. The
restrictions contained in the preceding sentence shall not apply to (1) the Securities to be
sold hereunder, (2) the issuance of Common Stock upon the exercise of options or warrants
disclosed as outstanding in the SEC Reports, or (3) the issuance of Common Stock, stock
options, stock appreciation rights, restricted stock units, or other forms of equity
compensation under the Company’s equity incentive plans or employee stock purchase plan
described in the SEC Reports. Notwithstanding the foregoing, if (x) the Company issues an
earnings release or material news, or a material event relating to the Company occurs, during
the last 17 days of the Lock-Up Period, or (y) prior to the expiration of the Lock-Up Period,
the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the Lock-Up Period, the restrictions imposed by this clause shall
continue to apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event, unless the
Placement Agent waives such extension in writing.


 


12









 






Section 6. Indemnification. The Company agrees to the indemnification and other
agreements set forth in the indemnification provisions attached hereto as Addendum A
(“Indemnification Provisions”), the provisions of which are incorporated herein by reference
and shall survive the termination or expiration of this Agreement.




Section 7. Engagement Term. Unless terminated pursuant to Section 14, the Placement
Agent’s engagement hereunder will be for the period of ten (10) days or, if longer, until the
occurrence of a closing of a sale of the Securities under one or more subscription agreements
entered into by the Company and one or more Purchasers during such ten (10)-day term.
Notwithstanding anything to the contrary contained herein, the provisions concerning
confidentiality, indemnification, contribution and the Company’s obligations to pay fees and
reimburse expenses contained herein and the Company’s obligations contained in the
Indemnification Provisions will survive any expiration or termination of this Agreement.




Section 8. Placement Agent Information. The Company agrees that any information or
advice rendered by the Placement Agent in connection with this engagement is for the
confidential use of the Company only in their evaluation of the Placement and, except as
otherwise required by law, the Company will not disclose or otherwise refer to the advice or
information in any manner without the Placement Agent’s prior written consent.




Section 9. No Fiduciary Relationship. The Company acknowledges and agrees that: (a)
Roth has been retained solely to act as placement agent in connection with the sale of the
Securities and that no fiduciary, advisory or agency relationship between the Company and Roth
has been created in respect of any of the transactions contemplated by this Agreement,
irrespective of whether Roth has advised or is advising the Company on other matters; (b) the
price and other terms of the Securities set forth in this Agreement were established by Roth
and the Purchasers following discussions and arms-length negotiations and the Company is
capable of evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this Agreement; (c) it has been advised that
Roth and its affiliates are engaged in a broad range of transactions that may involve
interests that differ from those of the Company and that Roth has no obligation to disclose
such interest and transactions to the Company by virtue of any fiduciary, advisory or agency
relationship; (d) it has been advised that Roth is acting, in respect of the transactions
contemplated by this Agreement, solely for the benefit of Roth, and not on behalf of the
Company.




Section 10. No Limitations. Nothing in this Agreement shall be construed to limit the
ability of Roth or its affiliates to (a) trade in the Company’s or any other company’s
securities or publish research on the Company or any other company, subject to applicable law,
or (b) pursue or engage in investment banking, financial advisory or other business
relationships with entities that may be engaged in or contemplate engaging in, or acquiring or
disposing of, businesses that are similar to or competitive with the business of the Company.




Section 11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and assigns
and the Indemnified Persons (as defined in Addendum A) pursuant to Section 6. In
addition, the investors
who purchase Securities pursuant to the subscription agreements shall be entitled to rely
on the representations, warranties, covenants and agreements of the Company contained in this
Agreement and shall be third party beneficiaries thereof. Except as indicated above, nothing
in this Agreement is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable remedy or claim under or in respect of this Agreement or
any provision herein contained.


 


13









 






Section 12. Conditions to Closing. The obligations of the Placement Agent and the
Purchasers, and the closing of the sale of the Securities contemplated hereby are subject to
the following conditions:



(a) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct in all material respects as of the date when made and as
of the Closing Date, as though made on and as of the Closing Date, except for representations and
warranties that speak as of a specific date which shall be true and correct in all material
respects as of such date.



(b) Performance. The Company shall have performed, satisfied and complied in all
material respects with all covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by it at or prior to the closing of the
Placement.



(c) No Stop Orders. If filing of the Prospectus Supplement, or any amendment or
supplement thereto, is required under the Securities Act or the Rules and Regulations, the Company
shall have filed the Final Prospectus (or such amendment or supplement) with the Commission in the
manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)
under the Securities Act); the Registration Statement shall remain effective; no stop order
suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462
Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base
Prospectus, Time of Sale Prospectus or Prospectus Supplement shall have been issued; no proceedings
for the issuance of such an order shall have been initiated or threatened by the Commission; and
any request for additional information on the part of the Commission (to be included in the
Registration Statement, the Base Prospectus, Time of Sale Prospectus or the Prospectus Supplement
or otherwise) shall have been complied with to the reasonable satisfaction of the Placement Agent.



(d) No FINRA Objection. FINRA shall have raised no objection to the fairness and
reasonableness of the placement agency terms and arrangements.



(e) Contents of Registration Statement. The Placement Agent shall not have discovered
and disclosed to the Company on or prior to the Closing Date that the Registration Statement, the
Base Prospectus or the Prospectus Supplement or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of counsel for the Placement Agent, is material or
omits to state any fact which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not misleading.



(f) Authorizations. All corporate proceedings and other legal matters incident to the
authorization, form, execution, delivery and validity of each of this Agreement, the Securities,
the Registration Statement, the Base Prospectus and the Prospectus Supplement and all other legal
matters relating to this Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Placement Agent, and the Company shall
have furnished to such counsel all documents and information that they may reasonably request to
enable them to pass upon such matters.


 


14









 





(g) Opinion of Counsel to the Company. The Placement Agent shall have received from
counsel to the Company such counsel’s written opinion, addressed to the Placement Agent and dated
as of the Closing Date, in form and substance reasonably satisfactory to the Placement Agent.



(h) Letter from Auditors. The Placement Agent shall have received a letter from Baker
Tilly Virchow Krause, LLP on the applicable Closing Date addressed to the Placement Agent,
confirming that they are independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the qualifications of
accountants under Rule 2 01 of Regulation S X of the Commission, and confirming, as of the date of
each such letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the Time of Sale
Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions
and findings of said firm with respect to the financial information, including any financial
information contained in reports filed by the Company with the Commission pursuant to the reporting
requirements of the Exchange Act, and other matters required by the Placement Agent.



(i) Absence of Material Change. Neither the Company nor any of its Subsidiaries shall
have sustained since the date of the latest audited financial statements included or incorporated
by reference in the Base Prospectus, (i) any material loss or interference with its business from
fire, explosion, flood, terrorist act or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree, otherwise than as set
forth in or contemplated by the Base Prospectus, and (ii) since such date there shall not have been
any material change in the capital stock or material increase in the long-term debt of the Company
or any of its Subsidiaries or any material change, or any development involving a prospective
material change, in or affecting the business, general affairs, management, financial position,
shareholders’ equity, results of operations or prospects of the Company and its Subsidiaries,
otherwise than as included or incorporated by reference in, or contemplated by, the Base
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the
judgment of the Placement Agent, so material and adverse as to make it impracticable or inadvisable
to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated
by the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement.



(j) Continued Registration; Listing on Trading Market. The Common Stock is registered
under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and
authorized for trading on the Company’s Trading Market, and satisfactory evidence of such actions
shall have been provided to the Placement Agent. The Company shall have taken no action designed
to, or likely to have the effect of terminating the registration of the Common Stock under the
Exchange Act or delisting or suspending from trading the Common Stock from the Company’s Trading
Market, nor has the Company received any information suggesting that the Commission or the
Company’s Trading Market is contemplating terminating such registration or listing.



(k) Absence of Certain Events. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any of the following: (i) trading in securities generally
on any Trading Market or in the over-the-counter market, or trading in any securities of the
Company on any Trading Market or in the over-the-counter market, shall have been suspended or
minimum or maximum prices or maximum ranges for prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by
federal or state authorities or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, (iii) the United States shall
have become engaged in hostilities in which it is not currently engaged, the subject of an act of
terrorism, there shall have been an escalation in hostilities
involving the United States, or there shall have been a declaration of a national emergency or
war by the United States, or (iv) there shall have occurred any other calamity or crisis or any
change in general economic, political or financial conditions in the United States or elsewhere, if
the effect of any such event in clause (iii) or (iv) makes it, in the sole judgment of the
Placement Agent, impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated by the Base Prospectus and the Prospectus
Supplement.


 


15









 





(l) Action Preventing Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any governmental agency or body
which would, as of the Closing Date, prevent the issuance or sale of the Securities or result in a
Material Adverse Effect; and no injunction, restraining order or order of any other nature by any
federal or state court of competent jurisdiction shall have been issued as of the Closing Date
which would prevent the issuance or sale of the Securities or result in Material Adverse Effect.



(m) Other Filings with the Commission. The Company shall have prepared and filed with
the Commission a Current Report on Form 8-K with respect to the Placement, including as an exhibit
thereto this Agreement.



(n) Subscription Agreements. The Company shall have entered into subscription
agreements with each of the Purchasers and such agreements shall be in full force and effect on the
Closing Date.



(o) Officers’ Certificate. On the Closing Date, there shall have been furnished to
the Placement Agent, a certificate, dated such Closing Date and addressed to the Placement Agent,
signed by the principal executive officer and by the principal financial and accounting officer of
the Company, certifying to the fulfillment of the conditions specified in Section 12(a), (b), (c),
(f), (j) and (l). Any certificate signed by any officer of the Company shall be deemed a
representation and warranty by the Company to the Placement Agent as to the matters covered
thereby.



(p) Secretary’s Certificate. On the Closing Date, the Company shall have furnished to
the Placement Agent a certificate of the Secretary of the Company (the “Secretary’s Certificate”),
dated as of the Closing Date, (i) certifying the resolutions adopted by the Board of Directors of
the Company approving the transactions contemplated by this Agreement and the other Transaction
Documents and the issuance of the Securities, (ii) certifying the current versions of the articles
of incorporation, as amended and by-laws, as amended, of the Company and (iii) certifying as to the
signatures and authority of persons signing the Transaction Documents and related documents on
behalf of the Company.



(q) Prior to the Closing Date, the Company shall have furnished to the Placement Agent such
further information, certificates and documents as the Placement Agent may reasonably request.



All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Placement Agent.




Section 13. Agreements with and Information Furnished by the Placement Agent.



(a) The Placement Agent agrees that it will not include any “issuer information” (as defined
in Rule 433 under the Securities Act) in any free writing prospectus used or referred to by the
Placement Agent without the prior consent of the Company (any such issuer information with respect
to
the use thereof that the Company has given its consent, “Permitted Issuer Information”);
provided that no such consent shall be required with respect to any such issuer information
contained in any document filed by the Company with the Commission prior to the use of such free
writing prospectus.


 


16









 





(b) The parties hereto acknowledge and agree that, for all purposes of this Agreement, the
“Placement Agent’s Information” consists solely of the statements regarding Roth contained in the fourth paragraph
under the heading “Plan of Distribution” in the Prospectus Supplement only insofar as such statements relate to the activities that may be undertaken by Roth..




Section 14. Termination of this Agreement.



(a) The Placement Agent shall have the right to terminate this Agreement (and the obligations
of the Purchasers under subscription agreements entered into with the Company) by giving notice as
hereinafter specified at any time at or prior to the Closing Date, without liability on the part of
the Placement Agent to the Company, if (i) prior to delivery and payment for the Securities (A)
trading in securities generally shall have been suspended on or by any Trading Market, (B) trading
in the Common Stock of the Company shall have been suspended on any exchange, in the
over-the-counter market or by the Commission, (C) a general moratorium on commercial banking
activities shall have been declared by federal or state authorities or a material disruption shall
have occurred in commercial banking or securities settlement or clearance services in the United
States, (D) there shall have occurred any outbreak or material escalation of hostilities or acts of
terrorism involving the United States or there shall have been a declaration by the United States
of a national emergency or war, (E) there shall have occurred any other calamity or crisis or any
material change in general economic, political or financial conditions in the United States or
elsewhere, if the effect of any such event specified in clause (D) or (E), in the judgment of the
Placement Agent, is material and adverse and makes it impractical or inadvisable to proceed with
the completion of the sale of and payment for the Securities on the Closing Date on the terms and
in the manner contemplated by this Agreement, the Registration Statement, the Base Prospectus and
the Prospectus Supplement, (ii) since the time of execution of this Agreement, there has been any
Material Adverse Change or the Company or any Subsidiary shall have sustained a loss or
interference with its business by strike, fire, flood, earthquake, accident or other calamity,
whether or not covered by insurance, in each case which is not described in the Registration
Statement, the Base Prospectus or the Prospectus Supplement and is of such character that in the
judgment of the Placement Agent would, individually or in the aggregate, result in a Material
Adverse Change and which would, in the judgment of the Placement Agent, make it impracticable or
inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the
manner contemplated in this Agreement, the Registration Statement, the Base Prospectus or the
Prospectus Supplement, (iii) the Company shall have failed, refused or been unable to comply with
the terms or perform any agreement or obligation of this Agreement or any subscription agreement
entered into with Purchasers, other than by reason of a default by the Placement Agent, or (iv) any
condition of the Placement Agent’s obligations hereunder is not fulfilled. Any such termination
shall be without liability of any party to any other party, except that the Company will reimburse
the Placement Agent for all of their out-of-pocket expenses actually incurred by them in connection
with the Placement and that the provisions of Section 6, and Section 15 hereof shall at all times
be effective notwithstanding such termination.



(b) If the Placement Agent elects to terminate this Agreement as provided in this Section 14,
the Company shall be notified promptly by the Placement Agent by telephone, confirmed by letter.


 


17









 






Section 15. Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. If either party shall commence a Proceeding to endorse any provisions of a
Transaction Document, then the prevailing party in such Proceeding shall be reimbursed by the
other party for its reasonable attorney’s fees and other reasonable costs and expenses
incurred with the investigation, preparation and prosecution of such Proceeding.




Section 16. Entire Agreement; Miscellaneous. This Agreement (including the attached
Indemnification Provisions) embodies the entire agreement and understanding between the
parties hereto, and supersedes all prior agreements and understandings, relating to the
subject matter hereof. If any provision of this Agreement is determined to be invalid or
unenforceable in any respect, such determination will not affect such provision in any other
respect or any other provision of this Agreement, which will remain in full force and effect.
This Agreement may not be amended or otherwise modified or waived except by an instrument in
writing signed by each of the Placement Agent and the Company. The representations,
warranties, agreements and covenants contained herein shall survive the closing of the
Placement and delivery of the Securities. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, and their respective successors and permitted assigns.
This Agreement may be executed in two or more counterparts, all of which when taken together
shall be considered one and the same agreement and shall become effective when counterparts
have been signed by each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is delivered by
facsimile transmission or a .pdf format file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is executed) with the
same force and effect as if such facsimile or .pdf signature page were an original thereof.




Section 17. Notices. All notices or other communications required or permitted to be
provided hereunder shall be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified, (b) when sent by confirmed e-mail, telex or
facsimile if sent during normal business hours of the recipient, if not, then on the next
business day, (c) five days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of receipt. The
address for such notices and communications shall be as set forth on the signature pages
hereto or at such other address as such recipient has designated by two days advance written
notice to the other parties hereto.




Section 18. Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted jointly by the
parties and no presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.



[Signature page follows]



 


18









 







Please confirm that the foregoing correctly sets forth our agreement by signing and returning
to the Placement Agent the enclosed copy of this Agreement.



	 	 	 	 	 	 	 
	 	 	Very truly yours,


Wireless Ronin Technologies, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Darin P. McAreavey
 

Darin P. McAreavey
	 	 
	 

	 	 	 	Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	Address for notice:

Wireless Ronin Technologies, Inc.

Baker Technology Center

5929 Baker Road, Suite 475

Minneapolis, Minnesota 55345

Facsimile No.: (952) 974-7887

Attention: Darin P. McAreavey	 	 






	 	 	 	 	 	 	 
	Accepted and agreed to as of

the date first written above:


Roth Capital Partners, LLC	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Aaron M. Gurewitz	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Aaron M. Gurewitz	 	 
	 

	 	Title:
	 	Head of Equity Capital Markets	 	 
	 
	 	 	 	 	 	 
	Address for notice:

888 San Clemente Drive

Newport Beach, CA 92660

Facsimile No.: (949) 720-7215

Attention: ___ Jeff Ng ________________	 	 






 


19









 







Addendum A




December 6, 2011




Roth Capital Partners, LLC

888 San Clemente Drive

Newport Beach, CA 92660




Ladies and Gentlemen:



In connection with our engagement of Roth Capital Partners, LLC (the “Placement Agent”) as
placement agent, we hereby agree to indemnify and hold harmless the Placement Agent and its
affiliates, controlling persons, directors, officers, shareholders, agents and employees (whether
now or formerly employed) of any of the foregoing (individually and collectively the “Indemnified
Persons”), from and against any and all claims, actions, suits, proceedings (including those of
shareholders), damages, liabilities and expenses incurred by any of them (including the reasonable
fees and expenses of counsel) (individually and collectively a “Claim”), which are (A) related to
or arise out of (i) any actions taken or omitted to be taken (including any untrue statements made
or any statements omitted to be made, including allegations thereof) by the Company, or (ii) any
actions taken or omitted to be taken by any Indemnified Person in connection with our engagement of
the Placement Agent, or (B) otherwise relate to or arise out of the Placement Agent’s activities on
our behalf under the Placement Agent’s engagement, and we shall reimburse any Indemnified Person
for all expenses (including the reasonable fees and expenses of counsel) incurred by such
Indemnified Person in connection with investigating, preparing or defending any such claim, action,
suit or proceeding. We will not, however, be responsible for any Claim, which is finally
judicially determined (i.e., it is no longer subject to appeal) to have resulted solely from the
gross negligence or willful misconduct of any person seeking indemnification hereunder. Except as
specifically set forth below, we further agree that no Indemnified Person shall have any liability
to us for or in connection with our engagement of the Placement Agent except for any Claim incurred
by us solely as a result of any Indemnified Person’s gross negligence or willful misconduct. The
Placement Agent agrees to indemnify and hold harmless Wireless Ronin Technologies, Inc. (the
"Company,” “we,” “our” or “us”), each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, each director of the Company
and each officer of the Company who signed the Registration Statement against any Claim to the same
extent as the foregoing indemnity from the Company to the Placement Agent, but only insofar as such
Claim arises out of or is based upon any untrue or alleged untrue statement of a material fact
contained in the Prospectus Supplement, or arises out of or is based upon the 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 each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was made in the
Prospectus Supplement in reliance upon and in conformity with written information furnished to the
Company by the Placement Agent expressly for use therein. The Company hereby acknowledges that the
Placement Agent’s Information (as such term is defined in the placement agency letter agreement
dated as of the date hereof) comprises the only information that the Placement Agent has furnished
to the Company expressly for use in the Prospectus Supplement. This indemnity agreement will be in
addition to any liability that the Placement Agent might otherwise have.



We further agree that we will not, without the prior written consent of the Placement Agent,
which consent shall not be unreasonably withheld, delayed or conditioned, settle, compromise or
consent to the entry of any judgment in any pending or threatened Claim in respect of which
indemnification may
be sought hereunder (whether or not any Indemnified Person is an actual or potential party to
such Claim), unless such settlement, compromise or consent includes an unconditional, irrevocable
release of each Indemnified Person hereunder from any and all liability arising out of such Claim.


 


A-1









 





Promptly upon receipt by an Indemnified Person of notice of any complaint or the assertion or
institution of any Claim with respect to which indemnification is being sought hereunder, such
Indemnified Person shall notify us in writing of such complaint or of such assertion or institution
but failure to so notify us shall not relieve us from any obligation we may have hereunder, unless
and only to the extent that such failure results in the forfeiture by us of substantial rights and
defenses. If we so elect or are requested by such Indemnified Person, we will assume the defense of
such Claim, including the employment of counsel reasonably satisfactory to such Indemnified Person
and the payment of the fees and expenses of such counsel. In the event, however, that legal
counsel to such Indemnified Person reasonably determines and provides written correspondence to us,
that having common counsel would present such counsel with a conflict of interest or if the
defendant in, or target of, any such Claim, includes an Indemnified Person and us, and legal
counsel to such Indemnified Person reasonably concludes that there may be legal defenses available
to it or other Indemnified Persons different from or in addition to those available to us, then
such Indemnified Person may employ its own separate counsel to represent or defend it in any such
Claim and we shall pay the reasonable fees and expenses of one such counsel. Notwithstanding
anything herein to the contrary, if we fail timely or diligently to defend, contest, or otherwise
protect against any Claim, the relevant Indemnified Party shall have the right, but not the
obligation, to defend, contest, compromise, settle, assert crossclaims, or counterclaims or
otherwise protect against the same, and shall be fully indemnified by us therefor, including
without limitation, for the reasonable fees and expenses of its counsel and all amounts paid as a
result of such Claim or the compromise or settlement thereof. In any Claim in which we assume the
defense, the Indemnified Person shall have the right to participate in such Claim and to retain its
own counsel therefor at its own expense.



We agree that if any indemnity sought by an Indemnified Person hereunder is unavailable for
any reason then (whether or not a Placement Agent is the Indemnified Person), we and the Placement
Agent shall contribute to the Claim for which such indemnity is held unavailable in such proportion
as is appropriate to reflect the relative benefits to us, on the one hand, and the Placement Agent
on the other, in connection with the Placement Agent’s engagement referred to above, subject to the
limitation that in no event shall the amount of the Placement Agent’s contribution to such Claim
exceed the amount of fees (and not including any reimbursable expenses) actually received by such
Placement Agent from us pursuant to the Placement Agent’s engagement. We hereby agree that the
relative benefits to us, on the one hand, and the Placement Agent on the other, with respect to the
Placement Agent’s engagement shall be deemed to be in the same proportion as (a) the total value
paid or proposed to be paid or received by us pursuant to the transaction (whether or not
consummated) for which the Placement Agent is engaged to render services bears to (b) the fee paid
or proposed to be paid (and not including any reimbursable expenses) to such Placement Agent in
connection with such engagement.



Our indemnity, reimbursement and contribution obligations under this agreement shall be in
addition to, and shall in no way limit or otherwise adversely affect any rights that any
Indemnified Party may have at law or at equity.



The validity and interpretation of this agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to agreements made and to
be fully performed therein (excluding the conflicts of laws rules).



[Signature page follows]



 


A-2









 





The provisions of this agreement shall remain in full force and effect following the
completion or termination of the Placement Agent’s engagement.



	 	 	 	 	 	 	 
	 	 	Very truly yours,


Wireless Ronin Technologies, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Darin P. McAreavey
 

Darin P. McAreavey
	 	 
	 

	 	 	 	Senior Vice President and Chief Financial Officer	 	 






	 	 	 	 	 	 	 
	Acknowledged and agreed:


Roth Capital Partners, LLC	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Aaron M. Gurewitz	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Aaron M. Gurewitz	 	 
	 

	 	Title:
	 	Head of Equity Capital Markets	 	 







 


A-3