Digimarc Corp 8-K, filed Sep 30, 2026
Digimarc Corp (DMRC)
About this 8-K
Digimarc Corp filed this 8-K on September 30, 2026, reporting on events of September 29, 2026.
Items reported
- Item 1.01: Entered into a material agreement
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
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(State or other jurisdiction
of incorporation)
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(Commission
File No.)
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(IRS Employer
Identification No.)
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of Each Class
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Trading Symbol
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Name of Each Exchange on Which Registered
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The
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Item 1.01.
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Entry into a Material Definitive Agreement
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Item 7.01.
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Regulation FD Disclosure
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Item 9.01.
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Financial Statements and Exhibits
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Exhibit No.
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Description
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5.1
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10.1
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| 10.2 | Form of Registration Rights Agreement, dated September 29, 2026 | |
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23.1
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| 99.1 | Press Release, dated September 30, 2026 | |
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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Digimarc Corporation
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By:
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/s/ Charles Beck
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Chief Financial Officer, Treasurer and Secretary
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Exhibit 5.1
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Ashurst Perkins Coie US LLP 1120 N.W. Couch Street |
T. +1.503.727.2000 F. +1.503.727.2222 ashurstperkinscoie.com |
September 30, 2026
Digimarc Corporation
8500 SW Creekside Place
Beaverton, Oregon 97008
Ladies and Gentlemen:
We have acted as counsel to Digimarc Corporation, an Oregon corporation (the “Company”), in connection with the issuance and sale of 4,500,000 shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (the “Common Stock”), pursuant to Common Stock Purchase Agreements, each dated September 29, 2026, between the Company and each investor signatory thereto (collectively, the “Purchase Agreements”). The Shares will be issued pursuant to the Company’s Registration Statement on Form S-3 (No. 333-297287) as filed with the Securities and Exchange Commission (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”) and the related prospectus dated July 13, 2026, and prospectus supplement dated September 29, 2026 (collectively, the “Prospectus”).
We have examined the Registration Statement, the Prospectus, the Purchase Agreements and other instruments, certificates, records and documents, matters of fact and questions of law that we have deemed necessary for the purposes of this opinion.
As to matters of fact material to the opinions expressed herein, we have relied on (a) information in public authority documents, and (b) information provided in certificates of officers of the Company. All opinions based on the foregoing documents and certificates are as of the date of such documents and certificates, not as of the date of this opinion letter. We have not independently verified the facts so relied on.
In our examination, we have assumed the following without investigation: (i) the authenticity of original documents submitted to us as originals and the genuineness of all signatures, (ii) the conformity to the originals of all documents submitted to us as copies, and (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the instruments, certificates, records and documents we have reviewed.
Based upon the foregoing, we are of the opinion that the issuance and sale of the Shares have been duly authorized by all necessary corporate action on the part of the Company and, when issued in accordance with the terms of the Purchase Agreements and the Registration Statement, the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Company’s Current Report on Form 8-K dated September 30, 2026, incorporated by reference into the Registration Statement, and to the reference to this firm under the heading “Legal Matters” in the Prospectus. In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or related rules, nor do we admit that we are experts with respect to any part of the Registration Statement within the meaning of the term “expert” as used in the Securities Act or related rules.
Very Truly Yours,
/s/ Ashurst Perkins Coie US LLP
ASHURST PERKINS COIE US LLP
Exhibit 10.1
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (this “Agreement”) is made as of September 29, 2026, by and between [ ], a [ ] (the “Purchaser”), and Digimarc Corporation, an Oregon corporation (the “Company”).
Recitals
A. Subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), the Company desires to issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
B. This Agreement is part of a series of Common Stock Purchase Agreements (each other Common Stock Purchase Agreement, an “Other Purchase Agreement”), each executed concurrently but as independent transactions, pursuant to which the Company has agreed to sell and issue shares of its common stock to separate purchasers (each other purchaser, an “Other Purchaser”), in each case at the same price per share as contemplated by this Agreement.
Terms and Conditions
In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Purchaser agree as follows:
ARTICLE I
Definitions
1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms have the meanings set forth in this Section 1.1:
“Affiliate” means 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 405 under the Securities Act.
“Base Prospectus” means the prospectus, dated July 13, 2026, contained in the Registration Statement.
“Closing” means the closing of the purchase and sale of the Shares pursuant to Section 2.1.
“Closing Date” means the first (1st) Trading Day following the date hereof subject to all conditions precedent to (i) the Purchaser’s obligation to pay the Subscription Amount and (ii) the Company’s obligations to deliver the Shares, in each case, having been satisfied or waived in writing by the party entitled to the benefit thereof.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.
“Common Stock Equivalents” means any securities or contracts of the Company or its subsidiaries which (a) would entitle the holder to acquire Common Stock, including any debt, preferred stock, right, option, warrant or other instrument convertible into or exercisable or exchangeable for Common Stock, or (b) whose value is determined by reference to the Common Stock.
“Disclosure Package” means, collectively, the Prospectus, together with the documents incorporated by reference therein.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Lead Investor” means Ocho Investments LLC.
“Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Placement Agent” means Needham & Company, LLC.
“Preemptive Rights Termination Date” means the earlier of (i) the third anniversary of the Closing Date, and (ii) such date as the Company has publicly disclosed in the Company’s earnings release or periodic filing with the Commission financial results demonstrating that for the two most recently ended quarters the Company achieved, on a consolidated basis, both (A) net income before interest expense and income tax expense (i.e. “EBIT”) greater than $0.00; provided that EBIT shall be determined as (x) Non-GAAP gross profit, less (y) Non-GAAP operating expense, calculated consistent with the calculation of such terms by the Company prior to the date hereof, including in the Company’s press release dated August 13, 2026, and for the avoidance of doubt such amounts shall not include interest expense or interest income; and (B) Net cash provided by (used in) operating activities of greater than $0.00, calculated in accordance with U.S. generally accepted accounting principles, as consistently applied by the Company prior to the date hereof.
“Prospectus” means the Prospectus Supplement, together with the Base Prospectus.
“Prospectus Supplement” means the supplement to the Base Prospectus complying with Rule 424(b) of the Securities Act that is filed with the Commission and delivered by the Company to the Purchaser at the Closing.
“Registration Statement” means the effective registration statement with Commission File No. 333-297287 that registers the sale of the Shares to the Purchaser, as such Registration Statement may be amended and supplemented from time to time (including pursuant to Rule 462(b) of the Securities Act).
“Shares” means [ ] shares of Common Stock issued or issuable to the Purchaser pursuant to the terms and conditions of this Agreement.
“Short Sales” means all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and forward sale contracts, options, puts, calls, short sales, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements, and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
“Subscription Amount” means $[ ], the aggregate amount to be paid for the Shares purchased hereunder in United States dollars and in immediately available funds.
“Trading Day” means a day on which the Trading Market is open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, The Nasdaq Capital Market, The Nasdaq Global Market, The Nasdaq Global Select Market, the New York Stock Exchange (or any successors to any of the foregoing).
“Transaction Documents” means this Agreement, the Other Purchase Agreements, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent” means Broadridge Financial Solutions, Inc., 51 Mercedes Way, Edgewood, NY 11717, and any successor transfer agent of the Company.
ARTICLE II
Purchase and Sale
2.1 Closing. Upon the terms and subject to the conditions set forth herein, the Company agrees to sell and issue to the Purchaser, and the Purchaser agrees to purchase from the Company, the Shares, for a purchase price of $4.04 per Share.
(a) The offering and sale of the Shares (the “Offering”) is being made pursuant to (i) the Registration Statement filed by the Company with the Commission, including the Base Prospectus; (ii) if applicable, certain “free writing prospectuses” (as that term is defined in Rule 405 under the Securities Act) that have been or will be filed, if required, with the Commission and delivered to the Purchaser on or before the date hereof, containing certain supplemental information regarding the terms of the Offering and the Company; and (iii) the Prospectus Supplement containing certain supplemental information regarding the Shares and the terms of the Offering and information that may be material to the Company and its securities that was delivered to the Purchaser and will be filed with the Commission.
(b) Upon satisfaction of the conditions set forth in Section 2.2, the Closing shall take place virtually through the exchange of electronic documents, or at such other location as the parties shall mutually agree upon in writing, on the Closing Date. At the Closing, (i) the Purchaser shall deliver to the Company via wire transfer, immediately available funds equal to the Subscription Amount, (ii) the Company shall issue the Shares directly to the account(s) identified by the Purchaser on Schedule I hereto or, if requested by the Purchaser on Schedule I hereto, in book-entry form registered in the Purchaser’s name and address, and (iii) the Company and the Purchaser shall deliver the other items set forth in Section 2.3 deliverable at the Closing.
2.2 Closing Conditions.
(a) The Company’s obligation to issue and sell the Shares to the Purchaser shall be subject to:
(i) no stop order suspending the effectiveness of the Registration Statement or any part thereof, or preventing or suspending the use of the Base Prospectus or the Prospectus or any part thereof, shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission;
(ii) no objection shall have been raised by the Trading Market with respect to the consummation of the transactions contemplated by this Agreement;
(iii) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality, in all respects) on the Closing Date of the representations and warranties of the Purchaser contained herein (unless as of a specific date therein in which case they shall be true and correct as of such date); and
(iv) the delivery by the Purchaser of the items set forth in Section 2.3(b) of this Agreement.
(b) The Purchaser’s obligation to purchase the Shares from the Company shall be subject to:
(i) no stop order suspending the effectiveness of the Registration Statement or any part thereof, or preventing or suspending the use of the Base Prospectus or the Prospectus or any part thereof, shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission;
(ii) no objection shall have been raised by the Trading Market with respect to the consummation of the transactions contemplated by this Agreement;
(iii) there shall have been no Material Adverse Effect since the date of the Company’s Form 10-Q for the quarter ended June 30, 2026;
(iv) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(v) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein, which shall be true and correct as of such specified date);
(vi) the delivery by the Company of the items set forth in Section 2.3(a) of this Agreement;
(vii) there shall not be pending or threatened any action, proceeding, or investigation by any governmental authority or other Person that would reasonably be expected to (A) prevent or materially delay consummation of the transactions contemplated hereby, (B) result in material damages in connection with the transactions contemplated hereby, or (C) impose or seek to impose material conditions or restrictions on the Purchaser’s ability to hold, vote, or transfer the Shares; and
(viii) the Common Stock shall not have been suspended from trading on the Trading Market, and trading in securities generally as reported on the Trading Market shall not have been suspended or materially limited.
2.3 Deliveries.
(a) On or prior to the Closing Date, the Company shall deliver or cause to be delivered to the Purchaser the following:
(i) this Agreement duly executed by the Company;
(ii) a legal opinion of Ashurst Perkins Coie US LLP, addressed to the Purchaser, in the form of Exhibit A hereto;
(iii) if following the Closing, Purchaser and its Affiliates will own 10% or more of the outstanding Common Stock, a duly executed registration rights agreement in the form of Exhibit B hereto;
(iv) on the date hereof, the Company’s wiring instructions, on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer;
(v) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to issue the Shares to the Purchaser and deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”) the Shares directly to the account(s) identified by the Purchaser on Schedule I hereto or, if requested by the Purchaser on Schedule I hereto, in book-entry form registered in the Purchaser’s name and address (and promptly thereafter deliver evidence of such issuance in book-entry);
(vi) the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act);
(vii) evidence that the notification for the listing of the Shares sold hereunder for trading has been submitted to the Company’s principal Trading Market;
(viii) an Officer’s Certificate, in the form of Exhibit C hereto;
(ix) a Secretary’s Certificate, in the form of Exhibit D hereto; and
(x) a certificate of Existence of the Company as of a date that is no more than five (5) Trading Days prior to the Closing Date.
(b) On or prior to the Closing Date, the Purchaser shall deliver or cause to be delivered to the Company the following:
(i) this Agreement duly executed by such Purchaser;
(ii) if following the Closing, Purchaser and its Affiliates will own 10% or more of the outstanding Common Stock, a duly executed registration rights agreement in the form of Exhibit B hereto; and
(iii) the Purchaser’s Subscription Amount.
ARTICLE III
Representations, Warranties and Covenants
3.1 Representations, Warranties and Covenants of the Company. The Company acknowledges, represents and warrants to, and covenants and agrees with, the Purchaser that:
(a) The Company has the requisite right, power and authority to enter into this Agreement and each of the other Transaction Documents, to authorize, issue and sell the Shares as contemplated by this Agreement and each of the other Transaction Documents and to perform and to discharge its obligations hereunder and thereunder; and this Agreement and each of the other Transaction Documents has been duly authorized, executed and delivered by the Company, and constitutes the valid and binding obligation of the Company enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to enforcement of creditors’ rights generally and by general principles of equity. Assuming the accuracy of Purchaser’s representations in Section 3.2(g) – (i), no approval of the Company’s shareholders or any other corporate action on the part of the Company (other than approval of the Company’s board of directors, which has already been obtained) is necessary to authorize the execution, delivery and performance of this Agreement by the Company. The Company and each of its subsidiaries are entities duly incorporated or otherwise organized, validly existing and, where applicable, in good standing under the laws of the jurisdiction of their incorporation or organization, with the requisite power and authority to own and use their properties and assets and to carry on their business as currently conducted.
(b) The Shares have been duly authorized and the Shares, when issued and delivered against payment therefor as provided in this Agreement, will be duly and validly issued, fully paid and non-assessable and free and clear of all Liens imposed by the Company. As of September 25, 2026, there were 22,548,451 shares of Common Stock of the Company issued and outstanding. The Company has prepared and filed the Registration Statement in conformity with the requirements of the Securities Act, which became effective on July 13, 2026, including the Prospectus, and such amendments and supplements thereto as may have been required to the date of this Agreement. The Company was at the time of the filing of the Registration Statement eligible to use Form S-3. The Company is eligible to use Form S-3 under the Securities Act and it meets the transaction requirements as set forth in General Instruction I.B.1 of Form S-3. The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission. No objection has been raised by the Trading Market with respect to the consummation of the transactions contemplated by this Agreement or any Other Purchase Agreement. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus with the Commission pursuant to Rule 424(b) in relation to the sale of the Shares. At the time the Registration Statement and any amendments thereto became effective, at the date of this Agreement and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain 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 not misleading; and the Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. There are a sufficient number of shares of Common Stock available for issuance under the Registration Statement to issue the Shares and all of the other shares of Common Stock issuable pursuant to the Other Purchase Agreements pursuant to the Registration Statement.
(c) The execution, delivery and performance by the Company of this Agreement and each of the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, including the issuance and sale of the Shares, will not (i) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, rule or regulation to which the Company or any of its subsidiaries is subject, or by which any property or asset of the Company or any of its subsidiaries is bound or affected, (ii) conflict with, result in any violation or breach of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument or obligation or other understanding to which the Company or any of its subsidiaries is a party or by which any property or asset of the Company or any of its subsidiaries is bound or affected, or (iii) result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Company’s articles of incorporation or bylaws, except in the case of clauses (i) and (ii) such breaches, violations, defaults, or conflicts which are not, and would not be, individually or in the aggregate, reasonably likely to result in a material adverse effect upon the business, properties, operations, condition (financial or other) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement or any Other Purchase Agreement (a “Material Adverse Effect”; provided, however, that changes in the trading price of the Common Stock shall not, in and of themselves, constitute a Material Adverse Effect (it being understood that the facts or circumstances giving rise to such change may be taken into account in determining whether a Material Adverse Effect has occurred)).
(d) The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two (2) years 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”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, 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 Company is not, and has never been, an issuer subject to Rule 144(i) under the Securities Act. 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, as of their respective dates, were 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 presented 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. 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. 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 all material respects.
(e) Since the date of the latest audited financial statements included within the SEC Reports, (i) there has been no event, occurrence or development that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) except as set forth in the SEC Reports, the Company has not incurred any liabilities (contingent or otherwise) other than (A) liabilities, including trade payables and accrued expenses, incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected on a consolidated balance sheet of the Company pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, and (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. The Company does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Shares contemplated by this Agreement or any Other Purchase Agreements or as set forth in the SEC Reports, no event, liability, fact, circumstance, litigation, claim, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been disclosed at least one (1) Trading Day prior to the date that this representation is made.
(f) The Company shall, (i) by 5:30 p.m. Eastern time on September 30, 2026, issue a press release and/or file with the Commission a Current Report on Form 8-K (the “Public Announcement”) disclosing all material terms of this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby, in the form of Exhibit E hereto, and (ii) by 5:30 p.m. Eastern time on the fourth (4th) Trading Day following the date hereof, file with the Commission a Current Report on Form 8-K, disclosing the material terms of the transactions contemplated hereby and including the form of this Agreement (excluding Schedule I hereto) and forms of the Transaction Documents as exhibits thereto and an opinion of legal counsel as to the validity of the Shares as exhibits thereto. From and after the issuance or filing of such Public Announcement, the Company represents to the Purchaser that it shall have publicly disclosed all material, non-public information delivered to the Purchaser by the Company or any of its subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. From and after the date hereof, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will provide the Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes, material, non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information and agreed with the Company to keep such information confidential. To the extent that the Company delivers any material, non-public information to the Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of its subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company, any of its subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information. The Company understands and confirms that the Purchaser and the Placement Agent shall be relying on the foregoing representations and covenants in effecting transactions in securities of the Company. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any subsidiaries, the Company shall simultaneously with the delivery of such notice file such notice with the Commission pursuant to a Current Report on Form 8-K. Without the prior written consent of the Purchaser, the Company shall not disclose the name of the Purchaser in any filing or announcement, unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel.
(g) The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Shares for purposes of the rules and regulations of the Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.
(h) The Company hereby agrees to use commercially reasonable efforts to maintain the listing or quotation of the Common Stock on the Trading Market, and concurrently with the Closing, the Company shall apply to list or quote all of the Shares on the Trading Market and promptly secure the listing of all of the Shares on the Trading Market. The Company will take all action reasonably necessary to continue the listing and trading of its Common Stock on the Trading Market and will comply in all material respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company shall not take any action which would reasonably be expected to result in the delisting or suspension of the Common Stock on the Trading Market. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.
(i) Except for the fees and reimbursable expenses of the Placement Agent and the reimbursable expenses of the Lead Investor, no brokerage or finder’s fees or commissions are or will be payable by the Company or any of its subsidiaries to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by this Agreement or any of the Other Purchase Agreements. The Purchaser 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 that may be due in connection with the transactions contemplated by this Agreement or any of the Other Purchase Agreements.
(j) The proceeds from the sale of the Shares shall be used by the Company as set forth in the Prospectus Supplement and, for the avoidance of doubt, the Company shall not use such proceeds in violation of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control. The Company shall not, without the prior written consent of the Purchaser, use the proceeds from the sale of the Shares to pay any indebtedness or other liability owed to any current or former executive officers or directors of the Company (or any of their respective Affiliates), except for payments of obligations that have been disclosed in the SEC Reports.
(k) The Company is not, and as a result of the consummation of the transactions contemplated by (i) this Agreement and the application of the proceeds from the sale of the Shares and (ii) the Other Purchase Agreements and the application of the proceeds from the sale of the Common Stock thereunder, as set forth in the Base Prospectus and the Prospectus Supplement shall not be, an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the Investment Company Act of 1940, as amended. The Company is not and has never been a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s request.
(l) The Common Stock is registered pursuant to Section 12(b) or 12(g) 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. The Company has not, in the twelve (12) months preceding the date hereof, received 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 in any material respect with the listing or maintenance requirements of such Trading Market. As of the date hereof, the Company is in compliance with all such listing and maintenance requirements.
(m) Neither the Company nor any of its officers, directors or Affiliates has, and, to the knowledge of the Company, no Person acting on their behalf has, (i) taken, directly or indirectly, any action designed or intended to cause or to result in the stabilization or manipulation of the price of any security of the Company, or which caused or resulted in, or which would in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, in each case to facilitate the sale or resale of any of the Shares (or any Common Stock issued pursuant to any Other Purchase Agreement), or (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Shares (or any Common Stock issued pursuant to any Other Purchase Agreement).
(n) The Company and the 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 articles of incorporation (or similar charter documents) or the laws of its state of incorporation, including, without limitation, under the Oregon Control Share Act, as amended, and the Oregon Business Combination Act, as amended, that is or could become applicable to the Purchaser as a result of the Purchaser and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of the Shares and the Purchaser’s ownership of the Shares. For the avoidance of doubt, the Company’s board of directors has approved this transaction, which is the transaction which results in the shareholder becoming an interested shareholder within the meaning of O.R.S. 60.835(1).
(o) Anything in this Agreement to the contrary notwithstanding (except for Section 3.2(f)), it is understood and acknowledged by the Company that: (i) the Purchaser has not been asked by the Company to agree, nor has the Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative” securities based on securities issued by the Company or to hold the Shares for any specified term; (ii) past or future open market or other transactions by the Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded securities; (iii) the Purchaser, and counter-parties in “derivative” transactions to which such Purchaser is a party, directly or indirectly, presently may have a “short” position in the Common Stock, and (iv) the Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction. The Company further understands and acknowledges that (y) the Purchaser may engage in hedging activities at various times during the period that the Shares are outstanding and (z) such hedging activities (if any) could reduce the value of the existing shareholders’ equity interests in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents.
(p) Except for the right of the Lead Investor to expense reimbursement under Section 4.10, no Other Purchase Agreement includes terms and conditions that are more advantageous to any such Other Purchaser than the Purchaser hereunder, and such Other Purchase Agreements have not been amended or modified in any material respect following the date of this Agreement.
(q) Purchaser Preemptive Rights.
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(i) |
If the Company or any of its subsidiaries proposes to issue and sell (a “New Securities Offering”) any equity securities, or any rights to subscribe for, or option to purchase or otherwise acquire, any equity securities, including any Common Stock or Common Stock Equivalents (collectively, “New Securities”), Purchaser shall have the right to purchase (hereinafter referred to as the “Preemptive Rights”), on the same terms and at the same purchase price set forth in the Preemptive Notice, up to that number of New Securities (such number, the “Preemptive Portion”) equal to the product of (x) the number of shares of Common Stock beneficially owned by Purchaser divided by the number of outstanding shares of Common Stock and (y) the number of such New Securities to be issued and sold. |
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(ii) |
In connection with the Preemptive Rights, the Company shall, by written notice (the “Preemptive Notice”), provide an offer to sell to Purchaser its Preemptive Portion of the proposed New Securities to be issued and sold, as determined in accordance with clause (i) above. The Preemptive Notice shall set forth: (A) the aggregate number of New Securities proposed to be issued and sold by the Company, (B) the applicable purchase price per New Security, (C) the number of New Securities offered to Purchaser as its Preemptive Portion, (D) the proposed closing date of such issuance and sale and (E) a summary of the rights and obligations of the New Securities. Notwithstanding the foregoing, Purchaser may from time to time provide a notice (a “Stop Notice”) requesting that it not receive any Preemptive Notices that constitute material non-public information and may revoke a previously issued Stop Notice. Upon receipt of a Stop Notice and until such time as such Stop Notice is revoked, the Company shall not send a Preemptive Notice in connection with a New Securities Offering that constitutes material non-public information to Purchaser, but instead shall follow the procedures set forth in Section 3.1(q)(vii). In addition, in connection with sales of Common Stock pursuant to the Company’s sales agreement dated June 8, 2026 for the Company’s “at-the-market” offering program, with respect to sales in any calendar month, the Company may elect not to send a Preemptive Notice (an “ATM Deferral Election”), in which case the Company shall follow the procedures set forth in Section 3.1(q)(vii). |
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(iii) |
Purchaser shall be entitled to exercise its Preemptive Right to purchase its Preemptive Portion of the New Securities being offered at the price and on the terms and conditions specified in the Preemptive Notice by delivering an irrevocable written notice (a “Subscription Notice”) to the Company within fifteen (15) Trading Days from the date of its receipt of any Preemptive Notice (the “Preemptive Period”) specifying (i) the number of New Securities that such Purchaser is committing to purchase (which may be for all or a portion of such Purchaser’s Preemptive Portion) and (ii) any exercise of the overallotment rights described in clause (iv) below; provided that if a Purchaser has not delivered a Subscription Notice to the Company within the Preemptive Period, then such Purchaser shall be deemed to have waived and rejected its right to purchase its Preemptive Portion of such New Securities. |
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(iv) |
Purchaser shall have the additional right of overallotment (the “Overallotment Rights”) and may purchase its pro rata portion, of those New Securities for which any Other Purchaser does not fully subscribe for its entire Preemptive Portion in accordance with the purchase agreement of the Other Purchaser (the “Remaining New Securities”), which overallotment rights shall be exercised by Purchaser committing to purchase its entire Preemptive Portion of New Securities being issued and by offering in its Subscription Notice to purchase any or all of the Remaining New Securities, in which event such Remaining New Securities shall be deemed to have been offered to and accepted by Purchaser, on the same terms and at the same price as specified in the Preemptive Notice. |
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(v) |
If Purchaser elects to purchase any New Securities, the closing of such purchase shall be consummated concurrently with the issuance and sale of New Securities in the New Securities Offering; provided that, (x) if the New Securities Offering is not consummated in accordance with the terms of the Preemptive Notice, the Purchaser may elect not to purchase some or all of the New Securities (including any Remaining New Securities), and (y) in no event shall Purchaser’s commitment to purchase New Securities (including any Remaining New Securities) remain irrevocable for a period in excess of the one hundred twenty (120) day period immediately following the date of the Preemptive Notice, and upon the one hundred twentieth (120th) day of such period, such Purchaser’s obligation to purchase such New Securities shall expire and have no further force or effect and after such time, any proposed issuance of New Securities shall once again be subject to the terms of this Section 3.1(q). |
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(vi) |
Notwithstanding anything in this Section 3.1(q) to the contrary, the Company may at its option determine not to proceed with the issuance and sale contemplated by the Preemptive Notice; in which case (i) the Company shall provide written notice of such election to Purchaser and any Subscription Notice delivered to the Company in connection with such issuance and sale shall have no further force or effect and (ii) any subsequent proposed issuance of New Securities shall once again be subject to the terms of this Section 3.1(q). |
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(vii) |
Notwithstanding anything in this Section 3.1(q) to the contrary, if (x) the Company determines in its sole discretion that complying with the notice requirements and waiting periods of Section 3.1(q)(i)-(vi) are impractical due to the need to raise capital prior to the expiration of such notice periods or waiting periods, (y) Purchaser has provided and not revoked a Stop Notice, or (z) the Company has made an ATM Deferral Election with respect to a calendar month, the Preemptive Rights shall be deemed satisfied if the Company provides (i) a Preemptive Notice to Purchaser as soon as practical under the circumstances (but no later than five (5) Trading Days following the issuance giving rise to the Preemptive Right (or in the case of an ATM Deferral Election following the end of the calendar month)) and (ii) Purchaser the right to purchase from the Company or the subsidiary making such issuance within thirty (30) days after such issuance, the same number, class and type of New Securities that such Purchasers had the right to purchase under Section 3.1(q)(i)-(vi) and on the same economic and other terms and conditions as if such purchase had been effected pursuant to Section 3.1(q)(i)-(vi). |
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(viii) |
The failure of Purchaser to exercise some or all of the Preemptive Rights with respect to any New Securities Offering shall not limit or waive its right to exercise its Preemptive Rights with respect to a subsequent New Securities Offering. |
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(ix) |
Notwithstanding anything in this Section 3.1(q) to the contrary, the Preemptive Rights shall not apply with respect to (i) New Securities issued pursuant to acquisitions, joint ventures, license or leasing arrangements or other strategic transactions to a Person (or equityholders of a Person) which is not an Affiliate of the Company and is an operating company or owner of an asset synergistic with the Company’s business, provided such issuance is not primarily for raising capital; (ii) Common Stock issued upon conversion or exercise of convertible securities: (x) outstanding and disclosed in SEC Reports as of the date hereof, (y) issued subsequent to the date hereof subject to the Preemptive Rights, provided in the case of clause (x) or (y), the conversion or exercise terms are not amended to increase shares or lower prices; or (z) issued pursuant to clause (iii); and (iii) equity awards under Company equity incentive plans, as compensation to members of the board of directors, executive officers, employees, directors or consultants, or pursuant to a new plan or arrangement meeting the requirements of Nasdaq Listing Rule 5635(c). |
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(x) |
Notwithstanding anything in this Section 3.1(q) to the contrary, Overallotment Rights may not be exercised, and any purported exercise shall be void, with respect to any New Securities that, when aggregated with all other shares of Common Stock owned by the Purchaser and its Affiliates and other Persons acting as a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with any Purchaser or its Affiliates with respect to the Company at such time, would result in the Purchaser and its Affiliates and other Persons acting as a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with any Purchaser or its Affiliates with respect to the Company beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act) in excess of 19.9% of the then issued and outstanding shares of Common Stock or voting power of the Company, if prior approval of the shareholders of the Company in accordance with the applicable rules of the Company’s principal Trading Market is required, unless such approval has been obtained. |
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(xi) |
The Preemptive Rights shall terminate on the Preemptive Rights Termination Date. |
(r) Intellectual Property. The Company and its subsidiaries own, or possess adequate rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, copyrights and other proprietary rights (collectively, “Intellectual Property”) material to the conduct of the business of the Company and its subsidiaries as currently conducted, except where the failure to own or possess adequate rights would not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company, (i) the conduct of the business of the Company and its subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate the Intellectual Property rights of any third party, and (ii) no third party is infringing, misappropriating or otherwise violating the Intellectual Property rights of the Company or any of its subsidiaries, in each case, except as would not reasonably be expected to have a Material Adverse Effect.
(s) Litigation. Except as disclosed in the SEC Reports, there are no actions, suits, claims, investigations or proceedings pending or, to the knowledge of the Company, threatened against the Company or any of its subsidiaries, at law or in equity, or before or by any federal, state, local or foreign governmental authority, that, if adversely determined, would reasonably be expected to have a Material Adverse Effect or would reasonably be expected to impair the Company’s ability to consummate the transactions contemplated hereby.
(t) No Conflicting Agreements. The Company will not take any action, enter into any agreement or make any commitment that would conflict or interfere in any material respect with the Preemptive Rights granted under this Agreement. The Preemptive Rights shall supersede any conflicting policy of the Company.
(u) Subsequent Equity Sales Restriction. The Company agrees that for the period commencing on the date hereof through December 31, 2026, unless consented to by the Lead Investor, which consent may be granted or withheld in the Lead Investor’s sole discretion, the Company shall not directly or indirectly issue, offer, sell, grant any Common Stock or Common Stock Equivalents other than: (i) shares issued pursuant to acquisitions, joint ventures, license or leasing arrangements or other strategic transactions to a Person (or equityholders of a Person) which is not an Affiliate of the Company and is an operating company or owner of an asset synergistic with the Company’s business, provided such issuance is not primarily for raising capital; (ii) shares issued upon conversion or exercise of convertible securities outstanding or disclosed in SEC Reports as of the date hereof, provided the conversion or exercise terms are not amended to increase shares or lower prices; (iii) equity awards under Company equity incentive plans as in effect on the Closing Date; and (iv) shares issued pursuant to existing arrangements described in the SEC Reports.
(v) Indemnification. The Company agrees to indemnify and hold harmless Purchaser from and against any and all losses, claims, damages, liabilities and expenses arising out of (i) any breach of representation, warranty, covenant or agreement made by or to be performed on the part of the Company under this Agreement or (ii) any untrue statement of a material fact or omission to state a material fact contained in the Disclosure Package.
3.2 Representations, Warranties and Covenants of the Purchaser. The Purchaser acknowledges, represents and warrants to, and agrees with, the Company that:
(a) At the time the Purchaser was offered the Shares, it was, and as of the date hereof it is an “accredited investor” as defined in Rule 501(a) under the Securities Act.
(b) The Purchaser has had the opportunity to review this Agreement and the Company’s filings with the Commission and has been afforded the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Shares. The Purchaser acknowledges and agrees that neither the Placement Agent nor any Affiliate of the Placement Agent has provided the Purchaser with any information or advice with respect to the Shares nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes any representation as to the Company or the quality of the Shares and the Placement Agent and any Affiliate may have acquired non-public information with respect to the Company which the Purchaser agrees need not be provided to it. In connection with the issuance of the Shares to the Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to the Purchaser.
(c) No agent of the Company has been authorized to make and no such agent has made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares, except as set forth in or incorporated by reference in the Base Prospectus or the Prospectus Supplement or as otherwise contemplated by this Agreement.
(d) (i) The Purchaser has the requisite right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to enforcement of creditors’ rights generally and by general principles of equity.
(e) The Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of its decision to purchase Shares pursuant to the Transaction Documents. Nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Purchaser in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Purchaser has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares. The Purchaser understands that the Placement Agent has acted solely as the agent of the Company in this placement of the Shares and the Purchaser has not relied on the business or legal advice of the Placement Agent or any of its agents, counsel or Affiliates in making its investment decision hereunder, and confirms that none of such Persons has made any representations or warranties to the Purchaser in connection with the transactions contemplated by the Transaction Documents. The Purchaser is able to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment.
(f) Since September 18, 2026, the Purchaser has not directly or indirectly, nor, to its knowledge, has any Person acting on behalf of or pursuant to any understanding with the Purchaser, (i) disclosed any information regarding the Offering or any material non-public information that it possesses regarding the Company to any third parties (other than the Purchaser’s legal and accounting advisors or any Other Purchaser), or (ii) engaged in any transactions in the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities). The Purchaser covenants that, without limiting any other obligations it may have to the Company or under applicable law, neither it nor any Person acting on its behalf or pursuant to any understanding with it will (A) prior to the issuance or filing of the Public Announcement, disclose any information regarding the Offering to any third parties (other than the Purchaser’s legal and accounting advisors or any Other Purchaser), and (B) until the opening of the second (2nd) Trading Day following the Public Announcement, engage in any transactions in the securities of the Company (including Short Sales).
(g) The Purchaser, together with its Affiliates, will not, immediately after the Closing, beneficially own 20% or more of the outstanding shares of Common Stock or of the voting power of the Company. The Purchaser and its Affiliates are not acting as a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with any other Person with respect to the Company.
(h) The Purchaser is not a party to any agreement or arrangement, whether written or oral, with any Other Purchaser or any shareholder of the Company as of the date hereof regulating the management of the Company, the shareholders’ rights in the Company or the transfer of shares in the Company, including any voting agreement, shareholder agreement or other similar agreement (regardless of how such agreement is titled).
(i) The Purchaser’s signature page sets forth all securities of the Company held or beneficially owned by such Purchaser and its Affiliates as of the date hereof. The Purchaser and its Affiliates do not hold or beneficially own any other securities of the Company, except as indicated on the signature page hereto.
ARTICLE IV
Miscellaneous
4.1 Entire Agreement; Modifications. Except as otherwise provided herein, the Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus Supplement, contain the entire understanding and agreement between the parties with respect to the subject matter hereof, and there are no agreements or understandings with respect to such subject matter that are not contained in the Transaction Documents. This Agreement may be modified only in a writing signed by the Company and the Purchaser. Notwithstanding the foregoing, no amendment, modification or waiver that adversely affects the Placement Agent shall be effective without the prior written consent of the Placement Agent.
4.2 Survival. All representations, warranties, covenants and agreements of the Company and the Purchaser herein shall survive delivery of, and payment for, the Shares purchased hereunder.
4.3 Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and shall become effective when counterparts have been signed by each party and delivered to the other party hereto, it being understood that all parties need not sign the same counterpart. Execution may be made by delivery of a facsimile or PDF.
4.4 Severability. The provisions of this Agreement are severable and, in the event that any court or officials of any regulatory agency of competent jurisdiction shall determine that any one or more of the provisions or part of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision or part of a provision of this Agreement and this Agreement shall be reformed and construed as if such invalid or illegal or unenforceable provision, or part of such provision, had never been contained herein, so that such provisions would be valid, legal and enforceable to the maximum extent possible, so long as such construction does not materially adversely affect the economic rights of either party hereto.
4.5 Reserved.
4.6 Notices. All notices or other communications required or permitted to be provided hereunder shall be in writing and shall be deemed effectively given (i) upon personal delivery to the party to be notified, (ii) when sent by e-mail, if sent during normal business hours of the recipient, or, if not, then on the next business day, so long as no bounce-back or similar notice of non-delivery is received, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the Company or the Purchaser, as applicable, at the address for such recipient listed on the signature pages hereto or at such other address as such recipient has designated by two (2) days’ advance written notice to the other party hereto.
4.7 Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the choice of law principles thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York, Borough of Manhattan. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such action or proceeding is improper or that such court is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.
4.8 WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY, EACH PARTY KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
4.9 Headings. The headings of the various sections of this Agreement have been inserted for convenience of reference only and will not be deemed to be part of this Agreement.
4.10 Fees and Expenses. Each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement; provided, however, that the Company shall reimburse the Lead Investor for (a) expenses of $96,595 incurred on or prior to September 21, 2026, plus (b) its documented out-of-pocket expenses, including legal fees and reasonable out-of-pocket expenses, incurred subsequent to September 21, 2026, in an amount not to exceed the greater of: (x) $50,000, and (y) the legal fees and expenses of the Company with respect to the Offering during such period. Purchaser may offset such fees and expenses against the Subscription Amount to be delivered at Closing. The Company shall pay (a) all transfer agent fees incurred in connection with the delivery of any Shares to the Purchaser and (b) all out-of-pocket expenses (including reasonable attorney’s fees) of the Purchaser incurred by the Purchaser in connection with specifically enforcing the terms and provisions of this Agreement pursuant to Section 4.11.
4.11 Enforcement. The Company and the Purchaser acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that either party shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement by the other party and to enforce specifically the terms and provisions hereof (without the necessity of showing economic loss and without any bond or other security being required), this being in addition to any other remedy to which either party may be entitled by law or equity. The remedies provided for in this Agreement are cumulative and not exclusive of each other or of any other rights at law or in equity.
4.12 Termination. This Agreement may be terminated by the Company or the Purchaser, by written notice to the other party, if the Closing has not been consummated on or before the third (3rd) Trading Day after the parties’ execution of this Agreement; provided, however, that no such termination will affect the right of any party to sue for any breach by any other party.
4.13 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchaser (other than by merger). Following the Closing, but not prior to the Closing, the Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Shares, provided that such transferee agrees in writing to be bound, with respect to the transferred Shares, by the provisions of the Transaction Documents that apply to the “Purchaser.”
4.14 Independent Nature of Purchaser’s Obligations and Rights. The obligations of the Purchaser under any Transaction Document are several and not joint with the obligations of any Other Purchaser, and the Purchaser shall not be responsible in any way for the performance or non-performance of the obligations of any Other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by the Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchaser and any Other Purchaser as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchaser or any Other Purchaser are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. The Purchaser and any Other Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any Other Purchaser to be joined as an additional party in any proceeding for such purpose. The Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and the Purchaser, solely, and not between the Company and the Purchaser collectively and not between and among the Purchaser and any Other Purchaser.
4.15 No Recourse Against Purchaser Members, Directors, etc. No director, officer, employee, member or manager of the Purchaser, shall have any liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action, obligations, or liabilities arising under, out of, in connection with, or related in any manner to this Agreement or based on, in respect of, or by reason of this Agreement or its negotiation, execution, performance, or breach, and, to the maximum extent permitted by law, the Company hereby waives and releases all such liabilities, claims, causes of action, and obligations against any such person.
4.16 Third-Party Beneficiaries. The Placement Agent shall be a third-party beneficiary of the representations and warranties of the Company in Section 3.1. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in this Section 4.16.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date first written above.
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DIGIMARC CORPORATION By:______________________ Name: Title: |
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Address for notice: Digimarc Corporation 8500 SW Creekside Place Beaverton, Oregon 97008 Attention: Chief Financial Officer Email: Charles.Beck@digimarc.com |
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With a copy (which shall not constitute notice) to: Ashurst Perkins Coie US LLP 1120 NW Couch Street, Tenth Floor Portland, Oregon 97209 Attention: John Thomas Joe Bailey E-mail: JRThomas@perkinscoie.com JoeBailey@perkinscoie.com |
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date first written above.
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[PURCHASER] By: ______________________ Name: Title: |
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Address for notice: Email:______________________ With a copy (which shall not constitute notice) to: Maurice M. Lefkort Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, N.Y. 10019 mlefkort@willkie.com |
Shares of Common Stock currently held by the Purchaser and its Affiliates:
SCHEDULE I
Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained):
DTC Participant Number:
Name of Account at DTC Participant being credited with the Shares:
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Exhibit A
Form of Oregon Opinion
Exhibit B
Form of Registration Rights Agreement
Exhibit C
Form of Officer’s Certificate
OFFICERS’ CERTIFICATE
OF
DIGIMARC CORPORATION
Reference is made to the Common Stock Purchase Agreement, dated as of September 29, 2026, by and between [__________] and Digimarc Corporation (the “Agreement”). Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to them in the Agreement.
Each of the undersigned hereby certifies in his or her capacity as an officer of the Company as follows:
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I hold the position with the Company set forth below my signature page below. |
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Each of the representations and warranties of the Company contained in the Agreement that is qualified by materiality or Material Adverse Effect is true and correct in all respects, and each of the other representations and warranties of the Company contained in this Agreement is true and correct in all material respects, in each case as of the date of the Agreement and as of the Closing Date (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date). |
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All obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date have been performed. |
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No objection has been raised by the Trading Market to the notification filed by the Company with respect to the listing of the Shares to be issued and sold under the Agreement. |
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Since the date of the filing of the Company’s Form 10-Q for the quarter ended June 30, 2026, no Material Adverse Effect has occurred. |
In Witness Whereof, the undersigned has executed this Officers’ Certificate as of the Closing Date.
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_______________________ |
_______________________ |
Exhibit D
Form of Secretary’s Certificate
Exhibit E
Form of Press Release
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this “Agreement”) is made and entered into as of September 29, 2026, between Digimarc Corporation, an Oregon corporation (the “Company”), and each of the several purchasers signatory hereto (each such purchaser, a “Purchaser” and, collectively, the “Purchasers”).
WHEREAS, the Company has entered into a separate Common Stock Purchase Agreement, dated as of the date hereof, with each of the Purchasers (each a “Purchase Agreement”), which provides for the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each Purchaser, intending to be legally bound, hereby agrees as follows:
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Definitions. |
Capitalized terms used and not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given such terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings:
“Advice” shall have the meaning set forth in Section 6(c).
“Commission” means the U.S. Securities and Exchange Commission.
“Effectiveness Date” means, with respect to the Initial Registration Statement required to be filed hereunder, the 45th calendar day following the applicable Filing Date (or, in the event of a “full review” by the Commission, the 75th calendar day following the applicable Filing Date) and with respect to any additional Registration Statements which may be required pursuant to Section 2(c) or Section 3(c), the 60th calendar day following the date on which an additional Registration Statement is required to be filed hereunder (or, in the event of a “full review” by the Commission, the 90th calendar day following the date such additional Registration Statement is required to be filed hereunder); provided, however, that in the event the Company is notified by the Commission that one or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments, the Effectiveness Date as to such Registration Statement shall be the fifth Trading Day following the date on which the Company is so notified if such date precedes the dates otherwise required above, provided, further, (i) if such Effectiveness Date falls on a day that is not a Trading Day, then the Effectiveness Date shall be the next succeeding Trading Day, and (ii) if the Commission is closed for operations due to a government shutdown or lapse in appropriations, the Effectiveness Date shall be extended by the same amount of days that the Commission remains closed for operations.
“Effectiveness Period” shall have the meaning set forth in Section 2(a).
“Event” shall have the meaning set forth in Section 2(d).
“Event Date” shall have the meaning set forth in Section 2(d).
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Filing Date” means, with respect to the Initial Registration Statement required hereunder, a date no later than thirty (30) calendar days following the date on which any Holder of the Registrable Securities provides a written request that the Filing Date occur, and, with respect to any additional Registration Statements which may be required pursuant to Section 2(c) or Section 3(c), the earliest practical date on which the Company is permitted by SEC Guidance to file such additional Registration Statement related to the Registrable Securities, subject to a day-for-day extension for any period during which the Holders are reviewing such additional Registration Statement pursuant to Section 3(a) in excess of the three (3) Trading Day or two (2) Trading Day, as applicable, provided for in such Section.
“Holder” or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities.
“Indemnified Party” shall have the meaning set forth in Section 5(c).
“Indemnifying Party” shall have the meaning set forth in Section 5(c).
“Initial Registration Statement” means the initial Registration Statement filed pursuant to this Agreement.
“Losses” shall have the meaning set forth in Section 5(a).
“Plan of Distribution” shall have the meaning set forth in Section 2(a).
“Proceeding” means any action, arbitration, audit, examination, investigation, hearing, litigation or suit (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, and whether public or private) commenced, brought, conducted or heard by or before, or otherwise involving, any governmental authority or arbitrator.
“Prospectus” means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated by the Commission pursuant to the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
“Registrable Securities” means, as of any date of determination, (a) all shares of Common Stock held by a Holder that (i) holds 10% or more of the outstanding Common Stock or (ii) otherwise could reasonably be deemed to be an affiliate of the Company or to have been an affiliate of the Company in the prior 90 days, and (b) any securities issued or then issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing; provided, however, that any such Registrable Securities shall cease to be Registrable Securities (and the Company shall not be required to maintain the effectiveness of any, or file another, Registration Statement hereunder with respect thereto) for so long as (1) a Registration Statement with respect to the sale of such Registrable Securities is declared effective by the Commission under the Securities Act and such Registrable Securities have been disposed of by the Holder in accordance with such effective Registration Statement, (2) such Registrable Securities have been previously sold in accordance with Rule 144, or (3) such shares are not held by a Holder described in clause (a)(i) or (a)(ii) above.
“Registration Statement” means any registration statement required to be filed hereunder pursuant to Section 2(a) and any additional registration statements contemplated by Section 2(c) or Section 3(c), including (in each case) the Prospectus, amendments and supplements to any such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in any such registration statement.
“Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“SEC Guidance” means (i) any publicly-available written or oral guidance of the Commission staff, or any comments, requirements or requests of the Commission staff and (ii) the Securities Act.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, including any amendments thereto effective after the date hereof, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Selling Stockholder Questionnaire” shall have the meaning set forth in Section 3(a).
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Shelf Registration. |
(a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by Holders of a majority of the Registrable Securities) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B; provided, however, that no Holder shall be identified as a statutory underwriter in a Registration Statement unless in response to a comment or request from the staff of the Commission, and if the Commission requests that a Holder be so identified, such Holder shall have the opportunity to withdraw its Registrable Securities from such Registration Statement. Subject to the terms of this Agreement, the Company shall use its reasonable best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as reasonably practicable after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144, and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”) The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company shall notify the Holders by e-mail of the effectiveness of a Registration Statement no later than one (1) Trading Day after the Company confirms effectiveness with the Commission, and shall file a final Prospectus with the Commission as and when required by Rule 424. Failure to so notify the Holder within one (1) Trading Day of such notification of effectiveness or failure to file a final Prospectus as aforesaid shall be deemed an Event under Section 2(d).
(b) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly inform each of the Holders thereof and use its reasonable best efforts to file amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e) with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendment, the Company shall be obligated to use its reasonable best efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, any applicable Commission guidance addressing secondary offering limitations under Rule 415.
(c) Notwithstanding any other provision of this Agreement and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages, if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced first by reducing or eliminating any securities to be included other than Registrable Securities, and then by reducing Registrable Securities pro rata among the Holders based on the number of Registrable Securities held. In the event of a cutback hereunder, the Company shall give the Holders at least five (5) Trading Days prior written notice along with the calculations as to such Holder’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its reasonable best efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
(d) If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein or the Company subsequently withdraws the filing of the Registration Statement and does not re-file prior to the applicable deadline, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review, or (iii) prior to the effective date of a Registration Statement, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement within ten (10) calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for such Registration Statement to be declared effective, or (iv) a Registration Statement registering for resale all of the Registrable Securities is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement, or (v) after the effective date of a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than in connection with a suspension of the Registration Statement in accordance with this Agreement), for more than twenty (20) consecutive Trading Days or more than an aggregate of thirty (30) Trading Days (which need not be consecutive Trading Days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (iv), the date on which such Event occurs, and for purpose of clause (ii) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iii) the date on which such ten (10) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty (20) or thirty (30) Trading Day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured or the Company has paid to such Holder an aggregate amount in cash pursuant to this provision equal to 10.0% multiplied by the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 1.0% multiplied by the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within thirty (30) calendar days after the date payable, the Company will pay interest thereon at a rate of 18.0% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding the foregoing, no partial liquidated damages shall accrue or be payable (A) to the extent the applicable Event results from any Holder’s failure to furnish information required under Section 3(a) or Section 3(l) or from any breach by such Holder of this Agreement, or (B) to the extent the applicable Event results from the Company not filing a Registration Statement or any such Prospectus or any amendments or supplements thereto as a result of an objection by the Holders of a majority of the Registrable Securities made pursuant to Section 3(a).
(e) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, the Company shall not identify any Holder or affiliate of a Holder as a statutory underwriter in any Registration Statement unless in response to a comment or request from the staff of the Commission or another regulatory agency, in which case such Holder shall have the opportunity to withdraw its Registrable Securities from such Registration Statement.
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Registration Procedures. |
In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Not less than three (3) Trading Days prior to the filing of each Registration Statement and not less than two (2) Trading Days prior to the filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be incorporated therein by reference, but excluding any amendments or supplements that solely include periodic or current reports filed by the Company under the Exchange Act), the Company shall furnish to each Holder copies of all such documents proposed to be filed (other than any documents incorporated or deemed to be incorporated therein by reference), which documents will be subject to the review and comment of such Holders, and cause its officers and directors, counsel and independent registered public accountants to be reasonably available to respond to such inquiries as shall be reasonably necessary, in the reasonable opinion of respective counsel to each Holder, to conduct a reasonable investigation within the meaning of the Securities Act, and the Company shall consider in good faith any comments of the Holders of a majority of the Registrable Securities received in writing within such period, the Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities shall reasonably object in good faith, provided that, the Company is notified of such objection in writing no later than five (5) Trading Days after the Holders have been so furnished copies of a Registration Statement or two (2) Trading Days after the Holders have been so furnished copies of any related Prospectus or amendments or supplements thereto. Each Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Annex C (a “Selling Stockholder Questionnaire”) on a date that is not less than two (2) Trading Days prior to the Filing Date or by the end of the fourth (4th) Trading Day following the date on which such Holder receives draft materials in accordance with this Section.
(b) (i) Prepare and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto and provide as promptly as reasonably possible to the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (provided that, the Company shall excise any information contained therein which would constitute material non-public information regarding the Company or any of its subsidiaries), and (iv) comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) If during the Effectiveness Period the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of such additional Registrable Securities.
(d) Notify the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one (1) Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to a Registration Statement is proposed to be filed, (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement, and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information, (iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose, (v) of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as the case may be, it will not contain 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, and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company, makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus; provided, however, that in no event shall any such notice contain any information which would constitute material, non-public information regarding the Company or any of its subsidiaries.
(e) Use its reasonable best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(f) Furnish to each Holder, without charge, upon such Holder’s request, at least one conformed copy of each such Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission, provided that any such item which is available on the EDGAR system (or successor thereto) need not be furnished in physical form.
(g) Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).
(h) Prior to any resale of Registrable Securities by a Holder, use its reasonable best efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the registration or qualification) of such Registrable Securities for the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement, provided that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction.
(i) If requested by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may request.
(j) Upon the occurrence of any event contemplated by Section 3(d), as promptly as reasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment, to a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through (vi) of Section 3(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(j) to suspend the availability of a Registration Statement and Prospectus, subject to the payment of partial liquidated damages otherwise required pursuant to Section 2(d), for a period not to exceed 90 calendar days (which need not be consecutive days) in any 12-month period.
(k) Otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the Securities Act and the Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any supplement or amendment thereof, with the Commission pursuant to Rule 424 under the Securities Act, promptly inform the Holders in writing if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof, the Holders are required to deliver a Prospectus in connection with any disposition of Registrable Securities and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder.
(l) The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the shares. During any periods that the Company is unable to meet its obligations hereunder with respect to the registration of the Registrable Securities solely because any Holder fails to furnish such information within three Trading Days of the Company’s request, any liquidated damages that are accruing at such time as to such Holder only shall be tolled and any Event that may otherwise occur solely because of such delay shall be suspended, in each case as to such Holder and, to the extent such failure delays the filing or effectiveness of a Registration Statement, as to all Holders, until such information is delivered to the Company.
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Registration Expenses. All fees and expenses incident to the performance of or compliance with this Agreement by the Company shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses of the Company’s counsel and independent registered public accountants) (A) with respect to filings made with the Commission, (B) with respect to filings required to be made with any Trading Market on which the Common Stock is then listed for trading, and (C) in compliance with applicable state securities or Blue Sky laws reasonably agreed to by the Company in writing (including, without limitation, fees and disbursements of counsel for the Company in connection with Blue Sky qualifications or exemptions of the Registrable Securities), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, and (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement. In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange to the extent required hereunder. In no event shall the Company be responsible for any broker or similar commissions or transfer taxes of any Holder or, except to the extent provided for in the Transaction Documents, any legal fees or other costs of the Holders. Notwithstanding the foregoing, the Company shall reimburse the Holders for the reasonable and documented fees and disbursements of one legal counsel to the Holders in connection with the initial registration of the Registrable Securities and any amendments thereto required under this Agreement, in an aggregate amount not to exceed $25,000. |
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5. |
Indemnification. |
(a) Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the officers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable Securities as principal as a result of a pledge or any failure to perform under a margin call of Common Stock), investment advisors and employees (and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, members, stockholders, partners, agents and employees (and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each such controlling Person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out of or relating to (1) any untrue or alleged untrue statement of a material fact contained in a Registration Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (2) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder, in connection with the performance of its obligations under this Agreement, except to the extent, but only to the extent, that (i) such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in a Registration Statement, such Prospectus or in any amendment or supplement thereto (it being understood that the Holder has approved Annex A hereto for this purpose) or (ii) in the case of an occurrence of an event of the type specified in Section 3(d)(iii)-(vi), the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt by such Holder of the Advice contemplated in Section 6(c). The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding arising from or in connection with the transactions contemplated by this Agreement of which the Company is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified person and shall survive the transfer of any Registrable Securities by any of the Holders in accordance with Section 6(f).
(b) Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, to the extent arising out of or based solely upon: (x) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading (i) to the extent, but only to the extent, that such untrue statement or omission is contained in any information so furnished in writing by such Holder to the Company expressly for inclusion in such Registration Statement or such Prospectus or (ii) to the extent, but only to the extent, that such information relates to such Holder’s information provided in the Selling Stockholder Questionnaire or the proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in a Registration Statement (it being understood that the Holder has approved Annex A hereto for this purpose), such Prospectus or in any amendment or supplement thereto, or (y) such Holder’s failure to comply with the prospectus delivery requirements of the Securities Act, or (z) in the case of an occurrence of an event of the type specified in Section 3(d)(iii)-(vi), the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt by such Holder of the Advice contemplated in Section 6(c). In no event shall the liability of a selling Holder be greater in amount than the dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim relating to this Section 5 and the amount of any damages such Holder has otherwise been required to pay by reason of such untrue statement or omission) received by such Holder upon the sale of the Registrable Securities included in the Registration Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof, provided that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have materially and adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding, or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the Indemnified Party shall reasonably believe that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement (i) imposes no liability or obligation on such Indemnified Party, (ii) includes as an unconditional term thereof the giving of a complete and unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and (iii) does not include any admission of fault, culpability, wrongdoing or malfeasance by or on behalf of such Indemnified Party.
Subject to the terms of this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within thirty (30) Trading Days of written notice thereof to the Indemnifying Party, provided that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) not to be entitled to indemnification hereunder.
(d) Contribution. If the indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. In no event shall the contribution obligation of a Holder of Registrable Securities be greater in amount than the dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim relating to this Section 5 and the amount of any damages such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission) received by it upon the sale of the Registrable Securities giving rise to such contribution obligation.
The indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties.
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6. |
Miscellaneous. |
(a) Remedies. In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, shall be entitled to specific performance of its rights under this Agreement. Each of the Company and each Holder agrees that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall not assert or shall waive the defense that a remedy at law would be adequate and shall waive the requirement for the posting of a bond.
(b) No Piggyback on Registrations. Neither the Company nor any of its security holders (other than the Holders in such capacity pursuant hereto) may include securities of the Company in any Registration Statements other than the Registrable Securities. The Company shall not file any other registration statement with the Commission if such filing would be reasonably expected to materially delay or adversely affect the effectiveness, or the continued effectiveness, of any Registration Statement filed pursuant to this Agreement, until such Registration Statement has been declared effective by the Commission and all Registrable Securities covered thereby may be sold thereunder.
(c) Discontinued Disposition. By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(d)(iii) through (vi), such Holder will forthwith discontinue disposition of such Registrable Securities under a Registration Statement until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company agrees and acknowledges that any periods during which the Holder is required to discontinue the disposition of the Registrable Securities hereunder shall be subject to the provisions of Section 2(d).
(d) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by the Company and the Holders of a majority of the then outstanding Registrable Securities; provided, however, that any amendment, modification or waiver that by its terms adversely affects a Holder in a manner materially different from the other Holders shall also require the written consent of such Holder. Any amendment, modification or waiver effected in accordance with this Section 6(d) shall be binding upon the Company and each Holder and its transferees.
(e) Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be delivered as set forth in the Purchase Agreement.
(f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties and shall inure to the benefit of each Holder. The Company may not assign (except by merger) its rights or obligations hereunder without the prior written consent of the Holders of a majority of the then outstanding Registrable Securities. Each Holder may assign its rights hereunder only in connection with a transfer of the related Registrable Securities, and only if the transferee agrees in writing to be bound by the terms of this Agreement and the Company is furnished with written notice of the name and address of such transferee and the Registrable Securities transferred.
(g) No Inconsistent Agreements. Neither the Company nor any of its subsidiaries has entered, as of the date hereof, nor shall the Company or any of its subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities that conflicts with the rights granted to the Holders in this Agreement.
(h) Execution and Counterparts. 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 the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf” format data file or other electronic transmission (including any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the Uniform Electronic Transactions Act), 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 signature page were an original thereof.
(i) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined in accordance with the provisions of the Purchase Agreement.
(j) Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.
(k) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(l) Headings. The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall not be deemed to limit or affect any of the provisions hereof.
(m) Independent Nature of Holders’ Obligations and Rights. The obligations of each Holder hereunder are several and not joint with the obligations of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Holder pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Holders are in any way acting in concert or as a group or entity with respect to such obligations or the transactions contemplated by this Agreement or any other matters, and the Company acknowledges that the Holders are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or transactions. Each Holder shall be entitled to protect and enforce its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other Holder to be joined as an additional party in any proceeding for such purpose. The use of a single agreement with respect to the obligations of the Company contained was solely in the control of the Company, not the action or decision of any Holder, and was done solely for the convenience of the Company and not because it was required or requested to do so by any Holder. It is expressly understood and agreed that each provision contained in this Agreement is between the Company and a Holder, solely, and not between the Company and the Holders collectively and not between and among Holders.
(n) Termination. This Agreement and the obligations of the Company hereunder shall terminate and be of no further force or effect upon the earlier of (i) the termination of the Purchase Agreements without the Closing having occurred thereunder, and (ii) the date on which there are no Registrable Securities outstanding; provided, however, that Section 5 and this Section 6 and any claim for breach of this Agreement arising prior to such termination shall survive any such termination.
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(Signature Pages Follow)
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.
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DIGIMARC CORPORATION |
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By: Name: Title: |
[SIGNATURE PAGE OF HOLDERS FOLLOWS]
[SIGNATURE PAGE OF HOLDERS TO DMRC RRA]
Name of Holder: __________________________
Signature of Authorized Signatory of Holder: __________________________
Name of Authorized Signatory: _________________________
Title of Authorized Signatory: __________________________
[SIGNATURE PAGES CONTINUE]
Annex A
Plan of Distribution
Each Selling Stockholder (the “Selling Stockholders”) of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered hereby on the principal Trading Market or any other stock exchange, market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling Stockholder may use any one or more of the following methods when selling securities:
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ordinary brokerage transactions and transactions in which the broker‑dealer solicits purchasers; |
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block trades in which the broker‑dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
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purchases by a broker‑dealer as principal and resale by the broker‑dealer for its account; |
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an exchange distribution in accordance with the rules of the applicable exchange; |
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privately negotiated transactions; |
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settlement of short sales; |
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in transactions through broker‑dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security; |
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through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
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at-the-market offerings within the meaning of Rule 415(a)(4) under the Securities Act, including sales made directly on or through the principal Trading Market or any other existing trading market for the securities, or sales made to or through a market maker other than on an exchange or otherwise; |
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a combination of any such methods of sale; or |
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any other method permitted pursuant to applicable law. |
The Selling Stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”), if available, rather than under this prospectus.
Broker‑dealers engaged by the Selling Stockholders may arrange for other brokers‑dealers to participate in sales. Broker‑dealers may receive commissions or discounts from the Selling Stockholders (or, if any broker‑dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2121 or applicable FINRA rules; and in the case of a principal transaction a markup or markdown in compliance with FINRA Rule 2121 or applicable FINRA rules.
In connection with the sale of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.
The Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock by the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
Annex B
SELLING SHAREHOLDERS
The common stock being offered by the selling shareholders are those previously issued to the selling shareholders. We are registering the shares of common stock in order to permit the selling shareholders to offer the shares for resale from time to time. Except for the ownership of the shares of common stock, the selling shareholders have not had any material relationship with us within the past three years.
The table below lists the selling shareholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling shareholders.
The third column lists the shares of common stock being offered by this prospectus by the selling shareholders.
In accordance with the terms of a registration rights agreement with the selling shareholders, this prospectus generally covers the resale of the number of shares of common stock as of the trading day immediately preceding the date this registration statement was initially filed with the SEC. The final column assumes the sale of all of the shares offered by the selling shareholders pursuant to this prospectus.
The selling shareholders may sell all, some or none of their shares in this offering. See "Plan of Distribution."
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Name of Selling Shareholder |
Number of shares of Common Stock Owned Prior to Offering |
Maximum Number of shares of Common Stock to be Sold Pursuant to this Prospectus |
Number of shares of Common Stock Owned After Offering |
Annex C
DIGIMARC CORPORATION
Selling Stockholder Notice and Questionnaire
The undersigned beneficial owner of common stock that constitute Registrable Securities (the “Subject Securities”) of Digimarc Corporation, an Oregon corporation (the “Company”), understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “Commission”) a registration statement (the “Registration Statement”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Subject Securities, in accordance with the terms of the Registration Rights Agreement (the “Registration Rights Agreement”) to which this document is annexed. A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.
Certain legal consequences arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of Subject Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling stockholder in the Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the “Selling Stockholder”) of Subject Securities hereby elects to include the Subject Securities owned by it in the Registration Statement.
The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate:
QUESTIONNAIRE
1. Name.
(a) Full Legal Name of Selling Stockholder
(b) Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote or dispose of the securities covered by this Questionnaire):
2. Address for Notices to Selling Stockholder:
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Telephone: |
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Fax: |
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Contact Person: |
3. Broker-Dealer Status:
(a) Are you a broker-dealer?
Yes No
(b) If “yes” to Section 3(a), did you receive your Subject Securities as compensation for investment banking services to the Company?
Yes No
Note: If “no” to Section 3(b), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.
(c) Are you an affiliate of a broker-dealer?
Yes No
(d) If you are an affiliate of a broker-dealer, do you certify that you purchased the Subject Securities in the ordinary course of business, and at the time of the purchase of the Subject Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Subject Securities?
Yes No
Note: If “no” to Section 3(d), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.
4. Beneficial Ownership of Securities of the Company Owned by the Selling Stockholder.
Except as set forth below in this Item 4, the undersigned is not the beneficial or registered owner of any securities of the Company other than the securities issuable pursuant to the Purchase Agreement.
(a) Type and Amount of other securities beneficially owned by the Selling Stockholder:
5. Relationships with the Company:
Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
The undersigned agrees to promptly notify the Company of any material inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof at any time while the Registration Statement remains effective; provided, that the undersigned shall not be required to notify the Company of any changes to the number of securities held or owned by the undersigned or its affiliates.
By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through 5 and the inclusion of such information in the Registration Statement and the related prospectus and any amendments or supplements thereto. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related prospectus and any amendments or supplements thereto.
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.
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PLEASE FAX A COPY (OR EMAIL A .PDF COPY) OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
Digimarc Announces Registered Direct Offering of Common Stock
Beaverton, Ore. – September 30, 2026 – Digimarc Corporation (NASDAQ: DMRC), a leading provider in digital identity and authentication solutions, today announced that it has entered into purchase agreements to sell common shares in a registered direct offering led by an existing Digimarc investor.
Needham & Company acted as sole placement agent in the registered direct offering.
The gross proceeds to Digimarc from the offering are expected to be approximately $18.2 million. The offering is expected to close on or about September 30, 2026, subject to the satisfaction of customary closing conditions. Digimarc intends to use the net proceeds from the offering for general corporate purposes.
The shares described above are being offered by Digimarc pursuant to a registration statement on Form S-3 previously filed with and subsequently declared effective by the Securities and Exchange Commission ("SEC") on July 13, 2026. The offering of the securities is being made only by means of a base prospectus and prospectus supplement that forms a part of the effective registration statement. The prospectus supplement and accompanying base prospectus relating to the offering will be filed with the SEC and will be available on the SEC's website at sec.gov.
"The response to this offering came largely from an existing shareholder who already knows this company well, and chose to increase their position meaningfully. It reflects a shared view of where the market for verifiable digital authentication is heading and of Digimarc's leadership in it. We intend to put this capital to work with discipline against the priorities we have previously laid out" as noted by Paul Carreiro, President & CEO of Digimarc.
This press release shall not constitute an offer to sell or a solicitation of an offer to buy any of the securities described herein, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
About Digimarc
Digimarc (NASDAQ: DMRC) is building the trust layer for the modern world. As AI accelerates how we produce, share, and interact with the world, the risks of fraud, counterfeiting, and misinformation are growing exponentially. Our innovative, highly scalable, and ultra-secure solutions make it possible for consumers, businesses, and intelligent systems to instantly verify what’s real, protect what matters, and transact with confidence. Digimarc’s solutions for loss prevention, authentication, and digital are built to counter the speed and sophistication of today’s AI-enabled threats. Trusted by the world’s central banks to deter the counterfeiting of global currency, we exist to protect truth in every interaction, spanning both the physical and digital worlds.
Forward-looking Statements
With the exception of historical and factual information contained in this release, the matters described in this release contain various "forward-looking statements." These forward-looking statements include statements and any related inferences regarding expectations with respect to the registered direct offering, including the completion and timing of the offering, the satisfaction of customary closing conditions related to the offering, and the expected use of any proceeds therefrom, and other statements identified by terminology such as "will," "should," "expects," "estimates," "predicts," "continue" and “intend” or other derivations of these or other comparable terms. These forward-looking statements are statements of management's opinion and are subject to various assumptions, risks, uncertainties and changes in circumstances. Actual results may vary materially from those expressed or implied from the statements in this release as a result of changes in economic, business and/or regulatory factors. More detailed information about risk factors that may affect actual results is set forth in Digimarc's Form 10-K for the year ended December 31, 2025, its Quarterly Reports on Form 10-Q, and in subsequent periodic reports filed with the SEC. Readers are cautioned not to place undue reliance on these forward-looking statements, which reflect management's opinions only as of the date of this release. Except as required by law, Digimarc undertakes no obligation to publicly update or revise any forward-looking statements to reflect events or circumstances that may arise after the date of this release.
Contacts
Company Contact:
Charles Beck
Chief Financial Officer
Charles.Beck@digimarc.com
+1 503-469-4721