Eledon Pharmaceuticals, Inc 8-K, filed May 1, 2023
Eledon Pharmaceuticals, Inc. (ELDN)
About this 8-K
Eledon Pharmaceuticals, Inc filed this 8-K on May 1, 2023, reporting on events of April 26, 2023.
Items reported
- Item 1.01: Entered into a material agreement
- Item 3.02: Unregistered sale of equity
- Item 5.02: Director or officer change, or executive pay
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On April 28, 2023, Eledon Pharmaceuticals, Inc. (the “Company”) entered into a Securities Purchase Agreement (the “Securities Purchase Agreement”) with certain institutional and accredited investors (the “Purchasers”), pursuant to which the Company agreed to issue and sell to the Purchasers in a private placement (the “Private Placement”) (i) in an initial closing, (a) an aggregate of 15,151,518 shares (the “Shares”) of the Company’s common stock, $0.001 par value per share (the “Common Stock”), or pre-funded warrants in lieu thereof (the “Pre-Funded Warrants”), and (b) common stock warrants exercisable into an aggregate of 15,151,518 shares of Common Stock (or Pre-Funded Warrants in lieu thereof) (the “Common Warrants” and, together with the Pre-Funded Warrants, the “Warrants”); (ii) in a second closing, upon the satisfaction of specified conditions set forth in the Securities Purchase Agreement, an aggregate of 20,202,024 shares of Common Stock (or Pre-Funded Warrants); and (iii) in a third closing, upon the satisfaction of specified conditions set forth in the Securities Purchase Agreement, an aggregate of 25,252,530 shares of Common Stock (or Pre-Funded Warrants), in each case subject to customary adjustments as provided in the Securities Purchase Agreement, Pre-Funded Warrant or Common Warrant, as applicable. Each Common Warrant has an exercise price of $3.00 per share and expires five years after issuance. The Pre-Funded Warrants are exercisable immediately and until exercised in full.
The second and third closings under the Securities Purchase Agreement have mandatory funding conditions whereby the Purchasers committed to purchase shares in the second and third closings upon the satisfaction of specified clinical trial milestones and volume weighted average share price levels and trading volume conditions.
A holder (together with its affiliates) may not exercise any portion of a Warrant to the extent that the holder would own more than 4.99% (or, at the holder’s option upon issuance, 9.99% and, for one Purchaser, 19.99%) of the Company’s outstanding Common Stock immediately after exercise. However, upon at least 61 days’ prior notice from the holder to the Company, a holder with a 4.99% ownership blocker may increase the amount of ownership of outstanding Common Stock after exercising the holder’s Warrant up to 9.99% of the number of the Company’s Common Stock outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the Warrant.
The Securities Purchase Agreement contains customary representations and warranties and agreements of the Company and the Purchasers and customary indemnification rights and obligations of the parties. The initial closing of the Private Placement is expected to occur the week of May 1, 2023.
The Private Placement is expected to result in gross proceeds to the Company of approximately $35 million in the initial closing, an additional $105 million upon sale of the shares to be issued in the second and third closings, and an additional $45 million assuming the exercise of all Common Warrants. The Company intends to use the net proceeds from the Private Placement for working capital and general corporate purposes, including the clinical development of its lead asset, tegoprubart.
The Shares, the Warrants, and the shares of Common Stock issuable upon the exercise of the Warrants, have not been registered under the Securities Act of 1933, as amended, and were offered pursuant to the exemption from registration provided in Section 4(a)(2) under the Securities Act of 1933, as amended, and Rule 506(b) promulgated thereunder.
In connection with the Private Placement, the Company entered into a registration rights agreement, dated April 28, 2023 (the “Registration Rights Agreement”), with the Purchasers, pursuant to which, among other things, the Company will (i) prepare and file with the Securities and Exchange Commission (the “SEC”) a registration statement on Form S-3 to register for resale the Shares and the shares of Common Stock issuable upon the exercise of the Warrants within 20 calendar days, and (ii) use its reasonable best efforts to have the registration statement declared effective promptly after filing, and in any event no later than 60 days after the date of the Securities Purchase Agreement (or 90 days after the date of the Securities Purchase Agreement if the registration statement is reviewed by the SEC). The Registration Rights Agreement contains customary terms and conditions for a transaction of this type, including certain customary cash penalties on the Company for its failure to satisfy specified filing and effectiveness time periods.
SVB Securities LLC is acting as lead placement agent and Cantor Fitzgerald, LifeSci Capital and Noble Capital Markets, Inc. are acting as co-placement agents in connection with the Private Placement.
The foregoing description of the material terms of the Securities Purchase Agreement, the Warrants and the Registration Rights Agreement is not complete and is qualified in its entirety by reference to the full text of the Securities Purchase Agreement, the form of Pre-Funded Warrant, the form of Common Warrant and the Registration Rights Agreement, which are filed as Exhibits 10.1, 4.1, 4.2 and 10.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The information contained in Item 1.01 of this Current Report on Form 8-K related to the Shares, the Warrants, and the shares of Common Stock issuable upon the exercise of the Warrants is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On April 26, 2023, Gary A. Lyons notified the Company that he is retiring from the Board of Directors of the Company at the end of his term and will not be standing for election at the Company’s 2023 annual meeting of stockholders.
On April 27, 2023, the Company entered into a letter agreement with David-Alexandre Gros, its CEO (the “Gros Agreement”), amending his employment agreement, dated as of September 9, 2020. Pursuant to the Gros Agreement, Dr. Gros’ employment agreement was amended to provide for (i) a modification of his Performance Bonus (as defined in his employment agreement), (ii) a retention bonus, (iii) potential equity acceleration of certain outstanding equity awards, and (iv) a new potential equity award that replaces his rights under his current employment agreement to receive a similar potential equity award. Pursuant to his Performance Bonus, Dr. Gros remains entitled to a $10 million bonus in the event that, during the Measurement Period (as defined in his employment agreement), the market value of the Company exceeds $1 billion. The amendment to his Performance Bonus entitles Dr. Gros to a pro-rata portion of his Performance Bonus in the event that his employment is terminated for any reason other than by the Company for Cause and the market value of the Company at the time of termination of employment is equal to or greater than $600 million, but less than $1 billion. The threshold Performance Bonus payment is $6 million at a $600 million market value and increases up to the maximum $10 million bonus payable at a $1 billion market value using linear interpolation. The amendment also provides that market value is calculated by taking into account the total value of all securities treated as equity securities in the Company’s financial statements (“Market Value”).
In addition, the amendment provides for a retention bonus (the “Gros Retention Bonus”) upon the earlier to occur of (i) a termination of his employment other than for cause, (ii) a change in control during the term of his employment, and (iii) July 31, 2026 (the earliest date to be the “Retention Bonus Date”). The Gros Retention bonus will be paid in cash or stock in an amount equal to the product of 761,589 multiplied by the difference between the fair market value of the Company’s common stock on the Retention Bonus Date over the fair market value of the Company’s common stock at the time of the initial closing of the Private Placement. The common stock price used to calculate the Gros Retention Bonus, however, will be limited to a maximum of $9.00.
The amendment also provides for vesting acceleration of Dr. Gros’ outstanding equity awards. If Dr. Gros’ employment is terminated by the Company without cause or by him for good reason, subject to his execution of the release contemplated by his employment agreement, any then-unvested and outstanding performance-based equity awards will now (1) remain outstanding and eligible to vest if the applicable performance conditions are satisfied during the 12 months following such termination of employment, and (2) the term of such performance-based options will be extended until the earlier of (A) 90 days after the performance conditions are achieved and (B) the normal expiration date of such performance-based options. If his employment is terminated without cause or for good reason in connection with a change of control, subject to his execution of the release contemplated by his employment agreement, any then-unvested and outstanding performance-based equity awards will become fully vested at the target performance level.
Finally, the Gros Agreement modifies Dr. Gros’ employment agreement to provide that instead of the Incentive Shares provided in Section 4(c) of his employment agreement, Dr. Gros will be eligible to receive a proportionate grant of common stock that will be equal to one percent of the fully diluted shares of Company common stock, upon the first occurrence of (i) the exercise of a majority of the Common Warrants or Pre-Funded Warrants held by the largest holder of such warrants on the initial closing of the Private Placement and (ii) the first date that is six months after the date on which topline data for the Company’s kidney transplantation phase 2 trial (K207) is available to the Company and where the Company’s Market Value is equal to or greater than $900 million for a period of 20 consecutive calendar days. Dr. Gros will be entitled to such new incentive shares if either of the above conditions are satisfied at any time during the term of his employment agreement or within 12 months following a termination of his employment without cause or for good reason.
The foregoing description of the Gros Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Gros Agreement, a copy of which is filed herewith as Exhibit 10.3.
Steven Perrin, Ph.D. Letter Agreement
On April 27, 2023, the Company entered into a letter agreement with Steven Perrin, Ph.D. (the “Perrin Agreement”), amending his employment agreement, dated as of September 14, 2020. Pursuant to the Perrin Agreement, Dr. Perrin’s employment agreement was amended to provide for a retention bonus providing for substantially similar terms as those provided pursuant to the Gros Retention Bonus. The only difference is that instead of using 761,589 in the calculation, the applicable number for the calculation will be 327,350.
The foregoing description of the Perrin Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Perrin Agreement, a copy of which is filed herewith as Exhibit 10.4.
Item 7.01 Regulation FD Disclosure.
On May 1, 2023, the Company issued a press release announcing the Private Placement. The press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated into this Item 7.01 by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. |
Description |
4.1 |
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4.2 |
Form of Tranche A Warrant to Purchase Common Stock or Pre-Funded Warrants |
10.1 |
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10.2 |
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10.3 |
David-Alexandre Gros, M.D. Letter Agreement, dated April 27, 2023 |
10.4 |
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99.1 |
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104 |
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Eledon Pharmaceuticals, Inc. |
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Date: |
May 1, 2023 |
By: |
/s/ David-Alexandre C. Gros, M.D. |
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Name: David-Alexandre C. Gros, M.D. |
Exhibit 4.1
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
PRE-FUNDED WARRANT TO PURCHASE COMMON STOCK
ELEDON PHARMACEUTICALS, INC.
Warrant Shares: _______ Issue Date:______, 20__
Initial Exercise Date: _______, 20__
THIS PRE-FUNDED WARRANT TO PURCHASE COMMON STOCK (the “Warrant”) certifies that, for value received, _____________ or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the date set forth above (the “Initial Exercise Date”) and until this Warrant is exercised in full (the “Termination Date”) but not thereafter, to subscribe for and purchase from Eledon Pharmaceuticals, Inc., a Delaware corporation (the “Company”), up to ______ shares (as subject to adjustment hereunder, the “Warrant Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”). The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
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“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on the Nasdaq Capital Market or any other national securities exchange, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Nasdaq Capital Market or other national securities exchange, as applicable, on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock is then reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this Section 2(c).
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The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the
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Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
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(Signature Page Follows)
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
ELEDON PHARMACEUTICALS, INC.
By:
Name: David-Alexandre C. Gros, M.D.
Title: Chief Executive Officer
[Signature Page to Pre-Funded Warrant]
Acknowledged and Agreed
By:
Name:
Title:
[Signature Page to Pre-Funded Warrant]
NOTICE OF EXERCISE
TO: ELEDON PHARMACEUTICALS, INC.
(1) The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
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(4) Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
Name of Investing Entity: _______________________________________________________
Signature of Authorized Signatory of Investing Entity: _________________________________
Name of Authorized Signatory: ___________________________________________________
Title of Authorized Signatory: ____________________________________________________
Date: ________________________________________________________________________
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name
(Please Print)
Address:
(Please Print)
Phone Number:________________________________________
Email Address:________________________________________
Dated:
Holder’s Signature: _______________
Holder’s Address: ________________
Exhibit 4.2
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
TRANCHE A WARRANT TO PURCHASE COMMON STOCK
OR PRE-FUNDED WARRANTS
ELEDON PHARMACEUTICALS, INC.
Warrant Shares: _______ Issue Date:______, 2023
Initial Exercise Date: _______, 2023
THIS TRANCHE A WARRANT TO PURCHASE COMMON STOCK OR PRE-FUNDED WARRANTS (the “Warrant”) certifies that, for value received, _____________ or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the date set forth above (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on [_________], 2028 (the “Termination Date”) but not thereafter, to subscribe for and purchase from Eledon Pharmaceuticals, Inc., a Delaware corporation (the “Company”), up to ______ shares (as subject to adjustment hereunder, the “Warrant Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”) or Pre-Funded Warrants (as defined below) to purchase the same number of Warrant Shares (as subject to adjustment hereunder). The purchase price of one Warrant Share or Pre-Funded Warrant under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
“Pre-Funded Warrant Exercise Price” equals $0.001 per Warrant Share, subject to adjustment hereunder.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on the Nasdaq Capital Market or any other national securities exchange, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Nasdaq Capital Market or other national securities exchange, as applicable, on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock is then reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this Section 2(c).
The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law
or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the number of Warrant Shares or Pre-Funded Warrants for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
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(Signature Page Follows)
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
ELEDON PHARMACEUTICALS, INC.
By:
Name: David-Alexandre C. Gros, M.D.
Title: Chief Executive Officer
[Signature Page to Tranche A Warrant]
Acknowledged and Agreed
By:
Name:
Title:
[Signature Page to Tranche A Warrant]
NOTICE OF EXERCISE
TO: ELEDON PHARMACEUTICALS, INC.
(1) The undersigned hereby elects to purchase ________ Warrant Shares and/or ________ Pre-Funded Warrants of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the aggregate Exercise Price in full, minus the aggregate Pre-Funded Warrant Exercise Price for such Warrant Shares covered by the Pre-Funded Warrant, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant Shares or Pre-Funded Warrants in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares (if applicable) shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
_______________________________
The Pre-Funded Warrants (if applicable) shall be delivered to:
_______________________________
_______________________________
_______________________________
_______________________________
(4) Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
Name of Investing Entity: _______________________________________________________
Signature of Authorized Signatory of Investing Entity: _________________________________
Name of Authorized Signatory: ___________________________________________________
Title of Authorized Signatory: ____________________________________________________
Date: ________________________________________________________________________
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase Warrant Shares or Pre-Funded Warrants.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name
(Please Print)
Address:
(Please Print)
Phone Number:________________________________________
Email Address:________________________________________
Dated:
Holder’s Signature: _______________
Holder’s Address: ________________
Exhibit A
Form of Pre-Funded Warrant
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”) is dated as of April 28, 2023, between Eledon Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”).
WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to an exemption from the registration requirements contained in Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and/or Rule 506 promulgated thereunder, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, 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 each Purchaser agree as follows:
DEFINITIONS
“Acquiring Person” shall have the meaning ascribed to such term in Section 4.5.
“Action” shall have the meaning ascribed to such term in Section 3.1(j).
“Additional Pre-Funded Warrant Shares” means the shares of Common Stock issuable upon exercise of the Additional Pre-Funded Warrants.
“Additional Pre-Funded Warrants” means, collectively, the pre-funded Common Stock purchase warrants delivered to the Purchasers at the applicable Closings in accordance with Sections 2.1(b) and (c) hereof, which Additional Pre-Funded Warrants shall be exercisable immediately and shall expire when exercised in full, in the form of Exhibit B attached hereto.
“Additional Securities” means the Additional Shares, the Additional Pre-Funded Warrants and the Additional Pre-Funded Warrant Shares.
“Additional Shares” means the shares of Common Stock issued or issuable to each Purchaser in connection with the applicable Closings pursuant to Sections 2.1(b) and (c) of this Agreement, but excluding the Additional Pre-Funded Warrant Shares.
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“Additional Subscription Amount” means, as to each Purchaser, the Second Closing Subscription Amount and/or the Third Closing Subscription Amount, as applicable.
“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.
“Beneficial Ownership Limitation” means 4.99% (or, at the election of the Purchaser at the Closing, such other beneficial ownership limitation as set forth on the signature page hereto and including such Purchaser’s Affiliates, and any Person acting as a group together with such Purchaser or any of such Purchaser’s Affiliates) of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of the Securities on the Closing Date. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company.
“Board of Directors” means the board of directors of the Company.
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
“Closing” means the Initial Closing, the Second Closing and/or the Third Closing, as applicable.
“Closing Date” means the Initial Closing Date, the Second Closing Date and/or the Third Closing Date, as applicable.
“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 of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Common Stock Warrant Shares” means the shares of Common Stock issuable upon exercise of the Common Stock Warrants.
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“Common Stock Warrants” means, collectively, the Tranche A Warrants to Purchase Common Stock or Pre-Funded Warrants delivered to the Purchasers at the Initial Closing in accordance with Section 2.2(a) hereof, in the form of Exhibit C attached hereto, which shall be exercisable immediately and have a term of exercise equal to five (5) years.
“Company Counsel” means O’Melveny & Myers LLP, with offices located at 610 Newport Center Drive, 17th Floor, Newport Beach, CA 92660.
“Disclosure Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“Effective Date” means the earliest of the date that (a) the initial Registration Statement filed pursuant to this Agreement has been declared effective by the Commission, (b) all of the Shares and Warrant Shares have been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 and without volume or manner-of-sale restrictions, or (c) all of the Shares and Warrant Shares may be sold pursuant to an exemption from registration under Section 4(a)(1) of the Securities Act without volume or manner-of-sale restrictions and Company Counsel has delivered to such holders a standing written unqualified opinion that resales may then be made by such holders of the Shares and Warrant Shares pursuant to such exemption which opinion shall be in form and substance reasonably acceptable to such holders.
“Evaluation Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such
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securities (other than in connection with stock splits or combinations or as otherwise required by the terms of such securities in effect as of the date of this Agreement) or to extend the term of such securities, and (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period in Section 4.12(a) herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.
“FDA” shall have the meaning ascribed to such term in Section 3.1(jj).
“FDCA” shall have the meaning ascribed to such term in Section 3.1(jj).
“GAAP” shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness” shall have the meaning ascribed to such term in Section 3.1(bb).
“Initial Closing” means the initial closing of the purchase and sale of the Initial Securities pursuant to Section 2.1(a).
“Initial Closing Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Initial Subscription Amount and (ii) the Company’s obligations to deliver the Initial Securities, in each case, have been satisfied or waived.
“Initial Pre-Funded Warrant Shares” means the shares of Common Stock issuable upon exercise of the Initial Pre-Funded Warrants.
“Initial Pre-Funded Warrants” means, collectively, the pre-funded Common Stock purchase warrants delivered to the Purchasers at the Initial Closing in accordance with Section 2.2(a) hereof, which Initial Pre-Funded Warrants shall be exercisable immediately and shall expire when exercised in full, in the form of Exhibit B attached hereto.
“Initial Securities” means the Initial Shares, the Initial Pre-Funded Warrants, the Initial Pre-Funded Warrant Shares, the Common Stock Warrants and the Common Stock Warrant Shares.
“Initial Shares” means the shares of Common Stock issued or issuable to each Purchaser on the Initial Closing pursuant to Section 2.1(a) of this Agreement, but excluding the Initial Pre-Funded Warrant Shares and Common Stock Warrant Shares.
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“Initial Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for the Initial Securities purchased hereunder as specified opposite such Purchaser’s name on Schedule 1 attached hereto under the heading “Aggregate Purchase Price at Initial Closing,” in United States dollars and in immediately available funds.
“Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Legend Removal Date” shall have the meaning ascribed to such term in Section 4.1(c).
“Liens” means a material lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up Agreement” means the Lock-Up Agreement, dated as of the date hereof, by and among the Company and its directors and executive officers, in the form of Exhibit D attached hereto.
“Material Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Per Share Purchase Price” equals $2.31 (less $0.001 for each Pre-Funded Warrant, as applicable), in each case subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the applicable Closing Date.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Pharmaceutical Product” shall have the meaning ascribed to such term in Section 3.1(jj).
“Placement Agent” means SVB Securities LLC and Noble Capital Markets, Inc.
“Pre-Funded Warrants” means, collectively, the Initial Pre-Funded Warrants and the Additional Pre-Funded Warrants.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.
“Purchaser Party” shall have the meaning ascribed to such term in Section 4.8.
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“Registration Rights Agreement” means the Registration Rights Agreement, dated on or about the date hereof, among the Company and the Purchasers, in the form of Exhibit A attached hereto.
“Registration Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale by the Purchasers of the Shares and the Warrant Shares.
“Required Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“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, 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 Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Second Closing” shall have the meaning ascribed to such term in Section 2.1(b).
“Second Closing Date” means the Trading Day on which all conditions precedent to (i) the Purchasers’ obligations to pay the Second Closing Subscription Amount and (ii) the Company’s obligations to deliver Additional Securities in connection with the Second Closing, in each case, have been satisfied or waived; provided, that the Second Closing Date shall be a date that is not more than five (5) Trading Days following the date on which all such conditions have been satisfied or waived.
“Second Closing Milestone” shall have the meaning ascribed to such term in Section 4.18(a).
“Second Closing Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for Additional Shares and/or Additional Pre-Funded Warrants purchased hereunder in connection with the Second Closing, as specified opposite such Purchaser’s name on Schedule 1 attached hereto under the heading “Second Closing Subscription Amount,” in United States dollars and in immediately available funds.
“Second Closing Trigger Date” shall have the meaning ascribed to such term in Section 2.4(b)(i).
“Securities” means the Initial Securities and the Additional Securities.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
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“Shares” means, collectively, the Initial Shares and the Additional Shares.
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include locating and/or borrowing shares of Common Stock).
“Subscription Amount” means, as to each Purchaser, the Initial Subscription Amount, the Second Closing Subscription Amount and/or the Third Closing Subscription Amount, as applicable.
“Subsidiary” means any subsidiary of the Company as set forth in the SEC Reports and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Third Closing” shall have the meaning ascribed to such term in Section 2.1(c).
“Third Closing Date” means the Trading Day on which all conditions precedent to (i) the Purchasers’ obligations to pay the Third Closing Subscription Amount and (ii) the Company’s obligations to deliver Additional Securities in connection with the Third Closing, in each case, have been satisfied or waived; provided, that the Third Closing Date shall be a date that is not more than five (5) Trading Days following the date on which all such conditions have been satisfied or waived.
“Third Closing Milestone” shall have the meaning ascribed to such term in Section 4.18(b).
“Third Closing Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for Additional Shares and/or Additional Pre-Funded Warrants purchased hereunder in connection with the Third Closing as specified opposite such Purchaser’s name on Schedule 1 attached hereto under the heading “Third Closing Subscription Amount,” in United States dollars and in immediately available funds.
“Third Closing Trigger Date” shall have the meaning ascribed to such term in Section 2.4(b)(ii).
“Trading Day” means a day on which the principal 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 or the New York Stock Exchange (or any successors to any of the foregoing).
“Transaction Documents” means this Agreement, the Warrants, the Registration Rights Agreement, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
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“Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing address of 1 State Street, 30th Floor, New York, New York, 10004, and any successor transfer agent of the Company.
“Variable Rate Transaction” shall have the meaning ascribed to such term in Section 4.12(b).
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Shares are then listed or quoted on the Nasdaq Capital Market or any other national securities exchange, the daily volume weighted average price of the Common Shares for such date (or the nearest preceding date) on the Nasdaq Capital Market or other national securities exchange, as applicable, on which the Common Shares are then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Shares are then reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Shares so reported, or (d) in all other cases, the fair market value of a share of Common Shares as determined by an independent appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrant Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
“Warrants” means, collectively, the Pre-Funded Warrants and the Common Stock Warrants.
PURCHASE AND SALE
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REPRESENTATIONS AND WARRANTIES
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The Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
OTHER AGREEMENTS OF THE PARTIES
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[NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE] [HAS NOT BEEN] REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
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MISCELLANEOUS
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(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
ELEDON PHARMACEUTICALS, INC. Address for Notice:
By: /s/ David-Alexandre C. Gros, M.D. Fax:
Name: David-Alexandre C. Gros, M.D. Email:
Title: Chief Executive Officer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Biotechnology Value Fund, L.P.
Signature of Authorized Signatory of Purchaser: /s/ Mark Lampert
Name of Authorized Signatory: Mark Lampert
Title of Authorized Signatory: Chief Executive Officer of BVF I GP LLC, General Partner of Biotechnology Value Fund, L.P.
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker ☐ 4.99% or 9.99% or ☐ 19.99%
[SIGNATURE PAGES CONTINUE]
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Biotechnology Value Fund II, L.P.
Signature of Authorized Signatory of Purchaser: /s/ Mark Lampert
Name of Authorized Signatory: Mark Lampert
Title of Authorized Signatory: Chief Executive Officer of BVF II GP LLC, General Partner of Biotechnology Value Fund II, L.P.
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker ☐ 4.99% or 9.99% or ☐ 19.99%
[SIGNATURE PAGES CONTINUE]
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Biotechnology Value Trading Fund OS LP
Signature of Authorized Signatory of Purchaser: /s/ Mark Lampert
Name of Authorized Signatory: Mark Lampert
Title of Authorized Signatory: President of BVF Inc., General Partner of BVF Partners L.P., Sole Member of BVF Partners OS Ltd., General Partner of Biotechnology Value Trading Fund OS LP
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker ☐ 4.99% or 9.99% or ☐ 19.99%
[SIGNATURE PAGES CONTINUE]
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: MSI BVF SPV, LLC
Signature of Authorized Signatory of Purchaser: /s/ Mark Lampert
Name of Authorized Signatory: Mark Lampert
Title of Authorized Signatory: President of BVF Inc., General Partner of BVF Partners L.P., Attorney in Fact MSI BVF SPV, LLC
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker ☐ 4.99% or 9.99% or ☐ 19.99%
[SIGNATURE PAGES CONTINUE]
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Armistice Capital Master Fund Ltd.
Signature of Authorized Signatory of Purchaser: /s/ Steven Boyd
Name of Authorized Signatory: Steven Boyd
Title of Authorized Signatory: CIO of Armistice Capital, LLC, the Investment Manager
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker ☐ 4.99% or 9.99% or ☐ 19.99%
[SIGNATURE PAGES CONTINUE]
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: JDRF T1D Fund LLC
Signature of Authorized Signatory of Purchaser: /s/ Steven St. Peter
Name of Authorized Signatory: Steven St. Peter
Title of Authorized Signatory: Managing Director
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
[SIGNATURE PAGES CONTINUE]
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Sanofi Research Invest LLC
Signature of Authorized Signatory of Purchaser: /s/ Jamie Haney
Name of Authorized Signatory: Jamie Haney
Title of Authorized Signatory: Vice President
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker ☐ 4.99% or 9.99% or ☐ 19.99%
[SIGNATURE PAGES CONTINUE]
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Steven Zakharyayev
Signature of Authorized Signatory of Purchaser: /s/ Steven Zakharyayev
Name of Authorized Signatory: Steven Zakharyayev
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
[SIGNATURE PAGES CONTINUE]
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Adam J. Kent
Signature of Authorized Signatory of Purchaser: /s/ Adam J. Kent
Name of Authorized Signatory: Adam J. Kent
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: JMAG 2602 LLC
Signature of Authorized Signatory of Purchaser: /s/ Andres Garcia
Name of Authorized Signatory: Andres Garcia
Title of Authorized Signatory: Manager
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Deschutes I, LP
Signature of Authorized Signatory of Purchaser: /s/ Robert J. Levitt
Name of Authorized Signatory: Robert J. Levitt
Title of Authorized Signatory: Manager
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: The Cornelis F. Wit Revocable Living Trust, Cornelis F Wit, Trustee
Signature of Authorized Signatory of Purchaser: /s/ Cornelis Frans Wit
Name of Authorized Signatory: Cornelis Frans Wit
Title of Authorized Signatory: Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Chris Warren
Signature of Authorized Signatory of Purchaser: /s/ Chris Warren
Name of Authorized Signatory: Chris Warren
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Diana Fernandez
Signature of Authorized Signatory of Purchaser: /s/ Diana Fernandez
Name of Authorized Signatory: Diana Fernandez
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Erica Kent
Signature of Authorized Signatory of Purchaser: /s/ Erica Kent
Name of Authorized Signatory: Erica Kent
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: The Rohlinger Family Living Trust 2/14/2008
Signature of Authorized Signatory of Purchaser: /s/ George Rohlinger
Name of Authorized Signatory: George Rohlinger
Title of Authorized Signatory: Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Hans J.J. Bos
Signature of Authorized Signatory of Purchaser: /s/ Hans J.J. Bos
Name of Authorized Signatory: Hans J.J. Bos
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Marcia Kent Spousal Lifetime Access TR DTD 12/24/12
Signature of Authorized Signatory of Purchaser: /s/ Howard Kent
Name of Authorized Signatory: Howard Kent
Title of Authorized Signatory: Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Ivonne Maria Letschert Declaration of Revocable Living Trust of Ivonne Letschert
Signature of Authorized Signatory of Purchaser: /s/ Ivonne Letschert
Name of Authorized Signatory: Ivonne Letschert
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Shaf QIC, LLC
Signature of Authorized Signatory of Purchaser: /s/ Jonathan Shafmaster
Name of Authorized Signatory: Jonathan Shafmaster
Title of Authorized Signatory: Manager
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: District 2 Capital Fund LP
Signature of Authorized Signatory of Purchaser: /s/ Michael Bigger
Name of Authorized Signatory: Michael Bigger
Title of Authorized Signatory: Managing Member of the GP
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Nathan Snyder
Signature of Authorized Signatory of Purchaser: /s/ Nathan Snyder
Name of Authorized Signatory: Nathan Snyder
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Nathan Cali
Signature of Authorized Signatory of Purchaser: /s/ Nathan Cali
Name of Authorized Signatory: Nathan Cali
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Nico P. Pronk
Signature of Authorized Signatory of Purchaser: /s/ Nico P. Pronk
Name of Authorized Signatory: Nico P. Pronk
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Richard Friedman 2008 Revocable Trust
Signature of Authorized Signatory of Purchaser: /s/ Richard Friedman
Name of Authorized Signatory: Richard Friedman
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Riverside investments group LLC
Signature of Authorized Signatory of Purchaser: /s/ Shalom Auerbach
Name of Authorized Signatory: Shalom Auerbach
Title of Authorized Signatory: Presidey
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Newco DE 22 Inc.
Signature of Authorized Signatory of Purchaser: /s/ Shalom Auerbach
Name of Authorized Signatory: Shalom Auerbach
Title of Authorized Signatory: Principal
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: PASE Trust
Signature of Authorized Signatory of Purchaser: /s/ Steven Berger
Name of Authorized Signatory: Steven Berger
Title of Authorized Signatory: Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: PEAS Trust, dtd 12/27/2012
Signature of Authorized Signatory of Purchaser: /s/ Steven Berger
Name of Authorized Signatory: Steven Berger
Title of Authorized Signatory: Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: SEAS Trust, dtd 12/27/2012
Signature of Authorized Signatory of Purchaser: /s/ Steven Berger
Name of Authorized Signatory: Steven Berger
Title of Authorized Signatory: Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Tomsat Investment & Trading
Signature of Authorized Signatory of Purchaser: /s/ Thomas Satterfield
Name of Authorized Signatory: Thomas Satterfield
Title of Authorized Signatory: President
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Thomas A. Satterfield Rev Trust
Signature of Authorized Signatory of Purchaser: /s/ Thomas Satterfield
Name of Authorized Signatory: Thomas Satterfield
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: AG Family LP
Signature of Authorized Signatory of Purchaser: /s/ Thomas Satterfield
Name of Authorized Signatory: Thomas Satterfield
Title of Authorized Signatory: President of General Partner
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: TJ Brown Living Trust
Signature of Authorized Signatory of Purchaser: /s/ T.J. Brown
Name of Authorized Signatory: T.J. Brown
Title of Authorized Signatory: Sole Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Surfside Angels LLC
Signature of Authorized Signatory of Purchaser: /s/ Zalmi Ducman
Name of Authorized Signatory: Zalmi Ducman
Title of Authorized Signatory: President
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Blu-B Nevada Par Equity LLC aka BBN Investing 1
Signature of Authorized Signatory of Purchaser: /s/ Shlomo Boehm
Name of Authorized Signatory: Shlomo Boehm
Title of Authorized Signatory: Auth. Rep.
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Blu-G Nevada Par Equity LLC dba BGN Investing 1
Signature of Authorized Signatory of Purchaser: /s/ Charles-Edward Gros
Name of Authorized Signatory: Charles-Edward Gros
Title of Authorized Signatory: Auth. Rep.
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Bigger Capital Fund, LP
Signature of Authorized Signatory of Purchaser: /s/ Michael Bigger
Name of Authorized Signatory: Michael Bigger
Title of Authorized Signatory: Managing Member of the GP
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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Omitted Exhibits and Schedules:
Exhibit A: Registration Rights Agreement
Exhibit B: Pre-Funded Warrant
Exhibit C: Common Stock Warrant
Exhibit D: Lock-Up Agreement
Schedule 1: Purchaser Allocations
Schedule 3.1(a): Subsidiaries
Schedule 3.1(g): Capitalization
Schedule 3.1(i): Material Changes; Undisclosed Events, Liabilities or Developments
Schedule 3.1(t): Certain Fees
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Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this “Agreement”) is made and entered into as of April 28, 2023, by and between Eledon Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and each of the several purchasers signatory hereto (each such purchaser, a “Purchaser” and, collectively, the “Purchasers”).
This Agreement is made pursuant to the Securities Purchase Agreement, dated as of the date hereof, between the Company and each Purchaser (the “Purchase Agreement”).
The Company and each Purchaser hereby agrees as follows:
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(d).
“Effectiveness Date” means, with respect to the Initial Registration Statement required to be filed hereunder, the 60th calendar day following the date hereof (or, in the event of a “full review” by the Commission, the 90th calendar day following the date hereof) 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, 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.
“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).
“Filing Date” means, with respect to the Initial Registration Statement required hereunder, the 20th calendar day following the date hereof 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
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Guidance to file such additional Registration Statement related to the Registrable Securities.
“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).
“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, (b) all Warrant Shares then issued and issuable upon exercise of the Warrants (assuming on such date the Warrants are exercised in full without regard to any exercise limitations therein) and (c) 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 (a) 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, (b) such Registrable Securities have been previously sold in accordance with Rule 144, or (c) such securities become eligible for resale without volume or manner-of-sale restrictions and without current public information pursuant to Rule 144 as set forth in a written opinion letter to such effect, addressed, delivered and acceptable to the Transfer Agent and the affected Holders (assuming that such securities and any securities issuable upon exercise, conversion or exchange of which, or as a dividend upon which, such securities were issued or are issuable, were at no time held by any Affiliate of the Company, and all Warrants are exercised by “cashless exercise” as provided in Section 2(c) of each of the Warrants), as reasonably determined by the Company, upon the advice of counsel to the Company.
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“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.
“Selling Stockholder Questionnaire” shall have the meaning set forth in Section 3(a).
“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.
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In the event of a cutback hereunder, the Company shall give the Holder 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.
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In connection with the Company’s registration obligations hereunder, the Company shall:
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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 includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
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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 ten 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.
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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********************
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.
ELEDON PHARMACEUTICALS, INC.
By: /s/ David-Alexandre C. Gros. M.D.
Name: David-Alexandre C. Gros, M.D.
Title: Chief Executive Officer
[SIGNATURE PAGE OF HOLDERS FOLLOWS]
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Biotechnology Value Fund, L.P.
Signature of Authorized Signatory of Purchaser: /s/ Mark Lampert
Name of Authorized Signatory: Mark Lampert
Title of Authorized Signatory: Chief Executive Officer of BVF I GP LLC, General Partner of Biotechnology Value Fund, L.P.
[SIGNATURE PAGES CONTINUE]
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Biotechnology Value Fund II, L.P.
Signature of Authorized Signatory of Purchaser: /s/ Mark Lampert
Name of Authorized Signatory: Mark Lampert
Title of Authorized Signatory: Chief Executive Officer of BVF II GP LLC, General Partner of Biotechnology Value Fund II, L.P.
[SIGNATURE PAGES CONTINUE]
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Biotechnology Value Trading Fund OS LP
Signature of Authorized Signatory of Purchaser: /s/ Mark Lampert
Name of Authorized Signatory: Mark Lampert
Title of Authorized Signatory: President of BVF Inc., General Partner of BVF Partners L.P., Sole Member of BVF Partners OS Ltd., General Partner of Biotechnology Value Trading Fund OS LP
[SIGNATURE PAGES CONTINUE]
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: MSI BVF SPV, LLC
Signature of Authorized Signatory of Purchaser: /s/ Mark Lampert
Name of Authorized Signatory: Mark Lampert
Title of Authorized Signatory: President of BVF Inc., General Partner of BVF Partners L.P., Attorney in Fact MSI BVF SPV, LLC
[SIGNATURE PAGES CONTINUE]
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Armistice Capital Master Fund Ltd.
Signature of Authorized Signatory of Purchaser: /s/ Steven Boyd
Name of Authorized Signatory: Steven Boyd
Title of Authorized Signatory: CIO of Armistice Capital, LLC, the Investment Manager
[SIGNATURE PAGES CONTINUE]
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: JDRF T1D Fund, LLC
Signature of Authorized Signatory of Purchaser: /s/ Steven St. Peter
Name of Authorized Signatory: Steven St. Peter
Title of Authorized Signatory: Managing Director
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Sanofi Research Invest LLC
Signature of Authorized Signatory of Purchaser: /s/ Jamie Haney
Name of Authorized Signatory: Jamie Haney
Title of Authorized Signatory: Vice President
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Steven Zakharyayev
Signature of Authorized Signatory of Purchaser: /s/ Steven Zakharyayev
Name of Authorized Signatory: Steven Zakharyayev
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Adam J. Kent
Signature of Authorized Signatory of Purchaser: /s/ Adam J. Kent
Name of Authorized Signatory: Adam J. Kent
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: JMAG 2602 LLC
Signature of Authorized Signatory of Purchaser: /s/ Andres Garcia
Name of Authorized Signatory: Andres Garcia
Title of Authorized Signatory: Manager
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Deschutes I, LP
Signature of Authorized Signatory of Purchaser: /s/ Robert J. Levitt
Name of Authorized Signatory: Robert J. Levitt
Title of Authorized Signatory: Manager
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: The Cornelis F. Wit Revocable Living Trust, Cornelis F Wit, Trustee
Signature of Authorized Signatory of Purchaser: /s/ Cornelis Frans Wit
Name of Authorized Signatory: Cornelis Frans Wit
Title of Authorized Signatory: Trustee
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Chris Warren
Signature of Authorized Signatory of Purchaser: /s/ Chris Warren
Name of Authorized Signatory: Chris Warren
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Diana Fernandez
Signature of Authorized Signatory of Purchaser: /s/ Diana Fernandez
Name of Authorized Signatory: Diana Fernandez
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Erica Kent
Signature of Authorized Signatory of Purchaser: /s/ Erica Kent
Name of Authorized Signatory: Erica Kent
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: The Rohlinger Family Living Trust 2/14/2008
Signature of Authorized Signatory of Purchaser: /s/ George Rohlinger
Name of Authorized Signatory: George Rohlinger
Title of Authorized Signatory: Trustee
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Hans J.J. Bos
Signature of Authorized Signatory of Purchaser: /s/ Hans J.J. Bos
Name of Authorized Signatory: Hans J.J. Bos
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Marcia Kent Spousal Lifetime Access TR DTD 12/24/12
Signature of Authorized Signatory of Purchaser: /s/ Howard Kent
Name of Authorized Signatory: Howard Kent
Title of Authorized Signatory: Trustee
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Ivonne Maria Letschert Declaration of Revocable Living Trust of Ivonne Letschert
Signature of Authorized Signatory of Purchaser: /s/ Ivonne Letschert
Name of Authorized Signatory: Ivonne Letschert
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Shaf QIC, LLC
Signature of Authorized Signatory of Purchaser: /s/ Jonathan Shafmaster
Name of Authorized Signatory: Jonathan Shafmaster
Title of Authorized Signatory: Manager
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: District 2 Capital Fund LP
Signature of Authorized Signatory of Purchaser: /s/ Michael Bigger
Name of Authorized Signatory: Michael Bigger
Title of Authorized Signatory: Managing Member of the GP
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Nathan Snyder
Signature of Authorized Signatory of Purchaser: /s/ Nathan Snyder
Name of Authorized Signatory: Nathan Snyder
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Nathan Cali
Signature of Authorized Signatory of Purchaser: /s/ Nathan Cali
Name of Authorized Signatory: Nathan Cali
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Nico P. Pronk
Signature of Authorized Signatory of Purchaser: /s/ Nico P. Pronk
Name of Authorized Signatory: Nico P. Pronk
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Richard Friedman 2008 Revocable Trust
Signature of Authorized Signatory of Purchaser: /s/ Richard Friedman
Name of Authorized Signatory: Richard Friedman
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Riverside investment group LLC
Signature of Authorized Signatory of Purchaser: /s/ Shalom Auerbach
Name of Authorized Signatory: Shalom Auerbach
Title of Authorized Signatory: Presidey
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Newco DE 22 Inc.
Signature of Authorized Signatory of Purchaser: /s/ Shalom Auerbach
Name of Authorized Signatory: Shalom Auerbach
Title of Authorized Signatory: Principal
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: PASE Trust
Signature of Authorized Signatory of Purchaser: /s/ Steven Berger
Name of Authorized Signatory: Steven Berger
Title of Authorized Signatory: Trustee
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: PEAS Trust, dtd 12/27/2012
Signature of Authorized Signatory of Purchaser: /s/ Steven Berger
Name of Authorized Signatory: Steven Berger
Title of Authorized Signatory: Trustee
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: SEAS Trust, dtd 12/27/2012
Signature of Authorized Signatory of Purchaser: /s/ Steven Berger
Name of Authorized Signatory: Steven Berger
Title of Authorized Signatory: Trustee
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Tomsat Investment & Trading
Signature of Authorized Signatory of Purchaser: /s/ Thomas Satterfield
Name of Authorized Signatory: Thomas Satterfield
Title of Authorized Signatory: President
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Thomas A. Satterfield Rev Trust
Signature of Authorized Signatory of Purchaser: /s/ Thomas Satterfield
Name of Authorized Signatory: Thomas Satterfield
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: AG Family LP
Signature of Authorized Signatory of Purchaser: /s/ Thomas Satterfield
Name of Authorized Signatory: Thomas Satterfield
Title of Authorized Signatory: President of General Partner
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: TJ Brown Living Trust
Signature of Authorized Signatory of Purchaser: /s/ T.J. Brown
Name of Authorized Signatory: T.J. Brown
Title of Authorized Signatory: Sole Trustee
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Surfside Angels LLC
Signature of Authorized Signatory of Purchaser: /s/ Zalmi Ducman
Name of Authorized Signatory: Zalmi Ducman
Title of Authorized Signatory: President
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Blu-B Nevada Par Equity LLC aka BBN Investing 1
Signature of Authorized Signatory of Purchaser: /s/ Shlomo Boehm
Name of Authorized Signatory: Shlomo Boehm
Title of Authorized Signatory: Auth. Rep.
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Blu-G Nevada Par Equity LLC dba BGN Investing 1
Signature of Authorized Signatory of Purchaser: /s/ Charles-Edward Gros
Name of Authorized Signatory: Charles-Edward Gros
Title of Authorized Signatory: Auth. Rep.
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Bigger Capital Fund, LP
Signature of Authorized Signatory of Purchaser: /s/ Michael Bigger
Name of Authorized Signatory: Michael Bigger
Title of Authorized Signatory: Managing Member of the GP
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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:
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 2440; and in the case of a principal transaction a markup or markdown in compliance with FINRA IM-2440.
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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 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).
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Annex B
SELLING STOCKHOLDERS
The common stock being offered by the selling stockholders are those previously issued to the selling stockholders, and those issuable to the selling stockholders, upon exercise of the warrants. For additional information regarding the issuances of those shares of common stock and warrants, see “Private Placement of Shares of Common Stock and Warrants” above. We are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time. Except for the ownership of the shares of common stock and the warrants [and as otherwise described under “Certain Relationships with the Selling Stockholders,” the selling stockholders have not had any material relationship with us within the past three years.]
The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling stockholders. The second column lists the number of shares of common stock beneficially owned by each selling stockholder, based on its ownership of the shares of common stock and warrants, as of ________, 2023, assuming exercise of the warrants held by the selling stockholders on that date, without regard to any limitations on exercises.
The third column lists the shares of common stock being offered by this prospectus by the selling stockholders.
In accordance with the terms of a registration rights agreement with the selling stockholders, this prospectus generally covers the resale of the sum of (i) the number of shares of common stock issued to the selling stockholders in the “Private Placement of Shares of Common Stock and Warrants” described above and (ii) the maximum number of shares of common stock issuable upon exercise of the related warrants, determined as if the outstanding warrants were exercised in full as of the trading day immediately preceding the date this registration statement was initially filed with the SEC, each as of the trading day immediately preceding the applicable date of determination and all subject to adjustment as provided in the registration right agreement, without regard to any limitations on the exercise of the warrants. The fourth column assumes the sale of all of the shares offered by the selling stockholders pursuant to this prospectus.
Under the terms of the warrants, a selling stockholder may not exercise the warrants to the extent such exercise would cause such selling stockholder, together with its affiliates and attribution parties, to beneficially own a number of shares of common stock which would exceed [4.99%/9.99%][or, in limited circumstances, 19.99%] of our then outstanding common stock following such exercise, excluding for purposes of such determination shares of common stock issuable upon exercise of the warrants which have not been exercised. The number of shares in the second column does not reflect this limitation. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
Name of Selling Stockholder |
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 |
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Annex C
ELEDON PHARMACEUTICALS, INC.
Selling Stockholder Notice and Questionnaire
The undersigned beneficial owner of common stock (the “Registrable Securities”) of Eledon Pharmaceuticals, Inc., a Delaware 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 Registrable 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 Registrable 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 Registrable Securities hereby elects to include the Registrable 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
_____________________________________________
_____________________________________________
_____________________________________________
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Telephone:
Fax:
Contact Person:
Yes No
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.
Yes No
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.
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.
Stockholder:
____________________________________________________
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____________________________________________________
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.
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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.
Date:
Beneficial Owner:
By:
Name:
Title:
PLEASE FAX A COPY (OR EMAIL A .PDF COPY) OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
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Schedule 6(b)
Piggyback on Registrations
None.
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Exhibit 10.3
April 27, 2023
Dear David-Alexandre:
Eledon Pharmaceuticals, Inc. (“Eledon” or the “Company”) and you are parties to the executive employment agreement dated September 9, 2020 (the “Employment Agreement”). The Company desires to provide certain additional benefits to you as described below. The Employment Agreement continues in effect, as amended and supplemented by this letter agreement (the “Letter Agreement”) pursuant to section 11(c) of the Employment Agreement. Capitalized terms not otherwise defined herein shall have the meanings attributed to them in the Employment Agreement.
Performance Bonus. The Employment Agreement provides for your eligibility to receive the Performance Bonus upon the occurrence of, at any time during the Measurement Period, the market value of the Company’s Common Stock exceeding $1 billion either (i) for a period of 30 consecutive calendar days or (ii) upon a Change of Control of the Company. Notwithstanding anything to the contrary in the Employment Agreement, the market value of the Company’s Common Stock shall be determined by taking into account the total equity value of the Company, which shall mean the total value of all outstanding securities of the Company treated as equity securities under GAAP for purposes of the Company’s financial reporting (“Market Value”). The Compensation Committee shall be responsible for determining Market Value consistent with the Company’s financial reporting.
In addition, you will be eligible to receive a pro rata Performance Bonus, if upon the date of your termination of employment for any reason other than a termination by the Company for Cause (a “Qualifying Termination”), the Market Value is equal to or greater than $600 million, but less than $1 billion. If the Company achieves a Market Value equal to $600 million, the amount of the Performance Bonus will equal $6,000,000. If the Company achieves a Market Value between $600 million and $1 billion, the amount of the Performance Bonus will be pro-rated between the $6,000,000 threshold bonus and $10,000,000 maximum bonus using linear interpolation.
Notwithstanding anything to the contrary in the Employment Agreement, the Performance Bonus will be payable within 30 days following the earlier of your Qualifying Termination or the achievement of the Capitalization Milestone (including the achievement of the Capitalization Milestone in connection with a Change of Control, and as the Capitalization Milestone has been modified above to include a threshold payout at a $600 million Market Value).
Pursuant to Section 3(c) of the Employment Agreement, the Performance Bonus may be paid in cash, Common Stock or a combination of cash and Common Stock in the Company’s discretion. If the Performance Bonus is paid in Common Stock, the Company shall have the right at its
1
Exhibit 10.3
discretion to satisfy any applicable withholding taxes due upon payment of the Performance Bonus by withholding an appropriate number of shares of Common Stock otherwise issuable upon payment of the Performance Bonus.1
Retention Bonus. Pursuant to this Letter Agreement, you will also be eligible for a retention bonus (the “Retention Bonus”) upon the earlier of (1) the date of your Qualifying Termination, (2) the date of a Change of Control during the Employment Term, and (3) July 31, 2026 (such earliest qualifying date, the “Retention Bonus Date”). The Retention Bonus will be an amount paid in cash or shares of Common Stock equal to the product of 761,589 multiplied by the difference between the fair market value of the Common Stock on the Retention Bonus Date (which fair market value will be determined using the 90-day volume weighted average trading price for the 90 trading days preceding the Retention Bonus Date) over the fair market value of the Common Stock at the time of the closing of the Company’s PIPE transaction on April 28, 2023. The Retention Bonus will, however, be limited to a maximum of a $9.00 valuation of the Common Stock on the Retention Bonus Date (i.e., if the price of the Common Stock on the Retention Bonus Date exceeds $9.00, the Retention Bonus will be calculated using the $9.00 maximum price).
The Retention Bonus will be payable within 30 days following the Retention Bonus Date. The Company shall have the right (in the Company’s sole and absolute discretion) to pay the Retention Bonus in Common Stock and shall have the right at its discretion to satisfy any applicable withholding taxes due upon payment of the Retention Bonus by withholding an appropriate number of shares of Common Stock otherwise issuable upon payment of the Retention Bonus.1
Equity Acceleration. Pursuant to Section 7(c) of your Employment Agreement, if your employment is terminated by the Company without Cause or by you for Good Reason, you are entitled to 12 months of accelerated vesting of all outstanding equity awards subject to time-based vesting, subject to your execution of the release contemplated by the Employment Agreement. In addition, subject to your execution of the release contemplated by the Employment Agreement, any then-unvested and outstanding performance-based equity awards will (1) remain outstanding and eligible to vest if the applicable performance conditions are satisfied for 12 months following your termination of employment without Cause or for Good Reason, and (2) the term of such performance-based options will be extended until the earlier of (A) 90 days after the performance conditions are achieved and (B) the normal expiration date of such performance-based options. If the Board (or its Compensation Committee) determines that the performance conditions have not been satisfied, any performance-based options will immediately terminate. If your employment is terminated by the Company without Cause or by you for Good Reason in connection with a Change of Control pursuant to Section 7(c)(ii) of the Employment Agreement, subject to your execution of the release contemplated by the Employment Agreement, any then-unvested and outstanding performance-based equity awards will become fully vested at the target performance level.
2
Exhibit 10.3
[1] You agree to file a 10b5-1 plan that will allow you to sell the Company’s Common Stock to cover any tax due upon receipt of the Common Stock upon vesting of the Performance Bonus, the Retention Bonus, or the New Incentive Shares, to the extent the Company determines not to allow you to receive a net settlement for such benefits. The Company shall notify you no later than 10 business days prior to the delivery of shares underlying such benefits to you as to whether or not the Company will allow a net settlement of such benefits with the Company paying any tax amounts due pursuant thereto. Any such decision by the Company will be made by the Board.
Cancellation of Incentive Shares & New Award. You are currently entitled to receive an award of Incentive Shares pursuant to Section 4(c) of the Employment Agreement. In lieu of the Incentive Share award, you will be entitled to receive a proportionate grant of Common Stock that in the aggregate shall be equal to one percent of the total number of shares of Common Stock on a fully diluted basis (calculated in a manner consistent with Section 4(c) of the Employment Agreement) upon the first occurrence of (1) a majority of the Tranche C Warrants to Purchase Common Stock or Pre-Funded Warrants, held by the largest holder of such Warrants on the PIPE closing date, are exercised (the “Warrant Exercise”) following the PIPE Transaction and (2) the first date (the “Study and Hurdle Date”) that is six months after the date on which the topline data for the K207 kidney transplantation trial is available to the Company and where the Company’s Market Value is equal to or greater than $900 million for a period of 20 trading days (the “New Incentive Shares”). You will be entitled to receive the New Incentive Shares if the Warrant Exercise or Study and Hurdle Date either occurs at any time during the Employment Term or within the 12-month period following your termination of employment by the Company without Cause or by you for Good Reason. The New Incentive Shares shall be payable within 30 days following the first to occur of the Warrant Exercise and the Study and Hurdle Date, and the Company shall have the right (in the Company’s sole and absolute discretion) to pay the New Incentive Shares in cash, Common Stock or a combination of cash and Common Stock. Any shares of Common Stock issued as payment will be valued in the same manner as set forth in Section 4(c) of the Employment Agreement.
The Company hereby agrees that if the New Incentive Shares are paid in Common Stock, the Company shall have the right at its discretion to satisfy any applicable withholding taxes due upon payment of the New Incentive Shares by withholding an appropriate number of shares of Common Stock otherwise issuable upon payment of the New Incentive Shares.1
Except as amended and supplemented by this Letter Agreement, the Employment Agreement shall continue in effect and the terms of the Employment Agreement are incorporated into this Letter Agreement. This Letter Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
3
Exhibit 10.3
Thank you for your continuing contributions to the Company.
Sincerely,
Keith A. Katkin
EXECUTIVE ACKNOWLEDGEMENT
I agree to the terms and conditions set forth above and agree that this Letter Agreement amends and supplements the Employment Agreement.
/s/ David-Alexandre Gros _______________________
David-Alexandre Gros April 27, 2023
4
Exhibit 10.4
April 27, 2023
Dear Steven:
Eledon Pharmaceuticals, Inc. (“Eledon” or the “Company”) and you are parties to the executive employment agreement dated September 14, 2020 (the “Employment Agreement”). The Company desires to provide certain additional benefits to you as described below. The Employment Agreement continues in effect, as amended and supplemented by this letter agreement (the “Letter Agreement”) pursuant to section 11(c) of the Employment Agreement. Capitalized terms not otherwise defined herein shall have the meanings attributed to them in the Employment Agreement.
Retention Bonus. Pursuant to this Letter Agreement, you will also be eligible for a retention bonus (the “Retention Bonus”) upon the earlier of (1) the date of your termination of employment for any reason other than a termination by the Company for Cause, (2) the date of a Change of Control during the Employment Term, and (3) July 31, 2026 (such earliest qualifying date, the “Retention Bonus Date”). The Retention Bonus will be an amount paid in cash or shares of Common Stock equal to the product of 327,350 multiplied by the difference between the fair market value of the Common Stock on the Retention Bonus Date (which fair market value will be determined using the 90-day volume weighted average trading price for the 90 trading days preceding the Retention Bonus Date) over the fair market value of the Common Stock at the time of the closing of the Company’s PIPE transaction on April 28, 2023. The Retention Bonus will, however, be limited to a maximum of a $9.00 valuation of the Common Stock on the Retention Bonus Date (i.e., if the price of the Common Stock on the Retention Bonus Date exceeds $9.00, the Retention Bonus will be calculated using the $9.00 maximum price).
The Retention Bonus will be payable within 30 days following the Retention Bonus Date. The Retention Bonus may be paid in cash, Common Stock or a combination of cash and Common Stock in the Company’s discretion. If the Retention Bonus is paid in Common Stock, the Company shall have the right at its discretion to satisfy any applicable withholding taxes due upon payment of the Retention Bonus by withholding an appropriate number of shares of Common Stock otherwise issuable upon payment of the Retention Bonus.
Except as amended and supplemented by this Letter Agreement, the Employment Agreement shall continue in effect and the terms of the Employment Agreement are incorporated into this Letter Agreement. This Letter Agreement may be executed in one or more counterparts, each of
1
Exhibit 10.4
which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Thank you for your continuing contributions to the Company.
Sincerely,
David-Alexandre C. Gros, MD
Chief Executive Officer
EXECUTIVE ACKNOWLEDGEMENT
I agree to the terms and conditions set forth above and agree that this letter agreement amends and supplements the Employment Agreement.
/s/ Steve Perrin, Ph.D__________ _______________________
Steven Perrin, Ph.D. April 27, 2023
2
Exhibit 99.1
Eledon Pharmaceuticals Announces up to $185 Million Financing to Advance Tegoprubart Kidney Transplantation Clinical Trials
$35 million in upfront financing with the potential to receive additional aggregate financing up to $105 million, subject to achieving clinical development milestones, plus up to $45 million upon exercise of warrants
Led by BVF Partners LP and Armistice Capital, with participation from new investor Sanofi (via Sanofi Ventures)
Aggregate financing (subject to milestones) expected to be sufficient to fund Company through the completion of the Phase 2 BESTOW trial evaluating tegoprubart for the prevention of rejection in patients receiving a kidney transplant
IRVINE, Calif., May 1, 2023 (GLOBE NEWSWIRE) – Eledon Pharmaceuticals, Inc. (“Eledon”) (NASDAQ: ELDN), a clinical stage transplant and immunology-focused biopharmaceutical company, today announced that it has entered into a definitive securities purchase agreement with certain healthcare investors that will provide up to $185 million in gross proceeds to Eledon through a private placement. The purchase is comprised of an initial upfront financing of $35 million in exchange for 15.2 million common shares (or pre-funded warrants), representing a purchase price of $2.31 for each share of common stock and associated warrant sold at the initial closing, and up to an additional $105 million in mandatory tranche financing, subject to achieving specified milestones, including clinical development milestones. In addition, Eledon will have the potential to receive $45 million upon the full exercise of warrants being issued in connection with the agreement.
The financing is being led by BVF Partners LP and Armistice Capital, and includes participation from new and existing investors including Sanofi (via Sanofi Ventures).
“This financing represents a significant commitment by our shareholders to advance the development of tegoprubart in kidney transplantation,” said David-Alexandre C. Gros, M.D., Chief Executive Officer. “Eledon is now financially positioned to complete and report data from our planned Phase 2 BESTOW study, as well as to continue accumulating and reporting data from our ongoing Phase 1b kidney transplantation trial. We look forward to progressing the development of tegoprubart as a much-needed potential treatment option to better protect and extend the functional life of transplanted kidneys that patients often wait years to receive.”
In addition to the $35 million in upfront financing, the transaction includes a second and third closing, each having mandatory funding conditions whereby the holders have committed to exercise the warrants subject to the satisfaction of certain clinical trial milestones and volume weighted average
Exhibit 99.1
share price levels, and trading volume conditions. The private placement also includes a 5-year term warrant with an exercise price of $3.00 that is exercisable at investors’ election.
SVB Securities is acting as lead placement agent. Cantor, LifeSci Capital and Noble Capital Markets are acting as co-placement agents in connection with the financing.
The Company intends to use the net proceeds from the private placement to fund the clinical development of its lead asset tegoprubart, working capital and general corporate purposes.
The securities sold in the private placement, including the common shares underlying the warrants, are being made in a transaction not involving a public offering and have not been registered under the Securities Act of 1933, as amended, or applicable state securities laws and may not be reoffered or resold in the United States except pursuant to an effective registration statement or an applicable exemption from the registration requirements of the Securities Act and applicable state securities laws. Concurrently with the execution of the securities purchase agreement, Eledon and the investors entered into a registration rights agreement pursuant to which the Company has agreed to file a registration statement with the Securities and Exchange Commission registering the resale of the securities issued in the private placement.
This press release shall not constitute an offer to sell or a solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction.
About Eledon Pharmaceuticals and tegoprubart
Eledon Pharmaceuticals is a clinical stage biotechnology company using its immunology expertise in targeting the CD40 Ligand (CD40L, also called CD154) pathway to develop therapies to protect transplanted organs and prevent rejection, and to treat ALS. The company’s lead compound in development is tegoprubart, an anti-CD40L antibody with high affinity for CD40 Ligand, a well-validated biological target with broad therapeutic potential. Eledon is headquartered in Irvine, CA. For more information, please visit the company’s website at www.eledon.com.
Follow Eledon Pharmaceuticals on social media: LinkedIn; Twitter
Forward-Looking Statements
This press release contains forward-looking statements that involve substantial risks and uncertainties. Any statements about the completion of the private placement, the satisfaction of the mandatory funding conditions, exercise of the warrants, other customary closing conditions related to the private placement, the intended use of net proceeds from the private placement, statements about planned clinical trials, the Company’s expectation that the aggregate financing (subject to milestones) is expected to be sufficient to fund the Company through the completion of the Phase 2 kidney transplant trial, and the Company’s other future expectations, plans and prospects, as well as other statements containing the words “believes,” “anticipates,” “plans,” “expects,” “estimates,” “intends,” “predicts,” “projects,” “targets,” “looks forward,” “could,” “may,” and similar expressions, constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements are inherently uncertain and are subject to numerous risks and uncertainties,
Exhibit 99.1
including: risks related to the private placement, risks relating to the safety and efficacy of our drug candidates; risks relating to clinical development timelines, including interactions with regulators and clinical sites, as well as patient enrollment; risks relating to costs of clinical trials and the sufficiency of the company’s capital resources to fund planned clinical trials; and risks associated with the impact of the ongoing coronavirus pandemic. Actual results may differ materially from those indicated by such forward-looking statements as a result of various factors. These risks and uncertainties, as well as other risks and uncertainties that could cause the company’s actual results to differ significantly from the forward-looking statements contained herein, are discussed in our quarterly 10-Q, annual 10-K, and other filings with the U.S. Securities and Exchange Commission, which can be found at www.sec.gov. Any forward-looking statements contained in this press release speak only as of the date hereof and not of any future date, and the company expressly disclaims any intent to update any forward-looking statements, whether as a result of new information, future events or otherwise.
Investor Contact:
Stephen Jasper
Gilmartin Group
(858) 525 2047
stephen@gilmartinir.com
Source: Eledon Pharmaceuticals