GridAI Technologies Corp DEFA14A, filed Mar 14, 2024
GridAI Technologies Corp. (GRDX)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): March 13, 2024
| First Wave BioPharma, Inc. | ||
| (Exact name of registrant as specified in its charter) |
| Delaware | 001-37853 | 46-4993860 | ||
| (State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
|
777 Yamato Road, Suite 502 Boca Raton, Florida |
33431 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (561) 589-7020
Not Applicable
(Former name or former address, if changed since last report)
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:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| x | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) |
Name of each exchange on which registered | ||
| Common Stock, par value $0.0001 per share | FWBI | The Nasdaq Capital Market |
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. |
Agreement and Plan of Merger
On March 13, 2024, First Wave BioPharma, Inc., a Delaware corporation (“we,” “us,”, “our,” or the “Company”), acquired ImmunogenX, Inc., a Delaware corporation (“ImmunogenX”), in accordance with the terms of an Agreement and Plan of Merger, dated March 13, 2024 (the “Merger Agreement”), by and among the Company, IMMUNO Merger Sub I, Inc., a Delaware corporation (“First Merger Sub”), IMMUNO Merger Sub II, LLC, a Delaware limited liability company (“Second Merger Sub”), and ImmunogenX. Pursuant to the Merger Agreement, First Merger Sub merged with and into ImmunogenX, pursuant to which ImmunogenX was the surviving corporation (the “First Merger”). Immediately following the First Merger, ImmunogenX merged with and into Second Merger Sub, pursuant to which Second Merger Sub was the surviving entity and a wholly owned subsidiary of the Company (the “Second Merger” and together with the First Merger, the “Merger”). The Merger is intended to qualify as a tax-free reorganization for U.S. federal income tax purposes.
Under the terms of the Merger Agreement, upon the consummation of the Merger on March 13, 2024 (the “Closing”), in exchange for the outstanding shares of capital stock of ImmunogenX immediately prior to the effective time of the First Merger, the Company issued to the stockholders of ImmunogenX an aggregate of (A) 36,830 shares of common stock of the Company, par value $0.0001 per share (the “Common Stock”), and (B) 11,777.418 shares of Series G Preferred Stock (as defined and described below), each share of which is convertible into 1,000 shares of Common Stock, subject to certain conditions described below. In addition, the Company assumed (i) all ImmunogenX stock options immediately outstanding prior to the First Merger, each becoming an option to purchase Common Stock subject to adjustment pursuant to the terms of the Merger Agreement (the “Assumed Options”) and (ii) all ImmunogenX warrants immediately outstanding prior to the First Merger, each becoming a warrant to purchase Common Stock subject to adjustment pursuant to the terms of the Merger Agreement (the “Assumed Warrants”). The Assumed Options are exercisable for an aggregate of 200,652 shares of Common Stock, have an exercise price of $0.81 and expire between February 1, 2031 and June 6, 2033. The Assumed Warrants are exercisable for and aggregate of 127,682 shares of Common Stock, have exercise prices ranging from $3.02 to $3.92 and expire between September 30, 2032 and September 6, 2033.
Reference is made to the discussion of the Series G Preferred Stock in Item 5.03 of this Current Report on Form 8-K, which is incorporated into this Item 1.01 by reference.
The foregoing description of the Assumed Warrants does not purport to be complete and is qualified in its entirety by reference to the form of Assumed Warrant, which is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Following the Closing of the Merger, the Company had 1,974,744 shares of Common Stock issued and outstanding.
Tungsten Partners LLC (“Tungsten”) acted as financial advisor to the Company in connection with the Merger. As partial compensation for services rendered by Tungsten, the Company issued to Tungsten or its affiliates or designees an aggregate of 18,475 shares of Common Stock and 595.808 shares of Series G Preferred Stock.
Pursuant to the Merger Agreement, the Company has agreed to hold a stockholders’ meeting to submit the following matters to its stockholders for their consideration: (i) the approval of the conversion of shares of Series G Preferred Stock into shares of Common Stock in accordance with the rules of the Nasdaq Stock Market LLC (the “Conversion Proposal”) and (ii) if deemed necessary or appropriate by the Company or as otherwise required by applicable law or contract, the approval of an amendment to the Company’s certificate of incorporation, as amended (the “Charter”), to authorize sufficient shares of Common Stock for the conversion of Series G Preferred Stock issued pursuant to the Merger Agreement (the “Share Increase Proposal” and together with the Conversion Proposal, the “Meeting Proposals”). In connection with these matters, the Company has agreed to file a proxy statement. with the Securities and Exchange Commission (the “SEC”).
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The Board of Directors of Company (the “Board”) and the holders of a majority of the Company’s Series B Convertible Preferred Stock approved the Merger Agreement and the related transactions, and the consummation of the Merger was not subject to approval of Company common stockholders.
The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The Merger Agreement has been filed herewith to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information about the Company or ImmunogenX. The Merger Agreement contains representations, warranties and covenants that the Company and ImmunogenX made to each other as of specific dates. The assertions embodied in those representations, warranties and covenants were made solely for purposes of the Merger Agreement between the Company and ImmunogenX and may be subject to important qualifications and limitations agreed to by the Company and ImmunogenX in connection with negotiating its terms, including being qualified by confidential disclosures exchanged between the parties in connection with the execution of the Merger Agreement. Moreover, the representations and warranties may be subject to a contractual standard of materiality that may be different from what may be viewed as material to investors or securityholders, or may have been used for the purpose of allocating risk between the Company and ImmunogenX rather than establishing matters as facts. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures. For the foregoing reasons, no person should rely on the representations and warranties as statements of factual information at the time they were made or otherwise.
Voting and Support Agreements
In connection with the execution of the Merger Agreement, the Company and ImmunogenX entered into stockholder voting agreements (the “IMGX Voting Agreements”) with certain of ImmunogenX’s stockholders. Pursuant to the IMGX Voting Agreements, among other things, each of the ImmunogenX stockholder parties thereto has agreed to vote or cause to be voted all of the shares of Common Stock owned by such stockholder in favor of the Share Increase Proposal (if such proposal is brought before the Company’s stockholders).
The foregoing description of the IMGX Voting Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the IMGX Voting Agreement, a copy of which is included as Exhibit A to the Merger Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by reference.
In connection with the execution of the Merger Agreement, the Company and ImmunogenX entered into stockholder support agreements (the “Company Support Agreements”) with certain of the Company’s officers (solely in their capacity as stockholders of the Company). Pursuant to the Support Agreements, among other things, each of the Company stockholder parties thereto has agreed to vote or cause to be voted all of the shares of Common Stock owned by such stockholder in favor of the Meeting Proposals.
The foregoing description of the Company Support Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the Company Support Agreement, a copy of which is included as Exhibit B to the Merger Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by reference.
Lock-up Agreements
Concurrently and in connection with the execution of the Merger Agreement, certain ImmunogenX stockholders as of immediately prior to the Closing, and certain officers of the Company as of immediately prior to the Closing entered into lock-up agreements with the Company and ImmunogenX, pursuant to which each such stockholder agreed to be subject to a 180-day lockup on the sale or transfer of shares of the Company held by each such stockholder at the Closing, including those shares of Common Stock and Series G Preferred Stock (including the shares of Common Stock into which such Series G Preferred Stock is convertible) received by each such stockholder in the Merger (the “Lock-up Agreements”).
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The foregoing description of the Lock-up Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the Lock-up Agreement, a copy of which is included as Exhibit C to the Merger Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by reference.
Restrictive Covenants Agreements
Concurrently and in connection with the execution of the Merger Agreement, certain ImmunogenX officers as of immediately prior to the Closing, entered into restrictive covenants agreements with the Company and ImmunogenX, pursuant to which such individuals and each of their affiliates agreed not to compete with ImmunogenX during the three-year period following the Closing and, during such three-year restricted period, not to solicit Restricted Employees (as defined in the form of Restrictive Covenants Agreement) (the “Restrictive Covenants Agreements”). The Restrictive Covenants Agreements also contain customary non-disparagement and confidentiality provisions.
The foregoing description of the Restrictive Covenants Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the Restrictive Covenants Agreement, a copy of which is included as Exhibit D to the Merger Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by reference.
Debt of ImmunogenX
ImmunogenX is party to that certain Credit Agreement, dated as of October 3, 2022 (as amended by that certain Modification of Loan Documents, dated as of September 6, 2023, the “Credit Agreement”), with Mattress Liquidators, Inc. (“Lender”), pursuant to which Lender provided ImmunogenX with a secured revolving credit facility with a total commitment of $7,500,000. The loans under the Credit Agreement bore interest at a per annum floating rate equal to the prime rate plus 4.50% and had a maturity date of October 3, 2024. In connection with the Merger, ImmunogenX entered into a Second Modification of Loan Documents, dated March 13, 2024 (the “Second Amendment,” and the Credit Agreement as amended by the Second Amendment, the “Amended Credit Agreement”), which provides for, among other things: (i) Lender’s consent for the Merger, (ii) Second Merger Sub’s assumption all of ImmunogenX’s obligations, rights and liabilities as borrower under the Amended Credit Agreement, (iii) an amendment to the interest rate to a per annum floating rate equal to the prime rate plus 6.00%, (iv) an extension of the maturity date to September 13, 2025, (v) a prohibition on the borrower’s ability to request additional loans under the revolving credit facility, subject to certain limited exceptions, (vi) the pledge by the stockholders of ImmunogenX (the “Pledgors”) of their equity interests of the Company as part of the collateral securing the obligations under the Amended Credit Agreement (the “Pledged Equity”), and (vii) an amendment to the total commitment under the Amended Credit Agreement to $8,212,345.17, which takes into account a one-time prepayment by ImmunogenX to Lender in the amount of $1,000,000 (the “One-Time Prepayment”), accrued interest and fees for the remaining term of the facility and certain other fees to be paid under the Amended Credit Agreement. The Pledged Equity shall be subject to a call right, which shall give Lender the right to, at its option, require the Pledgors to sell to Lender (on a pro rata basis) the number of shares of Pledged Equity that, when multiplied by the per share valuation of the Common Stock at Closing, satisfies all or a portion of the then outstanding amount of obligations under the Amended Credit Agreement.
The borrowings under the Amended Credit Agreement are by evidenced by that certain Second Amended and Restated Revolving Loan Promissory Note, dated March 13, 2024 (the “Note”), and are secured by substantially all of the assets of ImmunogenX pursuant to that certain Security Agreement, dated as of October 3, 2022, as amended (the “Security Agreement”), by and between ImmunogenX and Lender.
On March 13, 2024, ImmunogenX and Lender entered into a lender support letter (the “Support Letter”), pursuant to which, among other things, ImmunogenX and Lender agreed that ImmunogenX is permitted to license or transfer rights to any intellectual property which may constitute collateral under the Amended Credit Agreement.
The Amended Credit Agreement contains customary representations and warranties, affirmative covenants and negative covenants, including covenants that limit or restrict the ImmunogenX’s ability to, among other things, incur additional indebtedness, merge or consolidate, pay dividends or other distributions, repurchase equity, dispose of assets and enter into certain transactions with affiliates, in each case subject to certain exceptions. The Amended Credit Agreement also includes customary events of default, and upon the occurrence and during the continuation of an event of default, Lender may declare the outstanding advances and all other obligations under the Amended Credit Agreement to be immediately due and payable. Payments owed under the Credit Agreement are also personally guaranteed by Jack Syage (the “Guarantee”).
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The foregoing descriptions of the Amended Credit Agreement, the Note, the Security Agreement and the Support Letter do not purport to be complete and are qualified in their entirety by reference to the Amended Credit Agreement, the Note, the Security Agreement and the Support Letter, which are filed as Exhibits 10.1, 10.2, 10.3 and 10.4 to this Current Report on Form 8-K and are incorporated herein by reference.
Stockholder Notes
In order to fund the One-Time Prepayment, on March 13, 2024, ImmunogenX entered into (i) a secured promissory note in favor of Jack Syage, in an aggregate principal amount of $500,000 (the “Syage Note”), and (ii) a secured promissory note in favor of Peter Felker, in an aggregate principal amount of $500,000 (the “Felker Note” and collectively with the Syage Note, the “Shareholder Notes”). The Shareholder Notes will bear interest at a per annum floating rate equal to the prime rate plus 4.50% and mature on October 13, 2025. Each of Jack Syage and Peter Felker, who were shareholders of ImmunogenX prior to the Merger, have entered into a patent and trademark security agreement (the “Shareholder Security Agreements”), each dated March 13, 2024, pursuant to which the obligations under each of the Shareholder Notes are secured by, among other things, the patents and trademarks owned by ImmunogenX.
The foregoing descriptions of the Shareholder Notes and the Shareholder Security Agreements do not purport to be complete and are qualified in their entirety by reference to the Form of Shareholder Note and Form of Shareholder Security Agreement, which are filed as Exhibits 10.5 and 10.6 to this Current Report on Form 8-K and are incorporated herein by reference.
| Item 2.01 | Completion of Acquisition or Disposition of Assets |
On March 13, 2024, the Company completed its business combination with ImmunogenX. The information contained in Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 2.01.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information contained above in Item 1.01 related to the Amended Credit Agreement and the Shareholder Notes is hereby incorporated by reference into this Item 2.03.
| Item 3.02 | Unregistered Sales of Equity Securities |
Pursuant to the Merger Agreement, the Company issued 36,830 shares of Common Stock and 11,777.418 shares of Series G Preferred Stock to the holders of capital stock of ImmunogenX as of immediately prior to the Closing. In addition, the Company issued 18,475 shares of Common Stock and 595.808 shares of Series G Preferred Stock to Tungsten in connection with its services as financial advisor to the Company. The information contained in Item 1.01 and Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02. Such issuances were exempt from registration pursuant to Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.
| Item 3.03 | Material Modification to Rights of Security Holders. |
To the extent required by Item 3.03 of Form 8-K, the information contained in Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
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| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Appointment of Officer and Directors
Pursuant to the Merger Agreement, on March 13, 2024, effective immediately after the Effective Time, the Board, upon the recommendation of the Nominating and Corporate Governance Committee of the Board, (x) approved an increase in the size of the Board from five directors to seven directors; and (y) appointed (i) Jack Syage, PhD. as the Company’s President and Chief Operating Officer and as a member of the Board and (ii) Chaitan Khosla as a member of the Board.
James Sapirstein, the Company’s Chief Executive Officer and Chairman, had served as the Company’s President until the appointment of Dr. Syage.
Jack Syage Ph.D.
Jack Syage, PhD, 69, served as the Chief Executive Officer of ImmunogenX from July 2013 until the Closing of the Merger and as a member of the board of directors of ImmunogenX from January 2021 until the Closing of the Merger. Dr. Syage has over 30 years of experience in creating and leading the development of innovative technologies in the analytical instrumentation field. He is regarded as a leading expert in mass spectrometry and trace chemical detection. Dr. Syage served as CEO and Co-Founder of ImmunogenX, a global leader in the development of treatments for celiac disease, which developed latiglutenase before its combination with First Wave BioPharma. Previously he founded Syagen Technology, Inc. and led its growth culminating in its successful acquisition by French multinational Safran S.A. in 2011. Dr. Syage sits on the Board of Directors of Advanced Telesensors, PhageTech, Analytical Detection, and Appellation Ventures. He has published over 130 papers, delivered about 100 invited talks, has over 30 U.S. patents issued or pending, and appears on the list of the Most Highly Cited Chemists. His honorary positions include Fellow of the American Physical Society, Visiting Professor at UC Irvine, Visiting Professor at the Université de Paris-Sud, Editorial Board member of the Journal of Physical Chemistry, and invitee to the Nobel Symposium in Chemistry. He has received a Tibbets Award (SBIR) and was recently inducted into the Orange County OC 500 Directory of Influence. He received BA and PhD degrees from Hamilton College and Brown University, respectively, where he won several academic awards including Best Thesis. He was a postdoctoral fellow at Caltech under Nobel Laureate Ahmed Zewail.
In connection with Dr, Syage’s appointment as an officer of the Company, on March 13, 2024, Dr. Syage and the Company entered into an offer letter (the “Offer Letter”), pursuant to which he (i) will receive a base annual salary of $350,000, (ii) will be entitled to an incentive bonus of up to 40% of his annual salary, dependent on meeting pre-determined objectives and (iii) will be eligible to participate in Company benefits.
The foregoing description of the Offer Letter does not purport to be complete and is qualified in its entirety by reference to the Letter, which is filed as Exhibit 10.8 this Current Report on Form 8-K and is incorporated herein by reference.
Dr. Syage has entered into a Lock-Up Agreement, a Restrictive Covenants Agreement and an IMGX Voting Agreement. Reference is made to the descriptions of such agreements in Item 1.01 of this Current Report on Form 8-K, which are incorporated into this Item 5.02 by reference.
In addition, Dr. Syage is guarantor under the Amended Credit Agreement. Reference is made to the descriptions of the Amended Credit Agreement and the Guarantee in Item 1.01 of this Current Report on Form 8-K, which are incorporated into this Item 5.02 by reference.
Dr. Syage entered into the Syage Note with ImmunogenX. Reference is made to the description of the Syage Note in Item 1.01 of this Current Report on Form 8-K, which is incorporated into this Item 5.02 by reference.
Dr. Syage does not have any family relationship with any of the executive officers or directors of the Company. Dr. Syage was appointed to the Board as an officer of the Company pursuant to the terms of the Merger Agreement. Other than as set forth above, Mr. Syage is not a party to any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
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Chaitan Khosla, Ph.D.
Dr. Khosla, 59, has served as a Professor in the Departments of Chemistry and Chemical Engineering at Stanford University since 1992 and is founding director of the university’s Innovative Medicines Accelerator. He served as a member of the board of directors of ImmunogenX from 2021 until the Closing of the Merger. He received his Ph.D. in 1990 at Caltech. After completing postdoctoral studies in 1992, he joined the faculty of Stanford University. In 2002 he and his collaborators discovered that the immunotoxicity of dietary gluten in celiac disease is causatively correlated to its intestinal proteolytic resistance, a finding that led to the invention of latiglutenase by his laboratory. He has co-authored over 400 peer-reviewed publications and is an inventor on more than 80 issued U.S. patents. Dr. Khosla is an elected member of the American Academy for Arts and Science, the National Academy of Engineering, and the National Academy of Sciences. Over the past three decades, he has helped launch and build four biotechnology companies including Kosan Biosciences (NASDAQ: KOSN; acquired by Bristol Myers Squibb in 2008) and Sitari Pharmaceuticals (acquired by GlaxoSmithKline in 2019).
Dr. Khosla will be compensated in accordance with the Company’s standard non-employee director compensation plan.
Dr. Khosla does not have any family relationship with any of the executive officers or directors of the Company. Dr. Khosla was appointed to the Board pursuant to the terms of the Merger Agreement.. Other than as set forth above, Dr. Khosla is not a party to any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
Indemnification Agreements
In connection with Dr. Syage’s and Dr. Khosla’s appointment, each of Mr. Syage and Mr. Khosla will enter into the Company’s standard form of indemnification agreement, a copy of which is filed as Exhibit 10.33 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2022.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Certificate of Designation
On March 13, 2024, the Company filed a Certificate of Designation of Preferences, Rights and Limitations of the Series G Non-Voting Convertible Preferred Stock (the “Certificate of Designation”) with the Secretary of State of the State of Delaware in connection with the Merger referenced in Item 1.01 above. The Certificate of Designation provides for the designation of shares of the Company’s Series G Non-Voting Convertible Preferred Stock, par value $0.0001 per share (the “Series G Preferred Stock”).
Holders of Series G Preferred Stock are entitled to receive dividends on shares of Series G Preferred Stock equal to, on an as-if-converted-to-Common-Stock basis, and in the same form as dividends actually paid on shares of the Common Stock.
Except as otherwise required by law, the Series G Preferred Stock does not have voting rights. However, as long as any shares of Series G Preferred Stock are outstanding, the Company will not, without the affirmative vote of the holders of a majority of the then-outstanding shares of the Series G Preferred Stock, (i) alter or change adversely the powers, preferences or rights given to the Series G Preferred Stock or alter or amend the Certificate of Designation, amend or repeal any provision of, or add any provision to, the Charter or bylaws of the Company, or file any articles of amendment, certificate of designations, preferences, limitations and relative rights of any series of preferred stock, in each case if any such action would adversely alter or change the preferences, rights, privileges or powers of, or restrictions provided for the benefit of the Series G Preferred Stock, regardless of whether any of the foregoing actions shall be by means of amendment to the Charter or by merger, consolidation, recapitalization, reclassification, conversion or otherwise, (ii) issue further shares of Series G Preferred Stock, (iii) prior to the earlier of stockholder approval of the Conversion or the six-month anniversary of the Closing, consummate either: (A) any Fundamental Transaction (as in the Certificate of Designation) or (B) any stock sale to, or any merger, consolidation or other business combination of the Company with or into, another entity in which the stockholders of the Company immediately before such transaction do not hold at least a majority of the capital stock of the Company immediately after such transaction, or (iv) enter into any agreement with respect to any of the foregoing.
The Series G Preferred Stock does not have a preference upon any liquidation, dissolution or winding-up of the Company.
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Following stockholder approval of the Conversion Proposal, each share of Series G Preferred Stock will automatically convert into 1,000 shares of Common Stock, subject to certain limitations, including that a holder of Series A Preferred Stock is prohibited from converting shares of Series G Preferred Stock into shares of Common Stock if, as a result of such conversion, such holder, together with its affiliates, would beneficially own more than a specified percentage (to be established by the holder between 4.9% and 19.9%) of the total number of shares of Common Stock issued and outstanding immediately after giving effect to such conversion.
The Series G Preferred Stock is redeemable for cash at the option of the holder thereof at any time following the date that is six months after the initial issuance of the Series G Preferred Stock (without regard to the lack of obtaining the requisite stockholder approval to convert the Series G Preferred Stock into Common Stock), at a price per share equal to the then-current fair value of the Series G Preferred Stock, as described in the Certificate of Designation.
The foregoing description of the Series G Preferred Stock does not purport to be complete and is qualified in its entirety by reference to the full text of the Certificate of Designation, a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
| Item 7.01. | Regulation FD Disclosure. |
Press Release
On March 14, 2024, the Company issued a press release announcing the Closing. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
The information in Item 7.01 of this Current Report on Form 8-K, including the information in the press release attached as Exhibit 99.1 to this Current Report on Form 8-K, is furnished pursuant to Item 7.01 of Form 8-K and shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section. Furthermore, the information in Item 7.01 of this Current Report on Form 8-K, shall not be deemed to be incorporated by reference in the filings of the Company under the Securities Act.
| Item 8.01 | Other Events. |
Business of ImmunogenX
ImmunogenX a private, clinical-stage biopharmaceutical company founded in 2013, which is developing Latiglutenase, an orally administered biologic for the treatment of celiac disease. ImmunogenX is also developing CypCel, a metabolic marker compound that can measure the state of small-intestinal recovery of celiac patients undergoing gluten-free diets (“GFDs”).
Latiglutenase
Latiglutenase, which was formerly identified as ALV003, is composed of two recombinant peptidases, IMGX001 and IMGX002, designed to work in tandem to breakdown gluten inadvertently consumed into non-immunogenic peptides. IMGX001 is a modified recombinant version of cysteine endoprotease B, isoform 2 (EP-B2), which naturally occurs from germinating barley (Hordeum vulgare). IMGX001 is a monomer with three intra-molecular disulfide bonds with an apparent molecular weight of 27 kDa. IMGX002 is a modified recombinant version of a prolyl endopeptidase from the bacterium Sphingomonas apsulate (SC-PEP) and is a monomer without cysteine residues with an apparent molecular weight of 67 kDa.
ImmunogenX holds the worldwide rights to Latiglutenase.
The only current treatment for celiac disease is a gluten free diet. There are no pharmaceuticals approved for the treatment of celiac disease. Latiglutenase would be the first product approved for the symptomatic treatment of celiac disease as an adjunct to a gluten free diet.
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Background
Celiac disease is a systemic autoimmune disease triggered by gluten consumption in genetically susceptible individuals (Green and Cellier 2007). Currently approximately 1% of the Western population is affected by celiac disease. There are no mechanisms to prevent the disease since little is known about potential environmental triggers of the disease.
Gluten, the antigen responsible for celiac disease, is the main protein present in some of the most common cereals (wheat, barley, rye). Modern diets are increasingly enriched with gluten, and it is also used as an additive in processed foods, spices, cosmetics, and oral medications. Gluten is also present in trace amounts in foods labelled as “gluten-free,” as a tableting excipient in drugs, and in products such as toothpaste and lipstick. As little as 50 mg/day of gluten may trigger the disease. A normal diet contains >10 g/day (Hoppe 2017), 200 times the amount that can cause damage and intestinal abnormalities in susceptible individuals. As such, patients with celiac disease face enormous challenges in following a strict GFD due to cross-contamination of food and hidden sources of gluten in unexpected places.
Pre-Clinical Program
Pre-clinical toxicology is complete. In these studies, Latiglutenase has been shown to efficiently degrade intact gluten containing disease-relevant gluten peptides. In vitro, concentrations of Latiglutenase from 0.25 to 0.9 mg/mL degrade > 90% of immunostimulatory peptides in the context of baked wheat bread gluten (0.5 to 12 mg/mL) within 30 to 60 minutes. Latiglutenase activity on its substrate gluten is dependent on enzyme concentration and time.
At pH values typical of a postprandial stomach (3.5 to 5), IMGX001 has been shown to be active and stable. IMGX002 contributes to gluten digestion above pH 4. Therefore, in these studies ALV003 is active in the stomach following a meal.
Overall, in GLP toxicology studies, ALV003 was well tolerated when administered for up to 6 months at oral doses as high as 360 mg/kg, with no adverse effects observed.
Developmental and Reproductive Toxicology (“DART”) program is anticipated to begin in 2024 and take approximately 2 years to complete. As discussed at the End-of Phase 2 meeting with the FDA, a waiver will be submitted for carcinogenicity on the basis that latiglutenase is composed of two minimally absorbed enzymes that act and are degraded in the GI tract.
Clinical Program
Nine clinical studies with ALV003 have been completed. These include single doses of ALV003 (100, 300, 900, and 1800 mg) (ALV003-0811) including an additional assessment of gluten digestion (ALV003-0812). A six-week multiple dose study (ALV003-0921) was conducted in patients with 300 mg TID with 3 levels of gluten challenge (1.5, 3 and 6 grams) in a decreasing fashion. A second 6-week study (ALV003-1021) assessed 900 mg TID with gluten challenges at 1.5 and 2.1 g of gluten. These early studies demonstrated clinical activity down to 100 mg and doses up to 1800 mg were well-tolerated. ALV003 was protective against gluten challenge. Most Aes were mild or moderate in severity.
ALV003 was also assessed as a food processing agent (ALV003-0801). Sixteen (16) grams of gluten predigested with ALV003 was compared to 16 g gluten in 20 celiac patients. Pre-digestion was protective against gluten injury. Two powder formulations were also tested for gluten degradation which was demonstrated (ALV003-1111).
Three PRO instruments (CDSD©, ICDSQ© and IGFDQ©) were assessed in a non-treatment study, ALV003-1121. In newly diagnosed celiac patients receiving sham gluten, 0.5 or 2.0 grams of gluten, or ALV003 digested gluten and evaluated for 8 weeks and showed good convergent validity with reference to other related questionnaire measures, such as the GSRS and concept-specific and global PGI measures.
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A Phase 2b dose ranging study, ALV003-1221, was conducted evaluating Vh:Cd, IELs and change in symptoms based upon CDSD©. Four hundred ninety-four (494) patients were randomized and entered the treatment phase of the study and received: placebo, 100 mg, 300 mg, 450 mg, 600 mg or 900 mg Latiglutenase. The primary analyses for histology failed to demonstrate superiority over placebo; all arms improved due to a Hawthorne trial effect. However, statistically and clinically significant reductions in abdominal pain, bloating, tiredness, and constipation, all components of the CDSD, were observed for the highest doses (600 mg and 900 mg) for patients who were baseline seropositive.
IMGX003-NCCIH-1721 was a double-blind, placebo-controlled, gluten-challenge trial to assess the efficacy, safety, and tolerability of 6 weeks of treatment with latiglutenase or placebo in patients with well-controlled CeD. Latiglutenase protected the mucosa from deliberate gluten challenge (2g/day for 42 days) compared to PBO. The PBO group had a clinically greater worsening in Vh:Cd (p = 0.057) and IEL count (p = 0.017) compared with the IMGX003. Gluten Immunogenic Peptides (“GIP”) results demonstrated the MOA of latiglutenase and its ability to degrade gluten. GIP results over the 42-day treatment period highly favored IMGX003 (between-group difference was strongly statistically significant, p < 0.001). The AE profile was similar for each treatment group.
Over 500 patients have been exposed to latiglutenase in doses up to 1,800 mg. In a phase 2b study (ALV003-1221) patients were given daily doses of ALV003 (100, 300, 450, 600 and 900 mg TID) for up to 24 weeks. The drug appeared to be well-tolerated and no dose-limiting toxicities were observed. GI disorders and infections by system organ class were the most frequently reported Aes. The majority of these events were mild to moderate in severity and felt by the investigator to be unrelated to ALV003. Thirty-six patients withdrew from the study due to Aes. GI disorders were the most frequent Aes leading to study discontinuation across treatment groups and most of these GI events were moderate to severe in severity and deemed to be related to the study medication. There were 5 unrelated serious adverse events in patients treated with latiglutenase, 2 in placebo patients, 1 in 300 mg and 2 in 900 mg dose arms.
Two additional studies, IMGX003-NIAID-1821 and IMGX003-NIDDK-1921, were terminated due to enrollment and other issues resulting from complications and societal restrictions of the COVID-19 pandemic. In the former study, 34 patients were completed and the study is in the process of being closed. In the latter study, no subjects were randomized and the study is closed.
Latiglutenase is expected to enter Phase 3 development with two world-wide clinical trials in the first half of 2025.
CypCel
CypCel is a disease management tool for monitoring the intestinal health of recovering celiac disease patients. It is a minimally-invasive metabolic marker compound that can measure the state of small-intestinal recovery of celiac patients undergoing gluten-free diets. It utilizes a drug biomarker simvastatin, a cholesterol reducing medication, that has the unusual property of being highly metabolized in the small intestine by the enzyme CYP3A4, which is expressed on the villi. The patient ingests a simvastatin tablet and then provides a blood sample at two later time points. The concentration of the simvastatin in the blood samples is directly related to the villous health of the patient; in patients with healthy villi a high rate of metabolism leads to reduced concentration of simvastin in the blood samples whereas in patients with damaged villi, the converse is true. Simvastatin levels measured in individuals at periodic intervals therefore can monitor progressive changes that are indicative of whether a treatment, such as a gluten-free diet, is effective.
In December 2018 ImmunogenX announced the completion of a study with the Mayo Clinic on newly diagnosed and long-term healed celiac disease patients as well as non-celiac healthy control subjects. The results showed a trend toward systematic improvement in villous health in newly diagnosed patients adhering to a gluten-free diet whereas the other cohort groups representing healthy villi showed negligible further improvement as expected.
Intellectual Property
The Latiglutenase program is protected by U.S. Patent 10,434,150 that expires July 3, 2035, U.S. Patent 8,980,254 that expires April 10, 2030, and U.S. Patent 9,993,531 that expires Sept. 9, 2029. We also expect to receive 12-year biologic exclusivity in the United States under the Affordable Care Act and 10-year data exclusivity in the European Union for Latiglutenase.
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Additionally, see Item 1.01 of this Current Report on Form 8-K for information regarding the License Agreement with Stanford.
Manufacturing
Latiglutenase API, including drug substance is currently manufactured by ACS Dobfar SpA, at a contract facility located in Tribiano (MI), Italy. Charles River Laboratories based in Malvern, Pennsylvania is responsible for maintaining our master cell bank . We believe there are alternative contract manufacturers capable of producing the product we need for clinical trials; however, there is no guarantee that the processes are reproducible and transferable. We currently outsource all manufacturing, and we intend to use our collaborators and CDMOs for the foreseeable future.
Team
ImmunogenX was founded by Jack Syage and Jennifer Sealey-Voyksner. Prior to the Merger, the company’s management consisted of Dr. Syage as Chief Executive Officer and director, Dr. Sealey-Voyksner as Chief Scientific Officer and director, and Matthew Dickason, as Chief Operating Officer. Following the Merger, these three members of ImmunogenX’s management team will be integrated into FWBI’s management team, with Dr. Syage becoming President and Chief Operating Officer, Dr. Sealey-Voyksner becoming VP for R&D, and Mr. Dickason becoming VP for Clinical Operations.
Prior to the Merger, ImmunogenX ’s operations were based in Newport Beach, California (scientific-clinical headquarters) and Durham, North Carolina (R&D facility). Following the Merger, both locations will be incorporated into First Wave BioPharma, with the Company’s corporate headquarters remaining in Boca Raton, Florida. We anticipate that three additional employees focused on clinical operations will join the FWBI team upon the Closing of the Merger.
Risk Factors
Company stockholders may not realize a benefit from the acquisition of ImmunogenX commensurate with the ownership dilution they will experience in connection with the transactions contemplated by the Merger Agreement .
If the Company is unable to realize the full strategic and financial benefits currently anticipated from the ImmunogenX Merger, our stockholders may experience a dilution of their ownership interests our Company without receiving any commensurate benefit, or only receiving part of the commensurate benefit to the extent the Company is able to realize only part of the strategic and financial benefits currently anticipated from the transactions. The Merger may pose integration challenges which could result in management and business disruptions, any of which could harm our results of operation, business prospects, and impair the value of the Merger to our stockholders.
Pursuant to the terms of the Merger Agreement, we are required to recommend that our stockholders approve the conversion of shares of our Series G Preferred Stock into shares of our Common Stock. We cannot guarantee that our stockholders will approve this matter, and if they fail to do so we may be required to settle such shares in cash and our operations may be materially harmed.
Under the terms of the Merger Agreement, we agreed to call and hold a meeting of our stockholders to obtain the requisite approvals for the conversion of shares of Series G Preferred Stock into shares of our Common Stock. Additionally, beginning on the date that is six months from the date of the Closing, the holders of our then-outstanding shares of Series G Preferred Stock will be entitled to elect to have such shares of Series G Preferred Stock redeemed for cash at a price per share equal to the then-current fair value of the Series G Preferred Stock, , as described in the Certificate of Designation. Unless we operate profitably, our ability to redeem the Series G Preferred Stock would require the availability of adequate “surplus,” which is defined as the excess, if any, of our net assets (total assets less total liabilities) over our capital. If we do have sufficient “surplus” to effect any requested redemption of the Series G Preferred Stock, our available cash will be negatively impacted. In addition, such reduction in our available cash could decrease the trading price of our Common Stock.
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The failure to successfully integrate the businesses of the Company and ImmunogenX in the expected timeframe would adversely affect our future results.
Our ability to successfully integrate the operations of the Company and ImmunogenX will depend, in part, on our ability to realize the anticipated benefits from the Merger. If we are not able to achieve these objectives, the anticipated benefits and cost savings of the Merger may not be realized fully, or at all, or may take longer to realize than expected, and the value of our Common Stock may be adversely affected. In addition, the integration of the Company’s and ImmunogenX’s respective businesses will be a time-consuming and expensive process. Proper planning and effective and timely implementation will be critical to avoid any significant disruption to our operations. It is possible that the integration process could result in the loss of key employees, the disruption of our business or the identification of inconsistencies in standards, controls, procedures and policies that adversely affect our ability to maintain relationships with customers, suppliers, distributors, creditors, lessors, clinical trial investigators or managers or to achieve the anticipated benefits of the Merger. Delays encountered in the integration process could have a material adverse effect on our operating results and financial condition, including the value of its Common Stock.
The issuance or conversion of securities would result in significant dilution in the equity interest of existing stockholders and adversely affect the marketplace of the securities.
The issuance or conversion of Common Stock or other securities convertible into common shares would result in significant dilution in the equity interest of existing stockholders and adversely affect the market price of the common shares. We have issued 11,777.418 shares of Series G Preferred Stock to former stockholders of ImmunogenX which are initially convertible, in the aggregate, into 11,777,418 shares of Common Stock, subject to adjustment and certain shareholder approval limitations specified in the Certificate of Designation. These and other future issuances of or conversions of securities may result in significant dilution to existing stockholders, which could adversely impact your investment.
In connection with the Merger, we assumed significantly more indebtedness. Our level of indebtedness and our ability to make payments on or service our indebtedness could adversely affect our business, financial condition, results of operations, cash flow and liquidity.
Prior to the Merger, ImmunogenX was party to that certain Credit Agreement, dated as of October 3, 2022 (as amended by that certain Modification of Loan Documents, dated as of September 6, 2023, the “Credit Agreement”), with Mattress Liquidators, Inc. (“Lender”). In connection with the Merger, ImmunogenX entered into a Second Modification of Loan Documents, dated March 13, 2024 (the “Second Amendment,” and the Credit Agreement as amended by the Second Amendment, the “Amended Credit Agreement”), which provides for, among other things: (i) Lender’s consent for the Merger, (ii) Second Merger Sub’s assumption all of ImmunogenX’s obligations, rights and liabilities as borrower under the Amended Credit Agreement, (iii) an amendment to the interest rate to a per annum floating rate equal to the prime rate plus 6.00%, (iv) an extension of the maturity date to September 13, 2025, (v) a prohibition on the borrower’s ability to request additional loans under the revolving credit facility, subject to certain limited exceptions, (vi) the pledge by the stockholders of ImmunogenX (the “Pledgors”) of their equity interests of the Company as part of the collateral securing the obligations under the Amended Credit Agreement (the “Pledged Equity”), and (vii) an amendment to the total commitment under the Amended Credit Agreement to $8,212,345.17, which takes into account a one-time prepayment by ImmunogenX to Lender in the amount of $1,000,000 (the “One-Time Prepayment”), accrued interest and fees for the remaining term of the facility and certain other fees to be paid under the Amended Credit Agreement.
In order to fund the One-Time Prepayment, on March 13, 2024, ImmunogenX entered into (i) a secured promissory note in favor of Jack Syage, in an aggregate principal amount of $500,000 (the “Syage Note”), and (ii) a secured promissory note in favor of Peter Felker, in an aggregate principal amount of $500,000 (the “Felker Note” and collectively with the Syage Note, the “Shareholder Notes”). The Shareholder Notes will bear interest at a per annum floating rate equal to the prime rate plus 4.50% and mature on October 13, 2025.
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If we are not able to repay or refinance our debt as it becomes due, we may be required to adopt one or more alternatives, such as selling assets, restructuring debt or obtaining additional debt or equity on terms that may be onerous or highly dilutive, if we can obtain it at all. If we raise equity through the issuance of preferred stock, the terms of the preferred stock may give the holders rights, preferences and privileges senior to those of holders of our Common Stock, particularly in the event of liquidation. Our ability to arrange financing or refinancing will depend on, among other factors, our financial position and performance, as well as prevailing market conditions and other factors beyond our control. We cannot assure you that we will be able to obtain financing or refinancing on terms acceptable to us or at all.
If funds are not available when needed, or available on acceptable terms, we may be required to delay, scale back or eliminate some of our obligations. In addition, we may not be able to grow market share, take advantage of future opportunities or respond to competitive pressures or unanticipated requirements, which could negatively impact our business, operating results and financial condition.
Defaults under the Amended Credit Agreement or the Shareholders Notes could result in a substantial loss of our assets.
The borrowings under the Amended Credit Agreement are secured by substantially all of the assets of ImmunogenX and the borrowings under the Shareholder Notes are secured by, among other things, the patents and trademarks owned by ImmunogenX. If an event of default under any of such agreements could enable the lenders or creditors thereunder to declare all borrowings outstanding on such debt, together with accrued and unpaid interest and fees, to be due and payable. The lenders could also elect to foreclose on our assets securing such debt. In such an event, the Company may not be able to refinance or repay all of its indebtedness, have sufficient liquidity to meet operating and capital expenditure requirements, or hold the necessary intellectual property rights to conduct its business. Any such acceleration could cause us to lose a substantial portion of our assets and will substantially adversely affect our ability to continue our operations.
We will require substantial additional financing to achieve our goals, and a failure to obtain this necessary capital when needed and on acceptable terms, or at all, could force us to delay, limit, reduce or terminate our product candidate development programs, testing efforts or other operations, including.
We expect our expenses to increase in connection with our ongoing activities. We also expect to incur significant expenses related to the development, testing, and manufacturing of our product candidates. We cannot reasonably estimate the actual amounts necessary to successfully complete the development and commercialization of our products. Furthermore, following the completion of the Merger, we will incur the additional costs of assuming ImmunogenX’s indebtedness and the development, testing, and manufacturing of latiglutenase and CypCel. Accordingly, we will need to obtain substantial additional funding in connection with our continuing operations. If we are unable to raise capital when needed or on attractive terms, we could be forced to delay, reduce or eliminate our research and development programs or any potential future commercialization efforts.
We have based our estimates on assumptions that may prove to be wrong, and we could use our capital resources sooner than we currently expect. Our operating plans and other demands on our cash resources may change as a result of many factors, including costs required to advance latiglutenase and CypCel, as well as factors currently unknown to us, and we may need to seek additional funds sooner than planned, through public or private equity or debt financings or other capital sources, including potentially government funding, collaborations, licenses and other similar arrangements. In addition, we may seek additional capital due to favorable market conditions or strategic considerations even if we believe we have sufficient funds for our current or future operating plans. Attempting to secure additional financing may divert our management from its day-to-day activities, which may adversely affect our ability to develop our product candidates.
Our future capital requirements will depend on many factors, including:
| · | the costs and timing of manufacturing for our product candidates; |
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| · | the costs of obtaining, maintaining and enforcing our intellectual property rights; |
| · | the costs associated with hiring additional personnel and consultants as our research and development activities increase; |
| · | the costs associated with advancing product candidates obtained through the Merger; |
| · | the terms and timing of establishing and maintaining collaborations, licenses and other similar arrangements. |
| Item 9.01 | Financial Statements and Exhibits. |
(a) Financial statements of business acquired
The financial statements required by this Item, with respect to the Merger described in Item 2.01 herein, are expected to be filed as soon as practicable, and in any event not later than 71 days after the date on which this Current Report on Form 8-K is required to be filed related to Item 2.01.
(b) Pro forma financial information
The pro forma financial information required by this Item, with respect to the Merger described in Item 2.01 herein, are expected to be filed as soon as practicable, and in any event not later than 71 days after the date on which this Current Report on Form 8-K is required to be filed related to Item 2.01.
Forward Looking Statements
Any statements in this Current Report about the future expectations, plans and prospects of the Company, including without limitation, statements regarding: the Merger, stockholder approval of the conversion of the Series G Preferred Stock, and other statements containing the words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “hypothesize,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,” “target,” “would,” and similar expressions, constitute forward-looking statements within the meaning of The Private Securities Litigation Reform Act of 1995. Actual results may differ materially from those indicated by such forward-looking statements as a result of various important factors, including, but not limited to those set forth under the caption “Risk Factors” in this Current Report on Form 8-K and in the Company’s most recent Annual Report on Form 10-K filed with the SEC, as supplemented by its subsequent Quarterly Reports on Form 10-Q and in other filings that makes with the SEC. In addition, any forward-looking statements included in this Current Report represent the Company’s views only as of the date hereof and should not be relied upon as representing its views as of any subsequent date. The Company specifically disclaims any intention to update any forward-looking statements included in this Current Report.
No Offer or Solicitation; Important Information About the Merger and Where to Find It
This Current Report on Form 8-K is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Merger and shall not constitute an offer to sell or a solicitation of an offer to buy the securities of the Company or ImmunogenX, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made, except by means of a prospectus meeting the requirements of Section 10 of the Securities Act or an exemption therefrom.
The Company expects to file a proxy statement with the SEC relating to the Meeting Proposals. The definitive proxy statement will be sent to all Company stockholders. Before making any voting decision, investors and security holders of the Company are urged to read the proxy statement and all other relevant documents filed or that will be filed with the SEC in connection with the Meeting Proposals as they become available because they will contain important information about the Merger Agreement and related transactions and the Meeting Proposals to be voted upon. Investors and security holders will be able to obtain free copies of the proxy statement and all other relevant documents filed or that will be filed with the SEC by the Company through the website maintained by the SEC at www.sec.gov.
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Participants in Solicitation
The Company, ImmunogenX, and their respective directors, executive officers and employees may be deemed to be participants in the solicitation of proxies in respect of the Merger. Information regarding the Company’s directors and executive officers is available in the Company’s Definitive Proxy Statement filed with the SEC on May 15, 2023. Information regarding the persons who may, under the rules of the SEC, be deemed participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the proxy statement and other relevant materials to be filed with the SEC when they become available.
(d) Exhibits
| * | Certain annexes, schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The registrant agrees to furnish supplementally a copy of any omitted attachment to the SEC on a confidential basis upon request. |
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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.
| First Wave BioPharma, Inc. | ||
| Date: March 14, 2024 | By: | /s/ James Sapirstein |
| James Sapirstein | ||
| Chief Executive Officer | ||
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Exhibit 2.1
Execution Version
AGREEMENT AND PLAN OF MERGER
among:
FIRST WAVE BIOPHARMA, INC.;
IMMUNO MERGER SUB I, INC.;
IMMUNO MERGER SUB II, LLC;
and
IMMUNOGENX, INC.
Dated as of March 13, 2024
TABLE OF CONTENTS
Page
| Section 1. | Definitions and Interpretative Provisions | 3 |
| 1.1 | Definitions | 3 |
| 1.2 | Other Definitional and Interpretative Provisions | 14 |
| Section 2. | Description of Transaction | 15 |
| 2.1 | The Merger | 15 |
| 2.2 | Effects of the Merger | 15 |
| 2.3 | Closing; First Effective Time; Second Effective Time | 15 |
| 2.4 | Certificate of Designation; Organizational Documents; Directors and Officers | 16 |
| 2.5 | Merger Consideration; Effect of Merger on Company Capital Stock | 17 |
| 2.6 | Conversion of Stock | 17 |
| 2.7 | Closing of the Company’s Transfer Books | 18 |
| 2.8 | Exchange of Shares | 18 |
| 2.9 | Stock Options | 19 |
| 2.10 | Company Warrants | 20 |
| 2.11 | Other Company Convertible Securities | 20 |
| 2.12 | Appraisal Rights | 20 |
| 2.13 | Further Action | 21 |
| 2.14 | Intended Tax Treatment | 21 |
| 2.15 | Withholding | 21 |
| Section 3. | Representations and Warranties of the Company | 22 |
| 3.1 | Due Organization; Subsidiaries | 22 |
| 3.2 | Organizational Documents | 22 |
| 3.3 | Authority; Binding Nature of Agreement | 22 |
| 3.4 | Vote Required | 23 |
| 3.5 | Non-Contravention; Consents | 23 |
| 3.6 | Capitalization | 24 |
| 3.7 | Financial Statements | 25 |
| 3.8 | Absence of Changes | 26 |
| 3.9 | Absence of Undisclosed Liabilities | 28 |
| 3.10 | Title to Assets | 28 |
| 3.11 | Real Property; Leasehold | 28 |
| 3.12 | Intellectual Property | 29 |
| 3.13 | Agreements, Contracts and Commitments | 32 |
| 3.14 | Compliance; Permits; Restrictions | 34 |
| 3.15 | Legal Proceedings; Orders | 37 |
| 3.16 | Tax Matters | 37 |
| 3.17 | Employee and Labor Matters; Benefit Plans | 39 |
| 3.18 | Environmental Matters | 42 |
| 3.19 | Insurance | 42 |
| 3.20 | No Financial Advisors | 42 |
| 3.21 | Transactions with Affiliates | 43 |
| 3.22 | Privacy and Data Security | 43 |
| 3.23 | Accredited Investors | 43 |
| 3.24 | No Other Representations or Warranties | 43 |
| Section 4. | Representations and Warranties of Parent and Merger Subs | 44 |
| 4.1 | Due Organization; Subsidiaries | 44 |
| 4.2 | Organizational Documents | 45 |
| 4.3 | Authority; Binding Nature of Agreement | 45 |
| 4.4 | Vote Required | 45 |
| 4.5 | Non-Contravention; Consents | 46 |
| 4.6 | Capitalization | 47 |
| 4.7 | SEC Filings; Financial Statements | 48 |
| 4.8 | Absence of Changes | 50 |
| 4.9 | Absence of Undisclosed Liabilities | 52 |
| 4.10 | Title to Assets | 52 |
| 4.11 | Real Property; Leasehold | 52 |
| 4.12 | Intellectual Property | 52 |
| 4.13 | Agreements, Contracts and Commitments | 56 |
| 4.14 | Compliance; Permits; Restrictions | 56 |
| 4.15 | Legal Proceedings; Orders | 59 |
| 4.16 | Tax Matters | 60 |
| 4.17 | Employee and Labor Matters; Benefit Plans | 62 |
| 4.18 | Environmental Matters | 64 |
| 4.19 | Insurance | 65 |
| 4.20 | Transactions with Affiliates | 65 |
| 4.21 | No Financial Advisors | 65 |
| 4.22 | Valid Issuance; No Bad Actor | 65 |
| 4.23 | Privacy and Data Security | 66 |
| 4.24 | No Other Representations or Warranties | 66 |
| Section 5. | Agreements of the Parties | 66 |
| 5.1 | Stockholder Notice | 66 |
| 5.2 | Proxy Statement | 67 |
| 5.3 | Employee Benefits; Employment Agreements | 68 |
| 5.4 | Parent Stockholder Meeting | 68 |
| 5.5 | Indemnification of Officers and Directors | 69 |
| 5.6 | Tax Matters | 70 |
| 5.7 | Legends | 71 |
| 5.8 | Officers and Directors | 71 |
| 5.9 | Termination of Certain Agreements and Rights | 71 |
| 5.10 | Section 16 Matters | 72 |
| 5.11 | Listing | 72 |
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| 5.12 | Allocation Certificate | 72 |
| 5.13 | Obligations of Merger Subs | 72 |
| 5.14 | Reservation of Parent Common Stock; Issuance of Shares of Parent Common Stock | 72 |
| 5.15 | Takeover Statutes | 72 |
| 5.16 | Private Placement | 73 |
| Section 6. | Conditions Precedent to Obligations of Each Party | 73 |
| 6.1 | No Restraints | 73 |
| 6.2 | Company Stockholder Approval | 73 |
| Section 7. | Closing Deliveries | 73 |
| 7.1 | Closing Deliveries of the Company | 73 |
| 7.2 | Closing Deliveries of Parent | 74 |
| Section 8. | Miscellaneous Provisions | 74 |
| 8.1 | Non-Survival of Representations and Warranties | 74 |
| 8.2 | Amendment | 75 |
| 8.3 | Waiver | 75 |
| 8.4 | Entire Agreement; Counterparts; Exchanges by Electronic Transmission or Facsimile | 75 |
| 8.5 | Applicable Law; Jurisdiction | 75 |
| 8.6 | Assignability | 76 |
| 8.7 | Notices | 76 |
| 8.8 | Cooperation | 77 |
| 8.9 | Severability | 77 |
| 8.10 | Other Remedies; Specific Performance | 77 |
| 8.11 | No Third-Party Beneficiaries | 78 |
| 8.12 | Expenses | 78 |
| Exhibits: | |
| Exhibit A | Form of Voting Agreement |
| Exhibit B | Form of Parent Stockholder Support Agreement |
| Exhibit C | Form of Lock-Up Agreement |
| Exhibit D | Form of Restrictive Covenants Agreement |
| Exhibit E | Form of Certificate of Designation |
| Exhibit F | Form of Letter of Transmittal |
| Exhibit G | Form of Accredited Investor Questionnaire |
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of March 13, 2024, by and among First Wave BioPharma, Inc., a Delaware corporation (“Parent”), IMMUNO Merger Sub I, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“First Merger Sub”), IMMUNO Merger Sub II, LLC, a Delaware limited liability company and wholly owned subsidiary of Parent (“Second Merger Sub” and together with First Merger Sub, “Merger Subs”), and ImmunogenX, Inc., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Section 1.
RECITALS
A. Parent and the Company intend to effect a merger of First Merger Sub with and into the Company (the “First Merger”) in accordance with this Agreement and the DGCL. Upon consummation of the First Merger, First Merger Sub will cease to exist and the Company will become a wholly owned subsidiary of Parent.
B. Immediately following the First Merger and as part of the same overall transaction as the First Merger, the Company will merge with and into Second Merger Sub (the “Second Merger” and, together with the First Merger, the “Merger”), with Second Merger Sub being the surviving entity of the Second Merger.
C. The Parties intend, for U.S. federal (and applicable state and local) income Tax purposes, that (a) this Agreement constitutes, and is hereby adopted by the parties hereto as a, “plan of reorganization” for purposes of Section 368 of the Code and within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a), and (b) the First Merger and Second Merger, taken together, will constitute a single integrated transaction that qualifies as a “reorganization” within the meaning of Section 368(a)(1)(A) of the Code and the Treasury Regulations as described in Rev. Rul. 2001-46, 2001-2 C.B. 321, to which Parent and the Company are parties under Section 368(b) of the Code.
D. The Parent Board has (i) determined that the Contemplated Transactions are fair to, advisable, and in the best interests of Parent and its stockholders, (ii) approved and declared advisable this Agreement and the Contemplated Transactions, including the issuance of shares of Parent Capital Stock to the stockholders of the Company pursuant to the terms of this Agreement and (iii) determined to recommend, upon the terms and subject to the conditions set forth in this Agreement, that the stockholders of Parent vote to approve (a) the conversion of the Parent Convertible Preferred Stock issued pursuant to this Agreement into shares of Parent Common Stock in accordance with Nasdaq Listing Rule 5635(a) (the “Conversion Proposal”), (b) if deemed necessary or appropriate by Parent or as otherwise required by applicable Law or Contract, to authorize the amendment of Parent’s certificate of incorporation to authorize sufficient Parent Common Stock in Parent’s certificate of incorporation for the conversion of Parent Convertible Preferred Stock issued pursuant to this Agreement (the “Charter Amendment Proposal” and together with the Conversion Proposal, the “Parent Stockholder Matters”) and (c) the Certificate of Designation.
E. A majority of the holders of Parent Series B Preferred Stock outstanding as of the date of this Agreement have authorized the execution, delivery and performance of this Agreement and the consummation of the Contemplated Transactions (including the Conversion Proposal).
F. The First Merger Sub Board has (i) determined that the Contemplated Transactions are fair to, advisable, and in the best interests of First Merger Sub and its sole stockholder, (ii) approved and declared advisable this Agreement and the Contemplated Transactions and (iii) determined to recommend, upon the terms and subject to the conditions set forth in this Agreement, that the sole stockholder of First Merger Sub votes to adopt this Agreement and thereby approve the Contemplated Transactions.
G. The Second Merger Sub Board has (i) determined that the Contemplated Transactions are fair to, advisable, and in the best interests of Second Merger Sub and its sole member, (ii) approved and declared advisable this Agreement and the Contemplated Transactions and (iii) determined to recommend, upon the terms and subject to the conditions set forth in this Agreement, that the member of Second Merger Sub votes to adopt this Agreement and thereby approve the Contemplated Transactions.
H. In connection with the transactions contemplated hereby, each Convertible Note of the Company shall convert in accordance with its terms, or be deemed to convert in accordance with an applicable agreement, into shares of Company Common Stock, which shares shall be entitled to the right to receive the consideration set forth herein.
I. The Company Board has (i) determined that the Contemplated Transactions are fair to, advisable, and in the best interests of the Company and its stockholders, (ii) approved and declared advisable this Agreement and the Contemplated Transactions and (iii) determined to recommend, upon the terms and subject to the conditions set forth in this Agreement, that the stockholders of the Company vote to adopt this Agreement and thereby approve the Contemplated Transactions (“Company Board Approval”).
J. Subsequent to Company Board Approval, but prior to the execution and delivery of this Agreement, the requisite Company stockholders by written consent and in accordance with the Company’s certificate of incorporation, the Company’s bylaws and the DGCL (i) approved and adopted this Agreement and the Contemplated Transactions, (ii) acknowledged that the approval given thereby is irrevocable and that such stockholder is aware of its rights to demand appraisal for its shares pursuant to Section 262 of the DGCL, a true and correct copy of which was attached thereto, and that such stockholder has received and read a copy of Section 262 of the DGCL, and (iii) acknowledged that by its approval of the Merger it is not entitled to appraisal rights with respect to its shares in connection with the Merger and thereby waives any rights to receive payment of the fair value of its capital stock under the DGCL (such consent, the “Company Stockholder Written Consent”), and the Company Stockholder Written Consent is to become effective by its terms immediately following the execution of this Agreement by the parties hereto.
K. Concurrently with the execution and delivery of this Agreement and as a condition and inducement to Parent’s willingness to enter into this Agreement, the persons set forth on Section A of the Company Disclosure Schedule are executing voting agreements in substantially the form attached hereto as Exhibit A (the “Voting Agreement” and collectively, the “Voting Agreements”).
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L. Concurrently with the execution and delivery of this Agreement and as a condition and inducement to the Company’s willingness to enter into this Agreement, certain stockholders of Parent set forth on Section A of the Parent Disclosure Schedule (solely in their capacity as stockholders) are executing support agreements in favor of the Company in substantially the form attached hereto as Exhibit B (the “Parent Stockholder Support Agreement”), pursuant to which such Persons have, subject to the terms and conditions set forth herein, agreed to vote all of their shares of Parent Capital Stock in favor of the Parent Stockholder Matters.
M. Concurrently with the execution and delivery of this Agreement and as a condition and inducement to Parent’s and the Company’s willingness to enter into this Agreement, all of the stockholders of the Company set forth on Section B of the Company Disclosure Schedule (the “Company Signatories”) and all of the stockholders of the Parent set forth on Section B of the Parent Disclosure Schedule (the “Parent Signatories”) are executing lock-up agreements in substantially the form attached hereto as Exhibit C (the “Lock-Up Agreements”).
N. Concurrently with the execution and delivery of this Agreement and as a condition and inducement to Parent’s willingness to enter into this Agreement, the Persons set forth on Section C of the Company Disclosure Schedule are executing restrictive covenants agreements in substantially the form attached hereto as Exhibit D (the “Restrictive Covenants Agreement” and collectively, the “Restrictive Covenants Agreements”).
O. Immediately following the execution and delivery of this Agreement, but prior to the filing of the Certificate of Merger, Parent will file the Certificate of Designation with the office of the Secretary of State of the State of Delaware.
AGREEMENT
The Parties, intending to be legally bound, agree as follows:
Section 1. Definitions and Interpretative Provisions.
1.1 Definitions.
(a) For purposes of the Agreement (including this Section 1):
“Affiliate” shall have the meaning given to such term in Rule 145 under the Securities Act.
“Affordable Care Act” means the Patient Protection and Affordable Care Act.
“Allocation Certificate” shall have the meaning set forth in Section 5.11.
“Business Day” means any day other than a day on which banks in the State of New York are authorized or obligated to be closed.
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“Certificate of Designation” means a certificate of designation for Parent Preferred Stock Payment Shares in the form attached hereto as Exhibit E.
“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as set forth in Section 4980B of the Code and Part 6 of Title I of ERISA.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company Audited Financial Statements” means the audited balance sheet of the Company, and the related audited statement of income and comprehensive income, consolidated statement of changes in stockholders’ equity and statement of cash flows of the Company for the years ended December 31, 2021, December 31, 2022 and December 31, 2023, together with the notes thereto.
“Company Board” means the board of directors of the Company.
“Company Capital Stock” means the Company Common Stock and Company Preferred Stock.
“Company Capitalization Representations” means the representations and warranties of the Company set forth in Sections 3.6(a) and 3.6(d).
“Company Common Stock” means the common stock, $0.0001 par value per share, of the Company.
“Company Contract” means any Contract: (a) to which the Company is a Party, (b) by which the Company is or may become bound or under which the Company or any of its Subsidiaries has, or may become subject to, any obligation or (c) under which the Company has or may acquire any right or interest.
“Company Employee Plan” means any Employee Plan that the Company (i) sponsors, maintains, administers, or contributes to, or has any obligation to contribute to or provide benefits under or through, or may reasonably be expected to have any Liability, and (ii) which provides benefits to or otherwise covers any current or former employee, officer, director or other service provider of the Company or any of its Subsidiaries (or their spouses, dependents, or beneficiaries).
“Company IP Rights” means all Intellectual Property owned, licensed, or controlled by the Company that is necessary for, or used or held for use in, the operation of the business of the Company as presently conducted.
“Company IP Rights Agreement” means any Contract governing, related to or pertaining to any Company IP Rights other than any confidential information provided under confidentiality agreements.
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“Company Material Adverse Effect” means any Effect that, considered together with all other Effects that have occurred prior to the date of determination of the occurrence of a Company Material Adverse Effect, has or would reasonably be expected to have a material adverse effect on (a) the business, condition (financial or otherwise), assets, liabilities or results of operations of the Company, or (b) the Company’s ability to consummate the Contemplated Transactions; provided, however, that Effects arising or resulting from the following shall not be taken into account in determining whether there has been a Company Material Adverse Effect: (i) the announcement of this Agreement or the pendency of the Contemplated Transactions, (ii) the taking of any action, or the failure to take any action, by the Company that is required to comply with the terms of the Agreement, (iii) any natural disaster or epidemics, pandemics or other force majeure events, or any act or threat of terrorism or war, any armed hostilities or terrorist activities (including any escalation or general worsening of any of the foregoing) anywhere in the world or any governmental or other response or reaction to any of the foregoing, or (iv) any change in GAAP or applicable Law or the interpretation thereof, (v) general economic or political conditions or conditions generally affecting the industries in which the Company operates; except in each case with respect to clauses (iii), (iv) and (v), to the extent disproportionately affecting the Company, relative to other similarly situated companies in the industries in which the Company operates.
“Company Merger Shares” means the total number of shares of Parent Common Stock issuable to the Company shareholders determined by (i) dividing the Company Valuation by (y) the Parent Share Price.
“Company Options” means options or other rights to purchase shares of Company Common Stock granted by the Company, including pursuant to any Company Option Plan, as an “inducement” award.
“Company Outstanding Shares” means the total number of shares of Company Common Stock outstanding immediately prior to the First Effective Time expressed on a fully diluted basis, and assuming, without limitation or duplication, the issuance of shares of Company Common Stock in respect of all Company Options, Company Warrants and the conversion of each share of Company Preferred Stock into shares of Company Common Stock pursuant to the terms of the Company’s certificate of incorporation, whether conditional or unconditional, that will be outstanding as of immediately prior to the First Effective Time.
“Company Preferred Stock” means the preferred stock, par value $0.0001 per share, of the Company.
“Company Registered IP” means all Company IP Rights that are owned or exclusively licensed by the Company that are registered, filed or issued under the authority of, with or by any Governmental Authority, including all patents, registered copyrights and registered trademarks and all applications and registrations for any of the foregoing.
“Company Stockholder Written Consent” shall have the meaning set forth in the recitals.
“Company Unaudited Balance Sheet” means the estimated unaudited statement of assets, liabilities and equity of the Company for December 31, 2023.
“Company Valuation” means eighty-five million dollars ($85,000,000).
“Company Warrants” means that certain (1) Warrant to Purchase Common Stock of ImmunogenX, Inc. dated as of September 6, 2023, by and between Mattress Liquidators, Inc. and the Company, and (2) Warrant to Purchase Common Stock of ImmunogenX, Inc. dated as of October 1, 2022, by and between Mattress Liquidators, Inc. and the Company.
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“Confidentiality Agreement” means that certain Mutual Non-Disclosure Agreement, dated as of April 19, 2023, by and between Parent and the Company.
“Consent” means any approval, consent, ratification, permission, waiver or authorization (including any Governmental Authorization).
“Contemplated Transactions” means the Merger and the other transactions contemplated by the Agreement, including the Conversion Proposal and the Charter Amendment Proposal.
“Convertible Note” means each note set forth on Schedule 1.1(a)(ii), which collectively constitute all of the outstanding convertible notes entered into by the Company, as debtor, the principal and accrued interest of which shall convert, or be deemed to convert in accordance with an applicable agreement, into shares of Company Common Stock immediately prior to the Closing.
“Contract” means, with respect to any Person, any written agreement, contract, subcontract, lease (whether for real or personal property), mortgage, license, or other legally binding commitment or undertaking of any nature to which such Person is a party or by which such Person or any of its assets are bound or affected under applicable Law.
“DGCL” means the General Corporation Law of the State of Delaware.
“DLLCA” means the Delaware Limited Liability Company Act.
“Effect” means any effect, change, event, circumstance, or development.
“Employee Plan” means (A) an “employee benefit plan” within the meaning of Section 3(3) of ERISA whether or not subject to ERISA; (B) any individual employment, consulting, change in control, severance pr other agreement or arrangements; or (C) any plan, program, policy or arrangement providing for stock options, stock purchases, equity-based compensation, bonuses (including any annual bonuses and retention bonuses) or other incentives, severance pay, deferred compensation, employment, compensation, change in control or transaction bonuses, supplemental, vacation, retirement benefits (including post-retirement health and welfare benefits), pension benefits, profit-sharing benefits, fringe benefits, life insurance benefits, perquisites, health benefits, medical benefits, dental benefits, vision benefits, and all other employee benefit plans, agreements, and arrangements, not described in (A) or (B) above; and (D) all other plans, programs, policies or arrangements providing compensation to employees, consultants and non-employee directors.
“Encumbrance” means any lien, pledge, hypothecation, charge, mortgage, security interest, lease, exclusive license, option, easement, reservation, servitude, adverse title, claim, infringement, interference, option, right of first refusal, preemptive right, community property interest or restriction or encumbrance of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).
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“Enforceability Exceptions” means the (a) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (b) rules of law governing specific performance, injunctive relief and other equitable remedies.
“Entity” means any corporation (including any nonprofit corporation), partnership (including any general partnership, limited partnership or limited liability partnership), joint venture, estate, trust, company (including any company limited by shares, limited liability company or joint stock company), firm, society or other enterprise, association, organization or entity, and each of its successors.
“Environmental Law” means any federal, state, local or foreign Law relating to pollution or protection of human health or the environment (including ambient air, surface water, ground water, land surface or subsurface strata), including any law or regulation relating to emissions, discharges, releases or threatened releases of Hazardous Materials, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means, with respect to any Entity, any other Person that would be treated as a single employer with such Entity or part of the same “controlled group” as such Entity under Sections 414(b),(c),(m) or (o) of the Code.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Ratio” means the quotient (rounded to three decimal places) obtained by dividing (x) the Company Merger Shares by (b) the Company Outstanding Shares. The Parties agree that the Exchange Ratio is 2.649.
“First Merger Sub Board” means the board of directors of First Merger Sub.
“Governmental Authority” means any: (a) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature, (b) federal, state, local, municipal, foreign, supra-national or other government, (c) governmental or quasi-governmental authority of any nature (including any governmental division, department, agency, commission, bureau, instrumentality, official, ministry, fund, foundation, center, organization, unit, body or Entity and any court or other tribunal, and for the avoidance of doubt, any taxing authority) or (d) self-regulatory organization (including Nasdaq).
“Governmental Authorization” means any: (a) permit, license, certificate, franchise, permission, variance, exception, order, approval, clearance, registration, qualification or authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Authority or pursuant to any Law or (b) right under any Contract with any Governmental Authority.
“Hazardous Materials” means any pollutant, chemical, substance and any toxic, infectious, carcinogenic, reactive, corrosive, ignitable or flammable chemical, or chemical compound, or hazardous substance, material or waste, whether solid, liquid or gas, that is subject to regulation, control or remediation under any Environmental Law, including without limitation, crude oil or any fraction thereof, and petroleum products or by-products.
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“Intellectual Property” means: (a) United States, foreign and international patents, patent applications, including all provisionals, nonprovisionals, substitutions, divisionals, continuations, continuations-in-part, reissues, extensions, supplementary protection certificates, reexaminations, term extensions, certificates of invention and the equivalents of any of the foregoing, statutory invention registrations, invention disclosures and inventions (collectively, “Patents”), (b) trademarks, service marks, trade names, domain names, corporate names, brand names, URLs, trade dress, logos and other source identifiers, including registrations and applications for registration thereof and goodwill associated therewith, (c) copyrights, including registrations and applications for registration thereof, (d) software, including all source code, object code and related documentation, (e) trade secrets, know how, inventions (including conceptions and/or reductions to practice), invention disclosures, methods, processes, protocols, specifications, techniques, discoveries and improvements, formulae, confidential and proprietary information, technical information, designs, drawings, procedures, models, formulations, manuals and systems, whether or not patentable or copyrightable, including all biological, chemical, biochemical, toxicological, pharmacological and metabolic material and information and data relating thereto and formulation, clinical, analytical and stability information and data, in each case which are not available in the public domain and have actual or potential commercial value that is derived, in whole or in part, from such secrecy, and (f) all United States and foreign rights arising under or associated with any of the foregoing.
“IRS” means the United States Internal Revenue Service.
“Key Employee” means (i) an executive officer of Parent; and (ii) any employee of Parent that reports directly to the board of directors of Parent or to an executive officer of Parent.
“Knowledge” means, with respect to an individual, that such individual is actually aware of the relevant fact or such individual would reasonably be expected to know such fact in the ordinary course of the performance of such individual’s employment responsibilities. Any Person that is an Entity shall have Knowledge if any executive officer or director of such Person as of the date such knowledge is imputed has or should reasonably be expected to have Knowledge of such fact or other matter. With respect to any matters relating to Intellectual Property, such awareness or reasonable expectation to have knowledge does not require any such individual to conduct or have conducted or obtain or have obtained any freedom to operate opinions of counsel or any Intellectual Property rights clearance searches.
“Law” means any federal, state, national, supra-national, foreign, local or municipal or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority (including under the authority of Nasdaq or the Financial Industry Regulatory Authority).
“Legal Proceeding” means any action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Authority or any arbitrator or arbitration panel.
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“Multiemployer Plan” means a “multiemployer plan,” as defined in Section 3(37) or 4001(a)(3) of ERISA.
“Multiple Employer Plan” means a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 3(40) of ERISA.
“Multiple Employer Welfare Arrangement” means a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
“Nasdaq” means The Nasdaq Stock Market.
“Order” means any judgment, order, writ, injunction, ruling, decision or decree of (that is binding on a Party), or any plea agreement, corporate integrity agreement, resolution agreement, or deferred prosecution agreement with, or any settlement under the jurisdiction of, any court or Governmental Authority.
“Ordinary Course of Business” means, in the case of each of the Company and Parent, such actions taken in the ordinary course of its normal operations and consistent with its past practices.
“Organizational Documents” means, with respect to any Person (other than an individual), (a) the certificate or articles of association or incorporation or organization or limited partnership or limited liability company, and any joint venture, limited liability company, operating or partnership agreement and other similar documents adopted or filed in connection with the creation, formation or organization of such Person and (b) all bylaws, regulations and similar documents or agreements relating to the organization or governance of such Person, in each case, as amended or supplemented.
“Parent Associate” means any current or former employee, independent contractor, officer or director of Parent or any of its Subsidiaries.
“Parent Unaudited Interim Balance Sheet” means the unaudited balance sheet of Parent as of September 30, 2023, included in Parent’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2023, as filed with the SEC.
“Parent Board” means the board of directors of Parent.
“Parent Capital Stock” means the Parent Common Stock and Parent Preferred Stock.
“Parent Common Stock” means the common stock, $0.0001 par value per share, of Parent.
“Parent Contract” means any Contract: (a) to which Parent is a party, (b) by which Parent or any Parent IP Rights or any other asset of Parent is or may become bound or under which Parent has, or may become subject to, any obligation or (c) under which Parent has or may acquire any right or interest.
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“Parent Convertible Preferred Stock” means Parent’s non-voting convertible preferred stock, par value $0.0001 per share, with the rights, preferences, powers and privileges specified in the Certificate of Designation.
“Parent Covered Person” means, with respect to Parent as an “issuer” for purposes of Rule 506 promulgated under the Securities Act, any Person listed in the first paragraph of Rule 506(d)(1).
“Parent Employee Plan” means any Employee Plan that Parent (i) sponsors, maintains, administers, or contributes to, or has any obligation to contribute to or provide benefits under or through, or may reasonably be expected to have any Liability, and (ii) which provides benefits to or otherwise covers any current or former employee, officer, director or other service provider of Parent or any of its Subsidiaries (or their spouses, dependents, or beneficiaries).
“Parent Warrants” means the warrants to purchase shares of Parent Common Stock issued by Parent.
“Parent IP Rights” means all Intellectual Property owned, licensed or controlled by Parent or any of its Subsidiaries that is necessary for, or used or held for use in, the operation of the business of Parent or any of its Subsidiaries as presently conducted.
“Parent IP Rights Agreement” means any Contract governing, related or pertaining to any Parent IP Rights.
“Parent Material Adverse Effect” means any Effect that, considered together with all other Effects that have occurred prior to the date of determination of the occurrence of the Parent Material Adverse Effect, has or would reasonably be expected to have a material adverse effect on (a) the business, condition (financial or otherwise), assets, liabilities or results of operations of Parent, taken as a whole, or (b) Parent’s ability to consummate the Contemplated Transactions; provided, however, that Effects arising or resulting from the following shall not be taken into account in determining whether there has been a Parent Material Adverse Effect: (i) the announcement of the Agreement or the pendency of the Contemplated Transactions, (ii) any change in the stock price or trading volume of Parent Common Stock (it being understood, however, that any Effect causing or contributing to any change in stock price or trading volume of Parent Common Stock may be taken into account in determining whether a Parent Material Adverse Effect has occurred, unless such Effects are otherwise excepted from this definition), (iii) the taking of any action, or the failure to take any action, by Parent that is required to comply with the terms of the Agreement, (iv) any natural disaster or epidemics, pandemics or other force majeure events, or any act or threat of terrorism or war, any armed hostilities or terrorist activities (including any escalation or general worsening of any of the foregoing) anywhere in the world, or any governmental or other response or reaction to any of the foregoing, (v) any change in GAAP or applicable Law or the interpretation thereof or (vi) general economic or political conditions or conditions generally affecting the industries in which Parent or any of its Subsidiaries operates; except, in each case with respect to clauses (iv), (v) and (vi), to the extent materially and disproportionately affecting Parent and any its Subsidiaries, taken as a whole, relative to other similarly situated companies in the industries in which Parent or any of its Subsidiaries operates.
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“Parent Options” means options or other rights to purchase shares of Parent Common Stock granted by Parent, including pursuant to any Parent Stock Plan, as an “inducement” award.
“Parent Preferred Stock” means Parent Series B Preferred Stock, Parent Series C Preferred Stock, Parent Series D Preferred Stock, Parent Series E Preferred Stock and Parent Series F Preferred Stock, together with the Parent Convertible Preferred Stock.
“Parent Registered IP” means all Parent IP Rights that are owned or exclusively licensed by Parent or any of its Subsidiaries that are registered, filed or issued under the authority of, with or by any Governmental Authority, including all patents, registered copyrights and registered trademarks and all applications for any of the foregoing.
“Parent Series B Preferred Stock” means Series B Convertible Preferred Stock of Parent, $0.0001 par value per share.
“Parent Series C Preferred Stock” means Series C Convertible Preferred Stock of Parent, $0.0001 par value per share.
“Parent Series D Preferred Stock” means Series D Convertible Preferred Stock of Parent, $0.0001 par value per share.
“Parent Series E Preferred Stock” means Series E Convertible Preferred Stock of Parent, $0.0001 par value per share.
“Parent Series F Preferred Stock” means Series F Convertible Preferred Stock of Parent, $0.0001 par value per share.
“Parent Share Price” means seven dollars ($7.00).
“Parent Restricted Stock Units” means any equity award with respect to Parent Common Stock that represents the right to receive in the future shares of Parent Common Stock pursuant to any Parent Stock Plan.
“Party” or “Parties” means the Company, Merger Subs and Parent.
“PEO Plan” means a plan, program, policy or arrangement sponsored or maintained by a third party “professional employer organization.”
“Permitted Encumbrance” means (a) any statutory liens for current Taxes not yet due and payable or for Taxes that are being contested in good faith and for which adequate reserves have been made on the Company Unaudited Balance Sheet or the Parent Unaudited Interim Balance Sheet, as applicable, in accordance with GAAP, (b) minor liens that have arisen in the Ordinary Course of Business and that do not (in any case or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of the Company or Parent, as applicable, (c) statutory liens to secure obligations to landlords, lessors or renters under leases or rental agreements, (d) deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance or similar programs mandated by Law, (e) statutory liens in favor of carriers, warehousemen, mechanics and materialmen, to secure claims for labor, materials or supplies and (f) liens arising under applicable securities Law.
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“Person” means any individual, Entity or Governmental Authority.
“Personal Information” means data and information concerning an identifiable natural person.
“Privacy Laws” mean Laws relating to privacy, security and/or collection, use or other processing of Personal Information.
“Representatives” means directors, officers, employees, agents, attorneys, accountants, investment bankers, advisors and representatives.
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.
“SEC” means the United States Securities and Exchange Commission.
“Second Merger Sub Board” means the board of managers of Second Merger Sub.
“Securities Act” means the Securities Act of 1933, as amended.
An Entity shall be deemed to be a “Subsidiary” of a Person if such Person directly or indirectly owns or purports to own, beneficially or of record, (a) an amount of voting securities or other interests in such Entity that is sufficient to enable such Person to elect at least a majority of the members of such entity’s board of directors or other governing body or (b) at least 50% of the outstanding equity, voting, beneficial or financial interests in such Entity.
“Tax” means (i) any federal, state, local, foreign or other tax, including any income tax, franchise tax, capital gains tax, gross receipts tax, value-added tax, surtax, estimated tax, unemployment tax, national health insurance tax, excise tax, ad valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business tax, withholding tax, payroll tax, customs duty, alternative or add-on minimum or other tax or similar charge (whether imposed directly or through withholding and whether or not disputed), and including any fine, penalty, addition to tax, interest or additional amount imposed by a Governmental Authority with respect thereto (or attributable to the nonpayment thereof) and (ii) any liability for payment of amounts described in clause (i) whether as a result of transferee or successor liability, of being a member of an affiliated, consolidated, combined or unitary group for any period, pursuant to a Contract, through operation of Law or otherwise.
“Tax Return” means any return (including any information return), report, statement, declaration, claim or refund, estimate, schedule, notice, notification, form, election, certificate or other document or information, and any amendment or supplement to any of the foregoing, filed or required to be filed with any Governmental Authority (or provided to a payee) in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any Law relating to any Tax.
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“Treasury Regulations” means the United States Treasury regulations promulgated under the Code.
“WARN Act” means the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar Laws.
(b) Each of the following terms is defined in the Section set forth opposite such term:
| Agreement | Preamble | First Effective Time | 2.3 | |
| Allocation Certificate | 5.10 | First Merger | Recitals | |
| Assumed Options | 2.9 | First Merger Sub | Preamble | |
| Business Associate Agreement | 3.14(i) | GAAP | 3.7(a) | |
| Capitalization Date | 4.6(a) | HIPAA | 3.14(i) | |
| Certifications | 4.7(a) | Intended Tax Treatment | 2.13 | |
| Closing | 2.3 | Investor Agreements | 5.8 | |
| Closing Date | 2.3 | Lock-Up Agreement | Recitals | |
| Closing Distribution | 2.6(e) | Merger | Recitals | |
| Company | Preamble | Merger Consideration | 2.5 | |
| Company Board Approval | Recitals | Nasdaq Listing Application | 5.11 | |
| Company Consultant | 3.17(a) | Non-Scheduled Company IP Contracts | 3.12(b) | |
| Company Disclosure Schedule | Section 3 | Old Stock Options | 2.9 | |
| Company Employee | 3.17(a) | Parent | Preamble | |
| Company Financials | 3.7(a) | Parent 2014 Plan | 4.6(c) | |
| Company Material Contract | 3.13(a) | Parent 2020 Plan | 4.6(c) | |
| Company Material Contracts | 3.13(a) | Parent Board Recommendation | 5.4(b) | |
| Company Option Plan | 3.6(c) | Parent Common Stock Consideration Cap | 2.5 | |
| Company Permits | 3.14(b) | Parent Common Stock Payment Shares | 2.5 | |
| Company Product Candidates | 3.14(b) | Parent Consultant | 4.17(a) | |
| Company Real Estate Leases | 3.11 | Parent Disclosure Schedule | Section 4 | |
| Company Stockholder Written Consent | Recitals | Parent Employee | 4.17(a) | |
| Contingent Workers | 3.17(a) | Parent Grant Date | 4.6(f) | |
| Conversion Proposal | Recitals | Parent Material Contracts | 4.13(a) | |
| Costs | 5.5(a) | Parent Permits | 4.14(b) | |
| D&O Indemnified Parties | 5.5(a) | Parent Preferred Stock Payment Shares | 2.5 | |
| Disqualifying Event | 4.22 | Parent Product Candidates | 4.14(b) | |
| Dissenting Shares | 2.12 | Parent Real Estate Leases | 4.11 | |
| Drug Regulatory Agency | 3.14(c) | Parent Regulatory Permits | 4.14(d) | |
| EDGAR | Section 4 | Parent SEC Documents | 4.7(a) | |
| Exchange Agent | 2.8(a) | Parent Stock Plans | 4.6(c) | |
| FDA | 3.14(c) | Parent Stockholder Matters | 5.4(a) | |
| FDCA | 3.14(c) | Parent Stockholder Meeting | 5.4(a) | |
| First Certificate of Merger | 2.3 | PHSA | 3.14(c) |
| -13- |
| Privacy Policies | 3.22 | Second Effective Time | 2.3 | |
| Proxy Statement | 5.2(a) | Second Merger | Recitals | |
| Required Company Stockholder Vote | 3.4 | Second Merger Sub | Preamble | |
| Required Parent Stockholder Vote | 4.4 | Stockholder Notice | 5.1 | |
| Restricted Covenants Agreement | Recitals | Transfer Taxes | 5.6(b) | |
| Second Certificate of Merger | 2.3 | Voting Agreement | Recitals | |
| Withholding Agent | 2.14 |
1.2 Other Definitional and Interpretative Provisions. The words “hereof,” “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Sections, Exhibits and Schedules are to Sections, Exhibits and Schedules of this Agreement unless otherwise specified. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular, the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine gender. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or Contract are to that agreement or Contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person. References to any statute are to that statute and to the rules and regulations promulgated thereunder, in each case as amended, modified, re-enacted thereof, substituted, from time to time. References to “$” and “dollars” are to the currency of the United States. All accounting terms used herein will be interpreted, and all accounting determinations hereunder will be made, in accordance with GAAP unless otherwise expressly specified. References from or through any date shall mean, unless otherwise specified, from and including or through and including, respectively. All references to “days” shall be to calendar days unless otherwise indicated as a “Business Day.” Except as otherwise specifically indicated, for purposes of measuring the beginning and ending of time periods in this Agreement (including for purposes of “Business Day” and for hours in a day or Business Day), the time at which a thing, occurrence or event shall begin or end shall be deemed to occur in the Eastern time zone of the United States. The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this Agreement. The Parties agree that the Company Disclosure Schedule or Parent Disclosure Schedule shall be arranged in sections and subsections corresponding to the numbered and lettered sections and subsections contained in Section 3 or Section 4, respectively. The disclosures in any section or subsection of the Company Disclosure Schedule or the Parent Disclosure Schedule shall qualify other sections and subsections in Section 3 or Section 4, respectively, to the extent it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other sections and subsections. The words “delivered” or “made available” mean, with respect to any documentation, (a) that prior to 5:00 p.m. (New York City time) on the date that is the day prior to the date of this Agreement, a copy of such material has been posted to and made available by a Party to the other Party and its Representatives in the electronic data room maintained by such disclosing Party for the purposes of the Contemplated Transactions or (b) delivered by or on behalf of a Party or its Representatives to the other Party or its Representatives via electronic mail or in hard copy form prior to the execution of this Agreement.
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Section 2. Description of Transaction.
2.1 The Merger. Upon the terms and subject to the conditions set forth in this Agreement, at the First Effective Time, First Merger Sub shall be merged with and into the Company, and the separate existence of First Merger Sub shall cease. As a result of the First Merger, the Company will continue as the surviving company of the First Merger (the “First Step Surviving Company”). Upon the terms and subject to the conditions set forth in this Agreement, at the Second Effective Time, the First Step Surviving Company will merge with and into Second Merger Sub, and the separate existence of the First Step Surviving Company shall cease. As a result of the Second Merger, Second Merger Sub will continue as the surviving company in the Second Merger (the “Surviving Company”).
2.2 Effects of the Merger. At and after the First Effective Time, the First Merger shall have the effects set forth in this Agreement, the First Certificate of Merger, and in the applicable provisions of the DGCL. As a result of the First Merger, the First Step Surviving Company will become a wholly owned subsidiary of Parent. At and after the Second Effective Time, the Second Merger shall have the effects set forth in this Agreement, the Second Certificate of Merger, and in the applicable provisions of the DGCL and DLLCA.
2.3 Closing; First Effective Time; Second Effective Time. Subject to the satisfaction or waiver of the conditions set forth in Section 7, Section 8 and Section 9 the consummation of the Merger (the “Closing”) shall take place remotely, on the date of this Agreement, or at such other time, date and place as Parent and the Company may mutually agree in writing. The date on which the Closing actually takes place is referred to as the “Closing Date.” At the Closing, (i) the Parties shall cause the First Merger to be consummated by executing and filing with the Secretary of State of the State of Delaware a certificate of merger with respect to the First Merger, satisfying the applicable requirements of the DGCL and in form and substance to be agreed upon by the Parties (the “First Certificate of Merger”) and (ii) the Parties shall cause the Second Merger to be consummated by executing and filing with the Secretary of State of the State of Delaware a certificate of merger with respect to the Second Merger, satisfying the applicable requirements of the DLLCA and in form and substance to be agreed upon by the Parties (the “Second Certificate of Merger”). The First Merger shall become effective at the time of the filing of such First Certificate of Merger with the Secretary of State of the State of Delaware or at such later time as may be specified in such First Certificate of Merger with the consent of Parent and the Company (the time as of which the First Merger becomes effective being referred to as the “First Effective Time”). The Second Merger shall become effective at the time of the filing of such Second Certificate of Merger with the Secretary of State of the State of Delaware or at such later time as may be specified in such Second Certificate of Merger with the consent of Parent and the Company (the time as of which the Second Merger becomes effective being referred to as the “Second Effective Time”).
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2.4 Certificate of Designation; Organizational Documents; Directors and Officers.
(a) Prior to the First Effective Time, Parent will file the Certificate of Designation with the office of the Secretary of State of the State of Delaware.
(b) As of the First Effective Time:
(i) the certificate of incorporation of the First Step Surviving Company shall be amended and restated as set forth in an exhibit to the First Certificate of Merger, until thereafter amended as provided by the DGCL and such certificate of incorporation;
(ii) the bylaws of the First Step Surviving Company shall be identical to the bylaws of the Company as in effect immediately prior to the First Effective Time, until thereafter amended as provided by the DGCL and such bylaws; and
(iii) the directors and officers of the First Step Surviving Company, each to hold office in accordance with the certificate of incorporation and bylaws of the First Step Surviving Company, shall be such persons as mutually agreed to by Parent and the Company.
(c) As of the Second Effective Time:
(i) the manager of the Surviving Company in accordance with the certificate of formation and limited liability company agreement of the Surviving Company, shall be Parent;
(ii) the limited liability company agreement of the Surviving Company shall be identical to the limited liability company agreement of Second Merger Sub as in effect immediately prior to the Second Effective Time, until thereafter amended as provided by the DLLCA and such limited liability company agreement; provided that (I) the limited liability company agreement of the Surviving Company shall comply with Section 5.5 and (II) all references to Second Merger Sub in the limited liability company agreement of the Surviving Company shall be changed to reference to ImmunogenX, LLC; and
(iii) the certificate of formation of the Second Merger Sub as in effect immediately prior to the Second Effective Time shall be the certificate of formation of the Surviving Company, until thereafter further amended in accordance with DLLCA and as provided in such certificate of formation, except that Article I of the certificate of formation of the Surviving Company shall be amended and restated in its entirety to read as follows: “The name of this limited liability company is ImmunogenX, LLC”.
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(iv) the officers of the Surviving Company, each to hold office in accordance with certificate of formation and limited liability company agreement of the Surviving Company, shall be such persons as mutually agreed to by Parent and the Company.
2.5 Merger Consideration; Effect of Merger on Company Capital Stock. The aggregate merger consideration (the “Merger Consideration”) to be paid by Parent for all of the outstanding shares of Company Capital Stock at the Closing and amounts reserved for Company Options shall be (a) 36,830 shares of Parent Common Stock (“Parent Common Stock Payment Shares”), which shares shall represent a number of shares equal to no more than 19.9% of the outstanding shares of Parent Common Stock as of immediately before the First Effective Time (the “Parent Common Stock Consideration Cap”), and (b) in the event the aggregate number of shares of Parent Common Stock Payment Shares issued to any Company stockholder at Closing would result in the issuance of shares of Parent Common Stock in an amount in excess of the Parent Common Stock Consideration Cap, Parent shall issue to such Company stockholders shares of Parent Common Stock up to the Parent Common Stock Consideration Cap and shall issue the remaining balance to such stockholders a total of 11,777.418 shares of Parent Convertible Preferred Stock (“Parent Preferred Stock Payment Shares”); provided, that, as required under certain Nasdaq Stock Market Rules that are applicable to Parent, none of the shares of Parent Preferred Stock Payment Shares may be converted into shares of Parent Common Stock unless and until the Conversion Proposal is approved by the approval of the Parent Stockholder Matters at the Parent Stockholders’ Meeting pursuant to Section 5.3. Each Parent Preferred Stock Payment Share shall be convertible into one thousand (1,000) shares of Parent Common Stock, subject to and contingent upon the approval of the Conversion Proposal and the terms of the Certificate of Designation.
2.6 Conversion of Stock.
(a) At the First Effective Time, by virtue of the First Merger and without any further action on the part of Parent, Merger Subs, the Company or any stockholder of the Company or Parent:
(i) any shares of Company Common Stock held as treasury stock or held or owned by the Company immediately prior to the First Effective Time shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor; and
(ii) subject to Section 2.5 and Section 2.6(c), each share of Company Capital Stock outstanding immediately prior to the First Effective Time (excluding shares to be canceled pursuant to Section 2.6(a)(i) and excluding Dissenting Shares) shall be automatically converted solely into the right to receive the number of Parent Common Stock Payment Shares and Parent Preferred Stock Payment Shares as set forth on the Allocation Certificate.
(b) If any shares of Company Common Stock outstanding immediately prior to the First Effective Time are subject to a repurchase option or a risk of forfeiture under any applicable restricted stock purchase agreement or other similar agreement with the Company, such shares of Company Common Stock shall no longer be subject to any right of repurchase, risk of forfeiture or other such conditions.
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(c) No fractional shares of Parent Common Stock shall be issued in connection with the First Merger, and no certificates or scrip for any such fractional shares shall be issued, with no cash being paid for any fractional share eliminated by such rounding. Any fractional shares of Parent Common Stock a holder of Company Capital Stock would otherwise be entitled to receive shall be aggregated together first prior to eliminating any remaining fractional share.
(d) At the First Effective Time, by virtue of the First Merger and without any further action on the part of Parent, Merger Subs, the Company or any stockholder of the Company or stockholder of Parent, each share of First Merger Sub issued and outstanding immediately prior to the First Effective Time shall be converted into and exchanged for one share of common stock of the First Step Surviving Company. If applicable, each stock certificate of First Merger Sub evidencing ownership of any such share shall, as of the First Effective Time, evidence ownership of such shares of common stock of the First Step Surviving Company.
(e) At the Second Effective Time, by virtue of the Second Merger and without any action on the part of Parent, the First Step Surviving Company, Second Merger Sub or their respective members, each share of common stock of the First Step Surviving Company issued and outstanding immediately prior to the Second Effective Time shall be canceled and extinguished without any conversion thereof and no payment or distribution shall be made with respect thereto.
2.7 Closing of the Company’s Transfer Books. At the First Effective Time: (a) all holders of (i) certificates representing shares of Company Capital Stock and (ii) book-entry shares representing shares of Company Capital Stock, in each case, that were outstanding immediately prior to the First Effective Time shall cease to have any rights as stockholders of the Company; and (b) the stock transfer books of the Company shall be closed with respect to all shares of Company Capital Stock outstanding immediately prior to the First Effective Time. No further transfer of any such shares of Company Capital Stock shall be made on such stock transfer books after the First Effective Time. If, after the first Effective Time, a valid certificate previously representing any shares of Company Capital Stock outstanding immediately prior to the First Effective Time is presented to the Exchange Agent or to the Surviving Entity, such Company Stock Certificate shall be canceled and shall be exchanged as provided in Sections 2.5 and 2.8.
2.8 Exchange of Shares.
(a) On or prior to the Closing Date, Parent and the Company shall jointly select a reputable bank, transfer agent or trust company to act as exchange agent in the Merger (the “Exchange Agent”). At the First Effective Time, Parent shall deposit with the Exchange Agent evidence of book-entry shares representing the shares of Parent Capital Stock issuable pursuant to Section 2.6(a) in exchange for Company Capital Stock.
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(b) Promptly after the First Effective Time, the Parties shall cause the Exchange Agent to mail to the Persons who were record holders of Company Capital Stock that were converted into the right to receive Merger Consideration: (i) a letter of transmittal in substantially the form attached hereto as Exhibit F (the “Letter of Transmittal”) and an Accredited Investor Questionnaire in customary form and containing such provisions as Parent may reasonably specify and (ii) instructions for effecting the surrender of Company Capital Stock in exchange for book-entry shares of Parent Capital Stock representing Merger Consideration. Upon surrender of a duly executed Letter of Transmittal, Accredited Investor Questionnaire and such other documents as may be reasonably required by the Exchange Agent or Parent, the Exchange Agent shall issue and the holder of such Company Capital Stock shall be entitled to receive in exchange therefor book-entry shares representing Parent Capital Stock representing Merger Consideration that such holder has the right to receive pursuant to the provisions of Section 2.6(a).
(c) No dividends or other distributions declared or made with respect to Parent Capital Stock with a record date after the First Effective Time shall be paid to the holder of any Company Capital Stock with respect to the shares of Parent Capital Stock that such holder has the right to receive in the Merger until such holder delivers a duly executed Letter of Transmittal (at which time (or, if later, on the applicable payment date) such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar Laws, to receive all such dividends and distributions, without interest).
(d) Any shares of Parent Capital Stock deposited with the Exchange Agent that remain undistributed to holders of Company Capital Stock as of the date that is 180 days after the Closing Date shall be delivered to Parent upon demand, and any holders of Company Capital Stock who have not theretofore delivered a duly executed Letter of Transmittal in accordance with this Section 2.8 shall thereafter look only to Parent for satisfaction of their claims for Parent Capital Stock and any dividends or distributions with respect to shares of Parent Capital Stock.
(e) No Party shall be liable to any holder of any Company Capital Stock or to any other Person with respect to any shares of Parent Capital Stock (or dividends or distributions with respect thereto) or for any cash amounts delivered to any public official pursuant to any applicable abandoned property Law, escheat Law or similar Law.
2.9 Stock Options. At the First Effective Time, each Company Option which is outstanding immediately prior to the First Effective Time, whether vested or unvested (“Old Stock Options”), shall be accelerated and deemed vested and shall automatically be converted as of the First Effective Time into options to purchase Parent Common Stock (such options as so converted, “Assumed Options”), which Assumed Options shall be identical to the Old Stock Options in all material respects, except that (i) upon exercise of the Assumed Option, the optionholder will receive Parent Common Stock rather than Company Common Stock, (ii) the number of shares of Parent Common Stock covered by each Assumed Option shall equal the number of shares of Company Common Stock covered by the corresponding Old Stock Option multiplied by the Exchange Ratio (rounded down to the nearest whole share), (iii) the exercise price of each Assumed Option shall equal the exercise price applicable to the corresponding Old Stock Option divided by the Exchange Ratio (rounded down to the nearest whole penny) and (iv) the committee that administers the plan by which such Assumed Options are governed shall be a committee established by the Parent Board. In all other material respects, the Assumed Options shall be governed by the terms of the Company Option Plan at and after the First Effective Time, subject to such additional modifications as the Parent Board or such committee deems appropriate to reflect the Merger, to the extent permissible under the terms of the Company Option Plan without the consent of the holder of the Assumed Options. Promptly after the First Effective Time, Parent shall use its reasonable best efforts to register the shares issuable upon exercise of the New Stock Options under the Securities Act of 1933, and to keep such registration in effect until such time as all New Stock Options have been exercised, expire or otherwise are no longer outstanding. As soon as practicable after the First Effective Time, Parent shall deliver a notice to holders of Assumed Options describing the adjustments set forth in this Section 2.9. To the extent necessary to effect Parent’s obligations under this Section 2.9, Parent shall assume sponsorship of the Company Option Plan, effective as of the First Effective Time.
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2.10 Company Warrants. Each outstanding Company Warrant shall be assumed by Parent and automatically converted into a warrant for shares of Parent Common Stock (each, an “Assumed Warrant”). Each Assumed Warrant shall: (i) have the right to acquire a number of shares of Parent Common Stock equal to (as rounded down to the nearest whole number) the product of (A) the number of shares of Company Common Stock which the Company Warrant had the right to acquire immediately prior to the First Effective Time, multiplied by (B) the Exchange Ratio; and (ii) have an exercise price equal to (as rounded up to the nearest whole cent) the quotient of (A) the exercise price of the Company Warrant (in U.S. Dollars), divided by (B) the Exchange Ratio. Parent shall take all corporate action necessary to reserve for future issuance, and shall maintain such reservation for so long as any of the Assumed Warrants remain outstanding, a sufficient number of shares of Parent Common Stock for delivery upon the exercise of such Assumed Warrant.
2.11 Other Company Convertible Securities. Any other securities of the Company other than the Company Options, if not exercised or converted at or prior to the First Effective Time, shall be cancelled, retired and terminated and cease to represent a right to acquire, be exchanged for or convert into shares of Company Capital Stock.
2.12 Appraisal Rights.
(a) Notwithstanding any provision of this Agreement to the contrary, shares of Company Capital Stock that are outstanding immediately prior to the First Effective Time and which are held by stockholders who have exercised and perfected appraisal rights for such shares of Company Capital Stock in accordance with the DGCL (collectively, the “Dissenting Shares”) shall not be converted into or represent the right to receive the Parent Capital Stock representing Merger Consideration described in Section 2.5 attributable to such Dissenting Shares. Such stockholders shall be entitled to receive payment of the appraised value of such shares of Company Capital Stock held by them in accordance with the DGCL, unless and until such stockholders fail to perfect or effectively withdraw or otherwise lose their appraisal rights under the DGCL. All Dissenting Shares held by stockholders who shall have failed to perfect or shall have effectively withdrawn or lost their right to appraisal of such shares of Company Capital Stock under the DGCL (whether occurring before, at or after the First Effective Time) shall thereupon be deemed to be converted into and to have become exchangeable for, as of the First Effective Time, the right to receive the Parent Capital Stock representing Merger Consideration, without interest, attributable to such Dissenting Shares upon their surrender in the manner provided in Sections 2.6 and 2.8.
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(b) The Company shall give Parent prompt written notice of any demands by dissenting stockholders received by the Company, withdrawals of such demands and any other instruments served on the Company and any material correspondence received by the Company in connection with such demands, and Parent shall have the right to direct all negotiations and proceedings with respect to such demands; provided that the Company shall have the right to participate in such negotiations and proceedings. Neither the Parent nor the Company shall, except with the other party’s prior written consent, voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or approve any withdrawal of any such demands or agree to do any of the foregoing.
2.13 Further Action. If, at any time after the First Effective Time, any further action is determined by the Surviving Company to be necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Company with full right, title and possession of and to all rights and property of the Company, then the officers and manager of the Surviving Company shall be fully authorized, and shall use their and its commercially reasonable efforts (in the name of the Company, in the name of Merger Subs, in the name of the Surviving Company and otherwise) to take such action.
2.14 Intended Tax Treatment. The Parties acknowledge and agree that, for U.S. federal (and applicable state and local), income tax purposes (a) this Agreement constitutes, and is hereby adopted by the parties hereto as a, “plan or reorganization” for purposes of Section 368 of the Code and within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a), and (b) the First Merger and the Second Merger, taken together, are intended to constitute a single integrated transaction that qualifies as a reorganization within the meaning of Section 368(a)(1)(A) of the Code and Treasury Regulations as described in Rev. Rul. 2001-46, 2001-2 C.B. 321, to which the Parent and Company are parties under Section 368(b) of the Code (the “Intended Tax Treatment").
2.15 Withholding. Each of the Exchange Agent, Parent, First Step Surviving Company and the Surviving Company (each, a “Withholding Agent”) shall be entitled to deduct and withhold from any consideration deliverable pursuant to this Agreement (including the Closing Distribution) such amounts as are required to be deducted or withheld from such consideration under the Code or under any other applicable Law; provided that if a Withholding Agent determines that any payment to any stockholder of the Company hereunder is subject to deduction and/or withholding, then, except with respect to compensatory payments or as a result of a failure to deliver the certificate described in Section 5.6(c), such Withholding Agent shall (i) provide notice to such stockholder as soon as reasonably practicable after such determination (no later than three (3) Business Days prior to undertaking such deduction and/or withholding) and (ii) use commercially reasonable efforts to cooperate with such stockholder prior to Closing to reduce or eliminate any such deduction and/or withholding. To the extent such amounts are so deducted or withheld, and remitted to the appropriate taxing authority, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
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Section 3. Representations and Warranties of the Company. Subject to Section 3, except as set forth in the written disclosure schedule delivered by the Company to Parent (the “Company Disclosure Schedule”), the Company represents and warrants to Parent and Merger Subs as follows:
3.1 Due Organization; Subsidiaries.
(a) The Company is a corporation duly incorporated, validly existing and in good standing under the Laws of the jurisdiction of its incorporation and has all necessary power and authority: (i) to conduct its business in the manner in which its business is currently being conducted, (ii) to own or lease and use its property and assets in the manner in which its property and assets are currently owned or leased and used and (iii) to perform its obligations under all Contracts by which it is bound.
(b) The Company is duly licensed and qualified to do business, and is in good standing (to the extent applicable in such jurisdiction), under the Laws of all jurisdictions where the nature of its business in the manner in which its business is currently being conducted requires such licensing or qualification other than in jurisdictions where the failure to be so qualified individually or in the aggregate would not be reasonably expected to have a Company Material Adverse Effect.
(c) The Company has no Subsidiaries and the Company does not own any capital stock or membership interests of, or any equity, ownership or profit sharing interest of any nature in, or controls directly or indirectly, any other Entity. The Company is not and has never otherwise been, directly or indirectly, a party to, member of or participant in any partnership, joint venture or similar business entity. The Company has not agreed to, and is not obligated to make, nor is bound by any Contract under which it may become obligated to make, any future investment in or capital contribution to any other Entity. The Company has not, at any time, been a general partner of, or has otherwise been liable for any of the debts or other obligations of, any general partnership, limited partnership or other Entity.
3.2 Organizational Documents. The Company has made available to Parent accurate and complete copies of the Organizational Documents of the Company in effect as of the date of this Agreement. The Company is not in breach or violation of its Organizational Documents in any material respect.
3.3 Authority; Binding Nature of Agreement. The Company has all necessary corporate power and authority to enter into and to perform its obligations under this Agreement and to consummate the Contemplated Transactions. The Company Board has (i) determined that the Contemplated Transactions are fair to, advisable and in the best interests of the Company and its stockholders, (ii) approved and declared advisable this Agreement and the Contemplated Transactions and (iii) determined to recommend, upon the terms and subject to the conditions set forth in this Agreement, that the stockholders of the Company vote to adopt this Agreement and thereby approve the Contemplated Transactions. This Agreement has been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by Parent and Merger Subs, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.
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3.4 Vote Required. The affirmative vote of a majority of the outstanding shares of Company Common Stock and Company Preferred Stock, voting on an as-converted basis, voting together as a single class (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of Company Capital Stock necessary to adopt and approve this Agreement and approve the Contemplated Transactions. The Company has obtained approval by written consent from the stockholders of the Company sufficient for the Required Company Stockholder Vote in lieu of a meeting pursuant to Section 228 of the DGCL, for purposes of adopting and approving this Agreement and the Contemplated Transactions.
3.5 Non-Contravention; Consents.
(a) Subject to obtaining the Required Company Stockholder Vote and the filing of the First Certificate of Merger and Second Certificate of Merger required by the DGCL and DLLCA, neither (x) the execution, delivery or performance of this Agreement by the Company, nor (y) the consummation of the Contemplated Transactions, will directly or indirectly (with or without notice or lapse of time):
(i) contravene, conflict with or result in a violation of any of the provisions of the Company’s Organizational Documents;
(ii) contravene, conflict with or result in a material violation of, or give any Governmental Authority or other Person the right to challenge the Contemplated Transactions or to exercise any remedy or obtain any relief under, any Law or any Order by which the Company, or any of the assets owned or used by the Company, is subject;
(iii) contravene, conflict with or result in a material violation of any of the terms or requirements of, or give any Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held by the Company or otherwise relates to the business of the Company, or any assets owned, leased or used by the Company, except as would not reasonably be expected to be material to the Company or its business, except as would not reasonably be expected to be material to the Company or its business;
(iv) contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any Company Material Contract, or give any Person the right to: (A) declare a default or exercise any remedy under any Company Material Contract, (B) any material payment, rebate, chargeback, penalty or change in delivery schedule under any Company Material Contract, (C) accelerate the maturity or performance of any Company Material Contract or (D) cancel, terminate or modify any term of any Company Material Contract, except in the case of any nonmaterial breach, default, penalty or modification; or
(v) result in the imposition or creation of any Encumbrance upon or with respect to any asset owned or used by the Company (except for Permitted Encumbrances).
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(b) Except for (i) the Required Company Stockholder Vote, (ii) the filing of the First Certificate of Merger and Second Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL and DLLCA, (iii) the filing of the Certificate of Designation with the Secretary of State of the State of Delaware pursuant to the DGCL and DLLCA, and (iv) such consents, waivers, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable federal and state securities Laws, the Company is not required to make any filing with or give any notice to, or to obtain any Consent from, any Person in connection with (x) the execution, delivery or performance of this Agreement or (y) the consummation of the Contemplated Transactions.
(c) The Company Board has taken and will take all actions necessary to ensure that the restrictions applicable to business combinations contained in Section 203 of the DGCL, to the extent applicable to the Company, are, and will be, inapplicable to the execution, delivery and performance of this Agreement and to the consummation of the Contemplated Transactions. No other state takeover statute or similar Law applies or purports to apply to the Merger, this Agreement or any of the Contemplated Transactions.
3.6 Capitalization.
(a) Section 3.6(a) of the Company Disclosure Schedule sets forth an accurate and complete capitalization table of the Company as of the date of this Agreement. The Company does not hold any shares of Company Capital Stock in its treasury.
(b) All of the outstanding Company Capital Stock as set out in Section 3.6(a) of the Company Disclosure Schedule have been duly authorized and validly issued, and are fully paid and nonassessable and are free of any Encumbrances other than Encumbrances set forth in the Organizations Documents or under applicable securities Laws. None of the outstanding Company Capital Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right and none of the outstanding Company Capital Stock is subject to any right of first refusal in favor of the Company. Except as contemplated herein, there is no Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any Company Capital Stock. The Company is not under any obligation, nor is it bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding Company Capital Stock or other securities. Section 3.6(b) of the Company Disclosure Schedule accurately and completely lists all repurchase rights held by the Company with respect to Company Capital Stock (including shares issued pursuant to the exercise of options) and specifies which of those repurchase rights are currently exercisable and whether the holder of such shares of Company Capital Stock timely filed an election with the relevant Governmental Authority under Section 83(b) of the Code with respect to such shares.
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(c) Except for the Company’s 2021 Stock Option Plan (the “Company Option Plan”), the Company does not have any stock option plan or any other plan, program, agreement or arrangement providing for any equity-based compensation for any Person. As of the date of this Agreement, the Company has reserved 200,000 shares of Company Common Stock for issuance under the Company Option Plan, of which 118,050 shares have been issued and are currently outstanding, 75,750 shares have been reserved for issuance upon exercise of Company Options previously granted and currently outstanding under the Company Option Plan, and 6,200 shares of Company Common Stock remain available for future issuance of awards pursuant to the Company Option Plan. Section 3.6(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of the date of this Agreement: (i) the name of the optionee; (ii) the number of shares of Company Common Stock subject to such Company Option at the time of grant; (iii) the number of shares of Company Common Stock subject to such Company Option as of the date of this Agreement; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule, including the number of vested and unvested shares as of the date of this Agreement and any acceleration provisions; (vii) the date on which such Company Option expires; and (viii) whether such Company Option is intended to constitute an “incentive stock option” (as defined in the Code) or a non-qualified stock option. The Company has made available to Parent an accurate and complete copy of the Company Option Plan and a form of stock option agreement that is consistent in all material respects with the stock option agreements evidencing outstanding options granted thereunder.
(d) Except for the Company Options set forth on Section 3.6(c) of the Company Disclosure Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of common stock or other securities of the Company, (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company, or (iii) condition or circumstance that could be reasonably likely to give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to the Company.
(e) All outstanding Company Common Stock, Company Preferred Stock, Company Options and other securities of the Company have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts.
3.7 Financial Statements.
(a) Section 3.7(a) of the Company Disclosure Schedule includes true and complete copies of the Company Unaudited Balance Sheet, and the Company’s Audited Financial Statements (collectively, the “Company Financials”). The Company Financials (A) were prepared in accordance with United States generally accepted accounting principles (“GAAP”) (except that the Company Financials may not have notes thereto and other presentation items that may be required by GAAP and are subject to normal and recurring year-end adjustments, none of which is material) applied on a consistent basis unless otherwise noted therein throughout the periods indicated and (B) fairly present, in all material respects, the financial position and operating results of the Company as of the dates and for the periods indicated therein.
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(b) The Company maintains a system of internal accounting controls designed to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of the financial statements of the Company in conformity with GAAP and to maintain accountability of the Company’s assets, (iii) access to the Company’s assets is permitted only in accordance with management’s general or specific authorization, (iv) the recorded accountability for the Company’s assets is compared with the existing assets at regular intervals and appropriate action is taken with respect to any differences, and (v) accounts, notes and other receivables and inventory are recorded accurately, and proper and adequate procedures are implemented which are designed to effect the collection thereof on a current and timely basis. The Company maintains internal controls consistent with the practices of similarly situated private companies over financial reporting that provides reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP.
(c) Section 3.7(c) of the Company Disclosure Schedule lists, and the Company has delivered to Parent accurate and complete copies of the documentation creating or governing, all securitization transactions and “off-balance sheet arrangements” (as defined in Item 303(c) of Regulation S-K under the Exchange Act) effected by the Company.
(d) There have been no formal internal investigations regarding financial reporting or accounting policies and practices discussed with, reviewed by or initiated at the direction of the chief executive officer or chief financial officer of the Company, the Company Board or any committee thereof. Neither the Company nor its independent auditors have identified (i) any significant deficiency or material weakness in the design or operation of the system of internal accounting controls utilized by the Company, (ii) any fraud, whether or not material, that involves the Company, the Company’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company or (iii) any claim or allegation regarding any of the foregoing.
3.8 Absence of Changes. Except as set forth on Section 3.8 of the Company Disclosure Schedule, after the date of the Company Unaudited Balance Sheet, the Company has conducted its business only in the Ordinary Course of Business (except for the execution and performance of this Agreement and the discussions, negotiations and transactions related thereto) and there has not been any (a) Company Material Adverse Effect or (b) actions to do any of the following:
(a) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock; or repurchase, redeem or otherwise reacquire any shares of its capital stock or other securities (except for shares of Company Common Stock from terminated employees, directors or consultants of the Company or in connection with the payment of the exercise price and/or withholding Taxes incurred upon the exercise, settlement or vesting of any award granted under the Company Option Plan);
(b) except as required to give effect to anything in contemplation of the Closing, amend any of its Organizational Documents, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except, for the avoidance of doubt, the Contemplated Transactions;
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(c) sell, issue, grant, pledge or otherwise dispose of or encumber or authorize any of the foregoing actions with respect to: (A) any capital stock or other security of the Company (except for Company Common Stock issued upon the valid exercise or settlement of outstanding Company Options or Company Restricted Stock Units, as applicable), (B) any option, warrant or right to acquire any capital stock or any other security, or (C) any instrument convertible into or exchangeable for any capital stock or other security of the Company;
(d) form any Subsidiary or acquire any equity interest or other interest in any other Entity or enter into a joint venture with any other Entity;
(e) (A) lend money to any Person, (B) incur or guarantee any indebtedness for borrowed money, or (C) guarantee any debt securities of others;
(f) other than as required by applicable Law: (A) adopt, establish or enter into any new Employee Plan, including, for the avoidance of doubt, any equity awards plans, (B) cause or permit any Company Employee Plan to be, (C) pay any bonus or make any profit-sharing or similar payment to (except with respect to obligations in place on the date of this Agreement pursuant to any Company Employee Plan), or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers, employees or consultants (D) grant any new equity awards or increase the coverage or benefits available under any Company Employee Plan, (E) increase the severance or change of control benefits offered to any current or new employees, directors or consultants, or (F) hire, terminate or give notice of termination (other than for cause) to any officer, employee or consultant;
(g) enter into any material transaction outside the Ordinary Course of Business, other than in connection with the Contemplated Transactions;
(h) acquire any material asset or sell, lease or otherwise irrevocably dispose of any of its assets or properties, or grant any Encumbrance (other than Permitted Encumbrances) with respect to such assets or properties;
(i) sell, assign, transfer, license, sublicense or otherwise dispose of any material Company IP Rights (other than pursuant to nonexclusive licenses in the Ordinary Course of Business);
(j) make, change or revoke any material Tax election; file any material amendment to any Tax Return; settle or compromise any material Tax claim; waive or extend any statute of limitations in respect of a period within which an assessment or reassessment of material Taxes may be issued (other than any extension pursuant to an extension to file any Tax Return); enter into any “closing agreement” as described in Section 7121 of the Code (or any similar Law) with any Governmental Authority; or adopt or change any material accounting method in respect of Taxes;
(k) initiate or settle any Legal Proceeding;
(l) delay or fail to repay when due any material obligation, including accounts payable and accrued expenses, other than in the Ordinary Course of Business;
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(m) forgive any loans to any Person, including its employees, officers, directors or Affiliates;
(n) make any expenditures, incur any Liabilities or discharge or satisfy any Liabilities, in each case, in amounts that exceed $100,000;
(o) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy;
(p) enter into, amend, terminate, or waive any material option or right under, any Company Material Contract;
(q) (A) materially change pricing or royalties or other payments set or charged by the Company to its customers or licensees or (B) agree to materially change pricing or royalties or other payments set or charged by Persons who have licensed Intellectual Property to the Company; or
(r) agree, resolve or commit to do any of the foregoing.
3.9 Absence of Undisclosed Liabilities. The Company does not have any liability, indebtedness, obligation, expense, claim, deficiency, guaranty or endorsement of any kind, whether accrued, absolute, contingent, matured, unmatured or otherwise required to be reflected in the financial statements in accordance with GAAP (each a “Liability”), except for: (a) Liabilities disclosed, reflected or reserved against in the Company Financials or in the notes thereto, (b) Liabilities that have been incurred by the Company since the date of the Company Unaudited Balance Sheet in the Ordinary Course of Business (none of which relates to any breach of contract, breach of warranty, tort, infringement, or violation of Law), (c) Liabilities for performance of obligations of the Company under Company Contracts in the Ordinary Course of Business, (d) Liabilities incurred in connection with the Contemplated Transactions and (f) Liabilities listed in Section 3.9 of the Company Disclosure Schedule.
3.10 Title to Assets. The Company owns, and has good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all tangible properties or tangible assets and equipment used or held for use in its business or operations or purported to be owned by it, including: (a) all tangible assets reflected on the Company Unaudited Balance Sheet and (b) all other tangible assets reflected in the books and records of the Company as being owned by the Company. All of such assets are owned or, in the case of leased assets, leased by the Company free and clear of any Encumbrances, other than Permitted Encumbrances.
3.11 Real Property; Leasehold. The Company does not own and has never owned any real property. The Company has made available to Parent (a) an accurate and complete list of all real properties with respect to which the Company directly or indirectly holds a valid leasehold interest as well as any other real estate that is in the possession of, or occupied or leased by, the Company and (b) copies of all leases under which any such real property is possessed, occupied or leased (the “Company Real Estate Leases”), each of which is in full force and effect, with no existing material default thereunder. Except as set forth on Section 3.11 of the Company Disclosure Schedule, the Company’s possession, occupancy, lease, use and/or operation of each such leased property conforms to all applicable Laws in all material respects, and the Company has exclusive possession of each such leased property and leasehold interest and has not granted any occupancy rights to tenants or licensees with respect to such leased property or leasehold interest. In addition, each such leased property and leasehold interest is free and clear of all Encumbrances other than Permitted Encumbrances. The Company has not received any written notice from its landlords or any Governmental Body that: (i) relates to violations of building, zoning, safety or fire ordinances or regulations; (ii) claims any defect or deficiency with respect to any of such properties; or (iii) requests the performance of any repairs, alterations or other work to such properties.
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3.12 Intellectual Property.
(a) Section 3.12(a) of the Company Disclosure Schedule is an accurate, true and complete listing of all Company Registered IP.
(b) Section 3.12(b) of the Company Disclosure Schedule accurately identifies (i) all Company Contracts pursuant to which any material Company IP Rights are licensed to the Company (other than (A) any non-customized software that (1) is so licensed solely in executable or object code form pursuant to a nonexclusive, internal use software license and other Intellectual Property associated with such software and (2) is not incorporated into, or material to the development, manufacturing, or distribution of, any of the Company’s products or services, (B) any Intellectual Property licensed on a nonexclusive basis in the Ordinary Course of Business ancillary to the purchase or use of equipment, reagents or other materials or that is otherwise not material to the Company’s business, (C) any confidential information provided under confidentiality agreements and (D) agreements between Company and its employees in Company’s standard form thereof ((A) through (D), “Non-Scheduled Company IP Contracts”) and (ii) whether the license or licenses granted to the Company are exclusive or nonexclusive.
(c) Section 3.12(c) of the Company Disclosure Schedule accurately identifies each Company Contract pursuant to which any Person has been granted by the Company any license, sublicense or covenant not to sue under, or otherwise has received or acquired any right (whether or not currently exercisable) or interest in, any material Company IP Rights (other than (i) any confidential information provided under confidentiality agreements and (ii) any Company IP Rights nonexclusively licensed to academic collaborators, suppliers or service providers for the sole purpose of enabling such academic collaborator, supplier or service providers to provide services for the Company’s benefit).
(d) The Company is not bound by, and no Company IP Rights are subject to, any Contract containing any covenant or other provision that in any way limits or restricts the ability of the Company to use, exploit, assert, or enforce any Company IP Rights anywhere in the world.
(e) The Company solely and exclusively owns all right, title, and interest to and in Company IP Rights (other than Company IP Rights licensed to the Company pursuant to a Company Contract set forth on Section 3.12(b) of the Company Disclosure Schedule or pursuant to a Non-Scheduled Company IP Contract), in each case, free and clear of any Encumbrances (other than Permitted Encumbrances). Without limiting the generality of the foregoing:
(i) All documents and instruments necessary to register or apply for or renew registration of material Company Registered IP have been validly executed, delivered, and filed in a timely manner with the appropriate Governmental Authority.
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(ii) Each Person who is or was an employee or contractor of the Company and who is or was involved in the creation or development of any material Intellectual Property for the Company has signed a valid, enforceable agreement containing a present assignment of such Intellectual Property to the Company and confidentiality provisions protecting trade secrets and confidential information of the Company.
(iii) To the Knowledge of the Company, no current or former member, officer, director, or employee of the Company has any claim, right (whether or not currently exercisable), or interest to or in any Company IP Rights purported to be owned by the Company. To the Knowledge of the Company, no employee of the Company is (a) bound by or otherwise subject to any Contract restricting him or her from performing his or her duties for the Company or (b) in breach of any Contract with any former employer or other Person concerning Company IP Rights purported to be owned by the Company or confidentiality provisions protecting trade secrets and confidential information comprising such Company IP Rights purported to be owned by the Company.
(iv) No funding, facilities, or personnel of any Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Company IP Rights in which the Company has an ownership interest, except for any such funding or use of facilities or personnel that does not result in such Governmental Authority obtaining ownership rights to such Company IP Rights and does not require or otherwise obligate the Company or its Subsidiaries to grant or offer to any such Governmental Authority or institution any material license or other material right to such Company IP Right (except for non-commercial use rights during the term of the applicable agreement between the Company or one of its Subsidiaries and such Governmental Authority) or the right to receive royalties for the practice of such Company IP Right.
(v) The Company has taken reasonable steps to maintain the confidentiality of and otherwise protect and enforce its rights in all proprietary information that the Company holds, or purports to hold, as confidential or a trade secret.
(vi) The Company has not assigned or otherwise transferred ownership of, or agreed to assign or otherwise transfer ownership of, any Company IP Rights to any other Person.
(vii) (vii) To the Knowledge of the Company, the Company IP Rights constitute all Intellectual Property necessary for the Company to conduct its business as currently conducted; provided, however, that the foregoing representation is not a representation with respect to noninfringement of Intellectual Property.
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(f) The Company has delivered or made available to Parent, a complete and accurate copy of all Company IP Rights Agreements that are required to be listed on the Company Disclosure Schedule. With respect to each of the material Company IP Rights Agreements: (i) each such agreement is valid and binding on the Company and in full force and effect, (ii) the Company has not received any written notice of termination or cancellation under such agreement, or received any written notice of breach or default under such agreement, which breach has not been cured or waived and (iii) the Company, and to the Knowledge of the Company, no other party to any such agreement, is not in breach or default thereof in any material respect.
(g) The manufacture, marketing, sale, offering for sale, importation, use or intended use or other disposal of any product or proposed product as currently sold or under development by the Company does not violate any license or agreement between the Company and any other third party in any material respect, and, to the Knowledge of the Company, does not infringe or misappropriate (and, when made commercially available, will not infringe or misappropriate) any valid and issued Patent right or other Intellectual Property of any other Person, which infringement or misappropriation would reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no third party is infringing upon any Patents within the Company IP Rights or is violating any Company IP Rights Agreement.
(h) As of the date of this Agreement, (i) the Company is not a party to any Legal Proceeding (including, but not limited to, opposition, interference or other proceeding in any patent or other government office) contesting the validity, enforceability, ownership or right to use, sell, offer for sale, license or dispose of any Company IP Rights, (ii) the Company has not received any written notice asserting that any Company IP Rights or the proposed use, sale, offer for sale, license or disposition of any products, methods, or processes claimed or covered thereunder infringes or misappropriates or violates the rights of any other Person or that the Company has otherwise infringed, misappropriated or otherwise violated any Intellectual Property of any Person, and (iii) none of the Company IP Rights is subject to any outstanding order of, judgment of, decree of or agreement with any Governmental Authority that limits the ability of the Company to exploit any Company IP Rights.
(i) Each item of material Company Registered IP (other than any Company Registered IP that the Company in its business judgment has elected to abandon) is and at all times has been filed and maintained in compliance in all material respects with all applicable Law and all filings, payments, and other actions required to be made or taken to maintain such item of Company Registered IP in full force and effect have been made by the applicable deadline. To the Knowledge of the Company, all Company Registered IP that is issued or granted is valid and enforceable.
(j) To the Knowledge of the Company, no trademark (whether registered or unregistered) or trade name owned, used, or applied for by the Company conflicts or interferes with any trademark (whether registered or unregistered) or trade name owned, used, or applied for by any other Person, except as would not reasonably be expected to have a Company Material Adverse Effect. None of the goodwill associated with or inherent in any trademark (whether registered or unregistered) in which the Company has or purports to have an ownership interest has been impaired as determined by the Company in accordance with GAAP.
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(k) Except as set forth in the Company Contracts on Sections 3.12(b) or 3.12(c) of the Company Disclosure Schedule or as contained in license, distribution or service agreements entered into in the Ordinary Course of Business by the Company, (i) the Company is not bound by any Contract to indemnify, defend, hold harmless, or reimburse any other Person with respect to any Intellectual Property infringement, misappropriation, or similar claim which is material to the Company, taken as a whole and (ii) the Company has never assumed, or agreed to discharge or otherwise take responsibility for, any existing or potential liability of another Person for infringement, misappropriation, or violation of any Intellectual Property right, which assumption, agreement or responsibility remains in force as of the date of this Agreement.
(l) The Company is not party to any Contract that, as a result of such execution, delivery and performance of this Agreement, will cause the grant of any license or other right to any Company IP Rights, result in breach of, default under or termination of such Contract with respect to any Company IP Rights, or impair the right of the Company or the Surviving Company and its Subsidiaries to use, sell or license or enforce any Company IP Rights or portion thereof.
3.13 Agreements, Contracts and Commitments.
(a) Section 3.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract relating to any material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(ii) each Company Contract requiring payments by the Company after the date of this Agreement in excess of $75,000 relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting or independent contractor services, not terminable by the Company on ninety (90) calendar days’ or less notice without liability, except to the extent general principles of wrongful termination Law may limit the Company’s, or such successor’s ability to terminate employees at will;
(iii) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iv) each Company Contract containing (A) any covenant limiting the freedom of the Company or the Surviving Company to engage in any line of business or compete with any Person, or limiting the development, manufacture, or distribution of the Company’s products or services (B) any most-favored pricing arrangement, (C) any exclusivity provision or (D) any non-solicitation provision except for Company Contracts with Persons that are employees or independent contractors;
(v) each Company Contract (A) pursuant to which any Person granted the Company an exclusive license under any Intellectual Property, or (B) pursuant to which the Company granted any Person an exclusive license under any Company IP Rights;
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(vi) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms and not cancelable without penalty;
(vii) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viii) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 or creating any material Encumbrances with respect to any assets of the Company or any loans or debt obligations with officers or directors of the Company;
(ix) each Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $50,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which the Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(x) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(xi) each Company Contract with a Governmental Authority;
(xii) each Company Contract to which the Company is a party or by which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $50,000;
(xiii) a Company Real Estate Lease; or
(xiv) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company, and (A) which involves payment or receipt by the Company after the date of this Agreement under any such agreement, contract or commitment of more than $25,000 in the aggregate, or obligations after the date of this Agreement in excess of $25,000 in the aggregate or (B) that is material to the business or operations of the Company taken as a whole.
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(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in written form. The Company has not, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As to the Company, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company under any Company Material Contract or any other material term or provision of any Company Material Contract, and no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or cancel any Company Material Contract.
3.14 Compliance; Permits; Restrictions.
(a) The Company is in material compliance with all applicable Laws. No investigation, claim, suit, proceeding, audit, Order, or other action by any Governmental Authority is pending or, to the Knowledge of the Company, threatened against the Company. There is no agreement or Order binding upon the Company which (i) has or would reasonably be expected to have the effect of prohibiting or materially impairing any business practice of the Company, any acquisition of material property by the Company or the conduct of business by the Company as currently conducted, (ii) is reasonably likely to have an adverse effect on the Company’s ability to comply with or perform any covenant or obligation under this Agreement or (iii) is reasonably likely to have the effect of preventing, delaying, making illegal or otherwise interfering with the Contemplated Transactions.
(b) The Company holds all required Governmental Authorizations which are material to the operation of the business of the Company as currently conducted (the “Company Permits”), including Governmental Authorizations related to the development, testing, manufacturing, processing, storage, labeling, sale, marketing, advertising, distribution and importation or exportation, as currently conducted, of any of its products or product candidates (the “Company Product Candidates”). Section 3.14(b) of the Company Disclosure Schedule identifies each Company Permit. The Company has timely maintained and is in material compliance with the terms of the Company Permits and no Company Permit has been (i) revoked, withdrawn, suspended, cancelled or terminated or (ii) modified in any adverse manner, other than immaterial adverse modifications. No Legal Proceeding is pending or, to the Knowledge of the Company, threatened, which seeks to revoke, substantially limit, suspend, or materially modify any Company Permit. The rights and benefits of each Company Permit (other than INDs with the Company) will be available to the Surviving Company or its Subsidiaries, as applicable, immediately after the Second Effective Time on terms substantially identical to those enjoyed by the Company as of the date of this Agreement and immediately prior to the First Effective Time.
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(c) There are no Legal Proceedings pending or, to the Knowledge of the Company, threatened with respect to an alleged material violation by the Company of the Federal Food, Drug, and Cosmetic Act (“FDCA”), the Public Health Service Act (“PHSA”), Food and Drug Administration (“FDA”) regulations adopted thereunder, the Controlled Substances Act or any other similar Law promulgated by the FDA or other comparable Governmental Authority responsible for regulation of the development, testing, manufacturing, processing, storage, labeling, sale, marketing, advertising, distribution and importation or exportation of drug products (“Drug Regulatory Agency”).
(d) The Company has made available to Parent all information requested by Parent in the Company’s possession or control relating to the Company Product Candidates and the development, testing, manufacturing, processing, storage, labeling, sale, marketing, advertising, distribution and importation or exportation of the Company Product Candidates, including but not limited to complete copies of the following (to the extent there are any): (x) adverse event reports; preclinical, clinical and other study reports and material study data; inspection reports, notices of adverse findings, untitled letters, warning letters, filings and letters and other written correspondence to and from any Drug Regulatory Agency; and meeting minutes with any Drug Regulatory Agency and (y) similar reports, material study data, notices, letters, filings, correspondence and meeting minutes with any other Governmental Authority. All such information is accurate and complete in all material respects.
(e) All clinical, preclinical and other studies and tests conducted by or on behalf of, or sponsored by, the Company, or in which the Company or its current products or product candidates, including the Company Product Candidates, have participated, were and, if still pending, are being conducted in all material respects in accordance with standard medical and scientific research procedures and in compliance in all material respects with the applicable regulations of the Drug Regulatory Agencies and other applicable Law, including 21 C.F.R. Parts 50, 54, 56, 58 and 312. The Company has not received any written notices, correspondence, or other communications from any Drug Regulatory Agency requiring, or to the Knowledge of the Company threatening to initiate, any action to place a clinical hold order on, or otherwise terminate, delay, or suspend any clinical studies conducted by or on behalf of, or sponsored by, the Company or in which the Company or its current products or product candidates, including the Company Product Candidates, have participated. Further, no clinical investigator, researcher, or clinical staff participating in any clinical study conducted by or, to the Knowledge of the Company, on behalf of the Company has been disqualified from participating in studies involving the Company Product Candidates, and to the Knowledge of the Company, no such administrative action to disqualify such clinical investigators, researchers or clinical staff has been threatened or is pending.
(f) The Company is not, and to the Knowledge of the Company, no contract manufacturer with respect to any Company Product Candidate, is the subject of any pending or, to the Knowledge of the Company, threatened investigation in respect of its business or products by the FDA pursuant to its “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” Final Policy set forth in 56 Fed. Reg. 46191 (September 10, 1991) and any amendments thereto. To the Knowledge of the Company, the Company has not, and no contract manufacturer with respect to any Company Product Candidate has committed any acts, made any statement, or failed to make any statement, in each case in respect of its business or products that would violate the FDA’s “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” Final Policy, and any amendments thereto. None of the Company, and to the Knowledge of the Company, any contract manufacturer with respect to any Company Product Candidate, or any of their respective officers, employees or agents has been convicted of any crime or engaged in any conduct that could result in a debarment or exclusion under (i) 21 U.S.C. Section 335a or (ii) any similar applicable Law. To the Knowledge of the Company, no debarment or exclusionary claims, actions, proceedings or investigations in respect of their business or products are pending or threatened against the Company, and to the Knowledge of the Company, any contract manufacturer with respect to any Company Product Candidate, or any of their respective officers, employees or agents.
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(g) All manufacturing operations conducted by, or to the Knowledge of the Company, for the benefit of, the Company in connection with any Company Product Candidate, since April 28, 2020, have been and are being conducted in compliance in all material respects with applicable Laws, including the FDA’s standards for current good manufacturing practices, including applicable requirements contained in 21 C.F.R. Parts 210, 211, 600-680, and 1271, and the respective counterparts thereof promulgated by Governmental Authorities in countries outside the United States.
(h) No laboratory or manufacturing site owned by the Company, and to the Knowledge of the Company, no manufacturing site of a contract manufacturer or laboratory, with respect to any Company Product Candidate, (i) is subject to a Drug Regulatory Agency shutdown or import or export prohibition or (ii) has received any Form FDA 483, notice of violation, warning letter, untitled letter, or similar correspondence or notice from the FDA or other Governmental Authority alleging or asserting noncompliance with any applicable Law, in each case, that have not been complied with or closed to the satisfaction of the relevant Governmental Authority, and, to the Knowledge of the Company, neither the FDA nor any other Governmental Authority is considering such action.
(i) The Company has complied with all Laws relating to patient, medical or individual health information, including the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations promulgated thereunder, all as amended from time to time (collectively “HIPAA”), including the standards for the privacy of Individually Identifiable Health Information at 45 C.F.R. Parts 160 and 164, Subparts A and E, the standards for the protection of Electronic Protected Health Information set forth at 45 C.F.R. Part 160 and 45 C.F.R. Part 164, Subpart A and Subpart C, the standards for transactions and code sets used in electronic transactions at 45 C.F.R. Part 160, Subpart A and Part 162, and the standards for Breach Notification for Unsecured Protected Health Information at 45 C.F.R. Part 164, Subpart D, all as amended from time to time. The Company has entered into, where required, and is in compliance in all material respects with the terms of all Business Associate (as defined in HIPAA) agreements (“Business Associate Agreements”) to which the Company is a party or otherwise bound. The Company has created and maintained written policies and procedures to protect the privacy of all Protected Health Information, has provided training to all employees and agents as required under HIPAA, and has implemented security procedures, including physical, technical and administrative safeguards, to protect all personal information and Protected Health Information stored or transmitted in electronic form. The Company has not received written notice from the Office for Civil Rights for the U.S. Department of Health and Human Services or any other Governmental Authority of any allegation regarding its failure to comply with HIPAA or any other federal or state law or regulation applicable to the protection of individually identifiable health information or personally identifiable information. No successful Security Incident, Breach of Unsecured Protected Health Information, unpermitted disclosure of Personal Health Information or breach of personally identifiable information under applicable Laws has occurred with respect to information maintained or transmitted to the Company or an agent or third party subject to a Business Associate Agreement with the Company. The Company is currently submitting, receiving and handling or is capable of submitting, receiving and handling transactions in accordance with the Transactions and Code Sets Rule. All capitalized terms in this Section 3.14(i) not otherwise defined in this Agreement shall have the meanings set forth under HIPAA.
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3.15 Legal Proceedings; Orders.
(a) There is no pending Legal Proceeding and, to the Knowledge of the Company, no Person has threatened in writing to commence any Legal Proceeding: (i) that involves the Company or any of the material assets owned or used by Company or (ii) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the Contemplated Transactions.
(b) There is no Order to which the Company, or any of the material assets owned or used by the Company, is subject. To the Knowledge of the Company, no officer or employees of the Company is subject to any Order that prohibits such officer or employee from engaging in or continuing any conduct, activity or practice relating to the business of the Company or to any material assets owned or used by the Company.
3.16 Tax Matters.
(a) The Company has timely filed all income Tax Returns and all other material Tax Returns that it was required to file under applicable Law. All such Tax Returns were correct and complete in all material respects and have been prepared in material compliance with all applicable Law. No claim has ever been made by a Governmental Authority in a jurisdiction where the Company does not file Tax Returns that the Company is subject to taxation by that jurisdiction.
(b) All material amounts of Taxes due and owing by (or on behalf of) the Company (whether or not shown on any Tax Return) have been timely paid. The unpaid Taxes of the Company for periods (or portions thereof) ending on or prior to the date of the Company Unaudited Balance Sheet do not materially exceed the accruals for current Taxes set forth on the Company Unaudited Balance Sheet. Since the date of the Company Unaudited Balance Sheet, the Company has not incurred any material Liability for Taxes outside the Ordinary Course of Business or otherwise inconsistent with past custom and practice.
(c) The Company has withheld and paid to the appropriate Governmental Authority all material Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(d) There are no Encumbrances for material Taxes (other than Encumbrances described in clause (a) of the definition of “Permitted Encumbrances”) upon any of the assets of the Company.
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(e) No deficiencies for a material amount of Taxes with respect to the Company have been claimed, proposed or assessed by any Governmental Authority in writing that have not been timely paid in full. There are no pending (or, based on written notice, threatened) material audits, assessments, examinations or other actions for or relating to any liability in respect of Taxes of the Company. The Company (or any of its predecessors) has not waived any statute of limitations in respect of material Taxes or agreed to any extension of time with respect to a material Tax assessment or deficiency.
(f) The Company has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code in the last five years.
(g) The Company is not a party to any Tax allocation, Tax sharing or similar agreement (including indemnity arrangements), other than customary indemnification provisions in commercial Contracts entered into in the Ordinary Course of Business with vendors, customers, lenders, or landlords (an “Ordinary Course Agreement”).
(h) The Company has never been a member of an affiliated group filing a consolidated U.S. federal income Tax Return (other than a group the common parent of which is the Company). The Company has no material Liability for the Taxes of any Person (other than the Company) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by Contract (other than an Ordinary Course Agreement) or otherwise.
(i) The Company has not distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code or Section 361 of the Code.
(j) The Company has not entered into any transaction identified as a “reportable transaction” for purposes of Treasury Regulations Sections 1.6011-4(b)(2) or 301.6111-2(b)(2).
(k) The Company will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in, or use of improper, method of accounting for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date; (iii) installment sale or open transaction disposition made on or prior to the Closing Date; (iv) prepaid amount, advance payments or deferred revenue received or accrued on or prior to the Closing Date other than in respect of such amounts reflected in the Company Unaudited Balance Sheet or received in the Ordinary Course of Business since the date of the Company Unaudited Balance Sheet; or (v) intercompany transaction or excess loss amount described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law).
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(l) The Company has never had a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise had an office or fixed place of business in a country other than the country in which it is organized.
(m) The Company is, and has been since its date of incorporation, a C corporation for U.S. federal income tax purposes.
(n) The Company is not aware of any facts and has not knowingly taken or agreed to take any action, in each case, that would reasonably be expected to prevent or impede the Merger from qualifying as a “reorganization” within the meaning of Section 368(a)(1)(A) of the Code.
3.17 Employee and Labor Matters; Benefit Plans.
(a) Section 3.17(a) of the Company Disclosure Schedule sets forth a true and complete listing of the employees and consultants of the Company as of the Closing Date (each, respectively, a “Company Employee” or a “Company Consultant”), including, as applicable, each such person’s name, job title(s) or function(s) (including board positions) and job location, current salary or wage, and current status (as to full time or part time, exempt or nonexempt and temporary or leave status and as to classification as an employee, consultant or independent contractor). The Company has delivered or made available to Parent a true and complete copy of each Company Employee Plan and the employee handbook for the Company, if any, and all other employment policies, if any, currently applicable to any Company Employee or Company Consultant.
(b) To the Company’s Knowledge, no officer or executive of the Company has disclosed any plans to terminate his or her employment with the Company or, following the Merger, with Parent.
(c) Except as set forth in Section 3.17(c) of the Company Disclosure Schedule:
(i) The Company has paid or made provision for payment of all salaries and wages, which became payable to any Company Employee prior to the Closing Date and is in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment, collective bargaining, immigration, wages, hours and benefits, non-discrimination in employment, workers’ compensation, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Equal Employment Opportunity Act of 1972, ERISA, the Equal Pay Act of 1963, the National Labor Relations Act of 1935, the Fair Labor Standards Act of 1938, the Americans with Disabilities Act of 1990, the Vietnam Era Veterans’ Reemployment Act, the Family and Medical Leave Act of 1993, the Occupational Safety and Health Act and any and all similar applicable state and local Laws;
(ii) the Company has not received a notice, citation, complaint or charge asserting any violation or liability under the Occupational Safety and Health Act or any similar applicable Law regulating employee health and safety;
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(iii) (a) no Company Employee is represented by any labor union or other labor representative with respect to his or her employment with the Company; (b) the Company is not bound by any labor, collective bargaining agreement or similar arrangement; (c) to the Company’s Knowledge, no petition has been filed nor has any proceeding been instituted by any employee or group of employees with the National Labor Relations Board or similar Governmental Authority seeking recognition of a collective bargaining agreement; (d) to the Company’s Knowledge, there are no Persons attempting to represent or organize or purporting to represent for bargaining purposes any employees of the Company; and (e) since January 1, 2021, there has not occurred and, to the Company’s Knowledge, there has not been threatened any strikes, slowdowns, picketing, work stoppages or concerted refusals to work or other similar labor activities with respect to employees of the Company;
(iv) the Company has not received notice of any charge or complaint pending before the Equal Employment Opportunity Commission or similar Governmental Authority alleging unlawful discrimination in employment practices, or before the National Labor Relations Board or similar Governmental Authority alleging any unfair labor practice, by the Company, nor, to the Knowledge of the Company, has any such charge been threatened;
(v) all Company Employees are employed on an at-will basis and their employment can be terminated at any time for any reason without any amounts being owed to such individual other than with respect to wages, compensation and benefits accrued before such termination; and all Company Consultants can be terminated at any time for any reason without notice or any amounts being owed to such individual other than with respect to compensation or payments accrued before such termination;
(vi) since January 1, 2023, the Company has not effectuated a “plant closing” or a “mass layoff” (as such terms are defined in the WARN Act); and
(vii) to the Company’s Knowledge, any individual performing services for the Company who has been classified as an independent contractor has been correctly classified as such;
(viii) the Company (a) has withheld and reported all material amounts required by Law or by agreement to be withheld and reported with respect to wages, salaries and other payments to employees, and (b) is not liable for any material payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the Ordinary Course of Business); and
(ix) no current or former employee of the Company has, since January 1, 2021, asserted any legal claims either orally or in writing to the Company concerning violations of any of the following Laws or regulations: labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of absence and unemployment insurance.
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(d) Each Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter with respect to such qualified status from the IRS. To the Knowledge of the Company, nothing has occurred that would reasonably be expected to adversely affect the qualified status of any such Company Employee Plan or the exempt status of any related trust.
(e) Each Company Employee Plan has been established, maintained and operated in compliance, in all material respects, with its terms all applicable Law, including, without limitation, the Code, ERISA and the Affordable Care Act. No Legal Proceeding (other than those relating to routine claims for benefits) is pending or, to the Knowledge of the Company, threatened with respect to any Company Employee Plan. All payments and/or contributions required to have been made with respect to all Company Employee Plans either have been made or have been accrued in accordance with the terms of the applicable Company Employee Plan and applicable Law.
(f) Neither the Company nor any of its ERISA Affiliates maintains, contributes to or is required to contribute to, or has, in the past six (6) years, maintained, contributed to, or been required to contribute to (i) any “employee benefit plan” that is or was subject to Title IV or Section 302 of ERISA or Section 412 of the Code, (ii) a Multiemployer Plan, (iii) any funded welfare benefit plan within the meaning of Section 419 of the Code, (iv) any Multiple Employer Plan, or (v) any Multiple Employer Welfare Arrangement. Neither the Company nor any of its ERISA Affiliates has ever incurred any liability under Title IV of ERISA.
(g) No Company Employee Plan provides for medical or other welfare benefits to any service provider beyond termination of service or retirement, other than (1) pursuant to COBRA or an analogous state law requirement or (2) continuation coverage through the end of the month in which such termination or retirement occurs. The Company does not sponsor or maintain any self-funded medical or long-term disability benefit plan.
(h) Except as otherwise provided in this Agreement or under applicable Law, neither the execution and delivery of this Agreement nor the consummation of the Merger shall result in (i) any payment becoming due to any Company Employee or Company Consultant, (ii) the provision of any benefits or other rights to any Company Employee or Company Consultant, (iii) the increase, acceleration or provision of any payments, benefits or other rights to any Company Employee or Company Consultant, whether or not any such payment, right or benefit would constitute a “parachute payment” within the meaning of Section 280G of the Code, (iv) require any contributions or payments to fund any obligations under any Company Employee Plan, or (v) the forgiveness in whole or in part of any outstanding loans made by the Company to any Company Employee or Company Consultant. No payment, right or benefit that becomes due or accelerated as a result of the execution and delivery of this Agreement or the consummation of the Merger is an “excess parachute payment” within the meaning of Section 280G of the Code with respect to any current or former employee of the Company.
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(i) Each Company Employee Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(j) No Company Employee Plan is subject to the laws of any jurisdiction other than the United States of America.
3.18 Environmental Matters. Since December 31, 2020, the Company has complied with all applicable Environmental Laws, which compliance includes the possession by the Company of all permits and other Governmental Authorizations required under applicable Environmental Laws and compliance with the terms and conditions thereof, except for any failure to be in compliance that, individually or in the aggregate, would not result in a Company Material Adverse Effect. The Company has not received since December 31, 2020, any written notice or other communication (in writing or otherwise), whether from a Governmental Authority, citizens group, employee or otherwise, that alleges that the Company is not in compliance with any Environmental Law and, to the Knowledge of the Company, there are no circumstances that may prevent or interfere with the Company’s compliance with any Environmental Law in the future, except where such failure to comply would not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company: (i) no current or prior owner of any property leased or controlled by the Company has received since December 31, 2020, any written notice or other communication relating to property owned or leased at any time by the Company, whether from a Governmental Authority, citizens group, employee or otherwise, that alleges that such current or prior owner or the Company is not in compliance with or violated any Environmental Law relating to such property and (ii) the Company has no material liability under any Environmental Law.
3.19 Insurance. The Company has delivered to or made available to Parent copies of all material insurance policies and all material self-insurance programs and arrangements relating to the business, assets, liabilities and operations of the Company. Each of such insurance policies is in full force and effect and the Company is in compliance in all material respects with the terms thereof. Other than customary end of policy notifications from insurance carriers, since December 31, 2020, the Company has not received any notice or other communication regarding any actual or possible: (i) cancellation or invalidation of any insurance policy or (ii) refusal or denial of any coverage, reservation of rights or rejection of any material claim under any insurance policy. The Company has provided timely written notice to the appropriate insurance carrier(s) of each Legal Proceeding pending against the Company, and no such carrier has issued a denial of coverage or a reservation of rights with respect to any such Legal Proceeding, or informed the Company of its intent to do so.
3.20 No Financial Advisors. No broker, finder or investment banker is entitled to any brokerage fee, finder’s fee, opinion fee, success fee, transaction fee or other fee or commission in connection with the Contemplated Transactions based upon arrangements made by or on behalf of the Company.
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3.21 Transactions with Affiliates. Section 3.21 of the Company Disclosure Schedule describes any material agreements between, on one hand, the Company and, on the other hand, any (a) executive officer or director of the Company or any of such executive officer’s or director’s immediate family members (other than with respect to wages or benefits payable in the Ordinary Course of Business), (b) owner of more than five percent (5%) of the voting power of the outstanding Company Capital Stock or (c) to the Knowledge of the Company, any “related person” (within the meaning of Item 404 of Regulation S-K under the Securities Act) of any such officer, director or owner (other than the Company) in the case of each of (a), (b) or (c) that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.
3.22 Privacy and Data Security. The Company has complied in all material respects with all applicable Privacy Laws and the applicable terms of any Company Contracts relating to privacy, security, collection or use of Personal Information of any individuals (including clinical trial participants, patients, patient family members, caregivers or advocates, physicians and other health care professionals, clinical trial investigators, researchers, pharmacists) that interact with the Company in connection with the operation of the Company’s business, except for such noncompliance as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, the Company has implemented and maintains reasonable written policies and procedures, satisfying the requirements of applicable Privacy Laws, concerning the privacy, security, collection and use of Personal Information (the “Privacy Policies”) and has complied with the same, except for such noncompliance as has not to the Knowledge of the Company had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, as of the date hereof, no claims have been asserted or threatened against the Company by any Person alleging a violation of Privacy Laws, Privacy Policies and/or the applicable terms of any Company Contracts relating to privacy, security, collection or use of Personal Information of any individuals. To the Knowledge of the Company, there have been no data security incidents, personal data breaches or other adverse events or incidents related to Personal Information or Company data in the custody or control of the Company or any service provider acting on behalf of the Company, in each case where such incident, breach or event would result in a notification obligation to any Person under applicable law or pursuant to the terms of any Company Contract.
3.23 Accredited Investors. Except as provided on Section 3.23 of the Company Disclosure Schedule, each holder of any Company Capital Stock as of immediately prior to the First Effective time is an accredited investor, as that term is defined in Regulation D promulgated by the SEC.
3.24 No Other Representations or Warranties.
(a) Except for the representations and warranties expressly set forth in this Section 3 or in any certificate delivered by the Company to Parent or Merger Subs pursuant to this Agreement, neither the Company, nor any of its Affiliates or Representatives, nor any other Person makes any representation or warranty, express or implied, at Law or in equity, with respect to the Company or any of the Company’s assets, liabilities or operations, and any such other representations or warranties are hereby expressly disclaimed.
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(b) The Company acknowledges and agrees that, except for the representations and warranties of Parent and Merger Subs set forth in Section 4 or in any certificate delivered by Parent or Merger Subs to the Company pursuant to this Agreement, neither the Company nor any of its Affiliates or Representatives is relying on any other representation or warranty of Parent, Merger Subs, any of their Affiliates or Representatives or any other Person made outside of Section 4 or such certificate, including regarding the accuracy or completeness of any such other representations or warranties or the omission of any material information, whether express or implied.
Section 4. Representations and Warranties of Parent and Merger Subs.
Except (i) as set forth in the written disclosure schedule delivered by Parent to the Company (the “Parent Disclosure Schedule”) or (ii) as disclosed in the Parent SEC Documents filed with the SEC prior to the date hereof and publicly available on the SEC’s Electronic Data Gathering Analysis and Retrieval system (“EDGAR”) (but (A) without giving effect to any amendment thereof filed with, or furnished to the SEC on or after the date hereof and (B) excluding any disclosures contained under the heading “Risk Factors” and any disclosure of risks included in any “forward-looking statements” disclaimer or in any other section to the extent they are forward-looking statements or cautionary, predictive or forward-looking in nature), Parent and Merger Subs represent and warrant to the Company as follows:
4.1 Due Organization; Subsidiaries.
(a) Each of Parent and its Subsidiaries (including Merger Subs) is a corporation or limited liability company duly incorporated or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization and has all necessary corporate power and authority: (i) to conduct its business in the manner in which its business is currently being conducted, (ii) to own or lease and use its property and assets in the manner in which its property and assets are currently owned or leased and used and (iii) to perform its obligations under all Contracts by which it is bound. Since the date of their formation, Merger Subs have not engaged in any activities other than in connection with or as contemplated by this Agreement. All of Parent’s Subsidiaries are wholly owned by Parent.
(b) Each of Parent and its Subsidiaries is licensed and qualified to do business, and is in good standing (to the extent applicable in such jurisdiction), under the Laws of all jurisdictions where the nature of its business in the manner in which its business is currently being conducted requires such licensing or qualification other than in jurisdictions where the failure to be so qualified individually or in the aggregate would not be reasonably expected to have a Parent Material Adverse Effect.
(c) Except as set forth on Section 4.1(c) of the Parent Disclosure Schedule, Parent has no Subsidiaries other than Merger Subs and Parent does not own any capital stock of, or any equity ownership or profit sharing interest of any nature in, or control directly or indirectly, any other Entity other than Merger Subs. Parent is not and has not otherwise been, directly or indirectly, a party to, member of or participant in any partnership, joint venture or similar business entity. Parent has not agreed and is not obligated to make, nor is Parent bound by any Contract under which it may become obligated to make, any future investment in or capital contribution to any other Entity. Parent has not, at any time, been a general partner of, and has not otherwise been liable for any of the debts or other obligations of, any general partnership, limited partnership or other Entity.
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4.2 Organizational Documents. Accurate and complete copies of Parent’s Organizational Documents in effect as of the date of this Agreement are disclosed in the Parent SEC Documents filed with the SEC prior to the date of this Agreement and publicly available on EDGAR. Parent is not in breach or violation of its Organizational Documents in any material respect.
4.3 Authority; Binding Nature of Agreement. Each of Parent and Merger Subs has all necessary corporate power and authority to enter into and to perform its obligations under this Agreement and subject, with respect to Parent, to receipt of the approval of the Parent Stockholder Matters and, with respect to Merger Subs, to the adoption of this Agreement by Parent in its capacity as sole stockholder or sole member of Merger Subs, to consummate the Contemplated Transactions. The Parent Board (at meetings duly called and held) has: (a) determined that the Contemplated Transactions are fair to, advisable and in the best interests of Parent and its stockholders, (b) approved and declared advisable this Agreement and the Contemplated Transactions, including the issuance of shares of Parent Capital Stock to the stockholders of the Company pursuant to the terms of this Agreement and (c) determined to recommend, upon the terms and subject to the conditions set forth in this Agreement, that the stockholders of Parent vote to approve the Parent Stockholder Matters pursuant to the terms of this Agreement. The First Merger Sub Board (by unanimous written consent) has: (a) determined that the Contemplated Transactions are fair to, advisable, and in the best interests of First Merger Sub and its sole stockholder, (b) deemed advisable and approved this Agreement and the Contemplated Transactions and (c) determined to recommend, upon the terms and subject to the conditions set forth in this Agreement, that the sole stockholder of First Merger Sub vote to adopt this Agreement and thereby approve the Contemplated Transactions. The Second Merger Sub Board (by unanimous written consent) has: (a) determined that the Contemplated Transactions are fair to, advisable, and in the best interests of Second Merger Sub and its sole member, (b) deemed advisable and approved this Agreement and the Contemplated Transactions and (c) determined to recommend, upon the terms and subject to the conditions set forth in this Agreement, that the sole member of Second Merger Sub vote to adopt this Agreement and thereby approve the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and Merger Subs and, assuming the due authorization, execution and delivery by the Company, constitutes the legal, valid and binding obligation of Parent and Merger Subs, enforceable against each of Parent and Merger Subs in accordance with its terms, subject to the Enforceability Exceptions.
4.4 Vote Required. The affirmative vote of a majority of the votes cast at the Parent Stockholder Meeting by the holders of Parent Common Stock is the only vote of the holders of any class or series of Parent Capital Stock necessary to approve the Conversion Proposal. The affirmative vote of a majority of shares of Parent Common Stock entitled to vote thereon is the only vote of the holders of any class or series of Parent Capital Stock necessary to approve the Charter Amendment Proposal.
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4.5 Non-Contravention; Consents.
(a) Subject to obtaining approval of the Parent Stockholder Matters, the filing of the First Certificate of Merger and Second Certificate of Merger required by the DGCL and DLLCA and the filing of the Certificate of Designation, neither (x) the execution, delivery or performance of this Agreement by Parent or Merger Subs, nor (y) the consummation of the Contemplated Transactions, will directly or indirectly (with or without notice or lapse of time):
(i) contravene, conflict with or result in a violation of any of the provisions of the Organizational Documents of Parent or Merger Subs;
(ii) contravene, conflict with or result in a material violation of, or give any Governmental Authority or other Person the right to challenge the Contemplated Transactions or to exercise any remedy or obtain any relief under, any Law or any Order to which Parent or Merger Subs or any of the assets owned or used by Parent or Merger Subs, is subject;
(iii) contravene, conflict with or result in a material violation of any of the terms or requirements of, or give any Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held by Parent or Merger Subs or that otherwise relates to the business of Parent, or any of the assets owned, leased or used by Parent, except as would not reasonably be expected to be material to Parent or it business;
(iv) contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any Parent Material Contract, or give any Person the right to: (A) declare a default or exercise any remedy under any Parent Material Contract, (B) any material payment, rebate, chargeback, penalty or change in delivery schedule under any such Parent Material Contract, (C) accelerate the maturity or performance of any Parent Material Contract or (D) cancel, terminate or modify any term of any Parent Material Contract, except in the case of any nonmaterial breach, default, penalty or modification; or
(v) result in the imposition or creation of any Encumbrance upon or with respect to any asset owned or used by Parent or its Subsidiaries (except for Permitted Encumbrances).
(b) Except for (i) any Consent set forth on Section 4.5 of the Parent Disclosure Schedule under any Parent Contract, (ii) the approval of the Parent Stockholder Matters, (iii) the filing of the First Certificate of Merger and Second Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL and DLLCA, (iv) the filing of the Certificate of Designation with the Secretary of State of the State of Delaware pursuant to the DGCL and (v) such consents, waivers, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable federal and state securities Laws, neither Parent nor any of its Subsidiaries was, is or will be required to make any filing with or give any notice to, or to obtain any Consent from, any Person in connection with (x) the execution, delivery or performance of this Agreement or (y) the consummation of the Contemplated Transactions.
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(c) The Parent Board, the First Merger Sub Board and the Second Merger Sub Board have taken and will take all actions necessary to ensure that the restrictions applicable to business combinations contained in Section 203 of the DGCL are, and will be, inapplicable to the execution, delivery and performance of this Agreement and to the consummation of the Contemplated Transactions. No other state takeover statute or similar Law applies or purports to apply to the Merger, this Agreement or any of the other Contemplated Transactions.
4.6 Capitalization.
(a) The authorized capital stock of Parent consists of (i) 100,000,000 shares of Parent Common Stock, par value $0.0001 of which 1,835,914 shares have been issued and are outstanding as of March 9, 2024 (the “Capitalization Date”) and (ii) 10,000,000 shares of Parent Preferred Stock, consisting of, as of the Capitalization Date, (A) 5,194.81 shares of Parent Series B Preferred Stock, 521.72 of which are issued and outstanding, (B) 75,000 shares of Parent Series C Preferred Stock, none of which are issued and outstanding, (C) 150 shares of Parent Series D Preferred Stock, none of which are issued and outstanding, (D) 150 shares of Parent Series E Preferred Stock, none of which are issued and outstanding, and (E) 7,000 shares of Parent Series F Preferred Stock, none of which are issued and outstanding.
(b) All of the outstanding shares of Parent Capital Stock have been duly authorized and validly issued, and are fully paid and nonassessable. None of the outstanding shares of Parent Capital Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right. None of the outstanding shares of Parent Capital Stock is subject to any right of first refusal in favor of Parent. Except as contemplated herein, there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Capital Stock. Parent is not under any obligation, nor is Parent bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Capital Stock or other securities. Section 4.6(b) of the Parent Disclosure Schedule accurately and completely lists all repurchase rights held by Parent with respect to shares of Parent Capital Stock (including shares issued pursuant to the exercise of stock options) and specifies which of those repurchase rights are currently exercisable.
(c) Except for the Amended and Restated 2014 Omnibus Equity Incentive Plan (the “Parent 2014 Plan”) and the 2020 Omnibus Equity Incentive Plan, as amended (the “Parent 2020 Plan” and, together with the Parent 2014 Plan, the “Parent Stock Plans”), and except as set forth on Section 4.6(c) of the Parent Disclosure Schedule, Parent does not have any stock option plan or any other plan, program, agreement or arrangement providing for any equity-based compensation for any Person. As of the date of this Agreement, Parent has reserved 334,078 shares of Parent Common Stock for issuance under the Parent Stock Plans, of which 1,562,814 shares have been issued and are currently outstanding, 178,874 shares have been reserved for issuance upon exercise or settlement of Parent Options and Parent Restricted Stock Units, as applicable, granted under the Parent Stock Plans, and 155,204 shares remain available for future issuance pursuant to the Parent Stock Plans. Section 4.6(c) of the Parent Disclosure Schedule sets forth the following information with respect to each Parent Option and Parent Restricted Stock Unit outstanding as of the date of this Agreement, as applicable: (i) the name of the holder, (ii) the number of shares of Parent Common Stock subject to such Parent Option and Parent Restricted Stock Units at the time of grant, (iii) the number of shares of Parent Common Stock subject to such Parent Option and Parent Restricted Stock Units as of the date of this Agreement, (iv) the exercise price of such Parent Option, (v) the date on which such Parent Option and Parent Restricted Stock Units was granted, (vi) the applicable vesting schedule, including any acceleration provisions and the number of vested and unvested shares as of the date of this Agreement, and (vii) whether such Parent Option is intended to be an “incentive stock option” (as defined in the Code) or a nonqualified stock option. Accurate and complete copies of the Parent Stock Plans are disclosed in the Parent SEC Documents filed with the SEC prior to the date of this Agreement and publicly available on EDGAR.
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(d) Except for the outstanding Parent Options and Parent Restricted Stock Units or as set forth on Section 4.6(d) of the Parent Disclosure Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent, (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent, (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to Parent.
(e) All outstanding shares of Parent Common Stock, Parent Options, Parent Restricted Stock Units and other securities of Parent have been issued and granted in material compliance with (i) all applicable securities laws and other applicable Law and (ii) all requirements set forth in applicable Contracts.
(f) All distributions, dividends, repurchases and redemptions of Parent Common Stock or other equity interests of Parent were undertaken in material compliance with (i) the Organizational Documents of Parent in effect as of the relevant time and all applicable securities Laws and other applicable Laws, and (ii) all requirements set forth in applicable Contracts.
4.7 SEC Filings; Financial Statements.
(a) Parent has filed or furnished, as applicable, on a timely basis all forms, statements, Certifications (as defined below), reports and documents required to be filed or furnished by it with the SEC under the Exchange Act or the Securities Act since January 1, 2022 (the “Parent SEC Documents”). As of the time it was filed with the SEC, or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing (and, in the case of registration statements, on the dates of effectiveness), each of the Parent SEC Documents complied in all material respects with the applicable requirements of the Securities Act or the Exchange Act (as the case may be) and as of the time they were filed, none of the Parent SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The certifications and statements required by (i) Rule 13a-14 under the Exchange Act and (ii) 18 U.S.C. §1350 (Section 906 of the Sarbanes-Oxley Act) relating to the Parent SEC Documents (collectively, the “Certifications”) are accurate and complete and comply as to form and content with all applicable Laws. As used in this Section 4.7, the term “file” and variations thereof shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
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(b) The financial statements (including any related notes) contained or incorporated by reference in the Parent SEC Documents: (i) complied as to form in all material respects with the Securities Act and the Exchange Act, as applicable, and the published rules and regulations of the SEC applicable thereto, (ii) were prepared in accordance with GAAP (except as may be indicated in the notes to such financial statements or, in the case of unaudited financial statements, as permitted by Form 10-Q of the SEC, and except that the unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments) applied on a consistent basis unless otherwise noted therein throughout the periods indicated and (iii) fairly present, in all material respects, the financial position of Parent as of the respective dates thereof and the results of operations and cash flows of Parent for the periods covered thereby. Other than as expressly disclosed in the Parent SEC Documents filed prior to the date hereof, there has been no material change in Parent’s accounting methods or principles that would be required to be disclosed in Parent’s financial statements in accordance with GAAP.
(c) Parent’s independent registered public accounting firm has at all times since the date of enactment of the Sarbanes-Oxley Act been: (i) a registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act), (ii) to the Knowledge of Parent, “independent” with respect to Parent within the meaning of Regulation S-X under the Exchange Act and (iii) to the Knowledge of Parent, in compliance with subsections (g) through (l) of Section 10A of the Exchange Act and the rules and regulations promulgated by the SEC and the Public Company Accounting Oversight Board thereunder.
(d) Since January 1, 2022, Parent has not received any comment letter from the SEC or the staff thereof or any correspondence from Nasdaq or the staff thereof relating to the delisting or maintenance of listing of the Parent Common Stock on Nasdaq. Parent has not disclosed any unresolved comments in the Parent SEC Documents.
(e) Since January 1, 2022, there have been no formal internal investigations regarding financial reporting or accounting policies and practices discussed with, reviewed by or initiated at the direction of the chief executive officer or chief financial officer of Parent, the Parent Board or any committee thereof, other than ordinary course audits or reviews of accounting policies and practices or internal controls required by the Sarbanes-Oxley Act.
(f) Parent is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act, the Exchange Act and the applicable listing and governance rules and regulations of Nasdaq.
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(g) Parent maintains a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) that is sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Parent has disclosed to Parent’s auditors and the Audit Committee of the Parent Board (and made available to the Company a summary of the significant aspects of such disclosure) (A) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in Parent’s or its Subsidiaries’ internal control over financial reporting. Except as disclosed in the Parent SEC Documents filed prior to the date hereof, Parent’s internal control over financial reporting is effective and Parent has not identified any material weaknesses in the design or operation of Parent’s internal control over financial reporting.
(h) Parent maintains “disclosure controls and procedures” (as defined in Rules 13-15(e) and 15d-15(e) of the Exchange Act) that are reasonably designed to ensure that all information required to be disclosed by Parent in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to Parent’s principal executive officer and principal financial officer as appropriate to allow timely decisions regarding required disclosure.
(i) Parent has not been and is not currently a “shell company” as defined under Section 12b-2 of the Exchange Act.
4.8 Absence of Changes. Except as set forth on Section 4.8 of the Parent Disclosure Schedule, after the date of the Parent Unaudited Balance Sheet, Parent has conducted its business only in the Ordinary Course of Business (except for the execution and performance of this Agreement and the discussions, negotiations and transactions related thereto) and there has not been any (a) Parent Material Adverse Effect or (b) actions to do any of the following:
(a) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of its capital stock or repurchase, redeem or otherwise reacquire any shares of its capital stock or other securities (except in connection with the payment of the exercise price and/or withholding Taxes incurred upon the exercise, settlement or vesting of any award granted under the Parent Stock Plans);
(b) sell, issue, grant, pledge or otherwise dispose of or encumber or authorize the issuance of: (A) any capital stock or other security (except for Parent Common Stock issued upon the valid exercise or settlement of outstanding Parent Options or Parent Restricted Stock Units as applicable), (B) any option, warrant or right to acquire any capital stock or any other security, other than options grants to employees in the Ordinary Course of Business or (C) any instrument convertible into or exchangeable for any capital stock or other security;
(c) except as required to give effect to anything in contemplation of the Closing, amend any of its Organizational Documents, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except, for the avoidance of doubt, the Contemplated Transactions;
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(d) form any Subsidiary or acquire any equity interest or other interest in any other Entity or enter into a joint venture with any other Entity;
(e) (A) lend money to any Person (except for the advance of reasonable business expenses to employees, directors and consultants in the Ordinary Course of Business), (B) incur or guarantee any indebtedness for borrowed money, or (C) guarantee any debt securities of others;
(f) other than as required by applicable Law: (A) adopt, establish or enter into any new Employee Plan, including, for the avoidance of doubt, any equity awards plans, (B) cause or permit any Parent Employee Plan to be amended, (C) pay any bonus or make any profit-sharing or similar payment to (except with respect to obligations in place on the date of this Agreement pursuant to any Parent Employee Plan), or increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers, employees or consultants, (D) grant any new equity awards or increase the coverage or benefits available under any Parent Employee Plan, (E) increase the severance or change of control benefits offered to any current or new employees, directors or consultants, or (F) hire, terminate or give notice of termination (other than for cause) to any officer, employee or consultant;
(g) enter into any material transaction other than (A) in the Ordinary Course of Business or (B) in connection with the Contemplated Transactions;
(h) acquire any material asset or sell, lease or otherwise irrevocably dispose of any of its assets or properties, or grant any Encumbrance (other than Permitted Encumbrances) with respect to such assets or properties, except in the Ordinary Course of Business;
(i) sell, assign, transfer, license, sublicense or otherwise dispose of any material Parent IP Rights (other than in the Ordinary Course of Business);
(j) make (other than consistent with past practice), change or revoke any material Tax election; file any material amendment to any Tax Return; settle or compromise any material Tax claim; waive or extend any statute of limitations in respect of a period within which an assessment or reassessment of material Taxes may be issued (other than any extension pursuant to an extension to file any Tax Return); enter into any “closing agreement” as described in Section 7121 of the Code (or any similar Law) with any Governmental Authority; or adopt or change any material accounting method in respect of Taxes;
(k) initiate, waive, settle or compromise any pending or threatened Legal Proceeding;
(l) delay or fail to repay when due any material obligation, including accounts payable and accrued expenses, other than in the Ordinary Course of Business;
(m) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy;
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(n) enter into, amend, terminate, or waive any material option or right under, any Parent Material Contract; or
(o) agree, resolve or commit to do any of the foregoing.
4.9 Absence of Undisclosed Liabilities. As of the date hereof, neither Parent nor any of its Subsidiaries has any Liability of a type required to be reflected or reserved for on a balance sheet prepared in accordance with GAAP, except for: (a) Liabilities disclosed, reflected or reserved against in the Parent Unaudited Interim Balance Sheet, (b) Liabilities that have been incurred by Parent or its Subsidiaries since the date of the Parent Unaudited Interim Balance Sheet in the Ordinary Course of Business (none of which relates to any breach of contract, breach of warranty, tort, infringement, or violation of Law), (c) Liabilities for performance of obligations of Parent or any of its Subsidiaries under Parent Contracts, (d) Liabilities incurred in connection with the Contemplated Transactions; (e) Liabilities which would not, individually or in the aggregate, reasonably be expected to be material to Parent and (f) Liabilities described in Section 4.9 of the Parent Disclosure Schedule.
4.10 Title to Assets. Each of Parent and its Subsidiaries owns, and has good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all tangible properties or tangible assets and equipment used or held for use in its business or operations or purported to be owned by it, including: (a) all tangible assets reflected on the Parent Unaudited Interim Balance Sheet and (b) all other tangible assets reflected in the books and records of Parent as being owned by Parent. All of such assets are owned or, in the case of leased assets, leased by Parent or any of its Subsidiaries free and clear of any Encumbrances, other than Permitted Encumbrances.
4.11 Real Property; Leasehold. Neither Parent nor any of its Subsidiaries owns or has ever owned any real property. Parent has made available to the Company (a) an accurate and complete list of all real properties with respect to which Parent directly or indirectly holds a valid leasehold interest as well as any other real estate that is in the possession of or leased by Parent or any of its Subsidiaries and (b) copies of all leases under which any such real property is possessed (the “Parent Real Estate Leases”), each of which is in full force and effect, with no existing material default thereunder. Parent’s possession, occupancy, lease, use and/or operation of each such leased property conforms to all applicable Laws in all material respects, and Parent has exclusive possession of each such leased property and leasehold interest and has not granted any occupancy rights to tenants or licensees with respect to such leased property or leasehold interest. In addition, each such leased property and leasehold interest is free and clear of all Encumbrances other than Permitted Encumbrances. Parent has not received any written notice from its landlords or any Governmental Body that: (i) relates to violations of building, zoning, safety or fire ordinances or regulations; (ii) claims any defect or deficiency with respect to any of such properties; or (iii) requests the performance of any repairs, alterations or other work to such properties.
4.12 Intellectual Property.
(a) Section 4.12(a) of the Parent Disclosure Schedule is an accurate, true and complete listing of all Parent Registered IP.
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(b) Section 4.12(b) of the Parent Disclosure Schedule accurately identifies (i) all Parent Contracts pursuant to which any material Parent IP Rights are licensed to Parent or any of its Subsidiaries (other than (A) any non-customized software that (1) is so licensed solely in executable or object code form pursuant to a nonexclusive, internal use software license and other Intellectual Property associated with such software and (2) is not incorporated into, or material to the development, manufacturing, or distribution of, any of Parent products or services, (B) any Intellectual Property licensed on a nonexclusive basis in the Ordinary Course of Business ancillary to the purchase or use of equipment, reagents or other materials or that is otherwise not material to the business of Parent or any of its Subsidiaries, (C) any confidential information provided under confidentiality agreements and (D) agreements between Parent or any of its Subsidiaries and its or their respective employees in Parent’s standard form thereof ((A) through (D), “Non-Scheduled Parent IP Contracts”)) and (ii) whether the license or licenses granted to Parent or its Subsidiary are exclusive or nonexclusive.
(c) Section 4.12(c) of the Parent Disclosure Schedule accurately identifies each Parent Contract pursuant to which any Person has been granted by Parent or any of its Subsidiaries any license, sublicense or covenant not to sue under, or otherwise has received or acquired any right (whether or not currently exercisable) or interest in, any material Parent IP Rights (other than (i) any confidential information provided under confidentiality agreements and (ii) any Parent IP Rights nonexclusively licensed to academic collaborators, suppliers or service providers for the sole purpose of enabling such academic collaborator, supplier or service providers to provide services for Parent’s or any of its Subsidiaries’ benefit).
(d) Neither Parent nor any of its Subsidiaries is bound by, and no Parent IP Rights are subject to, any Contract containing any covenant or other provision that in any way limits or restricts the ability of Parent or any of its Subsidiaries to use, exploit, assert, or enforce any Parent IP Rights anywhere in the world.
(e) Parent or one of its Subsidiaries solely and exclusively owns all right, title, and interest to and in all Parent IP Rights (other than Parent IP Rights licensed to the Parent or its Subsidiary pursuant to a Parent Contract set forth on Section 4.12(b) of the Parent Disclosure Schedule or pursuant to a Non-Scheduled Parent IP Contract), in each case, free and clear of any Encumbrances (other than Permitted Encumbrances). Without limiting the generality of the foregoing:
(i) All documents and instruments necessary to register or apply for or renew registration of material Parent Registered IP have been validly executed, delivered, and filed in a timely manner with the appropriate Governmental Authority.
(ii) Each Person who is or was an employee or contractor of Parent or any of its Subsidiaries and who is or was involved in the creation or development of any material Intellectual Property for Parent or any of its Subsidiaries has signed a valid, enforceable agreement containing a present assignment of such Intellectual Property to Parent or such Subsidiary and confidentiality provisions protecting trade secrets and confidential information of Parent and its Subsidiaries.
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(iii) To the Knowledge of Parent, no current or former officer, director, or employee of Parent or any of its Subsidiaries has any claim, right (whether or not currently exercisable), or interest to or in any Parent IP Rights purported to be owned by Parent or any of its Subsidiaries. To the Knowledge of Parent, no employee of Parent or any of its Subsidiaries is (a) bound by or otherwise subject to any Contract restricting him or her from performing his or her duties for Parent or such Subsidiary or (b) in breach of any Contract with any former employer or other Person concerning Parent IP Rights purported to be owned by Parent or such Subsidiary or confidentiality provisions protecting trade secrets and confidential information comprising such Parent IP Rights purported to be owned by Parent or such Subsidiary.
(iv) No funding, facilities, or personnel of any Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Parent IP Rights in which Parent or any of its Subsidiaries has an ownership interest, except for any such funding or use of facilities or personnel that does not result in such Governmental Authority obtaining ownership rights to such Parent IP Rights and does not require or otherwise obligate the Parent or its Subsidiaries to grant or offer to any such Governmental Authority or institution any material license or other material right to such Parent IP Right (except for non-commercial use rights during the term of the applicable agreement between the Parent or one of its Subsidiaries and such Governmental Authority), including the right to receive royalties for the practice of such Parent IP Right.
(v) Parent and each of its Subsidiaries has taken reasonable steps to maintain the confidentiality of and otherwise protect and enforce its rights in all proprietary information that Parent or such Subsidiary holds, or purports to hold, as confidential or a trade secret.
(vi) Neither Parent nor any of its Subsidiaries has assigned or otherwise transferred ownership of, or agreed to assign or otherwise transfer ownership of, any material Parent IP Rights to any other Person.
(vii) To the Knowledge of Parent, the Parent IP Rights constitute all Intellectual Property necessary for Parent to conduct its business as currently conducted; provided, however, that the foregoing representation is not a representation with respect to non-infringement of Intellectual Property.
(f) Parent has delivered, or made available to the Company, a complete and accurate copy of all Parent IP Rights Agreements that are required to be listed on the Parent Disclosure Schedule. With respect to each of the material Parent IP Rights Agreements: (i) each such agreement is valid and binding on the Parent or its Subsidiary (as applicable) and in full force and effect, (ii) neither the Parent nor any of its Subsidiaries has received any written notice of termination or cancellation under such agreement, or received any written notice of breach or default under such agreement, which breach has not been cured or waived and (iii) neither the Parent nor any of its Subsidiaries, nor to the Knowledge of the Parent, any other party to any such agreement, is not in breach or default thereof in any material respect.
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(g) The manufacture, marketing, sale, offering for sale, importation, use or intended use or other disposal of any product or proposed product as currently sold or under development by Parent does not violate any license or agreement between Parent or any of its Subsidiaries and any third party in any material respect, and, to the Knowledge of Parent, does not infringe or misappropriate (and, when made commercially available, will not infringe or misappropriate) any valid and issued Patent right or other Intellectual Property of any other Person, which infringement or misappropriation would reasonably be expected to have a Parent Material Adverse Effect. To the Knowledge of Parent, no third party is infringing upon any Patents within the Parent IP Rights, or violating any Parent IP Rights Agreement.
(h) As of the date of this Agreement, (i) neither Parent nor any of its Subsidiaries is a party to any Legal Proceeding (including, but not limited to, opposition, interference or other proceeding in any patent or other government office) contesting the validity, enforceability, ownership or right to use, sell, offer for sale, license or dispose of any Parent IP Rights, (ii) neither Parent nor any of its Subsidiaries has received any written notice asserting that any Parent IP Rights or the proposed use, sale, offer for sale, license or disposition of any products, methods, or processes claimed or covered thereunder infringes or misappropriates or violates the rights of any other Person or that Parent or any of its Subsidiaries has otherwise infringed, misappropriated or otherwise violated any Intellectual Property of any Person, and (iii) none of the Parent IP Rights is subject to any outstanding order of, judgment of, decree of or agreement with any Governmental Authority that limits the ability of the Parent or any of its Subsidiaries to exploit any Parent IP Rights.
(i) Each item of material Parent Registered IP (other than any Parent Registered IP that the Parent in its business judgment has elected to abandon) is and at all times has been filed and maintained in compliance in all material respects with all applicable Law and all filings, payments, and other actions required to be made or taken to maintain such item of Parent Registered IP in full force and effect have been made by the applicable deadline. To the Knowledge of Parent, all Parent Registered IP that is issued or granted is valid and enforceable.
(j) To the Knowledge of Parent, no trademark (whether registered or unregistered) or trade name owned, used, or applied for by Parent or any of its Subsidiaries conflicts or interferes with any trademark (whether registered or unregistered) or trade name owned, used, or applied for by any other Person, except as would not reasonably be expected to have a Parent Material Adverse Effect. None of the goodwill associated with or inherent in any trademark (whether registered or unregistered) in which Parent or any of its Subsidiaries has or purports to have an ownership interest has been impaired as determined by Parent in accordance with GAAP.
(k) Except as set forth in the Contracts listed on Section 4.12(b) or 4.12(c) of the Parent Disclosure Schedule or as contained in license, distribution or service agreements entered into in the Ordinary Course of Business by Parent or any of its Subsidiaries, (i) neither Parent nor any of its Subsidiaries is bound by any Contract to indemnify, defend, hold harmless, or reimburse any other Person with respect to any Intellectual Property infringement, misappropriation, or similar claim which is material to Parent and its Subsidiaries, taken as a whole and (ii) neither Parent nor any of its Subsidiaries has ever assumed, or agreed to discharge or otherwise take responsibility for, any existing or potential liability of another Person for infringement, misappropriation, or violation of any Intellectual Property right, which assumption, agreement or responsibility remains in force as of the date of this Agreement.
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(l) Neither Parent nor any of its Subsidiaries is party to any Contract that, as a result of such execution, delivery and performance of this Agreement, will cause the grant of any license or other right to any Parent IP Rights, result in breach of, default under or termination of such Contract with respect to any Parent IP Rights, or impair the right of Parent or any of its Subsidiaries, or the Surviving Company and its Subsidiaries to use, sell or license or enforce any Parent IP Rights or portion thereof.
4.13 Agreements, Contracts and Commitments.
(a) Neither Parent nor any of its Subsidiaries is a party to or is bound by any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act, excluding, however, any Parent Stock Plan) (all such Contracts “Parent Material Contracts”).
(b) (i) Each Parent Material Contract is valid and binding on Parent and any of its Subsidiaries to the extent such Subsidiary is a party thereto, as applicable, and to the knowledge of Parent, each other party thereto, and is in full force and effect and enforceable in accordance with its terms; (ii) Parent and each of its Subsidiaries, and, to the knowledge of Parent, each other party thereto, has performed all material obligations required to be performed by it under each Parent Material Contract; and (iii) there is no material breach, violation, or default under any Parent Material Contract by Parent or any of its Subsidiaries or, to the knowledge of Parent, any other party thereto, and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a material breach, violation, or default on the part of Parent or any of its Subsidiaries or, to the knowledge of Parent, any other party thereto under any such Parent Material Contract, nor has Parent or any of its Subsidiaries received any notice of any such material breach, violation, default, event or condition. Parent has made available to the Company true and complete copies of all Parent Material Contracts, including all amendments thereto.
4.14 Compliance; Permits; Restrictions.
(a) Parent and each of its Subsidiaries is, and since January 1, 2022, has been in material compliance with all applicable Laws. No investigation, claim, suit, proceeding, audit, Order, or other action by any Governmental Authority is pending or, to the Knowledge of Parent, threatened against Parent or any of its Subsidiaries. There is no agreement or Order binding upon Parent or any of its Subsidiaries which (i) has or could reasonably be expected to have the effect of prohibiting or materially impairing any business practice of Parent or any of its Subsidiaries, any acquisition of material property by Parent or any of its Subsidiaries or the conduct of business by Parent or any of its Subsidiaries as currently conducted, (ii) is reasonably likely to have an adverse effect on Parent’s ability to comply with or perform any covenant or obligation under this Agreement or (iii) is reasonably likely to have the effect of preventing, delaying, making illegal or otherwise interfering with the Contemplated Transactions.
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(b) Each of Parent and its Subsidiaries holds all required Governmental Authorizations that are material to the operation of the business of Parent and Merger Subs as currently conducted (collectively, the “Parent Permits”), including Governmental Authorizations related to the development, testing, manufacturing, processing, storage, labeling, sale, marketing, advertising, distribution and importation or exportation, as currently conducted, of any of its products or product candidates (the “Parent Product Candidates”). Section 4.14(b) of the Parent Disclosure Schedule identifies each Parent Permit. Each of Parent and its Subsidiaries have timely maintained and is in material compliance with the terms of the Parent Permits and no Parent Permit has been (i) revoked, withdrawn, suspended, cancelled or terminated or (ii) modified in any adverse manner, other than immaterial adverse modifications. No Legal Proceeding is pending or, to the Knowledge of Parent, threatened, which seeks to revoke, substantially limit, suspend, or materially modify any Parent Permit.
(c) There are no Legal Proceedings pending or, to the Knowledge of Parent, threatened with respect to an alleged material violation by Parent or any of its Subsidiaries of the FDCA, PHSA, FDA regulations adopted thereunder, the Controlled Substances Act or any other similar Law promulgated by a Drug Regulatory Agency.
(d) Except for the information and files identified in Section 4.14(d) of the Parent Disclosure Schedule, Parent has made available to the Company all information requested by the Company in Parent’s or its Subsidiaries’ possession or control relating to the Parent Product Candidates and the development, testing, manufacturing, processing, storage, labeling, sale, marketing, advertising, distribution and importation or exportation of the Parent Product Candidates, including, but not limited to, complete copies of the following (to the extent there are any): (x) adverse event reports; pre-clinical, clinical and other study reports and material study data; inspection reports, notices of adverse findings, untitled letters, warning letters, filings and letters and other written correspondence to and from any Drug Regulatory Agency; and meeting minutes with any Drug Regulatory Agency and (y) similar reports, material study data, notices, letters, filings, correspondence and meeting minutes with any other Governmental Authority. All such information are accurate and complete in all material respects.
(e) All clinical, pre-clinical and other studies and tests conducted by or on behalf of, or sponsored by, Parent or its Subsidiaries, in which Parent or its Subsidiaries or their respective product candidates, including the Parent Product Candidates, have participated were and, if still pending, are being conducted in all material respects in accordance with standard medical and scientific research procedures and in compliance in all material respects with the applicable regulations of the Drug Regulatory Agencies and other applicable Law, including, without limitation, 21 C.F.R. Parts 50, 54, 56, 58 and 312. Other than as set forth on Section 4.14(e) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries has received any written notices, correspondence, or other communications from any Drug Regulatory Agency requiring or, to the Knowledge of Parent, any action to place a clinical hold order on, or otherwise terminate, delay, or suspend any clinical studies conducted by or on behalf of, or sponsored by, Parent or any of its Subsidiaries or in which Parent or any of its Subsidiaries or its current product candidates, including the Parent Product Candidates, have participated. Further, no clinical investigator, researcher, or clinical staff participating in any clinical study conducted by or, to the Knowledge of Parent, on behalf of Parent or any of its Subsidiaries has been disqualified from participating in studies involving the Parent Product Candidates, and to the Knowledge of Parent, no such administrative action to disqualify such clinical investigators, researchers or clinical staff has been threatened or is pending.
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(f) Neither Parent nor any of its Subsidiaries and, to the Knowledge of Parent, any contract manufacturer with respect to any Parent Product Candidate is the subject of any pending or, to the Knowledge of Parent, threatened investigation in respect of its business or products by the FDA pursuant to its “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” Final Policy set forth in 56 Fed. Reg. 46191 (September 10, 1991) and any amendments thereto. To the Knowledge of Parent, neither Parent nor any of its Subsidiaries and no contract manufacturer with respect to any Parent Product Candidate has committed any acts, made any statement, or failed to make any statement, in each case in respect of its business or products that would violate FDA’s “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” Final Policy, and any amendments thereto. None of Parent, any of its Subsidiaries, and to the Knowledge of Parent, any contract manufacturer with respect to any Parent Product Candidate, or any of their respective officers, employees or agents has been convicted of any crime or engaged in any conduct that could result in a material debarment or exclusion under (i) 21 U.S.C. Section 335a or (ii) any similar applicable Law. To the Knowledge of Parent, no material debarment or exclusionary claims, actions, proceedings or investigations in respect of their business or products are pending or threatened against Parent, any of its Subsidiaries, and to the Knowledge of the Parent, any contract manufacturer with respect to any Parent Product Candidate, or any of its officers, employees or agents.
(g) All manufacturing operations conducted by, or to the Knowledge of Parent, for the benefit of, Parent or its Subsidiaries in connection with any Parent Product Candidate, since January 1, 2018, have been and are being conducted in compliance in all material respects with applicable Laws, including the FDA’s standards for current good manufacturing practices, including applicable requirements contained in 21 C.F.R. Parts 210 and 211, and the respective counterparts thereof promulgated by Governmental Authorities in countries outside the United States.
(h) No laboratory or manufacturing site owned by Parent or its Subsidiaries, and to the Knowledge of Parent, no manufacturing site of a contract manufacturer or laboratory, with respect to any Parent Product Candidate, (i) is subject to a Drug Regulatory Agency shutdown or import or export prohibition or (ii) has received any Form FDA 483, notice of violation, warning letter, untitled letter, or similar correspondence or notice from the FDA or other Governmental Authority alleging or asserting noncompliance with any applicable Law, in each case, that have not been complied with or closed to the satisfaction of the relevant Governmental Authority, and, to the Knowledge of Parent, neither the FDA nor any other Governmental Authority is considering such action.
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(i) Parent and its Subsidiaries have complied with all Laws relating to patient, medical or individual health information, including HIPAA, including the standards for the privacy of Individually Identifiable Health Information at 45 C.F.R. Parts 160 and 164, Subparts A and E, the standards for the protection of Electronic Protected Health Information set forth at 45 C.F.R. Part 160 and 45 C.F.R. Part 164, Subpart A and Subpart C, the standards for transactions and code sets used in electronic transactions at 45 C.F.R. Part 160, Subpart A and Part 162, and the standards for Breach Notification for Unsecured Protected Health Information at 45 C.F.R. Part 164, Subpart D, all as amended from time to time. Parent and its Subsidiaries have entered into, where required, and is in compliance in all material respects with the terms of all Business Associate Agreements to which Parent or its Subsidiaries are a party or otherwise bound. Parent and its Subsidiaries have, if required, created and maintained written policies and procedures to protect the privacy of all Protected Health Information, have provided training to all employees and agents as required under HIPAA, and have, if required, implemented security procedures, including physical, technical and administrative safeguards, to protect all personal information and Protected Health Information stored or transmitted in electronic form. Parent and its Subsidiaries have not received written notice from the Office for Civil Rights for the U.S. Department of Health and Human Services or any other Governmental Authority of any allegation regarding its failure to comply with HIPAA or any other federal or state law or regulation applicable to the protection of individually identifiable health information or personally identifiable information. No successful Security Incident, Breach of Unsecured Protected Health Information, unpermitted disclosure of Personal Health Information or breach of personally identifiable information under applicable Laws has occurred with respect to information maintained or transmitted to Parent and its Subsidiaries or an agent or third party subject to a Business Associate Agreement with Parent or its Subsidiaries. Parent and its Subsidiaries are, if required, currently submitting, receiving and handling or is capable of submitting, receiving and handling transactions in accordance with the Transactions and Code Sets Rule. All capitalized terms in this Section 4.14 not otherwise defined in this Agreement shall have the meanings set forth under HIPAA.
4.15 Legal Proceedings; Orders.
(a) Except as set forth in Section 4.15 of the Parent Disclosure Schedule, there is no pending Legal Proceeding and, to the Knowledge of Parent, no Person has threatened in writing to commence any Legal Proceeding: (i) that involves Parent or any of its Subsidiaries or any Parent Associate (in his or her capacity as such) or any of the material assets owned by or used by Parent or (ii) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the Contemplated Transactions.
(b) There is no Order to which Parent or any of its Subsidiaries, or any of the material assets owned or used by Parent or any of its Subsidiaries is subject. To the Knowledge of Parent, no officer or other Key Employee of Parent or any of its Subsidiaries is subject to any Order that prohibits such officer or employee from engaging in or continuing any conduct, activity or practice relating to the business of Parent or any of its Subsidiaries or to any material assets owned or used by Parent or any of its Subsidiaries.
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4.16 Tax Matters.
(a) Each of Parent and each of its Subsidiaries has timely filed all income Tax Returns and all other material Tax Returns that were required to be filed by or with respect to it under applicable Law. All such Tax Returns were correct and complete in all material respects and have been prepared in material compliance with all applicable Law. No claim has ever been made by a Governmental Authority in a jurisdiction where Parent or any of its Subsidiaries does not file Tax Returns that Parent or any of its Subsidiaries is subject to taxation by that jurisdiction.
(b) All material amounts of Taxes due and owing by Parent and each of its Subsidiaries (whether or not shown on any Tax Return) have been timely paid. The unpaid Taxes of Parent and each of its Subsidiaries for periods (or portions thereof) ending on or prior to the date of the Parent Unaudited Interim Balance Sheet do not materially exceed the accruals for current Taxes set forth on the Parent Unaudited Interim Balance Sheet. Since the date of the Parent Unaudited Interim Balance Sheet, neither Parent nor any of its Subsidiaries has incurred any material Liability for Taxes outside the Ordinary Course of Business or otherwise inconsistent with past custom and practice.
(c) Each of Parent and each of its Subsidiaries has withheld and paid to the appropriate Governmental Authority all material Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party.
(d) There are no Encumbrances for material Taxes (other than Encumbrances described in clause (a) of the definition of “Permitted Encumbrances”) upon any of the assets of Parent or any of its Subsidiaries.
(e) No deficiencies for a material amount of Taxes with respect to Parent or any of its Subsidiaries have been claimed, proposed or assessed by any Governmental Authority in writing that have not been timely paid in full. There are no pending (or, based on written notice, threatened) material audits, examinations assessments or other actions for or relating to any liability in respect of Taxes of Parent or any of its Subsidiaries. Neither Parent nor any of its Subsidiaries has waived any statute of limitations in respect of material Taxes or agreed to any extension of time with respect to a material Tax assessment or deficiency.
(f) Neither Parent nor any of its Subsidiaries has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code in the last five years.
(g) Neither Parent nor any of its Subsidiaries is a party to any Tax allocation, Tax sharing or similar agreement (including indemnity arrangements), other than Ordinary Course Agreements.
(h) Neither Parent nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated U.S. federal income Tax Return (other than a group the common parent of which is Parent). Neither Parent nor any of its Subsidiaries has any material Liability for the Taxes of any Person (other than Parent and Merger Subs) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by Contract (other than an Ordinary Course Agreement) or otherwise.
(i) Neither Parent nor any of its Subsidiaries has distributed stock of another Person, or had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code or Section 361 of the Code.
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(j) Neither Parent nor any of its Subsidiaries has entered into any transaction identified as a “reportable transaction” for purposes of Treasury Regulations Sections 1.6011-4(b)(2) or 301.6111-2(b)(2).
(k) Neither Parent nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in, or use of improper, method of accounting for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date; (iii) installment sale or open transaction disposition made on or prior to the Closing Date; (iv) prepaid amount, advance payments or deferred revenue received or accrued on or prior to the Closing Date other than in respect of such amounts reflected in the Parent Unaudited Interim Balance Sheet or received in the Ordinary Course of Business since the date of the Parent Unaudited Interim Balance Sheet; or (v) intercompany transaction or excess loss amount described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law).
(l) Neither Parent nor any of its Subsidiaries has ever had a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise had an office or fixed place of business in a country other than the country in which it is organized.
(m) Parent is, and has been since its date of formation, a C corporation for U.S. federal income tax purposes.
(n) Neither Parent nor any of its Subsidiaries is aware of any facts or has knowingly taken or agreed to take any action, in each case, that would reasonably be expected to prevent or impede the Merger from qualifying as a “reorganization” within the meaning of Section 368(a)(1)(A) of the Code.
(o) The stock in First Merger Sub and the membership interests in Second Merger Sub are each directly and wholly owned by Parent, and (i) First Merger Sub is, and has been since its date of formation, a C corporation for U.S. federal income tax purposes, and (ii) Second Merger Sub is, and has been since its date of formation, disregarded as an entity (within the meaning of Section 301.7701-3 of the Treasury Regulations) separate from Parent for U.S. federal income tax purposes. Each of First Merger Sub and Second Merger Sub was formed solely for the purpose of engaging in the Merger and has not engaged in any business activity, incurred any Liabilities or entered into any agreements or arrangements, in each case other than as contemplated by this Agreement.
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4.17 Employee and Labor Matters; Benefit Plans.
(a) Section 4.17(a) of the Parent Disclosure Schedule sets forth a true and complete listing of the employees and consultants of Parent as of the Closing Date (each, respectively, a “Parent Employee” or a “Parent Consultant”), including, as applicable, each such person’s name, job title(s) or function(s) (including board positions) and job location, current salary or wage, and current status (as to full time or part time, exempt or nonexempt and temporary or leave status and as to classification as an employee, consultant or independent contractor). Parent has delivered or made available to the Company a true and complete copy of each Parent Employee Plan that is not a PEO Plan and each Parent Employee Plan that is a PEO Plan that has been provided to the Company and the employee handbook for Parent, if any, and all other employment policies, if any, currently applicable to any Parent Employee or Parent Consultant.
(b) To Parent’s Knowledge, no officer or executive of Parent has disclosed any plans to terminate his or her employment with Parent.
(c) Except as set forth in Section 4.17(c) of the Parent Disclosure Schedule:
(i) Parent has paid or made provision for payment of all salaries and wages, which became payable to any Parent Employee prior to the Closing Date and is in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment, collective bargaining, immigration, wages, hours and benefits, non-discrimination in employment, workers’ compensation, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Equal Employment Opportunity Act of 1972, ERISA, the Equal Pay Act of 1963, the National Labor Relations Act of 1935, the Fair Labor Standards Act of 1938, the Americans with Disabilities Act of 1990, the Vietnam Era Veterans’ Reemployment Act, the Family and Medical Leave Act of 1993, the Occupational Safety and Health Act and any and all similar applicable state and local Laws;
(ii) Parent has not received a notice, citation, complaint or charge asserting any violation or liability under the Occupational Safety and Health Act or any similar applicable Law regulating employee health and safety;
(iii) (a) no Parent Employee is represented by any labor union or other labor representative with respect to his or her employment with Parent; (b) Parent is not bound by any labor, collective bargaining agreement or similar arrangement; (c) to Parent’s Knowledge, no petition has been filed nor has any proceeding been instituted by any employee or group of employees with the National Labor Relations Board or similar Governmental Authority seeking recognition of a collective bargaining agreement; (d) to Parent’s Knowledge, there are no Persons attempting to represent or organize or purporting to represent for bargaining purposes any employees of Parent; and (e) since January 1, 2021, there has not occurred and, to Parent’s Knowledge, there has not been threatened any strikes, slowdowns, picketing, work stoppages or concerted refusals to work or other similar labor activities with respect to employees of Parent;
(iv) Parent has not received notice of any charge or complaint pending before the Equal Employment Opportunity Commission or similar Governmental Authority alleging unlawful discrimination in employment practices, or before the National Labor Relations Board or similar Governmental Authority alleging any unfair labor practice by Parent, nor, to Parent’s Knowledge, has any such charge been threatened;
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(v) all Parent Employees are employed on an at-will basis and their employment can be terminated at any time for any reason without any amounts being owed to such individual other than with respect to wages, compensation and benefits accrued before such termination; and all Parent Consultants can be terminated at any time for any reason without notice or any amounts being owed to such individual other than with respect to compensation or payments accrued before such termination;
(vi) since January 1, 2023, Parent has not effectuated a “plant closing” or a “mass layoff” (as such terms are defined in the WARN Act); and
(vii) to Parent’s Knowledge, any individual performing services for Parent who has been classified as an independent contractor has been correctly classified as such;
(viii) Parent (a) has withheld and reported all material amounts required by Law or by agreement to be withheld and reported with respect to wages, salaries and other payments to employees, and (b) is not liable for any material payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the Ordinary Course of Business); and
(ix) no current or former employee of Parent has, since January 1, 2021, asserted any legal claims either orally or in writing to Parent concerning violations of any of the following Laws or regulations: labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of absence and unemployment insurance.
(d) Each Parent Employee Plan other than a PEO Plan, and to Parent’s Knowledge, each Parent Employee Plan that is a PEO Plan, that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter with respect to such qualified status from the IRS. To Parent’s Knowledge, nothing has occurred that would reasonably be expected to adversely affect the qualified status of any such Parent Employee Plan or the exempt status of any related trust.
(e) Each Parent Employee Plan other than a PEO Plan, and to Parent’s Knowledge, each Parent Employee Plan that is a PEO Plan, has been established, maintained and operated in compliance, in all material respects, with its terms all applicable Law, including, without limitation, the Code, ERISA and the Affordable Care Act. No Legal Proceeding (other than those relating to routine claims for benefits) is pending or, to Parent’s Knowledge, threatened with respect to any Parent Employee Plan (other than any PEO Plan). All payments and/or contributions required to have been made with respect to all Parent Employee Plans other than PEO Plans, and to the Parent’s Knowledge, PEO Plans, either have been made or have been accrued in accordance with the terms of the applicable Parent Employee Plan and applicable Law.
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(f) Neither Parent nor any of its ERISA Affiliates maintains, contributes to or is required to contribute to, or has, in the past six (6) years, maintained, contributed to, or been required to contribute to (i) any “employee benefit plan” that is or was subject to Title IV or Section 302 of ERISA or Section 412 of the Code, (ii) a Multiemployer Plan, (iii) any funded welfare benefit plan within the meaning of Section 419 of the Code, (iv) any Multiple Employer Plan, or (v) any Multiple Employer Welfare Arrangement. Neither Parent nor any of its ERISA Affiliates has ever incurred any liability under Title IV of ERISA.
(g) No Parent Employee Plan provides for medical or other welfare benefits to any service provider beyond termination of service or retirement, other than (i) pursuant to COBRA or an analogous state law requirement or (ii) continuation coverage through the end of the month in which such termination or retirement occurs. Parent does not sponsor or maintain any self-funded medical or long-term disability benefit plan that is not a PEO Plan.
(h) Except as otherwise provided in this Agreement or under applicable Law, neither the execution and delivery of this Agreement nor the consummation of the Merger shall result in (i) any payment becoming due to any Parent Employee or Parent Consultant, (ii) the provision of any benefits or other rights to any Parent Employee or Parent Consultant, (iii) the increase, acceleration or provision of any payments, benefits or other rights to any Parent Employee or Parent Consultant, whether or not any such payment, right or benefit would constitute a “parachute payment” within the meaning of Section 280G of the Code, (iv) require any contributions or payments to fund any obligations under any Parent Employee Plan, or (v) the forgiveness in whole or in part of any outstanding loans made by Parent to any Parent Employee or Parent Consultant. No payment, right or benefit that becomes due or accelerated as a result of the execution and delivery of this Agreement or the consummation of the Merger is an “excess parachute payment” within the meaning of Section 280G of the Code with respect to any current or former employee of Parent.
(i) Each Parent Employee Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder.
(j) No Parent Employee Plan is subject to the laws of any jurisdiction other than the United States of America.
4.18 Environmental Matters. Since December 31, 2020, Parent and each of its Subsidiaries has complied with all applicable Environmental Laws, which compliance includes the possession by Parent of all permits and other Governmental Authorizations required under applicable Environmental Laws and compliance with the terms and conditions thereof, except for any failure to be in compliance that, individually or in the aggregate, would not result in a Parent Material Adverse Effect. Neither Parent nor any of its Subsidiaries has received since December 31, 2020, any written notice or other communication (in writing or otherwise), whether from a Governmental Authority, citizens group, employee or otherwise, that alleges that Parent or any of its Subsidiaries is not in compliance with any Environmental Law, and, to the Knowledge of Parent, there are no circumstances that may prevent or interfere with Parent’s or any of its Subsidiaries’ compliance with any Environmental Law in the future, except where such failure to comply would not reasonably be expected to have a Parent Material Adverse Effect. To the Knowledge of Parent: (i) no current or prior owner of any property leased or controlled by Parent or any of its Subsidiaries has received since December 31, 2020, any written notice or other communication relating to property owned or leased at any time by Parent or any of its Subsidiaries, whether from a Governmental Authority, citizens group, employee or otherwise, that alleges that such current or prior owner or Parent or any of its Subsidiaries is not in compliance with or violated any Environmental Law relating to such property and (ii) neither Parent nor any of its Subsidiaries has any material liability under any Environmental Law.
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4.19 Insurance. Parent has made available to the Company accurate and complete copies of all material insurance policies and all material self-insurance programs and arrangements relating to the business, assets, liabilities and operations of Parent and its Subsidiaries (including Merger Subs). Each of such insurance policies is in full force and effect and Parent and its Subsidiaries (including Merger Subs) are in compliance in all material respects with the terms thereof. Other than customary end of policy notifications from insurance carriers, since December 31, 2020, neither Parent nor any of its Subsidiaries has received any notice or other communication regarding any actual or possible: (i) cancellation or invalidation of any insurance policy or (ii) refusal or denial of any coverage, reservation of rights or rejection of any material claim under any insurance policy. Each of Parent and its Subsidiaries (including Merger Subs) has provided timely written notice to the appropriate insurance carrier(s) of each Legal Proceeding pending against Parent or such Subsidiary for which Parent or such Subsidiary has insurance coverage, and no such carrier has issued a denial of coverage or a reservation of rights with respect to any such Legal Proceeding, or informed Parent or any of its Subsidiaries of its intent to do so.
4.20 Transactions with Affiliates. Except as set forth in the Parent SEC Documents filed prior to the date of this Agreement, since the date of Parent’s last proxy statement filed in June 2023 with the SEC, no event has occurred that would be required to be reported by Parent pursuant to Item 404 of Regulation S-K promulgated by the SEC. Section 4.20 of the Parent Disclosure Schedule identifies each Person who is (or who may be deemed to be) an Affiliate of Parent as of the date of this Agreement.
4.21 No Financial Advisors. Except as set forth on Section 4.21 of the Parent Disclosure Schedule, no broker, finder or investment banker is entitled to any brokerage fee, finder’s fee, opinion fee, success fee, transaction fee or other fee or commission in connection with the Contemplated Transactions based upon arrangements made by or on behalf of Parent.
4.22 Valid Issuance; No Bad Actor. The Parent Capital Stock to be issued in the First Merger will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable. To the Knowledge of Parent as of the date of this Agreement, no “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualifying Event”) is applicable to Parent or, to Parent’s Knowledge, any Parent Covered Person, except for a Disqualifying Event as to which Rule 506(d)(2)(ii-iv) or (d)(3) of the Securities Act is applicable.
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4.23 Privacy and Data Security. Parent and its Subsidiaries have complied with all applicable Privacy Laws and the applicable terms of any Parent Contracts relating to privacy, security, collection or use of Personal Information of any individuals (including clinical trial participants, patients, patient family members, caregivers or advocates, physicians and other health care professionals, clinical trial investigators, researchers, pharmacists) that interact with Parent or any of its Subsidiaries in connection with the operation of Parent’s and its Subsidiaries’ business, except for such noncompliance as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. To the Knowledge of Parent, Parent has implemented and maintains reasonable Privacy Policies and has complied with its Privacy Policies, except for such noncompliance as has not to the Knowledge of the Parent had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. To the Knowledge of Parent, as of the date hereof, no claims have been asserted or threatened against Parent by any Person alleging a violation of Privacy Laws, Privacy Policies and/or the applicable terms of any Parent Contracts relating to privacy, security, collection or use of Personal Information of any individuals. To the Knowledge of Parent, there have been no data security incidents, personal data breaches or other adverse events or incidents related to Personal Information or Parent data in the custody or control of Parent or any service provider acting on behalf of Parent, in each case where such incident, breach or event would result in a notification obligation to any Person under applicable law or pursuant to the terms of any Parent Contract.
4.24 No Other Representations or Warranties.
(a) Except as previously set forth in this Section 4 or in any certificate delivered by Parent or Merger Subs to the Company pursuant to this Agreement, neither Parent nor any Merger Sub makes any representation or warranty, express or implied, at law or in equity, with respect to it or any of its assets, liabilities or operations, and any such other representations or warranties are hereby expressly disclaimed.
(b) Each of Parent, First Merger Sub and Second Merger Sub acknowledges and agrees that, except for the representations and warranties of the Company set forth in Section 3 or in any certificate delivered by the Company to Parent or the Merger Subs pursuant to this Agreement, none of the Company or any of their respective Representatives is relying on any other representation or warranty of the Company or any other Person made outside of Section 3 or such certificates, including regarding the accuracy or completeness of any such other representations or warranties or the omission of any material information, whether express or implied, in each case, with respect to the Contemplated Transactions.
Section 5. Agreements of the Parties.
5.1 Stockholder Notice. Promptly following receipt of the Required Company Stockholder Vote, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every stockholder of the Company that did not execute the Company Stockholder Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board determined that the Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the stockholders of the Company and approved and adopted this Agreement, the Merger and the other Contemplated Transactions, (ii) provide the stockholders of the Company to whom it is sent with notice of the actions taken in the Company Stockholder Written Consent, including the adoption and approval of this Agreement, the Merger and the other Contemplated Transactions in accordance with Section 228(e) of the DGCL and the certificate of incorporation and bylaws of the Company and (iii) include a description of the appraisal rights of the Company’s stockholders available under the DGCL, along with such other information as is required thereunder and pursuant to applicable Law.
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5.2 Proxy Statement.
(a) As promptly as practicable after the Closing Date, but in any case, no later than ten (10) Business Days following the filing of Parent’s annual report on Form 10-K for the year ended December 31, 2023, Parent shall prepare and file with the SEC a proxy statement relating to the Parent Stockholder Meeting to be held in connection with the Parent Stockholder Matters (together with any amendments thereof or supplements thereto, the “Proxy Statement”). Parent shall use its reasonable best efforts to (i) cause the Proxy Statement to comply with applicable rules and regulations promulgated by the SEC and (ii) respond promptly to any comments or requests of the SEC or its staff related to the Proxy Statement.
(b) Parent covenants and agrees that the Proxy Statement (and the letter to stockholders, notice of meeting and form of proxy included therewith) will (i) comply as to form in all material respects with the requirements of applicable U.S. federal securities Laws and the DGCL, and (ii) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(c) Parent shall use reasonable best efforts to cause the Proxy Statement to be mailed to Parent’s stockholders as promptly as practicable after the Proxy Statement has been filed with the SEC and either (i) the SEC has indicated that it does not intend to review the Proxy Statement or that its review of the Proxy Statement has been completed or (ii) at least ten (10) days shall have passed since the Proxy Statement was filed with the SEC without receiving any correspondence from the SEC commenting upon, or indicating that it intends to review, the Proxy Statement, all in compliance with applicable U.S. federal securities laws and the DGCL. If Parent, First Merger Sub, Second Merger Sub or the Company become aware of any event or information that, pursuant to the Securities Act or the Exchange Act, should be disclosed in an amendment or supplement to the Proxy Statement, as the case may be, then such Party, as the case may be, shall promptly inform the other Parties thereof and shall cooperate with such other Parties in Parent filing such amendment or supplement with the SEC and, if appropriate, in mailing such amendment or supplement to the Parent stockholders.
(d) The Parties shall reasonably cooperate with each other and provide, and shall use reasonable best efforts to cause their respective Representatives to provide, the other Party and its Representatives, with all true, correct and complete information regarding such Party that is required by Law to be included in the Proxy Statement or reasonably requested by the Other Party to be included in the Proxy Statement. If at any time the information provided in the Proxy Statement has or will become “stale” and new information should, as determined by Parent acting reasonably, be disclosed in an amendment or supplement to the Proxy Statement, the Parent shall promptly inform the Company thereof and each such Party shall cooperate with one another, and shall use reasonable best efforts to cause their accounting and other outside professionals to so cooperate, (i) in providing the financial reporting necessary for such filing and (ii) in filing such amendment or supplement with the SEC (and, if related to the Proxy Statement, mailing such amendment or supplement to the Parent stockholders).
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5.3 Employee Benefits; Employment Agreements. Parent shall comply with the terms of any employment, severance, retention, change of control, or similar agreement specified on Section 4.17(c) of the Parent Disclosure Schedule, subject to the provisions of such agreements.
5.4 Parent Stockholder Meeting.
(a) Parent shall take all action necessary under applicable Law to call, give notice of and hold a meeting of the holders of Parent Common Stock to consider and vote to approve the Parent Stockholder Matters pursuant to the terms of this Agreement (such meeting, the “Parent Stockholder Meeting”). The Parent Stockholder Meeting shall be held as promptly as practicable after the date that the definitive Proxy Statement is filed with the SEC, and in any event no later than sixty (60) days after such date. Parent shall take reasonable measures to ensure that all proxies solicited in connection with the Parent Stockholder Meeting are solicited in compliance with all applicable Law. Notwithstanding anything to the contrary contained herein, if on the date of the Parent Stockholder Meeting, or a date preceding the date on which the Parent Stockholder Meeting is scheduled, Parent reasonably believes that (i) it will not receive proxies sufficient to obtain the approval of the Parent Stockholder Matters, whether or not a quorum would be present or (ii) it will not have sufficient shares of Parent Common Stock represented (whether in person or by proxy) to constitute a quorum necessary to conduct the business of the Parent Stockholder Meeting, Parent may postpone or adjourn, or make one or more successive postponements or adjournments of, the Parent Stockholder Meeting as long as the date of the Parent Stockholder Meeting is not postponed or adjourned more than an aggregate of 30 days in connection with any postponements or adjournments.
(b) Parent agrees that (i) the Parent Board shall recommend that the holders of Parent Common Stock vote to approve the Parent Stockholder Matters and shall use reasonable best efforts to solicit such approval within the timeframe set forth in Section 5.4(a) above, and in any event to obtain such approvals at the next occurring annual meeting of the stockholders of Parent or, if such meeting is not scheduled to be held within six (6) months after the Parent Stockholder Meeting, a special meeting of the stockholders of Parent to be held within six (6) months after the Parent Stockholder Meeting, and (ii) the Proxy Statement shall include a statement to the effect that the Parent Board recommends that Parent’s stockholders vote to approve the Parent Stockholder Matters (the recommendation of the Parent Board being referred to as the “Parent Board Recommendation”).
(c) The Company and Parent acknowledge that, under the Nasdaq Stock Market Rules, the Parent Common Stock Payment Shares and the Parent Preferred Stock Payment Shares will not be entitled to vote on the Conversion Proposal.
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5.5 Indemnification of Officers and Directors.
(a) From the First Effective Time through the sixth anniversary of the date on which the First Effective Time occurs, each of Parent and the Surviving Company shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior to the First Effective Time, a director or officer of Parent or the Company, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director or officer of Parent or of the Company, whether asserted or claimed prior to, at or after the First Effective Time, in each case, to the fullest extent permitted under the DGCL and the DLLCA. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation from each of Parent and the Surviving Company, jointly and severally, upon receipt by Parent or the Surviving Company from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Parent, to the extent then required by the DGCL and the DLLCA, to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
(b) The provisions of the certificate of incorporation and bylaws of Parent with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of Parent that are presently set forth in the certificate of incorporation and bylaws of Parent shall not be amended, modified or repealed for a period of six years from the First Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the First Effective Time, were officers or directors of Parent, unless such modification is required by applicable Law. The certificate of formation and limited liability company agreement of the Surviving Company shall contain, and Parent shall cause the limited liability company agreement of the Surviving Company to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers as those presently set forth in the certificate of incorporation and bylaws of Parent.
(c) From and after the First Effective Time, (i) the Surviving Company shall fulfill and honor in all respects the obligations of the Company to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Company’s Organizational Documents and pursuant to any indemnification agreements between the Company and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Parent’s Organizational Documents and pursuant to any indemnification agreements between Parent and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the First Effective Time.
(d) From and after the First Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Parent.
(e) From and after the First Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the persons referred to in this Section 5.5 in connection with their successful enforcement of the rights provided to such persons in this Section 5.5.
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(f) The provisions of this Section 5.5 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and the Company by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their Representatives.
(g) In the event Parent or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company, as the case may be, shall succeed to the obligations set forth in this Section 5.5. Parent shall cause the Surviving Company to perform all of the obligations of the Surviving Company under this Section 5.5.
5.6 Tax Matters.
(a) The parties intend that, for U.S. federal (and applicable state and local) income Tax purposes, the First Merger and Second Merger, taken together, shall constitute a single integrated transaction that qualifies as a “reorganization” within the meaning of Section 368(a)(1)(A) of the Code as described in Rev. Rul. 2001-46, 2001-2 C.B. 321to which each of the Parent and Company are parties under Section 368(b) of the Code. The Parties shall not file any U.S. federal, state or local Tax Return in a manner that is inconsistent with the treatment described in this Section 5.7(a), and shall not take any inconsistent position during the course of any audit, litigation or other proceeding with respect to Taxes, in each case, unless otherwise required by a determination within the meaning of Section 1313(a) of the Code (or corresponding provision of state or local Law). The parties hereto shall, and shall cause their Affiliates to, cooperate with each other and their respective counsel to document and support the Intended Tax Treatment. Notwithstanding the foregoing, (i) Parent makes no representations or warranties to any other Person or to any Stockholder regarding the Intended Tax Treatment of the Merger or any of the transactions or agreements contemplated hereby (except for the specific representations and warranties set forth in Section 4.16(n) and Section 4.16(o) of this Agreement) and (ii) the Company and each Stockholder will rely solely on their own Tax advisors for Tax advice in connection with this Agreement and any of the transactions or agreements contemplated hereby.
(b) The parties hereby adopt this Agreement, as a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a). From the date hereof through the Closing, and following the Closing, the parties shall not, and shall not permit or cause their respective Affiliates to, take any action, or knowingly fail to take any action, which action or failure to act prevents or impedes, or would reasonably be expected to prevent or impede the Merger from qualifying for the Intended Tax Treatment.
(c) All transfer, documentary, sales, use, stamp, registration, excise, recording, registration value added and other such similar Taxes and fees (including any penalties and interest) that become payable in connection with or by reason of the execution of this Agreement and the transactions contemplated hereby (collectively, “Transfer Taxes”) shall be borne and paid by Parent. The Company, First Merger Sub, Second Merger Sub and Parent further agree to reasonably cooperate, and join in the execution of any Tax Returns, in each case with respect to Transfer Taxes, and to further reasonably cooperate to reduce or eliminate the amount of any such Transfer Taxes in accordance with applicable Law.
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(d) Following the Closing, each of the parties shall use commercially reasonable efforts to (and shall cause their respective Affiliates to) cooperate fully, as and to the extent reasonably requested by another party, in connection with the filing of relevant Tax Returns, and any audit or Tax proceeding. Such cooperation shall include the retention and (upon the other party’s request) the provision (with the right to make copies) of records and information reasonably relevant to any Tax proceeding or audit, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
5.7 Legends. Parent shall be entitled to place appropriate legends on the book entries and/or certificates evidencing any shares of Parent Capital Stock to be received in the First Merger by equityholders of the Company and to issue appropriate stop transfer instructions to the transfer agent for Parent Capital Stock.
5.8 Officers and Directors.
(a) The Parties shall use reasonable best efforts and take all necessary action (including, to the extent necessary, procuring the resignation or removal of any directors on the Parent Board immediately prior to such time) so that immediately after the Closing Date, two (2) individuals nominated by unanimous agreement of the individuals set forth on Section 5.8(a) of the Company Disclosure Schedule and approved by the Nominating and Corporate Governance Committee of the Parent Board (the “Company Directors”) shall be appointed to the Parent Board; provided, that a sufficient number of directors shall qualify as “independent directors” to the extent necessary to ensure that the composition of the Parent Board complies with applicable SEC and Nasdaq rules.
(b) The Parties shall use reasonable best efforts and take all necessary action so that immediately after the Closing Date, the Persons set forth on Schedule 5.8(b) of the Company Disclosure Schedule are elected or appointed, as applicable, to the positions of officers of Parent and the Surviving Entity, as set forth therein, to serve in such positions until successors are duly appointed and qualified in accordance with applicable Law.
5.9 Termination of Certain Agreements and Rights. The Company shall cause any stockholder agreements, voting agreements, registration rights agreements, co-sale agreements and any other similar Contracts between the Company and any holders of Company Capital Stock, including any such Contract granting any Person investor rights, rights of first refusal, registration rights or director registration rights (collectively, the “Investor Agreements”), to be terminated immediately prior to the First Effective Time, without any liability being imposed on the part of Parent or the Surviving Company.
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5.10 Section 16 Matters. Prior to the First Effective Time, Parent shall take all such steps as may be required (to the extent permitted under applicable Laws) to cause any acquisitions of Parent Capital Stock and any options to purchase Parent Common Stock in connection with the Contemplated Transactions, by each individual who is reasonably expected to become subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to Parent, to be exempt under Rule 16b-3 promulgated under the Exchange Act.
5.11 Listing. Parent shall use its reasonable best efforts to prepare and submit to Nasdaq a notification form for the listing of the shares of Parent Common Stock Payment Shares and the Parent Common Stock to be issued upon conversion of the Parent Preferred Stock Payment Shares to be issued in connection with the Contemplated Transactions. The Parties will use reasonable best efforts to coordinate with respect to compliance with Nasdaq rules and regulations. Each Party will promptly inform the other Party of all verbal or written communications between Nasdaq and such Party or its representatives.
5.12 Allocation Certificate. The Company will prepare and deliver to Parent prior to the Closing a certificate signed by an executive officer of the Company in a form reasonably acceptable to Parent setting forth (as of immediately prior to the First Effective Time) (a) each holder of Company Capital Stock, (b) such holder’s name, address, phone number and e-mail (c) the number or percentage and type of Company Capital Stock held as of the Closing Date for each such holder and (d) the number of shares of Parent Capital Stock to be issued to such holder pursuant to this Agreement in respect of the Company Capital Stock held by such holder as of immediately prior to the First Effective Time, which shall be calculated using the Exchange Ratio (the “Allocation Certificate”).
5.13 Obligations of Merger Subs. Parent will take all action necessary to cause Merger Subs to perform their obligations under this Agreement and to consummate the Merger on the terms and conditions set forth in this Agreement.
5.14 Reservation of Parent Common Stock; Issuance of Shares of Parent Common Stock. For so long as any Parent Preferred Stock Payment Shares remain outstanding, Parent shall at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued Parent Common Stock or shares of Parent Common Stock held in treasury by Parent, for the purpose of effecting the conversion of the Parent Preferred Stock Payment Shares, the full number of shares of Parent Common Stock then issuable upon the conversion of all Parent Preferred Stock Payment Shares then outstanding. All shares of Parent Common Stock delivered upon conversion of the Parent Preferred Stock Payment Shares shall be newly issued shares or shares held in treasury by Parent, shall have been duly authorized and validly issued and shall be fully paid and nonassessable, and shall be free from preemptive rights and free of any Encumbrance.
5.15 Takeover Statutes. If any Takeover Statute is or may become applicable to the Contemplated Transaction, each of the Company, the Company Board, the Parent and the Parent Board, as applicable, shall grant such approvals and take such actions as are necessary so that the Contemplated Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to eliminate or minimize the effects of such statute or regulation on the Contemplated Transactions.
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5.16 Private Placement. Each of the Company and Parent shall take all reasonably necessary action on its part such that the issuance of Parent Common Stock Payment Shares and Parent Preferred Stock Payment Shares pursuant to this Agreement constitutes a transaction exempt from registration under the Securities Act in compliance with Rule 506 of Regulation D promulgated thereunder.
Section 6. Conditions Precedent to Obligations of Each Party.
The obligations of each Party to effect the Merger and otherwise consummate the Contemplated Transactions to be consummated at the Closing are subject to the satisfaction or, to the extent permitted by applicable law, the written waiver by each of the Parties, at or prior to the Closing, of each of the following conditions:
6.1 No Restraints. No temporary restraining order, preliminary or permanent injunction or other Order preventing the consummation of the Contemplated Transactions shall have been issued by any court of competent jurisdiction or other Governmental Authority of competent jurisdiction and remain in effect and there shall not be any Law which has the effect of making the consummation of the Contemplated Transactions illegal.
6.2 Company Stockholder Approval. The Company shall have obtained the Required Company Stockholder Vote.
Section 7. Closing Deliveries.
7.1 Closing Deliveries of the Company.
The obligations of Parent and Merger Subs to effect the Merger and otherwise consummate the transactions to be consummated at the Closing are subject to Parent receiving the following documents, each of which shall be in full force and effect, or the written waiver by Parent of delivery:
| (A) | The Company Stockholder Written Consent executed by the stockholders of the Company shall be in full force and effect; |
| (B) | The Lock-Up Agreements duly executed by each of the Company Signatories, each of which shall be in full force and effect; |
| (D) | The Voting Support Agreements; |
| (E) | The Restrictive Covenants Agreements; |
| (F) | (i) An original signed statement from the Company that the Company is not, and has not been at any time during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property holding corporation,” as defined in Section 897(c)(2) of the Code, conforming to the requirements of Treasury Regulations Section 1.1445-2(c)(3) and 1.897-2(h), and (ii) an original signed notice to be delivered to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2), together with written authorization for Parent to deliver such notice to the IRS on behalf of the Company following the Closing, each dated as of the Closing Date, duly executed by an authorized officer of the Company, and in form and substance reasonably acceptable to Parent; provided, that, the Parent’s sole remedy for company’s failure to deliver such documentation shall be to withhold pursuant to Section 2.14; |
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| (G) | The Allocation Certificate; |
| (H) | A duly completed and executed accredited investor questionnaires in substantially the form attached hereto as Exhibit G (the “Accredited Investor Questionnaire”) from each holder of Company Capital Stock; |
| (I) | agreements to convert into equity all indebtedness of the Company set forth on Schedule 7.1(I), in form and substance reasonably acceptable to Parent; and |
| (J) | agreements to convert each Convertible Note into Company Common Stock, in form and substance reasonably acceptable to Parent. |
7.2 Closing Deliveries of Parent.
The obligations of the Company to effect the Merger and otherwise consummate the transactions to be consummated at the Closing are subject to the Company receiving the following documents, each of which shall be in full force and effect, or the written waiver by the Company of delivery:
| (A) | a copy of the Certificate of Designation, certified by the Secretary of State of the State of Delaware; |
| (B) | a written consent of the holders of a majority of the outstanding Parent Series B Preferred Stock authorizing the execution, delivery and performance of this Agreement and the consummation of the Contemplated Transactions (including the Parent Stockholder Matters); |
| (C) | the Parent Stockholder Support Agreement duly executed by each required stockholder of Parent; |
| (D) | certified copies of the resolutions duly adopted by the Parent Board and in full force and effect as of the Closing authorizing the appointment of the Directors and officers set forth in Section 5.8(a); and |
| (E) | the Lock-Up Agreements duly executed by each of the Parent Signatories, each of which shall be in full force and effect. |
Section 8. Miscellaneous Provisions.
8.1 Non-Survival of Representations and Warranties. The representations and warranties of the Company, Parent and Merger Subs contained in this Agreement or any certificate or instrument delivered pursuant to this Agreement shall terminate at the First Effective Time, and only the covenants that by their terms survive the First Effective Time and this Section 8 shall survive the First Effective Time.
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8.2 Amendment. This Agreement may be amended with the approval of the respective boards of directors of the Company and Parent at any time (whether before or after the adoption and approval of this Agreement by the Company’s stockholders or before or after obtaining the approval of the Parent Stockholder Matters); provided, however, that after any such approval of this Agreement by a Party’s stockholders, no amendment shall be made which by Law requires further approval of such stockholders without the further approval of such stockholders. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Company and Parent.
8.3 Waiver.
(a) Any provision hereof may be waived by the waiving Party solely on such Party’s own behalf, without the consent of any other Party. No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
(b) No Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
8.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission or Facsimile. This Agreement and the other schedules, exhibits, certificates, instruments and agreements referred to in this Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among or between any of the Parties with respect to the subject matter hereof and thereof; provided, however, that the Confidentiality Agreement shall not be superseded and shall remain in full force and effect in accordance with its terms. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by all Parties by facsimile or electronic transmission in .PDF format shall be sufficient to bind the Parties to the terms and conditions of this Agreement.
8.5 Applicable Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of laws. In any action or proceeding between any of the Parties arising out of or relating to this Agreement or any of the Contemplated Transactions, each of the Parties: (a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware or the United States District Court for the District of Delaware, (b) agrees that all claims in respect of such action or proceeding shall be heard and determined exclusively in accordance with clause (a) of this Section 8.5, (c) waives any objection to laying venue in any such action or proceeding in such courts, (d) waives any objection that such courts are an inconvenient forum or do not have jurisdiction over any Party, (e) agrees that service of process upon such Party in any such action or proceeding shall be effective if notice is given in accordance with Section 8.7 of this Agreement and (f) irrevocably and unconditionally waives the right to trial by jury.
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8.6 Assignability. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the Parties and their respective successors and permitted assigns; provided, however, that neither this Agreement nor any of a Party’s rights or obligations hereunder may be assigned or delegated by such Party without the prior written consent of the other Party, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by such Party without the other Party’s prior written consent shall be void and of no effect.
8.7 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly delivered and received hereunder (a) one Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable international overnight courier service, (b) upon delivery in the case of delivery by hand or (c) on the date delivered in the place of delivery if sent by email or facsimile (with a written or electronic confirmation of delivery) prior to 6:00 p.m. New York City time, otherwise on the next succeeding Business Day, in each case to the intended recipient as set forth below:
if to Parent or Merger Subs:
First Wave BioPharma, Inc.
777 Yamato Road, Suite 502
Boca Raton, FL 33431
Attention: James Sapirstein
Email: jsapirstein@firstwavebio.com
with a copy to (which shall not constitute notice):
Lowenstein Sandler LLP
One Lowenstein Drive
Roseland, New Jersey 07068
Attention: Michael Lerner
Email: mlerner@lowenstein.com
if to the Company:
ImmunogenX, Inc.
1600 Dove Street, Suite 330
Newport Beach, CA 92660
Attention: Jack Syage
Email: jsyage@immunogenx.com
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with a copy to (which shall not constitute notice):
Orrick, Herrington & Sutcliffe LLP
Columbia Center
1152 15th Street, N.W.
Washington, D.C. 20005-1706
Attention: David Schulman
Email: dschulman@orrick.com
8.8 Cooperation. Each Party agrees to cooperate fully with the other Party and to execute and deliver such further documents, certificates, agreements and instruments and to take such other actions as may be reasonably requested by the other Party to evidence or reflect the Contemplated Transactions and to carry out the intent and purposes of this Agreement.
8.9 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the Parties agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the Parties agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.
8.10 Other Remedies; Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms (including failing to take such actions as are required of it hereunder to consummate this Agreement) or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity, and each of the Parties waives any bond, surety or other security that might be required of any other Party with respect thereto. Each of the Parties further agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that any other Party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity.
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8.11 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the Parties and the D&O Indemnified Parties to the extent of their respective rights pursuant to Section 5.5 any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
8.12 Expenses. Except as otherwise expressly provided in this Agreement, all expenses incurred in connection with this Agreement and the Contemplated Transactions will be paid by the Party incurring such expenses.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.
FIRST WAVE BIOPHARMA, INC.
| By: | /s/ James Sapirstein | |
| Name: | James Sapirstein | |
| Title: | President and Chief Executive Officer |
IMMUNO MERGER SUB I, INC.
| By: | /s/ James Sapirstein | |
| Name: | James Sapirstein | |
| Title: | President and Secretary |
IMMUNO MERGER SUB II, LLC
| By: | /s/ James Sapirstein | |
| Name: | James Sapirstein | |
| Title: | President and Secretary |
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IMMUNOGENX, INC.
| By: | /s/ Jack Syage | |
| Name: | Jack Syage | |
| Title: | Chief Executive Officer |
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EXHIBIT A
FORM OF VOTING AGREEMENT
Execution Version
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”), dated as of March 13, 2024, is made by and among First Wave BioPharma, Inc., a Delaware corporation (“Parent”), ImmunogenX, Inc., a Delaware corporation (the “Company”), and the undersigned holder (“Stockholder”) of shares of voting capital stock (the “Shares”) of Parent.
WHEREAS, concurrently with the entry into of this Agreement, Parent, IMMUNO Merger Sub I, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“First Merger Sub”), IMMUNO Merger Sub II, LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent (“Second Merger Sub”), and the Company, are entering into an Agreement and Plan of Merger, dated of even date herewith (the “Merger Agreement”), providing for the merger of First Merger Sub with and into the Company (the “First Merger”) and the merger of the Company with and into Second Merger Sub (the “Second Merger” and together with the First Merger, the “Merger”);
WHEREAS, in connection with the Merger, Stockholder received and now beneficially owns and has sole or shared voting power with respect to the number of Shares indicated opposite Stockholder’s name on Schedule 1 attached hereto;
WHEREAS, as an inducement and a condition to the willingness of Parent, First Merger Sub, Second Merger Sub and the Company to enter into the Merger Agreement, and in consideration of the substantial expenses incurred and to be incurred by them in connection therewith, Stockholder has agreed to enter into and perform this Agreement; and
WHEREAS, all capitalized terms used in this Agreement without definition herein shall have the meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of, and as a condition to, Parent, First Merger Sub, Second Merger Sub and the Company’s entering into the Merger Agreement and proceeding with the transactions contemplated thereby, and in consideration of the substantial expenses incurred and to be incurred by them in connection therewith, Stockholder, Parent and the Company agree as follows:
1) Agreement to Vote Shares. Unless otherwise prohibited by the Organizational Documents of Parent, the Merger Agreement or the agreements entered into pursuant thereto, or any Nasdaq Stock Market Rules applicable to Parent, Stockholder agrees that, prior to the Expiration Date (as defined in Section 2), at any meeting of the stockholders of Parent or any adjournment or postponement thereof, or in connection with any written consent of the stockholders of Parent, with respect to the Charter Amendment Proposal, if the Charter Amendment Proposal is put forth to a vote of the stockholders of Parent, Stockholder shall, or shall cause the holder of record on any applicable record date to:
a) appear at such meeting or otherwise cause the Shares and any New Shares (as defined in Section 3) to be counted as present thereat (in person or by proxy) for purposes of calculating a quorum; and
b) from and after the date hereof until the Expiration Date, vote (or cause to be voted), or deliver a written consent (or cause a written consent to be delivered) covering all of the Shares and any New Shares that Stockholder shall be entitled to so vote: (i) in favor of the Charter Amendment Proposal and any matter that would reasonably be expected to facilitate the Charter Amendment Proposal; (ii) against any agreement, transaction or other matter that is intended to, or would reasonably be expected to, impede, interfere with, delay, postpone, discourage or materially and adversely affect the consummation of the Charter Amendment Proposal; and (iii) to approve any proposal to adjourn or postpone the applicable meeting to a later date, if there are not sufficient votes for the approval of the Charter Amendment Proposal on the date on which such meeting is held. Stockholder shall not take or commit or agree to take any action inconsistent with the foregoing.
2) Expiration Date. As used in this Agreement, the term “Expiration Date” shall mean the earlier to occur of (a) the effective time of the approval of the Charter Amendment Proposal or (b) the date as of which, by mutual written agreement of Parent and Stockholder, this agreement is terminated, or (c) twelve (12) months following the date of this Agreement.
3) Additional Purchases. Stockholder agrees that any shares of capital stock or other equity securities of Parent that Stockholder purchases or with respect to which Stockholder otherwise acquires sole or shared voting power (including any proxy) after the execution of this Agreement and prior to the Expiration Date, whether by the exercise of any Parent Stock Options, settlement of Parent Restricted Stock Units or otherwise, including by gift, succession, in the event of a stock split or as a dividend or distribution of any Shares (“New Shares”), shall be subject to the terms and conditions of this Agreement to the same extent as if they constituted the Shares.
4) Reserved.
5) Representations and Warranties of Stockholder. Stockholder hereby represents and warrants to Parent and the Company as follows:
a) If Stockholder is an Entity: (i) Stockholder is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, organized or constituted, (ii) Stockholder has all necessary power and authority to execute and deliver this Agreement, to perform Stockholder’s obligations hereunder and to consummate the transactions contemplated hereby, and (iii) the execution and delivery of this Agreement, performance of Stockholder’s obligations hereunder and the consummation of the transactions contemplated hereby by Stockholder have been duly authorized by all necessary action on the part of Stockholder and no other proceedings on the part of Stockholder are necessary to authorize this Agreement, or to consummate the transactions contemplated hereby. If Stockholder is an individual, Stockholder has the legal capacity to execute and deliver this Agreement, to perform Stockholder’s obligations hereunder and to consummate the transactions contemplated hereby;
b) this Agreement has been duly executed and delivered by or on behalf of Stockholder and, and assuming this Agreement constitutes a valid and binding agreement of the Company and Parent, constitutes a valid and binding agreement with respect to Stockholder, enforceable against Stockholder in accordance with its terms, except as enforcement may be limited by general principles of equity whether applied in a court of Law or a court of equity and by bankruptcy, insolvency and similar Laws affecting creditors’ rights and remedies generally;
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c) Stockholder beneficially owns the number of Shares and other rights with respect to Shares indicated opposite Stockholder’s name on Schedule 1, and will own any New Shares, free and clear of any liens, claims, charges or other encumbrances or restrictions of any kind whatsoever (“Liens”), and has sole or shared, and otherwise unrestricted, voting power with respect to such Shares or New Shares and none of the Shares or New Shares is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares or the New Shares, except as contemplated by this Agreement;
d) the execution and delivery of this Agreement by Stockholder does not, and the performance by Stockholder of his, her or its obligations hereunder and the compliance by Stockholder with any provisions hereof will not, violate or conflict with, result in a material breach of or constitute a default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of any Liens on any Shares or New Shares pursuant to, any agreement, instrument, note, bond, mortgage, Contract, lease, license, permit or other obligation or any order, arbitration award, judgment or decree to which Stockholder is a party or by which Stockholder is bound, or any Law, statute, rule or regulation to which Stockholder is subject or, in the event that Stockholder is a corporation, partnership, trust or other Entity, any bylaw or other Organizational Document of Stockholder; except for any of the foregoing as would not reasonably be expected to prevent or delay the performance by Stockholder of his, her or its obligations under this Agreement in any material respect;
e) the execution and delivery of this Agreement by Stockholder does not, and the performance of this Agreement by Stockholder does not and will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Body or regulatory authority by Stockholder except for applicable requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not prevent or delay the performance by Stockholder of his, her or its obligations under this Agreement in any material respect;
f) no investment banker, broker, finder or other intermediary is entitled to a fee or commission from Parent or the Company in respect of this Agreement based upon any Contract made by or on behalf of Stockholder; and
g) as of the date of this Agreement, there is no Legal Proceeding pending or, to the knowledge of Stockholder, threatened against Stockholder that would reasonably be expected to prevent or delay the performance by Stockholder of his, her or its obligations under this Agreement in any material respect.
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6) Irrevocable Proxy. Subject to the final sentence of this Section 6, by execution of this Agreement, Stockholder does hereby appoint Parent and any of its designees with full power of substitution and resubstitution, as Stockholder’s true and lawful attorney and irrevocable proxy, to the fullest extent of Stockholder’s rights with respect to the Shares or New Shares, to vote and exercise all voting and related rights, including the right to sign Stockholder’s name (solely in its capacity as a stockholder) to any stockholder consent, if Stockholder is unable to perform or otherwise does not perform his, her or its obligations under this Agreement, with respect to such Shares and New Shares solely with respect to the matters set forth in Section 1. Stockholder intends this proxy to be irrevocable and coupled with an interest hereunder until the Expiration Date, hereby revokes any proxy previously granted by Stockholder with respect to the Shares or New Shares and represents that none of such previously-granted proxies are irrevocable. The irrevocably proxy and power of attorney granted herein shall survive the death or incapacity of Stockholder and the obligations of Stockholder shall be binding on Stockholder’s heirs, personal representatives, successors, transferees and assigns. Stockholder hereby agrees not to grant any subsequent powers of attorney or proxies with respect to any Shares or New Shares with respect to the matters set forth in Section 1 until after the Expiration Date. The Stockholder hereby affirms that the proxy set forth in this Section 6 is given in connection with and granted in consideration of and as an inducement to the Company, Parent, First Merger Sub and Second Merger Sub to enter into the Merger Agreement and that such proxy is given to secure the obligations of the Stockholder under Section 1. Notwithstanding anything contained herein to the contrary, this irrevocable proxy shall automatically terminate upon the Expiration Date.
7) Other Remedies; Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with, and not exclusive of, any other remedy conferred hereby, or by Law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof without the need of posting bond in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at Law or in equity.
8) Directors and Officers. This Agreement shall apply to Stockholder solely in Stockholder’s capacity as a stockholder of Parent, and not in Stockholder’s capacity as a director, officer or employee of Parent or any of its Subsidiaries or in Stockholder’s capacity as a trustee or fiduciary of any employee benefit plan or trust, as applicable. Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall (or require Stockholder to attempt to) limit or restrict a director or officer of Parent in the exercise of his or her fiduciary duties as a director or officer of Parent or in his or her capacity as a trustee or fiduciary of any employee benefit plan or trust or prevent or be construed to create any obligation on the part of any director or officer of Parent or any trustee or fiduciary of any employee benefit plan or trust from taking any action in his or her capacity as such director, officer, trustee or fiduciary.
9) No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in the Company or Parent any direct or indirect ownership or incidence of ownership of or with respect to any Shares or New Shares. All rights, ownership and economic benefits of and relating to the Shares or New Shares shall remain vested in and belong to Stockholder.
10) Termination. This Agreement shall terminate and shall have no further force or effect as of the Expiration Date. Notwithstanding the foregoing, upon termination or expiration of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided, however, that nothing set forth in this Section 10 or elsewhere in this Agreement shall relieve any party from liability for any fraud or for any willful and material breach of this Agreement prior to termination hereof.
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11) Further Assurances. Stockholder shall, from time to time, execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as the Company or Parent may reasonably request for the purpose of effectively carrying out the transactions contemplated by this Agreement, the Charter Amendment Proposal, and the transactions contemplated thereby.
12) Disclosure. Stockholder hereby agrees that Parent and the Company may publish and disclose in any registration statement, any prospectus filed with any regulatory authority in connection with the Contemplated Transactions and any related documents filed with such regulatory authority and as otherwise required by Law, Stockholder’s identity and ownership of Shares and the nature of Stockholder’s commitments, arrangements and understandings under this Agreement and may further file this Agreement as an exhibit to any registration statement or prospectus or in any other filing made by Parent or the Company as required by Law or the terms of the Merger Agreement, including with the SEC or other regulatory authority, relating to the Contemplated Transactions, all subject to prior review and an opportunity to comment by Stockholder’s counsel. Prior to the Closing, Stockholder shall not, and shall use its reasonable best efforts to cause its representatives not to, directly or indirectly, make any press release, public announcement or other public communication that criticizes or disparages this Agreement, the Charter Amendment Proposal, or the transactions contemplated thereby, without the prior written consent of Parent and the Company; provided that the foregoing shall not limit or affect any actions taken by Stockholder (or any affiliated officer or director of Stockholder) that would be permitted to be taken by Stockholder, Parent or the Company pursuant to the Merger Agreement; provided, further, that the foregoing shall not affect any actions of Stockholder the prohibition of which would be prohibited under applicable Law.
13) Notice. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or sent by overnight courier (providing proof of delivery), by electronic transmission (providing confirmation of transmission) to the Company or Parent, as the case may be, in accordance with Section 8.7 of the Merger Agreement and to Stockholder at his, her or its address or email address (providing confirmation of transmission) set forth on Schedule 1 attached hereto (or at such other address for a party as shall be specified by like notice).
14) Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.
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15) Assignability. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the parties hereto and their respective successors and assigns; provided, however, that neither this Agreement nor any of a party’s rights or obligations hereunder may be assigned or delegated by such party without the prior written consent of the other parties hereto, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by such party without the other party’s prior written consent shall be void and of no effect. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
16) No Waivers. No waivers of any breach of this Agreement extended by the Company or Parent to Stockholder shall be construed as a waiver of any rights or remedies of the Company or Parent, as applicable, with respect to any other stockholder of Parent who has executed an agreement substantially in the form of this Agreement with respect to Shares or New Shares held or subsequently held by such stockholder or with respect to any subsequent breach of Stockholder or any other stockholder of Parent. No waiver of any provisions hereof by any party shall be deemed a waiver of any other provisions hereof by any such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by such party.
17) Applicable Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the Laws of the state of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws. In any action or Legal Proceeding between any of the parties arising out of or relating to this Agreement, each of the parties: (a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the state of Delaware or to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware or the United States District Court for the District of Delaware, (b) agrees that all claims in respect of such action or Legal Proceeding shall be heard and determined exclusively in accordance with clause (a) of this Section 17, (c) waives any objection to laying venue in any such action or Legal Proceeding in such courts, (d) waives any objection that such courts are an inconvenient forum or do not have jurisdiction over any party, and (e) agrees that service of process upon such party in any such action or Legal Proceeding shall be effective if notice is given in accordance with Section 13.
18) Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION OR LEGAL PROCEEDING RELATED TO OR ARISING OUT OF THIS AGREEMENT, ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH AND THE MATTERS CONTEMPLATED HEREBY AND THEREBY.
19) No Agreement Until Executed. Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement, this Agreement shall not constitute or be deemed to evidence a Contract, agreement, arrangement or understanding between the parties hereto unless and until (a) the Parent Board has approved, for purposes of any applicable anti-takeover Laws and regulations and any applicable provision of the certificate of incorporation of Parent, the Merger Agreement and the Contemplated Transactions, (b) the Merger Agreement is executed by all parties thereto, and (c) this Agreement is executed by all parties hereto.
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20) Entire Agreement; Counterparts; Exchanges by Electronic Transmission. This Agreement and the other agreements referred to in this Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by all parties by electronic transmission via “.pdf” shall be sufficient to bind the parties to the terms and conditions of this Agreement.
21) Amendment. This Agreement may not be amended, supplemented or modified, and no provisions hereof may be modified or waived, except by an instrument in writing signed on behalf of each party hereto; provided, however, that the rights or obligations of any Stockholder may be waived, amended or otherwise modified in a writing signed by Parent, the Company and Stockholder.
22) Fees and Expenses. Except as otherwise specifically provided herein, the Merger Agreement or any other agreement contemplated by the Merger Agreement to which a party hereto is a party, each party hereto shall bear its own expenses in connection with this Agreement and the transactions contemplated hereby.
23) Voluntary Execution of Agreement. This Agreement is executed voluntarily and without any duress or undue influence on the part or behalf of the parties. Each of the parties hereby acknowledges, represents and warrants that (a) it has read and fully understood this Agreement and the implications and consequences thereof; (b) it has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of its own choice, or it has made a voluntary and informed decision to decline to seek such counsel; and (c) it is fully aware of the legal and binding effect of this Agreement.
24) Construction.
a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.
b) The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.
c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”
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d) Except as otherwise indicated, all references in this Agreement to “Sections,” and “Schedules” are intended to refer to Sections of this Agreement and Schedules to this Agreement, respectively.
e) The underlined headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
[Remainder of Page has Intentionally Been Left Blank]
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EXECUTED as of the date first above written.
| STOCKHOLDER | |
| STOCKHOLDER NAME: | |
| Signature: |
| Name of signatory (if an Entity): |
| Title (if an Entity): |
[Signature Page to Voting Agreement]
EXECUTED as of the date first above written.
| PARENT: | |
| FIRST WAVE BIOPHARMA, INC. |
| By: | ||
| Name: | ||
| Title: |
[Signature Page to Voting Agreement]
EXECUTED as of the date first above written.
| COMPANY: | |
| IMMUNOGENX, INC. |
| By: | ||
| Name: | ||
| Title: |
[Signature Page to Voting Agreement]
SCHEDULE 1
| Name of Stockholder | ||
| Address: | ||
| Attention: | ||
| Email: | ||
| PARENT SECURITIES HELD | ||
| Shares: | ||
EXHIBIT B
FORM OF PARENT STOCKHOLDER SUPPORT AGREEMENT
Execution Version
STOCKHOLDER SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT (this “Agreement”), dated as of March 13, 2024, is made by and among First Wave BioPharma, Inc., a Delaware corporation (“Parent”), ImmunogenX, Inc., a Delaware corporation (the “Company”), and the undersigned holder (“Stockholder”) of shares of capital stock (the “Shares”) of Parent.
WHEREAS, concurrently with the entry into of this Agreement, Parent, IMMUNO Merger Sub I, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“First Merger Sub”), IMMUNO Merger Sub II, LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent (“Second Merger Sub”), and the Company, are entering into an Agreement and Plan of Merger, dated of even date herewith (the “Merger Agreement”), providing for the merger of First Merger Sub with and into the Company (the “First Merger”) and the merger of the Company with and into Second Merger Sub (the “Second Merger” and together with the First Merger, the “Merger”);
WHEREAS, Stockholder beneficially owns and has sole or shared voting power with respect to the number of Shares, and holds options to purchase shares of Parent Common Stock (“Parent Stock Options”), restricted stock units to acquire shares of Parent Common Stock (“Parent Restricted Stock Units”), and such other rights to acquire shares of Parent Common Stock, as the case may be, in each case in the number of Shares indicated opposite Stockholder’s name on Schedule 1 attached hereto;
WHEREAS, as an inducement and a condition to the willingness of Parent, First Merger Sub, Second Merger Sub and the Company to enter into the Merger Agreement, and in consideration of the substantial expenses incurred and to be incurred by them in connection therewith, Stockholder has agreed to enter into and perform this Agreement; and
WHEREAS, all capitalized terms used in this Agreement without definition herein shall have the meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of, and as a condition to, Parent, First Merger Sub, Second Merger Sub and the Company’s entering into the Merger Agreement and proceeding with the transactions contemplated thereby, and in consideration of the substantial expenses incurred and to be incurred by them in connection therewith, Stockholder, Parent and the Company agree as follows:
1) Agreement to Vote Shares. Stockholder agrees that, prior to the Expiration Date (as defined in Section 2), at any meeting of the stockholders of Parent or any adjournment or postponement thereof, or in connection with any written consent of the stockholders of Parent, with respect to the Parent Stockholder Matters, Stockholder shall, or shall cause the holder of record on any applicable record date to:
a) appear at such meeting or otherwise cause the Shares and any New Shares (as defined in Section 3) to be counted as present thereat (in person or by proxy) for purposes of calculating a quorum; and
b) from and after the date hereof until the Expiration Date, vote (or cause to be voted), or deliver a written consent (or cause a written consent to be delivered) covering all of the Shares and any New Shares that Stockholder shall be entitled to so vote: (i) in favor of the Parent Stockholder Matters and any matter that would reasonably be expected to facilitate the Parent Stockholder Matters; (ii) against any proposal to remove the limitation initially set at the discretion of holders of Parent Convertible Preferred Stock between 4.9% and 19.9% of the number of shares of Parent Common Stock outstanding immediately after giving effect to the issuance of shares of Parent Common Stock upon conversion (the “Beneficial Ownership Limitation”) restricting such holders from beneficially owning a number of shares of Parent Common Stock in excess of the Beneficial Ownership Limitation; (iii) against any agreement, transaction or other matter that is intended to, or would reasonably be expected to, impede, interfere with, delay, postpone, discourage or materially and adversely affect the consummation of the Parent Stockholder Matters; and (iv) to approve any proposal to adjourn or postpone the applicable meeting to a later date, if there are not sufficient votes for the approval of the Parent Stockholder Matters on the date on which such meeting is held. Stockholder shall not take or commit or agree to take any action inconsistent with the foregoing.
2) Expiration Date. As used in this Agreement, the term “Expiration Date” shall mean the earlier to occur of (a) the effective time of the approval of the Parent Stockholder Matters or (b) the date as of which, by mutual written agreement of Parent and Stockholder, this agreement is terminated, or (c) twelve (12) months following the date of this Agreement.
3) Additional Purchases. Stockholder agrees that any shares of capital stock or other equity securities of Parent that Stockholder purchases or with respect to which Stockholder otherwise acquires sole or shared voting power (including any proxy) after the execution of this Agreement and prior to the Expiration Date, whether by the exercise of any Parent Stock Options, settlement of Parent Restricted Stock Units or otherwise, including by gift, succession, in the event of a stock split or as a dividend or distribution of any Shares (“New Shares”), shall be subject to the terms and conditions of this Agreement to the same extent as if they constituted the Shares.
4) Share Transfers. From and after the date hereof until the Expiration Date, Stockholder shall not, directly or indirectly, (a) sell, assign, transfer, tender, or otherwise dispose of (including by the creation of any Liens (as defined in Section 5(c))) any Shares or any New Shares acquired, (b) deposit any Shares or New Shares into a voting trust or enter into a voting agreement or similar arrangement with respect to such Shares or New Shares or grant any proxy or power of attorney with respect thereto (other than this Agreement), (c) enter into any Contract, option, commitment or other arrangement or understanding with respect to the direct or indirect sale, transfer, assignment or other disposition of (including by the creation of any Liens) any Shares or New Shares, or (d) take any action that would make any representation or warranty of Stockholder contained herein untrue or incorrect or have the effect of preventing or disabling Stockholder from performing Stockholder’s obligations under this Agreement. Notwithstanding the foregoing, Stockholder may make: (i) transfers by will or by operation of Law or other transfers for estate planning purposes, in which case this Agreement shall bind the transferee; (ii) with respect to Stockholder’s Parent Stock Options which expire on or prior to the Expiration Date, transfers, sale, or other disposition of Shares or New Shares to Parent as payment for the (A) exercise price of Stockholder’s Parent Stock Options and (B) taxes applicable to the exercise of Stockholder’s Parent Stock Options; (iii) with respect to Stockholder’s Parent Restricted Stock Units, (A) transfers for the net settlement of Stockholder’s Parent Restricted Stock Units settled in Shares or New Shares (to pay any tax withholding obligations) or (B) transfers for receipt upon settlement of Stockholder’s Parent Restricted Stock Units, and the sale of a sufficient number of such Shares acquired upon settlement of such securities as would generate sales proceeds sufficient to pay the aggregate taxes payable by Stockholder as a result of such settlement; (iv) if Stockholder is a partnership or limited liability company, a transfer to one or more partners or members of Stockholder or to an Affiliated corporation, trust or other Entity under common control with Stockholder, or if Stockholder is a trust, a transfer to a beneficiary, provided that in each such case the applicable transferee has signed a voting agreement in substantially the form hereof; (v) transfers to another holder of the capital stock of Parent that has signed a support agreement in substantially the form hereof; and (vi) transfers, sales or other dispositions as Parent may otherwise agree in writing as its sole discretion. If any voluntary or involuntary transfer of any Shares or New Shares covered hereby shall occur (including a transfer or disposition permitted by clauses (i) through (vi), sale by a Stockholder’s trustee in bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Shares or New Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect, and, as condition for such transfer, the transferee shall agree in writing to be bound by the terms and conditions of this Agreement and either the Stockholder or the transferee provides Parent with a copy of such agreement promptly upon consummation of any such transfer.
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5) Representations and Warranties of Stockholder. Stockholder hereby represents and warrants to Parent and the Company as follows:
a) If Stockholder is an Entity: (i) Stockholder is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, organized or constituted, (ii) Stockholder has all necessary power and authority to execute and deliver this Agreement, to perform Stockholder’s obligations hereunder and to consummate the transactions contemplated hereby, and (iii) the execution and delivery of this Agreement, performance of Stockholder’s obligations hereunder and the consummation of the transactions contemplated hereby by Stockholder have been duly authorized by all necessary action on the part of Stockholder and no other proceedings on the part of Stockholder are necessary to authorize this Agreement, or to consummate the transactions contemplated hereby. If Stockholder is an individual, Stockholder has the legal capacity to execute and deliver this Agreement, to perform Stockholder’s obligations hereunder and to consummate the transactions contemplated hereby;
b) this Agreement has been duly executed and delivered by or on behalf of Stockholder and, and assuming this Agreement constitutes a valid and binding agreement of the Company and Parent, constitutes a valid and binding agreement with respect to Stockholder, enforceable against Stockholder in accordance with its terms, except as enforcement may be limited by general principles of equity whether applied in a court of Law or a court of equity and by bankruptcy, insolvency and similar Laws affecting creditors’ rights and remedies generally;
c) Stockholder beneficially owns the number of Shares and other rights with respect to Shares indicated opposite Stockholder’s name on Schedule 1, and will own any New Shares, free and clear of any liens, claims, charges or other encumbrances or restrictions of any kind whatsoever (“Liens”), and has sole or shared, and otherwise unrestricted, voting power with respect to such Shares or New Shares and none of the Shares or New Shares is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares or the New Shares, except as contemplated by this Agreement;
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d) the execution and delivery of this Agreement by Stockholder does not, and the performance by Stockholder of his, her or its obligations hereunder and the compliance by Stockholder with any provisions hereof will not, violate or conflict with, result in a material breach of or constitute a default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of any Liens on any Shares or New Shares pursuant to, any agreement, instrument, note, bond, mortgage, Contract, lease, license, permit or other obligation or any order, arbitration award, judgment or decree to which Stockholder is a party or by which Stockholder is bound, or any Law, statute, rule or regulation to which Stockholder is subject or, in the event that Stockholder is a corporation, partnership, trust or other Entity, any bylaw or other Organizational Document of Stockholder; except for any of the foregoing as would not reasonably be expected to prevent or delay the performance by Stockholder of his, her or its obligations under this Agreement in any material respect;
e) the execution and delivery of this Agreement by Stockholder does not, and the performance of this Agreement by Stockholder does not and will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Body or regulatory authority by Stockholder except for applicable requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not prevent or delay the performance by Stockholder of his, her or its obligations under this Agreement in any material respect;
f) no investment banker, broker, finder or other intermediary is entitled to a fee or commission from Parent or the Company in respect of this Agreement based upon any Contract made by or on behalf of Stockholder; and
g) as of the date of this Agreement, there is no Legal Proceeding pending or, to the knowledge of Stockholder, threatened against Stockholder that would reasonably be expected to prevent or delay the performance by Stockholder of his, her or its obligations under this Agreement in any material respect.
6) Irrevocable Proxy. Subject to the final sentence of this Section 6, by execution of this Agreement, Stockholder does hereby appoint Parent and any of its designees with full power of substitution and resubstitution, as Stockholder’s true and lawful attorney and irrevocable proxy, to the fullest extent of Stockholder’s rights with respect to the Shares or New Shares, to vote and exercise all voting and related rights, including the right to sign Stockholder’s name (solely in its capacity as a stockholder) to any stockholder consent, if Stockholder is unable to perform or otherwise does not perform his, her or its obligations under this Agreement, with respect to such Shares and New Shares solely with respect to the matters set forth in Section 1. Stockholder intends this proxy to be irrevocable and coupled with an interest hereunder until the Expiration Date, hereby revokes any proxy previously granted by Stockholder with respect to the Shares or New Shares and represents that none of such previously-granted proxies are irrevocable. The irrevocably proxy and power of attorney granted herein shall survive the death or incapacity of Stockholder and the obligations of Stockholder shall be binding on Stockholder’s heirs, personal representatives, successors, transferees and assigns. Stockholder hereby agrees not to grant any subsequent powers of attorney or proxies with respect to any Shares or New Shares with respect to the matters set forth in Section 1 until after the Expiration Date. The Stockholder hereby affirms that the proxy set forth in this Section 6 is given in connection with and granted in consideration of and as an inducement to the Company, Parent, First Merger Sub and Second Merger Sub to enter into the Merger Agreement and that such proxy is given to secure the obligations of the Stockholder under Section 1. Notwithstanding anything contained herein to the contrary, this irrevocable proxy shall automatically terminate upon the Expiration Date.
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7) Other Remedies; Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with, and not exclusive of, any other remedy conferred hereby, or by Law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof without the need of posting bond in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at Law or in equity.
8) Directors and Officers. This Agreement shall apply to Stockholder solely in Stockholder’s capacity as a stockholder of Parent and holder of Parent Stock Options, Parent Restricted Stock Units and other rights to acquire shares of Parent Common Stock, as the case may be, and not in Stockholder’s capacity as a director, officer or employee of Parent or any of its Subsidiaries or in Stockholder’s capacity as a trustee or fiduciary of any employee benefit plan or trust. Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall (or require Stockholder to attempt to) limit or restrict a director or officer of Parent in the exercise of his or her fiduciary duties as a director or officer of Parent or in his or her capacity as a trustee or fiduciary of any employee benefit plan or trust or prevent or be construed to create any obligation on the part of any director or officer of Parent or any trustee or fiduciary of any employee benefit plan or trust from taking any action in his or her capacity as such director, officer, trustee or fiduciary.
9) No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in the Company or Parent any direct or indirect ownership or incidence of ownership of or with respect to any Shares or New Shares. All rights, ownership and economic benefits of and relating to the Shares or New Shares shall remain vested in and belong to Stockholder.
10) Termination. This Agreement shall terminate and shall have no further force or effect as of the Expiration Date. Notwithstanding the foregoing, upon termination or expiration of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided, however, that nothing set forth in this Section 10 or elsewhere in this Agreement shall relieve any party from liability for any fraud or for any willful and material breach of this Agreement prior to termination hereof.
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11) Further Assurances. Stockholder shall, from time to time, execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as the Company or Parent may reasonably request for the purpose of effectively carrying out the transactions contemplated by this Agreement, the Parent Stockholder Matters, and the Contemplated Transactions.
12) Disclosure. Stockholder hereby agrees that Parent and the Company may publish and disclose in any registration statement, any prospectus filed with any regulatory authority in connection with the Contemplated Transactions and any related documents filed with such regulatory authority and as otherwise required by Law, Stockholder’s identity and ownership of Shares and the nature of Stockholder’s commitments, arrangements and understandings under this Agreement and may further file this Agreement as an exhibit to any registration statement or prospectus or in any other filing made by Parent or the Company as required by Law or the terms of the Merger Agreement, including with the SEC or other regulatory authority, relating to the Contemplated Transactions, all subject to prior review and an opportunity to comment by Stockholder’s counsel. Prior to the Closing, Stockholder shall not, and shall use its reasonable best efforts to cause its representatives not to, directly or indirectly, make any press release, public announcement or other public communication that criticizes or disparages this Agreement or the Merger Agreement or any of the Contemplated Transactions or Parent Stockholder Matters, without the prior written consent of Parent and the Company; provided that the foregoing shall not limit or affect any actions taken by Stockholder (or any affiliated officer or director of Stockholder) that would be permitted to be taken by Stockholder, Parent or the Company pursuant to the Merger Agreement; provided, further, that the foregoing shall not affect any actions of Stockholder the prohibition of which would be prohibited under applicable Law.
13) Notice. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or sent by overnight courier (providing proof of delivery), by electronic transmission (providing confirmation of transmission) to the Company or Parent, as the case may be, in accordance with Section 8.7 of the Merger Agreement and to Stockholder at his, her or its address or email address (providing confirmation of transmission) set forth on Schedule 1 attached hereto (or at such other address for a party as shall be specified by like notice).
14) Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.
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15) Assignability. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the parties hereto and their respective successors and assigns; provided, however, that neither this Agreement nor any of a party’s rights or obligations hereunder may be assigned or delegated by such party without the prior written consent of the other parties hereto, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by such party without the other party’s prior written consent shall be void and of no effect. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
16) No Waivers. No waivers of any breach of this Agreement extended by the Company or Parent to Stockholder shall be construed as a waiver of any rights or remedies of the Company or Parent, as applicable, with respect to any other stockholder of Parent who has executed an agreement substantially in the form of this Agreement with respect to Shares or New Shares held or subsequently held by such stockholder or with respect to any subsequent breach of Stockholder or any other stockholder of Parent. No waiver of any provisions hereof by any party shall be deemed a waiver of any other provisions hereof by any such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by such party.
17) Applicable Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the Laws of the state of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws. In any action or Legal Proceeding between any of the parties arising out of or relating to this Agreement, each of the parties: (a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the state of Delaware or to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware or the United States District Court for the District of Delaware, (b) agrees that all claims in respect of such action or Legal Proceeding shall be heard and determined exclusively in accordance with clause (a) of this Section 17, (c) waives any objection to laying venue in any such action or Legal Proceeding in such courts, (d) waives any objection that such courts are an inconvenient forum or do not have jurisdiction over any party, and (e) agrees that service of process upon such party in any such action or Legal Proceeding shall be effective if notice is given in accordance with Section 13.
18) Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION OR LEGAL PROCEEDING RELATED TO OR ARISING OUT OF THIS AGREEMENT, ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH AND THE MATTERS CONTEMPLATED HEREBY AND THEREBY.
19) No Agreement Until Executed. Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement, this Agreement shall not constitute or be deemed to evidence a Contract, agreement, arrangement or understanding between the parties hereto unless and until (a) the Parent Board has approved, for purposes of any applicable anti-takeover Laws and regulations and any applicable provision of the certificate of incorporation of Parent, the Merger Agreement and the Contemplated Transactions, (b) the Merger Agreement is executed by all parties thereto, and (c) this Agreement is executed by all parties hereto.
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20) Entire Agreement; Counterparts; Exchanges by Electronic Transmission. This Agreement and the other agreements referred to in this Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by all parties by electronic transmission via “.pdf” shall be sufficient to bind the parties to the terms and conditions of this Agreement.
21) Amendment. This Agreement may not be amended, supplemented or modified, and no provisions hereof may be modified or waived, except by an instrument in writing signed on behalf of each party hereto; provided, however, that the rights or obligations of any Stockholder may be waived, amended or otherwise modified in a writing signed by Parent, the Company and Stockholder.
22) Fees and Expenses. Except as otherwise specifically provided herein, the Merger Agreement or any other agreement contemplated by the Merger Agreement to which a party hereto is a party, each party hereto shall bear its own expenses in connection with this Agreement and the transactions contemplated hereby.
23) Voluntary Execution of Agreement. This Agreement is executed voluntarily and without any duress or undue influence on the part or behalf of the parties. Each of the parties hereby acknowledges, represents and warrants that (a) it has read and fully understood this Agreement and the implications and consequences thereof; (b) it has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of its own choice, or it has made a voluntary and informed decision to decline to seek such counsel; and (c) it is fully aware of the legal and binding effect of this Agreement.
24) Construction.
a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.
b) The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.
c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”
d) Except as otherwise indicated, all references in this Agreement to “Sections,” and “Schedules” are intended to refer to Sections of this Agreement and Schedules to this Agreement, respectively.
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e) The underlined headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
[Remainder of Page has Intentionally Been Left Blank]
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EXECUTED as of the date first above written.
| STOCKHOLDER | |
| STOCKHOLDER NAME: | |
| Signature: |
| Name of signatory (if an Entity): |
| Title (if an Entity): |
[Signature Page to Parent Support Agreement]
EXECUTED as of the date first above written.
| PARENT: | |
| FIRST WAVE BIOPHARMA, INC. |
| By: | ||
| Name: | James Sapirstein | |
| Title: | President and Chief Executive Officer |
[Signature Page to Parent Support Agreement]
EXECUTED as of the date first above written.
| COMPANY: | |
| IMMUNOGENX, INC. |
| By: | ||
| Name: | Jack Syage | |
| Title: | Chief Executive Officer |
[Signature Page to Parent Support Agreement]
SCHEDULE 1
| Name of Stockholder | ||
| Address: | ||
| Attention: | ||
| Email: | ||
| PARENT SECURITIES HELD | ||
| Shares: | ||
| Parent Stock Options: | ||
| Parent Restricted Stock Units: | ||
| Shares underlying other rights (e.g., Parent Warrants): | ||
[Signature Page to Parent Support Agreement]
EXHIBIT C
FORM OF LOCK-UP AGREEMENT
FORM OF LOCK-UP AGREEMENT
LOCK-UP AGREEMENT
March 13, 2024
First Wave BioPharma, Inc.
777 Yamato Road, Suite 502
Boca Raton, Florida 33431
Ladies and Gentlemen:
The undersigned signatory of this lock-up agreement (this “Lock-Up Agreement”) understands that, concurrently with the execution and delivery of this Lock-Up Agreement, First Wave BioPharma, Inc., a Delaware corporation (“Parent”), has entered into an Agreement and Plan of Merger, dated as of March 13, 2024 (as the same may be amended from time to time, the “Merger Agreement”) with IMMUNO Merger Sub I, Inc., a Delaware corporation and a wholly owned subsidiary of Parent, IMMUNO Merger Sub II, LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent, and ImmunogenX, Inc., a Delaware corporation (the “Company”). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement.
As a condition and material inducement to each of the parties to enter into the Merger Agreement and to consummate the Contemplated Transactions, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby irrevocably agrees that, subject to the exceptions set forth herein, without the prior written consent of Parent, by a majority vote of the Parent Board (including, with respect to periods after the Closing, at least two (2) Company Directors), and, solely prior to the Closing, the Company (the “Requisite Vote”), the undersigned will not, during the period commencing upon the Closing and ending on the date that is 180 days after the Closing Date (the “Restricted Period”):
| (i) | offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase, lend any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Parent Common Stock, Parent Preferred Stock or any securities convertible into or exercisable or exchangeable for Parent Common Stock (including without limitation, Parent Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the SEC and securities of Parent which may be issued upon exercise of an option to purchase Parent Common Stock or warrant or settlement of a Parent Restricted Stock Unit) that are currently or hereafter owned by the undersigned (collectively, the “Undersigned’s Shares”); |
| (ii) | enter into any swap, short sale, hedge or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Undersigned’s Shares regardless of whether any such transaction described in clause (i) above or this clause (ii) is to be settled by delivery of Parent Common Stock, Parent Preferred Stock or other securities, in cash or otherwise; |
| (iii) | make any demand for, or exercise any right with respect to, the registration of any shares of Parent Common Stock, Parent Preferred Stock or any security convertible into or exercisable or exchangeable for Parent Common Stock (other than such rights set forth in the Merger Agreement); or |
| (iv) | publicly disclose the intention to do any of the foregoing. |
The restrictions and obligations contemplated by this Lock-Up Agreement shall not apply to:
| (a) | transfers of the Undersigned’s Shares: |
| (i) | if the undersigned is a natural person, (A) to any person related to the undersigned (or to an ultimate beneficial owner of the undersigned) by blood or adoption who is an immediate family member of the undersigned, or by marriage or domestic partnership (a “Family Member”), or to a trust formed for the benefit of the undersigned or any of the undersigned’s Family Members, (B) to the undersigned’s estate, following the death of the undersigned, by will, intestacy or other operation of Law, (C) as a bona fide gift or a charitable contribution, (D) by operation of Law pursuant to a qualified domestic order or in connection with a divorce settlement or (E) to any partnership, corporation or limited liability company which is controlled by or under common control with the undersigned and/or by any such Family Member(s); |
| (ii) | if the undersigned is a corporation, partnership or other Entity, (A) to another corporation, partnership, or other Entity that is an affiliate (as defined under Rule 12b-2 of the Exchange Act) of the undersigned, including investment funds or other entities under common control or management with the undersigned, (B) as a distribution or dividend to equity holders, current or former general or limited partners, members or managers (or to the estates of any of the foregoing), as applicable, of the undersigned (including upon the liquidation and dissolution of the undersigned pursuant to a plan of liquidation approved by the undersigned’s equity holders), (C) as a bona fide gift or a charitable contribution or otherwise to a trust or other entity for the direct or indirect benefit of an immediate family member of a beneficial owner (as defined in Rule 13d-3 of the Exchange Act) of the Undersigned’s Shares or (D) transfers or dispositions not involving a change in beneficial ownership; or |
| (iii) | if the undersigned is a trust, to any grantors or beneficiaries of the trust; |
provided that, in the case of any transfer or distribution pursuant to this clause (a), such transfer is not for value and each donee, heir, beneficiary or other transferee or distributee shall sign and deliver to Parent a lock-up agreement in the form of this Lock-Up Agreement with respect to the shares of Parent Common Stock, Parent Preferred Stock or such other securities that have been so transferred or distributed;
| (b) | the exercise of an option to purchase Parent Common Stock (including a net or cashless exercise of an option to purchase Parent Common Stock), and any related transfer of shares of Parent Common Stock to Parent for the purpose of paying the exercise price of such options or for paying taxes (including estimated taxes) due as a result of the exercise of such options; provided that, for the avoidance of doubt, the underlying shares of Parent Common Stock shall continue to be subject to the restrictions on transfer set forth in this Lock-Up Agreement; |
| (c) | the disposition (including a forfeiture or repurchase) to Parent of any shares of restricted stock granted pursuant to the terms of any employee benefit plan or restricted stock purchase agreement; |
| (d) | transfers to Parent in connection with the net settlement of any restricted stock unit or other equity award that represents the right to receive in the future shares of Parent Common Stock settled in Parent Common Stock to pay any tax withholding obligations; provided that, for the avoidance of doubt, the underlying shares of Parent Common Stock shall continue to be subject to the restrictions on transfer set forth in this Lock-Up Agreement; |
| (e) | the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Parent Common Stock; provided that such plan does not provide for any transfers of Parent Common Stock during the Restricted Period; |
| (f) | transfers by the undersigned of shares of Parent Common Stock purchased by the undersigned on the open market or in a public offering by Parent, in each case following the Closing Date; |
| (g) | pursuant to a bona-fide third party tender offer, merger, consolidation or other similar transaction made to all holders of Parent’ capital stock involving a change of control of Parent, provided that in the event that such tender offer, merger, consolidation or other such transaction is not completed, the Undersigned’s Shares shall remain subject to the restrictions contained in this Lock-Up Agreement; |
| (h) | pursuant to an order of a court or regulatory agency; |
| (i) | following the approval of the Conversion Proposal, the conversion of Parent Preferred Stock into shares of Parent Common Stock in accordance with the Certificate of Designation; |
| (j) | [the pledge of the Undersigned’s Shares to Mattress Liquidators, Inc. (“ML”) pursuant to that certain Limited Recourse Pledge Agreement dated [•], 2024 by and among the undersigned, as a grantor, ML, as lender, and the other grantors party thereto (the “Pledge Agreement”);]1 or |
| (k) | [the sale of all or any portion of the Undersigned’s Shares to ML in connection with a Debt Purchase Transaction (as defined in the Pledge Agreement).]2 |
and provided, further, that, with respect to each of (a), (b), (c), (d) and (e) above, no filing by any party (including any donor, donee, transferor, transferee, distributor or distributee) under Section 16 of the Exchange Act or other public announcement shall be required or shall be made voluntarily in connection with such transfer or disposition during the Restricted Period (other than (i) any exit filings or public announcements that may be required under applicable federal and state securities Laws or (ii) in respect of a required filing under the Exchange Act in connection with the exercise of an option to purchase Parent Common Stock or in connection with the net settlement of any restricted stock unit or other equity award that represents the right to receive in the future shares of Parent Common Stock settled in Parent Common Stock that would otherwise expire during the Restricted Period, provided that (A) reasonable notice shall be provided to Parent prior to any such filing and (B) such filing, report or announcement shall clearly indicate in the footnotes therein, in reasonable detail, a description of the circumstances of the transfer and that the shares remain subject to the lock-up agreement.
1 NTD: Include this in the lock-up agreement for any party that is pledging shares pursuant to the Pledge Agreement.
2 NTD: Include this in the lock-up agreement for any party that is pledging shares pursuant to the Pledge Agreement.
For purposes of this Lock-Up Agreement, “change of control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons, of Parent's voting securities if, after such transfer, Parent's stockholders as of immediately prior to such transfer do not hold a majority of the outstanding voting securities of Parent (or the surviving entity) other than the Contemplated Transactions.
Any attempted transfer in violation of this Lock-Up Agreement will be of no effect and null and void, regardless of whether the purported transferee has any actual or constructive knowledge of the transfer restrictions set forth in this Lock-Up Agreement, and will not be recorded on the share register of Parent. In furtherance of the foregoing, the undersigned agrees that Parent and any duly appointed transfer agent for the registration or transfer of the securities described herein are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Lock-Up Agreement. Parent may cause the legend set forth below, or a legend substantially equivalent thereto, to be placed upon any certificate(s) or other documents, ledgers or instruments evidencing the undersigned’s ownership of Parent Common Stock, Parent Preferred Stock or any securities convertible into or exercisable or exchangeable for Parent Common Stock:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AND MAY ONLY BE TRANSFERRED IN COMPLIANCE WITH A LOCK-UP AGREEMENT, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY.
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.
The undersigned understands that if the Merger Agreement is terminated for any reason, the undersigned shall be released from all obligations under this Lock-Up Agreement. The undersigned understands that Parent and the Company are proceeding with the Contemplated Transactions in reliance upon this Lock-Up Agreement.
Any and all remedies herein expressly conferred upon Parent or the Company will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity, and the exercise by Parent or the Company of any one remedy will not preclude the exercise of any other remedy. The undersigned agrees that irreparable damage would occur to Parent and/or the Company in the event that any provision of this Lock-Up Agreement were not performed in accordance with its specific terms or were otherwise breached. It is accordingly agreed that Parent and the Company shall be entitled to an injunction or injunctions to prevent breaches of this Lock-Up Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which Parent or the Company is entitled at Law or in equity, and the undersigned waives any bond, surety or other security that might be required of Parent or the Company with respect thereto. Each of the parties further agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity.
Upon the release of any of the Undersigned’s Shares from this Lock-Up Agreement, Parent will cooperate with the undersigned to facilitate the timely preparation and delivery of certificates or the establishment of book-entry positions at Parent's transfer agent representing the Undersigned’s Shares without the restrictive legend above or the withdrawal of any stop transfer instructions.
This Lock-Up Agreement and any claim, controversy or dispute arising under or related to this Lock-Up Agreement shall be governed by and construed in accordance with the Laws of the state of Delaware, without regard to the conflict of Laws principles thereof.
This Lock-Up Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parent and the Company (as applicable), pursuant to Requisite Vote and the undersigned.
This Lock-Up Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Lock-Up Agreement (in counterparts or otherwise) by Parent, the Company and the undersigned by facsimile or electronic transmission in .pdf format shall be sufficient to bind such parties to the terms and conditions of this Lock-Up Agreement.
(Signature Page Follows)
| Very truly yours, | |
| Print Name of Stockholder: | [ ] |
| Signature (for individuals): | |
| Signature (for entities): |
| By: | |||
| Name: | |||
| Title: | |||
Accepted and Agreed
by FIRST WAVE BIOPHARMA, INC.:
| By: | |||
| Name: | |||
| Title: | |||
| Accepted and Agreed by IMMUNOGENX, INC.: | |||
| By: | |||
| Name: | Jack Syage | ||
| Title: | CEO | ||
[Signature Page to Lock-up Agreement]
EXHIBIT D
FORM OF RESTRICTIVE COVENANTS AGREEMENT
RESTRICTIVE COVENANT AGREEMENT
This Restrictive Covenant Agreement (this “Agreement”) is made as of March 13, 2024, by and among First Wave BioPharma, Inc., a Delaware corporation, (“Parent”), ImmunogenX, Inc., a Delaware corporation (the “Company”), and [●], an individual (“Restricted Party” and together with Parent and the Company, the “Parties”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Merger Agreement (as defined below).
RECITALS
Pursuant to that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, restated, supplemented or otherwise modified, the “Merger Agreement”), by and among Parent, the Company, IMMUNO Merger Sub I, Inc., a Delaware corporation and wholly-owned subsidiary of Parent (“First Merger Sub”), and IMMUNO Merger Sub II, LLC, a Delaware limited liability company and wholly-owned subsidiary of Parent (“Second Merger Sub”), among other things, (1) at the First Effective Time, First Merger Sub will merge with and into the Company, with the Company surviving such merger as a wholly-owned subsidiary of Parent (the “First Merger”) and (2) immediately following the First Merger, the Company will merge with and into Second Merger Sub with Second Merger Sub surviving such merger (the “Surviving Company”).
Restricted Party is a direct owner of the Company and, as a consequence of the transactions contemplated by the Merger Agreement, will receive, directly or indirectly through the Company, substantial consideration (the “Consideration”). As a specific inducement for Parent, First Merger Sub and Second Merger Sub to enter into and consummate the transactions contemplated by the Merger Agreement, Restricted Party is entering into this Agreement intending to be legally bound hereby.
AGREEMENT
Now, therefore, in consideration of the mutual covenants contained herein and other good and valuable consideration, including the Consideration to be paid to and received by Restricted Party, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Restrictive Covenants.
(a) Confidentiality.
(i) Restricted Party acknowledges that the Confidential Information to which they or their Affiliates had, has or will have access is confidential and proprietary to the Company, that the unauthorized disclosure of any of the Confidential Information to any Person will result in immediate and irreparable competitive injury to Parent, Surviving Company and their Affiliates, and that such injury cannot adequately be remedied by an award of monetary relief. Restricted Party agrees that during the Restricted Period, they shall not, and shall cause their Affiliates not to, disclose any Confidential Information or the terms of this Agreement to any Person, or use any Confidential Information, without the prior written permission of Parent or as may be required by a court order in which case, the Restricted Party shall give Parent prompt advanced notice.
(ii) Immediately upon the request of Parent, Restricted Party agrees that they shall return to Parent all documents and other materials in any form, and any copies thereof, that constitute, contain, or refer or relate to any Confidential Information.
(iii) Notwithstanding the foregoing, the Restricted Party may disclose Confidential Information or the terms of this Agreement:
(A) In furtherance of or pursuant to Restricted Party’s role or duties as an officer or director of Parent or the Surviving Company;
(B) To the Restricted Party’s accountants, attorneys or other agents who are advising the Restricted Party with respect to the Restricted Party’s interest in the Parent, the Company, or the Surviving Company or the Restricted Party’s rights and obligations under this Agreement, the Merger Agreement, and the agreements expressly contemplated thereby, but only (i) for legitimate business purposes related to the management of the Restricted Party’s interest in the Parent, the Company, or the Surviving Company, the Restricted Party’s rights and obligations under this Agreement, the Merger Agreement, and the agreements expressly contemplated thereby or the Restricted Party’s personal business, financial, accounting, tax or legal affairs and (ii) with such Person having been instructed to maintain the confidentiality of such information;
(C) as to the Restricted Party that is subject to mandatory reporting obligations under the Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), only to the extent disclosure is required by the Restricted Party’s mandatory reporting obligations (including public disclosures made in accordance with the Exchange Act);
(D) to tax authorities to the extent required to be disclosed in conjunction with the filing of tax returns and other reports under applicable tax laws; or
(E) if such Confidential Information is required to be disclosed by applicable law, in which case, to the extent permitted by applicable law, the disclosing Party shall give the other Party prompt advanced notice, the Parties agree not to disclose the terms of this Agreement to any Person; provided a Party may disclose this Agreement and/or any of its terms to such Party’s attorneys, so long as such Party instructs every such Person to whom the Party makes such disclosure (and receives such Person’s written agreement) not to disclose the terms of this Agreement further.
(iv) “Affiliate” means with respect to any Person, any other Person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, and, if such Person is an individual, “Affiliate” shall also include any member of the immediate family (including parents, spouse and children) of such individual and any trust whose principal beneficiary is such individual or one or more members of such immediate family and any Person who is controlled by any such member or trust. As used in this definition, “control” (including with correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract, trust or otherwise).
(v) “Business” shall mean the business of the development of, obtaining regulatory approval for, and commercialization of, celiac disease therapeutics and celiac disease diagnostics (including companion diagnostics and diagnostic assessment tools) for the treatment of patients with celiac disease, based on the research, development and manufacture of the Company Product Candidates or alternative formulations which are currently being developed by the Company.
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(vi) “Company Product Candidates” shall mean all products or product candidates developed by the Company or any its Affiliates (including all predecessors).
(vii) “Confidential Information” shall mean all confidential, proprietary and trade secret information (whether merely remembered or embodied in a tangible or intangible form) furnished before, on or after the date hereof that is related to the Business, the Company or any of its Affiliates (including their respective predecessors), including, but not limited to: (a) any data, agreements, documents, memoranda, reports, “know-how”, interpretations, plans, studies, forecasts, projections, business methods, concepts, models, lists, procedures, formulations, trade secrets, and records; (b) all, notes, analyses, compilations, studies, or other documents which were developed based upon or which include any such Confidential Information, whether prepared by the Company, the Restricted Party or others; (c) the Company’s or any of its Affiliates’ software, technology, developments, improvements and methods of operation; (d) the descriptions, specifications, numbers, names, vendors, suppliers, characteristics, costs, anticipated pricing, performance, market potential, suitability, and other information relating to the Company Product Candidates; and (e) the Company’s or any of its Affiliates’ results of operations, financial condition, projected financial performance, sales and profit performance, financial requirements or the names and addresses of, or amounts of compensation paid to, the Company’s or its Affiliates’ employees, agents consultants and business relationships; provided, however, it is understood that Confidential Information shall not include any information which (i) is in the public domain at the time of disclosure to the Restricted Party, (ii) currently is or becomes known in the public domain generally, in each case through no wrongful act of the part of Restricted Party, (iii) at the time of receipt is or was already in the possession of the Restricted Party, or becomes known to the Restricted Party or any of its Affiliates or representatives on or after the date hereof from a third party on a non-confidential basis who is not known by such recipient to be bound by any confidentiality obligation, (iv) is specifically released in writing by Parent from confidential status or (v) is independently developed by the Restricted Party without aid, application or use of any Confidential Information.
(viii) “Person” means an individual, partnership, corporation, limited liability company, joint stock company, unincorporated organization or association, trust, joint venture, association or other similar entity.
(ix) “Restricted Period” shall mean a period of three (3) years after the date hereof.
(x) “Subsidiary” means, with respect to any Person, any corporation of which a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or any partnership, limited liability company, association or other business entity of which a majority of the partnership, limited liability company or other similar ownership interest is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof. For purposes of this definition, a Person is deemed to have a majority ownership interest in a partnership, limited liability company, association or other business entity if such Person is allocated a majority of the gains or losses of such partnership, limited liability company, association or other business entity or is or controls the managing member or general partner or similar position of such partnership, limited liability company, association or other business entity.
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(b) Non-Competition. Except with respect to Restricted Party’s employment or service (including pursuant to board, committee or any advisory role) with Parent and/or the Surviving Company, Restricted Party acknowledges and agrees that during the Restricted Period, Restricted Party will not, and shall cause Restricted Party’s Affiliates not to, directly or indirectly, individually or with others, own, manage, operate or control, or become engaged or serve as a shareholder, officer, director, partner, member, employee, agent, consultant, advisor, or representative of, or give financial, technical or other assistance to, otherwise invest in, lend to, or have a financial interest in, or in exchange for compensation otherwise associate with any Person that performs all or any part of the Business anywhere in the world (the “Territory”). Nothing herein shall prohibit Restricted Party or Restricted Party’s Affiliates from being a passive owner of not more than 5% of the outstanding stock of any class of a corporation that is publicly traded, so long as Restricted Party or Restricted Party’s Affiliates has no active participation in the business of such corporation.
(c) Non-Solicitation. Except with respect to Restricted Party’s employment or service (including pursuant to board, committee or any advisory role) with Parent and/or the Surviving Company, Restricted Party agrees that during the Restricted Period, they shall not, directly or indirectly, through an Affiliate or otherwise in any manner (whether on the Restricted Party’s own account, or as an employee, director consultant, agent, partner, manager, joint venture, owner operator or officer of any other Person or in any other capacity, but in all such cases, excluding any actions or omissions taken pursuant to such Restricted Party’s role or duties as an officer or director of Parent or the Surviving Company): (i)(X) recruit, solicit, employ, retain or induce, or attempt to recruit, solicit, employ, retain or induce, any current employee, consultant, or freelancer of the Company (each a “Restricted Employee”) to leave his or her employment, consultancy or representative relationship with Parent or Surviving Company, (Y) in any way interfere with the relationship between Parent or Surviving Company on the one hand and Restricted Employee on the other hand or (Z) hire, employ, engage or otherwise retain or enter into any business relationship with any Restricted Employee; provided, however, that general solicitations not specifically directed toward Restricted Employees will not constitute a breach of covenants in this Section; or (ii)(W) solicit or induce, or attempt to solicit or induce, any Person that is a supplier, vendor, referral source, or other business relation of the Company thereof to cease doing business with Parent or its Affiliates, or in any way materially adversely interfere with the relationship between any such supplier, vendor, referral source or other business relation, on the one hand, and Parent or any of its Affiliates on the other hand, (X) solicit any business related to all or any portion of the Business from any current or former supplier, vendor or other business relation of the Company, Parent or any of its Affiliates; (Y) solicit, divert or take away, or attempt to solicit, divert or take away, any trade, any business or good will related to all or any portion of Parent or its Affiliates, or otherwise compete in any manner for any trade, business or good will which became known to Restricted Party through his/her employment with the Company related to the Business; or (Z) request or influence, or attempt to influence, any supplier, vendor, referral source, lessor or other business relation of the Company not to do business with Parent or any of its Affiliates.
(d) Non-Hire. Restricted Party agrees that during the Restricted Period, they shall not, directly or indirectly, through an Affiliate or otherwise in any manner (whether on the Restricted Party’s own account, or as an employee, director consultant, agent, partner, manager, joint venture, owner operator or officer of any other Person or in any other capacity, but in all such cases, excluding any actions or omissions taken pursuant to such Restricted Party’s role or duties as an officer or director of Parent or the Surviving Company) hire, engage or otherwise retain the services of any Restricted Employee during the time such Restricted Employee is an employee or consultant of either Parent or Surviving Company.
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(e) Non-Disparagement.
(i) During the Restricted Period, the Restricted Party agrees that Restricted Party shall not, and shall cause Restricted Party’s Affiliates not to, directly or indirectly, make any statement that is intended to become public, or that should reasonably be expected to become public, and that ridicules, disparages or is otherwise derogatory of the Company, Parent or any of their respective subsidiaries, Affiliates, employees, officers, directors, members or stockholders. Notwithstanding the covenants contained in this Section 1(e)(i), neither the Restricted Party nor its Affiliates shall be prohibited or restricted from (X) making any such statements that the Restricted Party or any of its Affiliates, as applicable, reasonably believes in good faith to be necessary in responding to or initiating a bona fide claim involving such Person (including in connection with asserting or responding to any claim related to the Merger Agreement, any other agreement entered into in connection therewith or this Agreement) or (Y) answering truthfully if compelled to do so in a deposition, lawsuit or similar dispute resolution process or as required by any Law, order, writ, or injunction, or as required under the Exchange Act or similar reporting obligations.
(f) Remedies. Restricted Party acknowledges the breach or threatened breach of any of the covenants undertaken herein would cause irreparable injury to the Business, Parent and/or any of its Affiliates, for which no adequate remedy at law exists. Therefore, Restricted Party agrees that in the event of such breach or threatened breach by Restricted Party of any of the terms and conditions of this Agreement, Parent and each of its Affiliates or any of their successors or assigns shall be entitled, if it so elects and in addition to any other rights or remedies available to it, to institute and prosecute proceedings in any court of competent jurisdiction to specifically enforce this Agreement or enjoin Restricted Party from breaching or attempting to breach this Agreement. This remedy is in addition to and not in lieu of the remedies otherwise available to Parent and its Affiliates, and Parent and its Affiliates may institute an action against Restricted Party to obtain injunctive and/or declaratory relief while pursuing claims for damages based on the same set of facts in the jurisdiction specified in Section 4(d). Restricted Party agrees that Parent and its Affiliates shall be entitled to injunctive or declaratory relief without the necessity of posting any bond or Parent and its Affiliates having to prove irreparable harm or actual damages and that Restricted Party waives any claim or right to posting of any such bond or proving irreparable harm or actual damages. The protections contained within this Section 1 are in addition to, and not in lieu of, all protections afforded by applicable state and federal law, including those relating to protection of trade secrets and protection of computer systems and electronic information. Parent’s or its Affiliates’ election to institute an action against Restricted Party in a court of its choosing under this Section 1 shall not constitute a waiver of Parent’s or its Affiliates rights under Section 4(d) of this Agreement. In addition, in the event of an alleged breach or violation by Restricted Party of this Section 1, the Restricted Period shall be tolled until such breach or violation has been cured.
(g) Acknowledgment. Restricted Party acknowledges that they have carefully read this Agreement and have given careful consideration to the restraints imposed upon them and is in full accord as to their necessity for the reasonable and proper protection of Parent’s and its respective Affiliates’ interests. Restricted Party recognizes the importance of the covenants contained in this Section 1 and acknowledges that, based on their past experience, the Business and the currently anticipated plans to expand the Business, the restrictions imposed herein are (i) reasonable in scope, time and area; (ii) necessary for the protection of Parent’s and its Affiliates’ legitimate business interests, including trade secrets, goodwill and relationships with Customers, Prospective Customers and suppliers and (iii) not unduly restrictive of any rights of Restricted Party or unreasonable impositions of Restricted Party’s ability to work and earn a living. In addition, Restricted Party agrees and acknowledges that the potential harm to the Business and Parent of the non-enforcement of this Section 1 outweighs any harm to Restricted Party. Restricted Party acknowledges and agrees that the covenants contained in this Section 1 are essential elements of this Agreement and that but for these covenants Parent, First Merger Sub and Second Merger Sub would not have entered into the Merger Agreement. Restricted Party acknowledges that the Business has been conducted throughout the Territory, that the restrictions contained within this Section 1 are reasonable and necessary to protect the goodwill of the Business, and that Restricted Party shall not challenge the enforceability or reasonableness of these restrictive covenants. Restricted Party understands and agrees that the restrictions and covenants contained in this Section 1 are in addition to, and not in lieu of, any non-competition, non-solicitation or other similar obligations contained in any other agreements between Restricted Party and Parent or any of its Affiliates.
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(h) Enforcement. It is the understanding and desire of the Parties that the covenants contained in this Section 1 shall be enforced to the fullest extent possible under the laws and public policies applied in each jurisdiction in which enforcement may be sought, and that should any particular provision(s) of such covenants be deemed invalid or unenforceable, such provision(s) shall be deemed amended to delete therefrom the invalid portion(s) and in its reduced form, such covenant shall be enforceable. To the extent that any provision(s) in Section 1 is (are) deemed unenforceable by virtue of its (their) scope, but shall be enforceable by limitation thereof, Parent and its Affiliates will be entitled to enforce such provision(s) to the extent permissible under the laws and public policies applied in the jurisdiction in which enforcement is sought, and such provision(s) may be so modified and enforced by a court of competent jurisdiction.
2. Representations and Warranties. Restricted Party has received and carefully reviewed the Merger Agreement, the schedules, exhibits and annexes thereto and the documents contemplated thereby, is familiar with the transactions contemplated hereby and thereby and fully understands the terms and conditions set forth herein and in the Merger Agreement. Restricted Party has consulted with independent advisors and counsel regarding Restricted Party’s rights and obligations under this Agreement and intends for such terms to be binding upon and enforceable against Restricted Party. Restricted Party hereby warrants and covenants that (i) Restricted Party’s execution, delivery and performance of this Agreement does not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree to which Restricted Party is subject and (ii) upon the execution and delivery of this Agreement by Parent and the Company, this Agreement shall be the valid and binding obligation of Restricted Party, enforceable in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and by general equitable principles).
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3. Notices. All notices, requests, claims, demands and other communications hereunder shall be given and shall be deemed to have been duly received (a) if delivered personally, when received, (b) on the next Business Day if transmitted by national overnight courier with confirmation of delivery or (c) if sent by email, when dispatched provided that receipt is confirmed electronically, as follows:
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Notices to Restricted Party: To the address set forth on the signature page hereto.
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Notices to Parent:
First Wave BioPharma, Inc. 777 Yamato Road, Suite 502 Boca Raton, FL 33431 Attention: James Sapirstein E-mail: jsapirstein@firstwavebio.com |
with a copy to (which shall not constitute notice):
Lowenstein Sandler LLP 1251 Avenue of the Americas New York, NY 10020 Email: mlerner@lowenstein.com |
4. General Provisions.
(a) Amendment and Waiver. The provisions of this Agreement may be amended and waived only in writing by Parent, the Company and Restricted Party.
(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
(c) Complete Agreement. This Agreement embodies the complete agreement and understanding among the Parties relating to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the Parties, written or oral, which may have related to the subject matter hereof in any way.
(d) Choice of Law; Waiver; Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. The Parties hereby irrevocably waive any and all right to trial by jury in any action or proceeding arising out of or related to this Agreement or the transactions contemplated hereby. Each Party hereby submits to the jurisdiction of any state or federal court sitting in Delaware in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly waives any claim of improper venue and any claim that such courts are an inconvenient forum. Each Party hereby irrevocably consents to the service of process of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 3, such service to become effective ten days after such mailing.
(e) Successors and Assigns; Assignability. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and permitted assigns of the Parties hereto. Parent and Surviving Company shall have the right to sell, assign or otherwise transfer this Agreement, in whole or in part, to any Person that purchases all or substantially all of Parent, Surviving Company or all or substantially all of their assets or the Business. Restricted Party may not assign this Agreement without the written consent of Parent and any assignment by Restricted Party without such consent shall be void ab initio.
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(f) Attorneys’ Fees and Costs. In the event of any action or proceeding regarding or arising from this Agreement, the losing Party shall bear its own attorneys’ fees and costs as well as pay the attorney’s fees and costs of the prevailing Party.
(g) Headings; Construction; Definitions. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. The recitals are hereby incorporated into this Agreement in their entirety. The word “including” shall mean “including without limitation.”
(h) Counterparts; Delivery. This Agreement may be executed and delivered in any number of counterparts (including by means of facsimile or electronically transmitted signature pages), each of which will be deemed an original, but all of which together will constitute but one and the same instrument. This Agreement will become effective when duly executed by each Party.
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The undersigned have executed this Restrictive Covenant Agreement on and as of the date first above written.
| PARENT: | |
| FIRST WAVE BIOPHARMA, INC. |
| By: | ||
| Name: | James Sapirstein | |
| Title: | President and Chief Executive Officer |
Signature Page to Restrictive Covenant Agreement
| COMPANY: | |
| IMMUNOGENX, INC. |
| By: | ||
| Name: | Jack Syage | |
| Title: | Chief Executive Officer |
Signature Page to Restrictive Covenant Agreement
| RESTRICTED PARTY: | |
| [●] | |
| Address: |
Signature Page to Restrictive Covenant Agreement
EXHIBIT E
FORM OF CERTIFICATE OF DESIGNATION
EXHIBIT F
FORM OF LETTER OF TRANSMITTAL
EXHIBIT G
FORM OF ACCREDITED INVESTOR QUESTIONNAIRE
Exhibit 3.1
FIRST WAVE BIOPHARMA, INC.
CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS
OF
SERIES G NON-VOTING CONVERTIBLE PREFERRED STOCK
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
THE UNDERSIGNED DOES HEREBY CERTIFY, on behalf of First Wave BioPharma, Inc., a Delaware corporation (the “Corporation”), that the following resolution was duly adopted by the Board of Directors of the Corporation (the “Board of Directors”), in accordance with the provisions of Section 151 of the General Corporation Law of the State of Delaware (the “DGCL”), at a meeting duly called and held on March 13, 2024, which resolution provides for the creation of a series of the Corporation’s preferred stock, $0.0001 par value per share, which is designated as “Series G Non-Voting Convertible Preferred Stock,” with the voting and other powers, preferences and relative, participating, optional or other special rights of the shares of such series, and the qualifications, limitations and restrictions thereof set forth herein.
WHEREAS: the Amended and Restated Certificate of Incorporation of the Corporation, as amended (the “Certificate of Incorporation”), provides for a class of its authorized stock known as preferred stock, $0.0001 par value per share, consisting of 10,000,000 shares (the “Preferred Stock”), issuable from time to time in one or more series.
NOW, THEREFORE, BE IT
RESOLVED: that, pursuant to authority conferred upon the Board of Directors by the Certificate of Incorporation, (a) a series of Preferred Stock of the Corporation consisting of 13,000 shares be, and hereby is, authorized by the Board of Directors, (b) the Board of Directors hereby designates such series of shares as “Series G Non-Voting Convertible Preferred Stock”, and (c) the Board of Directors hereby fixes the powers, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, of such shares of Preferred Stock, in addition to any provisions set forth in the Certificate of Incorporation that are applicable to the Preferred Stock of all classes and series, as follows:
TERMS OF SERIES G NON-VOTING CONVERTIBLE PREFERRED STOCK
1. Definitions. For the purposes hereof, the following terms shall have the following meanings:
“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 or other governmental action to close; 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 are generally are open for use by customers on such day.
“Closing Sale Price” means, for any security as of any date, the last closing trade price for such security immediately prior to 4:00 p.m., New York City time, on the principal Trading Market where such security is listed or traded, as reported by Bloomberg, L.P. (or an equivalent, reliable reporting service), or if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, L.P., or, if no last trade price is reported for such security by Bloomberg, L.P., the average of the bid prices of any market makers for such security as reported on the OTC Pink Market by OTC Markets Group, Inc. If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as determined in good faith by the Board of Directors of the Corporation, which shall include at least one (1) of the Company Directors, to the extent that at such time there is one (1) Company Director on the Board of Directors.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means the Corporation’s common stock, $0.0001 par value per share, and the Corporation’s stock of any other class into which such common stock or such stock of any other class may hereafter be reclassified or changed.
“Company Directors” means the two (2) individuals nominated by legacy holders of capital stock of ImmunogenX, Inc., a Delaware corporation, pursuant to the Merger Agreement, and approved by the Nominating and Corporate Governance Committee of the Board of Directors.
“Conversion Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Series G Non-Voting Preferred Stock in accordance with the terms hereof.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Holder” means a holder of shares of Series G Non-Voting Preferred Stock.
“Merger Agreement” means the Agreement and Plan of Merger, dated as of the date hereof, by and among the Corporation, IMMUNO Merger Sub I, Inc., a wholly-owned subsidiary of the Corporation, IMMUNO Merger Sub II, LLC, a wholly-owned subsidiary of the Corporation and ImmunogenX, Inc.
“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.
“Trading Day” means a day on which the principal Trading Market is open for business.
“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 Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, NYSE American or the New York Stock Exchange (or any successors to any of the foregoing).
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2. Designation, Amount and Par Value. The series of Preferred Stock created and authorized by this Certificate of Designation shall be designated as the Corporation’s Series G Non-Voting Convertible Preferred Stock (the “Series G Non-Voting Preferred Stock”) and the number of shares of such series of Preferred Stock shall be 13,000. Each share of Series G Non-Voting Preferred Stock shall have a par value of $0.0001 per share.
3. Dividends. Holders shall be entitled to receive, and the Corporation shall pay, dividends on shares of the Series G Non-Voting Preferred Stock (on an as-if-converted-to-Common-Stock basis, without regard to the Beneficial Ownership Limitation (as defined below)) equal to and in the same form, and in the same manner, as dividends (other than dividends on shares of the Common Stock payable in the form of Common Stock) actually paid on shares of the Common Stock when, as and if such dividends (other than dividends payable in the form of Common Stock) are paid on shares of the Common Stock. Other than as set forth in the previous sentence, no other dividends shall be paid on shares of Series G Non-Voting Preferred Stock, and the Corporation shall pay no dividends (other than dividends payable in the form of Common Stock) on shares of the Common Stock unless it simultaneously complies with the previous sentence.
4. Voting Rights.
4.1. Except as otherwise provided herein or as otherwise required by the DGCL, the Series G Non-Voting Preferred Stock shall have no voting rights. However, as long as any shares of Series G Non-Voting Preferred Stock are outstanding, the Corporation shall not, without the written consent or affirmative vote of the holders of a majority of the then outstanding shares of the Series G Non-Voting Preferred Stock: (i) alter or change adversely the powers, preferences or rights given to the Series G Non-Voting Preferred Stock or alter or amend this Certificate of Designation, amend or repeal any provision of, or add any provision to, the Certificate of Incorporation or bylaws of the Corporation, or file any articles of amendment, certificate of designations, preferences, limitations and relative rights of any series of Preferred Stock, in each case if any such action would adversely alter or change the preferences, rights, privileges or powers of, or restrictions provided for the benefit of the Series G Non-Voting Preferred Stock, regardless of whether any of the foregoing actions shall be by means of amendment to the Certificate of Incorporation or by merger, consolidation, recapitalization, reclassification, conversion or otherwise, (ii) issue further shares of Series G Non-Voting Preferred Stock, (iii) prior to the earlier of the Stockholder Approval (as defined below) or the six-month anniversary of the date of the Merger Agreement, consummate either: (A) any Fundamental Transaction (as defined below) or (B) any stock sale to, or any merger, consolidation or other business combination of the Corporation with or into, another entity in which the stockholders of the Corporation immediately before such transaction do not hold at least a majority of the capital stock of the Corporation immediately after such transaction, or (iv) enter into any agreement with respect to any of the foregoing.
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4.2. Any vote required or permitted hereunder or required by applicable law may be taken at a meeting of the Holders or through an action by written consent in lieu of such meeting in accordance with Section 228 of the DGCL.
5. Rank; Liquidation.
5.1. The Series G Non-Voting Preferred Stock shall rank on parity with the Common Stock as to distributions of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntarily or involuntarily.
5.2. Upon any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary (a “Liquidation”), each Holder shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation the same amount that a holder of Common Stock would receive if the Series G Non-Voting Preferred Stock were fully converted (disregarding for such purpose any Beneficial Ownership Limitations) to Common Stock based on the Conversion Ratio, which amounts shall be paid pari passu with payment to all holders of Common Stock with holders of the Series G Non-Voting Preferred Stock participating on an as converted to Common Stock basis, plus an additional amount equal to any dividends declared but unpaid to such shares. If, upon any such Liquidation, the assets of the Corporation shall be insufficient to pay the Holders of shares of the Series G Non-Voting Preferred Stock the amount required under the preceding sentence, then all remaining assets of the Corporation shall be distributed ratably to the Holders and the holders of Common Stock in accordance with the respective amounts that would be payable on all such securities if all amounts payable thereon were paid in full. For the avoidance of any doubt, a Fundamental Transaction shall not be deemed a Liquidation unless the Corporation expressly declares that such Fundamental Transaction shall be treated as if it were a Liquidation.
6. Conversion.
6.1. Automatic and Optional Conversions. The shares of Series G Non-Voting Preferred Stock shall be convertible into shares of Common Stock as follows:
6.1.1 Automatic Conversion on Stockholder Approval. Effective as of 5:00 p.m. Eastern time on the third (3rd) Business Day after the date that the Corporation’s stockholders approve the conversion of the Series G Non-Voting Preferred Stock into shares of Common Stock in accordance with the listing rules of the Nasdaq Stock Market, as set forth in Section 5.5 of the Merger Agreement (the “Stockholder Approval”), each share of Series G Non-Voting Preferred Stock then outstanding shall automatically convert into a number of shares of Common Stock equal to the Conversion Ratio (as defined below), subject to the Beneficial Ownership Limitation set forth in Section 6.3 (the “Automatic Conversion”). In determining the application of the Beneficial Ownership Limitations solely with respect to the Automatic Conversion, the Corporation shall calculate beneficial ownership for each Holder assuming beneficial ownership by such Holder of: (x) the number of shares of Common Stock issuable to such Holder in such Automatic Conversion, plus (y) any additional shares of Common Stock for which a Holder has provided the Corporation with prior written notice of beneficial ownership within forty-five (45) days prior to the date of Stockholder Approval (a “Beneficial Ownership Statement”) and assuming the conversion of all shares of Series G Non-Voting Preferred Stock held by all other Holders less the aggregate number of shares of Series G Non-Voting Preferred Stock held by all other Holders that will not convert into shares of Common Stock on account of the application of any Beneficial Ownership Limitations applicable to any such other Holders. If a Holder fails to provide the Corporation with a Beneficial Ownership Statement within forty-five 45 days prior to the date of Stockholder Approval, then the Corporation shall presume the Holder’s beneficial ownership of Common Stock (excluding the Conversion Shares) to be zero. The shares of Series G Non-Voting Preferred Stock that are converted in the Automatic Conversion are referred to as the “Converted Stock.”
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| (a) | Converted Stock that is registered in book entry form shall be automatically converted upon the Automatic Conversion into the corresponding Conversion Shares, which shares shall be issued in book entry form and without any action on the part of the Holders. |
| (b) | Converted Stock that is issued in certificated form shall be automatically converted upon the Automatic Conversion into the corresponding Conversion Shares and any certificate that formerly represented the Converted Stock shall be deemed to represent the Conversion Shares into which the Converted Stock shall have been automatically converted. For the avoidance of doubt, upon the Automatic Conversion, all shares of Series G Non-Voting Preferred Stock to be converted thereby shall be converted, whether or not any physical certificate(s) representing the Converted Stock shall have been delivered to the Corporation in advance thereof. |
| (c) | Whether or not the Converted Stock is in book-entry or certificated form, upon the Automatic Conversion, the Holder thereof shall cease to have any rights as holder of shares of Series G Non-Voting Preferred Stock, except for the right to receive the Conversion Shares into which the Converted Stock has been converted in accordance with the terms of this Certificate of Designation. Notwithstanding the foregoing and the automatic conversion of the Converted Stock upon the Automatic Conversion, Holders of Converted Stock shall continue to have any remedies provided herein or otherwise available at law or in equity to such Holder because of a failure by the Corporation to comply with the terms of this Certificate of Designation. In all cases, the Holder shall retain all of its rights and remedies for the Corporation’s failure to convert the Converted Stock in accordance with the terms of this Certificate of Designation. |
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6.1.2 Optional Conversion Following Stockholder Approval. Subject to Section 6.1.1, Section 6.3 and Section 6.4.3, at any time and from time to time as of 5:00 p.m. Eastern Time on the third (3rd) Business Day after the Stockholder Approval is obtained, each Holder of shares of Series G Non-Voting Preferred Stock that were not converted in the Automatic Conversion due to the Beneficial Ownership Limitation may, at its option, effect conversions of one or more shares of such Holder’s Series G Non-Voting Preferred Stock into a number of shares of Common Stock equal to the Conversion Ratio (each, an “Optional Conversion”) by delivering to the Corporation a form of conversion notice attached hereto as Annex A (a “Notice of Conversion”), duly completed and executed. The date on which an Optional Conversion shall be deemed effective (the “Conversion Date”) shall be close of business on the Trading Day that the Notice of Conversion, completed and executed, is sent via email to sromano@firstwavebio.com and investors@FirstWaveBio.com, and received during regular business hours by, the Corporation.
6.2. Conversion Ratio. The “Conversion Ratio” for each share of Series G Non-Voting Preferred Stock shall be 1,000 shares of Common Stock issuable upon the conversion of each share of Series G Non-Voting Preferred Stock (corresponding to a ratio of 1,000:1), subject to adjustment as provided herein.
6.3. Beneficial Ownership Limitation. Notwithstanding anything herein to the contrary, no conversion of a share of Series G Non-Voting Preferred Stock shall be effective, including pursuant to Section 6.1.1, and a Holder shall not have the right to convert any portion of the Series G Non-Voting Preferred Stock, to the extent that, after giving effect to an attempted or proposed conversion pursuant to the Automatic Conversion or pursuant to an Optional Conversion as set forth on an applicable Notice of Conversion, as the case may be, such Holder (together with any other Person whose beneficial ownership of Common Stock would be aggregated with such Holder’s for purposes of Section 13(d) or Section 16 of the Exchange Act and the applicable regulations of the Commission, including any “group” of which the Holder is a member (the foregoing, “Attribution Parties”)) would beneficially own a number of shares of Common Stock in excess of the Beneficial Ownership Limitation. For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such Holder and its Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of the Series G Non-Voting Preferred Stock subject to the Automatic Conversion or the Notice of Conversion, as applicable, with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (A) conversion of the remaining, unconverted Series G Non-Voting Preferred Stock beneficially owned by such Holder or any of its Attribution Parties, and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation (including any warrants) beneficially owned by such Holder or any of its Attribution Parties that are subject to a limitation on conversion or exercise similar to the limitation contained herein. For purposes of this Section 6.3, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the applicable regulations of the Commission. In addition, for purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and the applicable regulations of the Commission. For purposes of this Section 6.3, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (A) the Corporation’s most recent periodic or annual filing with the Commission, as the case may be, (B) a more recent public announcement by the Corporation that is filed with the Commission, or (C) a more recent notice by the Corporation or the Corporation’s transfer agent to the Holder setting forth the number of shares of Common Stock then outstanding. Upon the written request of a Holder (which may be by email), the Corporation shall, within three (3) Trading Days thereof, confirm in writing to such Holder (which may be via email) the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to any actual conversion or exercise of securities of the Corporation, including shares of Series G Non-Voting Preferred Stock, by such Holder or its Attribution Parties since the date as of which such number of outstanding shares of Common Stock was last publicly reported or confirmed to the Holder. The “Beneficial Ownership Limitation” shall initially be set at 19.9% for each Holder and its Attribution Parties and may be adjusted at the discretion of the Holder to a number between 4.9% and 19.9% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock pursuant to the Automatic Conversion or such Notice of Conversion (as applicable), to the extent permitted pursuant to this Section 6.3. In the case of any Optional Conversion, the Corporation shall be entitled to rely on representations made to it by the Holder in any Notice of Conversion regarding its Beneficial Ownership Limitation. Notwithstanding the foregoing, by written notice to the Corporation, (i) which will not be effective until the sixty-first (61st) day after such written notice is delivered to the Corporation, the Holder may reset the Beneficial Ownership Limitation percentage to a higher percentage, not to exceed 19.9%, to the extent then applicable and (ii) which will be effective immediately after such notice is delivered to the Corporation, the Holder may reset the Beneficial Ownership Limitation percentage to a lower percentage (but in no event less than 4.9%). Upon such a change by a Holder of the Beneficial Ownership Limitation, the Beneficial Ownership Limitation may not be further amended by such Holder without first providing the minimum notice required by this Section 6.3.
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6.4. Mechanics of Conversion.
6.4.1 Delivery of Certificate or Electronic Issuance Upon Conversion. Not later than two (2) Trading Days after the applicable Conversion Date (the “Share Delivery Date”), the Corporation shall either: (a) in the event that the Holder has so elected in a Notice of Conversion, deliver, or cause to be delivered, to such Holder a physical certificate or certificates representing the number of Conversion Shares being acquired upon the conversion of the shares of Series G Non-Voting Preferred Stock or (b) otherwise shall deliver, or cause to be delivered, to such Holder, documentation of the book entry for the number of Conversion Shares being acquired pursuant to the conversion.
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6.4.2 Obligation Absolute. Subject to Section 6.3 and Section 6.4.4 hereof, the Corporation’s obligation to issue and deliver the Conversion Shares upon conversion of outstanding Series G Non-Voting Preferred Stock in accordance with the terms hereof is absolute and unconditional, irrespective of any action or inaction by a Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by such Holder or any other Person of any obligation to the Corporation or any violation or alleged violation of law by such Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Corporation to such Holder in connection with the issuance of such Conversion Shares. Subject to Section 6.3 and Section 6.4.4 hereof, in the event a Holder shall elect to convert any or all of its outstanding Series G Non-Voting Preferred Stock, the Corporation may not refuse conversion based on any claim that such Holder or anyone associated or affiliated with such Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction from a court, on notice to such Holder, restraining and/or enjoining conversion of all or part of the outstanding Series G Non-Voting Preferred Stock of such Holder shall have been sought and obtained by the Corporation, and the Corporation posts a surety bond for the benefit of such Holder in the amount of 150% of the value of the Conversion Shares into which would be converted the Series G Non-Voting Preferred Stock which is subject to such injunction, which bond shall remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to such Holder to the extent it obtains judgment. In the absence of such injunction, the Corporation shall, subject to Section 6.3 and Section 6.4.4 hereof, issue Conversion Shares in accordance with the terms of this Certificate of Designation.
6.4.3 Cash Settlement. If (a) at any time after the receipt of Stockholder Approval, the Corporation fails to electronically deliver (or cause its transfer agent to electronically deliver) the Conversion Shares to which a Holder is otherwise entitled pursuant to Section 6.4.1 on or prior to the second (2nd) Trading Day after the Share Delivery Date (other than due to a failure caused by (i) incorrect or incomplete information provided by a Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation), or (b) if Stockholder Approval is not obtained within six (6) months after the initial issuance of the Series G Non-Voting Preferred Stock, then, the Corporation shall, at such request of the Holder, to the extent permitted by applicable law, pay an amount equal to the Fair Value (as defined below) of such undelivered Conversion Shares to such Holder, with such payment to be made within two Business Days from the date of request by such Holder, whereupon the Corporation’s obligations to deliver such Conversion Shares issuable upon the Automatic Conversion or underlying the Notice of Conversion shall be extinguished upon payment in full of the Fair Value of such undelivered shares. For purposes of this Section 6.4.3, the “Fair Value” of shares shall be fixed with reference to the last reported Closing Sale Price on the principal Trading Market on which the Common Stock is listed as of the Trading Day immediately prior to, in the case of the Automatic Conversion, the date of the Stockholder Approval, and in the case of an Optional Conversion, the Optional Conversion Date. For the avoidance of doubt, the cash settlement provisions set forth in this Section 6.4.3 shall be available irrespective of the reason for the Corporation’s failure to timely deliver Conversion Shares (other than due to a failure caused by (i) incorrect or incomplete information provided by Holder to the Corporation or (ii) the application of the Beneficial Ownership Limitation), including due to limitations set forth in Section 6.4.5 or due to applicable Trading Market rules.
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6.4.4 Buy-In on Failure to Timely Deliver Certificates Upon Conversion. If the Corporation fails to deliver to a Holder the applicable certificate or certificates or to provide documentation of book entry form, as applicable, by the Share Delivery Date pursuant to Section 6.4.1 (other than a failure caused by incorrect or incomplete information provided by Holder to the Corporation or the application of the Beneficial Ownership Limitation), and if after such Share Delivery Date such Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by such Holder of the Conversion Shares which such Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then, at the option and election of such Holder in its sole discretion, the Corporation shall (A) pay in cash to such Holder (in addition to any other remedies available to and elected by such Holder to the extent such other remedies do not result in a recovery in excess of such Holder’s applicable damages) the amount by which (x) such Holder’s total purchase price (including any brokerage commissions) for the shares of Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that such Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions), in which case any such cash payment by the Corporation shall satisfy and extinguish the Corporation’s obligation to issue and deliver to such Holder the Conversion Shares which such Holder was entitled to receive upon the conversion relating to such Share Delivery Date, and (B) shall deliver to such Holder the number of shares of Common Stock that would have been issued if the Corporation had timely complied with its delivery requirements under Section 6.4.1. For example, if a Holder effects a Buy-In by purchasing shares of Common Stock having a total purchase price of $11,000 to cover an attempted conversion of shares of Series G Non-Voting Preferred Stock with respect to which the actual sale price (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately preceding sentence, the Corporation shall be required to pay such Holder $1,000. The Holder shall provide the Corporation written notice, within three (3) Trading Days after the occurrence of a Buy-In, indicating the amounts payable to such Holder in respect of such Buy-In together with applicable confirmations and other evidence reasonably requested by the Corporation. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Corporation’s failure to timely deliver a certificate or certificates representing, or to provide documentation of book entry form of, shares of Common Stock upon conversion of the shares of Series G Non-Voting Preferred Stock as required pursuant to the terms hereof or the cash settlement remedy set forth in Section 6.4.3; provided, however, that such Holder shall not be entitled any recoveries in excess of the amount of such Holder’s damages or losses from such failure by the Corporation.
6.4.5 Reservation of Shares Issuable Upon Conversion. The Corporation covenants that, contingent upon receipt of Stockholder Approval after the date hereof to increase the Corporation’s shares of authorized Common Stock to a number of shares sufficient to be reserved for the conversion of all outstanding shares of Series G Non-Voting Preferred Stock, the Corporation will reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of outstanding shares of Series G Non-Voting Preferred Stock, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holders of the Series G Non-Voting Preferred Stock, not less than such aggregate number of shares of the Common Stock as shall be issuable (taking into account the adjustments of Section 7) upon the conversion of all outstanding shares of Series G Non-Voting Preferred Stock. The Corporation covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and non-assessable.
6.4.6 Fractional Shares. No fractional shares or scrip representing fractional shares of Common Stock shall be issued upon conversion of the Series G Non-Voting Preferred Stock. In lieu of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the Closing Sale Price of a share of Common Stock on the applicable conversion date. Whether or not fractional shares would be issuable upon such conversion shall be determined on the basis of the total number of shares of Series G Non-Voting Preferred Stock the Holder is at the time converting into Common Stock and the aggregate number of shares of Common Stock issuable upon such conversion.
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6.4.7 Transfer Taxes. The delivery of certificates or book-entry documentation representing shares of the Common Stock upon conversion of the Series G Non-Voting Preferred Stock shall be made without charge to any Holder for any documentary stamp or similar taxes that may be payable in respect of the delivery of such certificates; provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the delivery of any such certificate, or any registration of book-entry shares, upon conversion in a name other than that of the registered Holder(s) of such shares of Series G Non-Voting Preferred Stock and the Corporation shall not be required to deliver such certificates unless or until the Person or Persons requesting the delivery thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid.
6.5. Status as Stockholder. Upon each conversion of shares of Series G Non-Voting Preferred Stock, (i) such shares of Series G Non-Voting Preferred Stock being converted shall automatically convert into shares of Common Stock and (ii) the applicable Holder’s rights as a holder of such converted shares of Series G Non-Voting Preferred Stock shall cease and terminate, excepting only the right to receive certificates or book-entry documentation for such shares of Common Stock in the manner provided herein and to any remedies provided herein or otherwise available at law or in equity to such Holder because of a failure by the Corporation to comply with the terms of this Certificate of Designation. In all cases, each applicable Holder shall retain all of its rights and remedies for the Corporation’s failure to convert Series G Non-Voting Preferred Stock in accordance with terms of this Certificate of Designation. In no event shall the Series G Non-Voting Preferred Stock convert into shares of Common Stock prior to the Stockholder Approval.
7. Certain Adjustments.
7.1. Stock Dividends and Stock Splits. If the Corporation, at any time while any Series G Non-Voting Preferred Stock is outstanding: (A) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation upon conversion of the Series G Non-Voting Preferred Stock) with respect to the then outstanding shares of Common Stock; (B) subdivides outstanding shares of Common Stock into a larger number of shares; or (C) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, then the Conversion Ratio shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately after such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately before such event (excluding any treasury shares of the Corporation). Any adjustment made pursuant to this Section 7.1 shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
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7.2. Fundamental Transaction. If, at any time while the Series G Non-Voting Preferred Stock is outstanding, (A) the Corporation effects any merger or consolidation of the Corporation with or into another Person or any stock sale to, or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, share exchange or scheme of arrangement) with or into another Person (other than any such transaction in which the Corporation is the surviving or continuing entity and the outstanding shares of its Common Stock are not exchanged for or converted into other securities, cash or property), (B) the Corporation effects any sale, lease, transfer or exclusive license of all or substantially all of its assets in one transaction or a series of related transactions, (C) any tender offer or exchange offer (whether by the Corporation or another Person) is completed pursuant to which more than 50% of the Common Stock not held by the Corporation or such Person is exchanged for or converted into other securities, cash or property, or (D) the Corporation effects any reclassification of the Common Stock or any compulsory share exchange pursuant (other than as a result of a dividend, subdivision or combination covered by Section 7.1 above) to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (in any such case, a “Fundamental Transaction”), then, upon any subsequent conversion of the Series G Non-Voting Preferred Stock the Holders shall have the right to receive, in lieu of the right to receive Conversion Shares, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction, the same kind and amount of securities, cash or property as it would have been entitled to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of one (1) share of Common Stock (the “Alternate Consideration”). For purposes of any such subsequent conversion, the determination of the Conversion Ratio shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one (1) share of Common Stock in such Fundamental Transaction, and the Corporation shall adjust the Conversion Ratio in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holders shall be given the same choice as to the Alternate Consideration it receives upon any conversion of the Series G Non-Voting Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental Transaction shall file a new certificate of designations with the same terms and conditions and issue to the Holders new preferred stock consistent with the foregoing provisions and evidencing the Holders’ right to convert such preferred stock into Alternate Consideration. The terms of any agreement to which the Corporation is a party and pursuant to which a Fundamental Transaction is effected shall include terms requiring any such successor or surviving entity to comply with the provisions of this Section 7.2 and insuring that the Series G Non-Voting Preferred Stock (or any such replacement security) will be similarly adjusted upon any subsequent transaction analogous to a Fundamental Transaction. The Corporation shall cause to be delivered to each Holder, at its last address as it shall appear upon the stock books of the Corporation, written notice of any Fundamental Transaction at least twenty (20) calendar days prior to the date on which such Fundamental Transaction is expected to become effective or close.
7.3. Calculations. All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.
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8. Redemption. The shares of Series G Non-Voting Preferred Stock shall not be redeemable at the option of the Corporation or the Holder thereof; provided, however, that the foregoing shall not limit the ability of the Corporation to purchase or otherwise deal in such shares to the extent otherwise permitted hereby and by law, nor shall the foregoing limit the Holder’s rights under Section 6.4.3.
9. Transfer. A Holder may transfer any shares of Series G Non-Voting Preferred Stock, held by such Holder without the consent of the Corporation; provided that such transfer is in compliance with applicable securities laws. The Corporation shall in good faith (i) do and perform, or cause to be done and performed, all such further acts and things, and (ii) execute and deliver all such other agreements, certificates, instruments and documents, in each case, as any Holder may reasonably request in order to carry out the intent and accomplish the purposes of this Section 9.
10. Series G Non-Voting Preferred Stock Register. The Corporation shall maintain at its principal executive offices (or such other office or agency of the Corporation as it may designate by notice to the Holders in accordance with Section 11), a register for the Series G Non-Voting Preferred Stock, in which the Corporation shall record, in addition to any information otherwise required by law to be set forth on such register, (i) the name, address, electronic mail address of each Holder in whose name the shares of Series G Non-Voting Preferred Stock have been issued and (ii) the name, address, electronic mail address of each transferee of any shares of Series G Non-Voting Preferred Stock. The Corporation may treat the person in whose name any share of Series G Non-Voting Preferred Stock is registered on the register as the owner and holder thereof for all purposes.
11. Notices. Any and all notices or other communications or deliveries to be provided to the Corporation hereunder, including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, via email or sent by a nationally recognized overnight courier service, addressed to First Wave BioPharma, Inc., at 777 Yamato Road, Suite 502, Boca Raton, Florida 33431, Attention: Chief Financial Officer, email: sromano@firstwavebio.com, or such other email address or mailing address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section 11. Any and all notices or other communications or deliveries to be provided to a Holder hereunder shall be in writing and delivered personally, by email at the email address of such Holder appearing on the books of the Corporation, or if no such email address appears on the books of the Corporation, sent by a nationally recognized overnight courier service addressed to such Holder, at the address on the records of the Corporation. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via email at the email address specified in this Section 11 prior to 5:30 p.m. Eastern Time on any date, (ii) the date immediately following the date of transmission, if such notice or communication is delivered via email at the email address specified in this Section 11 between 5:30 p.m. and 11:59 p.m. Eastern Time on any date, (iii) the second (2nd) Business Day following the date of mailing, if sent by nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
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12. Book-Entry; Certificates. The Series G Non-Voting Preferred Stock will be uncertificated and issued in book-entry form. To the extent that any shares of Series G Non-Voting Preferred Stock are issued in book-entry form, references herein to “certificates” shall instead refer to the book-entry notation relating to such shares.
13. Lost or Mutilated Series G Non-Voting Preferred Stock Certificate. If any certificate representing a Holder’s Series G Non-Voting Preferred Stock shall be mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Series G Non-Voting Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership thereof reasonably satisfactory to the Corporation and, in each case, customary and reasonable indemnity, if requested by the Corporation. Applicants for a new certificate under such circumstances shall also comply with such other reasonable regulations and procedures and pay such other reasonable third-party costs as the Corporation may prescribe.
14. Waiver. Notwithstanding any provision in this Certificate of Designation to the contrary, any provision contained in this Certificate of Designation and any right of the Holders of Series G Non-Voting Preferred Stock granted under this Certificate of Designation may be waived as to all shares of Series G Non-Voting Preferred Stock (and the Holders thereof) upon the written consent of the Holders of not less than a majority of the shares of Series G Non-Voting Preferred Stock then outstanding, unless a higher percentage is expressly required by the DGCL, in which case the written consent of the Holders of not less than such higher percentage shall be required.
15. Severability. Whenever possible, each provision hereof shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision hereof is held to be prohibited by or invalid under applicable law, then such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions hereof.
16. Status of Converted Series G Non-Voting Preferred Stock. If any shares of Series G Non-Voting Preferred Stock shall be converted or repurchased by the Corporation, such shares shall be retired and, upon retirement, resume the status of authorized but unissued shares of preferred stock and shall no longer be designated as Series G Non-Voting Preferred Stock and may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned has executed this Certificate of Designation as of this 13th day of March 2024.
| FIRST WAVE BIOPHARMA, INC. | ||
| By: | /s/ James Sapirstein | |
| Name: | James Sapirstein | |
| Title: | Chief Executive Officer | |
[Signature Page to Certificate of Designation]
ANNEX A
NOTICE OF CONVERSION
(TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT
SHARES OF
SERIES G NON-VOTING CONVERTIBLE PREFERRED STOCK)
The undersigned Holder hereby irrevocably elects to convert the number of shares of Series G Non-Voting Convertible Preferred Stock, $0.0001 par value per share (the “Series G Non-Voting Preferred Stock”), of First Wave BioPharma, Inc., a Delaware corporation (the “Corporation”), indicated below, represented in book-entry form, into shares of common stock, $0.0001 par value per share (the “Common Stock”), of the Corporation, as of the date written below. If securities are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. Capitalized terms utilized but not defined herein shall have the meaning ascribed to such terms in that certain Certificate of Designation of Preferences, Rights and Limitations of Series G Non-Voting Convertible Preferred Stock (the “Certificate of Designation”) filed by the Corporation with the Secretary of State of the State of Delaware on March 13, 2024.
As of the date hereof, the number of shares of Common Stock beneficially owned by the undersigned Holder (together with such Holder’s Attribution Parties), including the number of shares of Common Stock issuable upon conversion of the Series G Non-Voting Preferred Stock subject to this Notice of Conversion, but excluding the number of shares of Common Stock which are issuable upon (A) conversion of the remaining, unconverted Series G Non-Voting Preferred Stock beneficially owned by such Holder or any of its Attribution Parties, and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation (including any warrants) beneficially owned by such Holder or any of its Attribution Parties that are subject to a limitation on conversion or exercise similar to the limitation contained in Section 6.3 of the Certificate of Designation, is ____%. For purposes hereof, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the applicable regulations of the Commission. In addition, for purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and the applicable regulations of the Commission.
CONVERSION CALCULATIONS:
Date to Effect Conversion: ___________________________
Number of shares of Series G Non-Voting Preferred Stock owned prior to Conversion: ___________________________
Number of shares of Series G Non-Voting Preferred Stock to be Converted: ___________________________
Number of shares of Common Stock to be Issued: __________________________________
Address for delivery of physical certificates: __________________________________
For DWAC Delivery, please provide the following:
Broker No.: _______________________________________________
Account No.: _____________________________________________
| [HOLDER] | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit 4.1
FORM OF WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
No. _____
WARRANT TO PURCHASE COMMON STOCK
of
IMMUNOGENX, INC.
This certifies that, for value received, _______ or registered assigns (“Holder”) is entitled, subject to the terms set forth below, to purchase from Immunogenx, Inc. (the “Company”), a Delaware corporation, _______ shares of common stock, par value $0.0001 per share, of the Company, and any capital stock into which such Common Stock shall have been converted, exchanged, or reclassified following the date hereof (the “Common Stock”), beginning on the date hereof (the “Warrant Issue Date”), upon surrender hereof, at the principal office of the Company referred to below, with the subscription form attached hereto duly executed, and simultaneous payment therefor in lawful money of the United States or otherwise as hereinafter provided, at the Exercise Price as set forth in Section 2 below. The number, character and Exercise Price of such shares of Common Stock are subject to adjustment as provided below. The term “Warrant” as used herein shall include this Warrant, and any warrants delivered in substitution or exchange therefor as provided herein.
This Warrant has been issued pursuant to the terms of the Credit Agreement, dated as of even date herewith (the “Credit Agreement”), between the Company and the Holder
1. Term of Warrant. Subject to the terms and conditions set forth herein, this Warrant shall be exercisable, in whole or in part, during the term commencing on the Warrant Issue Date and ending at 5:00 p.m., Pacific Time, on _______ (the “Exercise Period”), and shall be void thereafter. The Company shall give the Holder written notice of the expiration of the Exercise Period not less than 10 days but not more than 30 days prior to the end of the Exercise Period.
2. Exercise Price. The Exercise Price at which this Warrant may be exercised shall be $____ per share of Common Stock, as adjusted from time to time pursuant to Section 11 hereof.
3. Exercise of Warrant.
3.1 Exercise. The purchase rights represented by this Warrant are exercisable by the Holder in whole or in part, at any time, or from time to time, during the Exercise Period, by the surrender of this Warrant and the Notice of Exercise annexed hereto duly completed and executed on behalf of the Holder, at the office of the Company (or such other office or agency of the Company as it may designate by notice in writing to the Holder at the address of the Holder appearing on the books of the Company), upon payment (i) in cash or by check acceptable to the Company, (ii) by cancellation by the Holder of indebtedness of the Company to the Holder, or (iii) by a combination of (i) and (ii), of the purchase price of the shares to be purchased.
This Warrant shall be deemed to have been exercised immediately prior to the close of business on the date of its surrender for exercise as provided above, and the person entitled to receive the shares of Common Stock issuable upon such exercise shall be treated for all purposes as the holder of record of such shares as of the close of business on such date. As promptly as practicable on or after such date and in any event within ten (10) days thereafter, the Company at its expense shall issue and deliver to the person or persons entitled to receive the same a certificate or certificates for the number of shares issuable upon such exercise. In the event that this Warrant is exercised in part, the Company at its expense will execute and deliver a new Warrant of like tenor exercisable for the number of shares for which this Warrant may then be exercised.
3.2 No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company shall make a cash payment equal to the Exercise Price multiplied by such fraction.
3.3 Rights of Stockholders. Subject to Section 11 of this Warrant, the Holder shall not be entitled to vote or receive dividends or be deemed the holder of Common Stock or any other securities of the Company that may at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, change of par value, or change of stock to no par value, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until the Warrant shall have been exercised and the shares of Common Stock purchasable upon the exercise hereof shall have been issued, as provided herein.
3.4 Transferability and Nonnegotiability of Warrant. This Warrant may not be transferred or assigned in whole or in part without compliance with all applicable federal and state securities laws by the transferor and the transferee (including the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, if such are requested by the Company). Subject to the provisions of this Warrant with respect to compliance with the Securities Act of 1933, as amended (the “Act”), title to this Warrant may be transferred by endorsement (by the Holder executing the Assignment Form annexed hereto) and delivery in the same manner as a negotiable instrument transferable by endorsement and delivery.
4. Compliance with Securities Laws. The Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant and the shares of Common Stock or Common Stock to be issued upon exercise hereof or conversion thereof are being acquired solely for the Holder’s own account and not as a nominee for any other party, and for investment, and that the Holder will not offer, sell, or otherwise dispose of this Warrant or any shares of Common Stock or Common Stock to be issued upon exercise hereof or conversion thereof except under circumstances that will not result in a violation of the Act or any state securities laws. Upon exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of Common Stock or Common Stock so purchased are being acquired solely for the Holder’s own account and not as a nominee for any other party, for investment, and not with a view toward distribution or resale.
This Warrant and all shares of Common Stock or Common Stock issued upon exercise hereof or conversion thereof shall be stamped or imprinted with a legend in substantially the following form (in addition to any legend required by state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT.
5. Reservation of Stock. The Company covenants that during the Term this Warrant is exercisable, the Company will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of Common Stock upon the exercise of this Warrant (and shares of its Common Stock for issuance on conversion of such Common Stock) and, from time to time, will take all steps necessary to amend its Certificate of Incorporation (the “Certificate”) to provide sufficient reserves of shares of Common Stock issuable upon exercise of the Warrant (and shares of its Common Stock for issuance on Conversion of such Common Stock). The Company further covenants that all shares that may be issued upon the exercise of rights represented by this Warrant, upon exercise of the rights represented by this Warrant and payment of the Exercise Price, all as set forth herein, will be free from all taxes, liens, and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously or otherwise specified herein). The Company agrees that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for shares of Common Stock upon the exercise of this Warrant.
6. Notices. In the event:
(a) that the Company shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon exercise of the Warrant) for the purpose of entitling or enabling them to receive any dividend or other distribution, to vote at a meeting (or by written consent), to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities, or to receive any other right or security; or
(b) of any capital reorganization of the Company, any reclassification of the capital stock of the Company, any consolidation or merger of the Company with or into another person or entity, or sale, transfer or conveyance of all or substantially all of the Company’s assets to another person or entity; or
(c) of the voluntary or involuntary dissolution, liquidation, or winding-up of the Company;
then, and in each such case, the Company shall send or cause to be sent to the Holder at least twenty (20) days prior to the applicable record date or the applicable expected effective date, as the case may be, for the event, a written notice specifying, as the case may be, (A) the record date for such dividend, distribution, meeting or consent, or other right or action, and a description of such dividend, distribution, or other right or action to be taken at such meeting or by written consent, or (B) the effective date on which such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation, or winding-up is proposed to take place, and the date, if any is to be fixed, as of which the books of the Company shall close or a record shall be taken with respect to which the holders of record of Common Stock (or such other capital stock or securities at the time issuable upon exercise of the Warrant) shall be entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation, or winding-up, and the amount per share and character of such exchange applicable to the Warrant and the securities issuable hereunder.
7. Certificate of Adjustment. Whenever the Exercise Price or number of shares purchasable hereunder shall be adjusted pursuant to Section 11 hereof, the Company shall issue a certificate signed by its Chief Financial Officer setting forth, in reasonable detail, the event requiring the adjustment, the amount of the adjustment, the method by which such adjustment was calculated and the Exercise Price and number of shares purchasable hereunder after giving effect to such adjustment, and shall cause a copy of such certificate to be mailed (by first class mail, postage prepaid) to the Holder of this Warrant.
8. Replacement on Loss. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this Warrant and upon delivery of an indemnity reasonably satisfactory to it (it being understood that a written indemnification agreement or affidavit of loss of the Holder shall be a sufficient indemnity) and, in case of mutilation, upon surrender of such Warrant for cancellation to the Company, the Company at its own expense shall execute and deliver to the Holder, in lieu hereof, a new Warrant of like tenor and exercisable for an equivalent number and type of securities as the Warrant so lost, stolen, mutilated, or destroyed; provided, that, in the case of mutilation, no indemnity shall be required if this Warrant in identifiable form is surrendered to the Company for cancellation.
9. Purchase Rights. In addition to any adjustments pursuant to Section 11, if at any time the Company grants, issues, or sells any shares of Common Stock, options, convertible securities, or rights to purchase stock, warrants, securities, or other property pro rata to the record holders of Common Stock (the “Purchase Rights”), then the Holder shall be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder would have acquired if the Holder had held the number of shares acquirable upon complete exercise of this Warrant immediately before the date on which a record is taken for the grant, issuance, or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issue, or sale of such Purchase Rights. Anything herein to the contrary notwithstanding, the Holder shall not be entitled to the Purchase Rights granted herein with respect to any issuance or sale by the Company after the Warrant Issue Date of: (a) shares of Common Stock issued upon the exercise of this Warrant; (b) shares of Common Stock (as such number of shares is equitably adjusted for subsequent stock splits, stock combinations, stock dividends, and recapitalizations) issued directly or upon the exercise of options to directors, officers, employees, or consultants of the Company in connection with their service as directors of the Company, their employment by the Company, or their retention as consultants by the Company, in each case authorized by the Board and issued pursuant to the Company’s equity incentive plan (including all such shares of Common Stock and options outstanding prior to the Warrant Issue Date); or (c) shares of Common Stock issued upon the conversion or exercise of Options (other than Options covered by clause (b) above) or convertible securities issued prior to the Warrant Issue Date, provided that such securities are not amended after the date hereof to increase the number of shares of Common Stock issuable thereunder or to lower the exercise or conversion price thereof.
10. [Intentionally Omitted.]
11. Adjustments. In order to prevent dilution of the purchase rights granted under this Warrant, the number of shares purchasable hereunder are subject to adjustment from time to time as follows:
11.1 Reorganization, Merger, Consolidation, Sale of Assets, Reclassification. If at any time, while this Warrant, or any portion thereof, is outstanding and unexpired there shall be (i) a reorganization (other than a combination, reclassification, exchange or subdivision of shares otherwise provided for herein), (ii) a merger or consolidation of the Company with or into another entity in which the Company is not the surviving entity, or a reverse triangular merger in which the Company is the surviving entity but the shares of the Company’s capital stock outstanding immediately prior to the merger are converted by virtue of the merger into other property, whether in the form of securities, cash, or otherwise, (iii) a sale or transfer of the Company’s properties and assets as, or substantially as, an entirety to any other person, (iv) reclassification of the capital stock of the Company, or (v) other similar transaction which entitles the holders of Common Stock to receive (either directly or upon subsequent liquidation) stock, securities, or assets with respect to or in exchange for Common Stock, then, as a part of such reorganization, merger, consolidation, sale or transfer, reclassification, or other transaction, lawful provision shall be made so that in lieu of or in addition to (as the case may be) the number of shares of Common Stock then exercisable under this Warrant, the Holder shall thereafter be entitled to receive upon exercise of this Warrant, during the period specified herein and upon payment of the Exercise Price then in effect, the number of shares of stock or other securities or property of the successor entity resulting from such reorganization, merger, consolidation, sale or transfer, reclassification, or other transaction which a holder of the shares deliverable upon exercise of this Warrant would have been entitled to receive in such reorganization, consolidation, merger, sale or transfer if this Warrant had been exercised immediately before such reorganization, merger, consolidation, sale or transfer, reclassification, or other transaction.
The foregoing provisions of this Section 11.1 shall similarly apply to successive reorganizations, consolidations, mergers, sales and transfers, reclassifications, and other similar transactions and to the stock or securities of any other corporation which are at the time receivable upon the exercise of this Warrant. If the per share consideration payable to the Holder for shares in connection with any such transaction is in a form other than cash or marketable securities, then the value of such consideration shall be determined in good faith by the Company’s Board of Directors and in form and substance reasonably satisfactory to the Holder. In all events, appropriate adjustment (as determined in good faith by the Company’s Board of Directors and reasonably satisfactory to the Holder) shall be made in the application of the provisions of this Warrant with respect to the rights and interests of the Holder after the transaction, to the end that the provisions of this Warrant shall be applicable after that event, as near as reasonably may be, in relation to any shares or other property deliverable after that event upon exercise of this Warrant.
11.2 Split, Subdivision or Combination of Shares. If the Company at any time while this Warrant, or any portion thereof, remains outstanding and unexpired shall split, subdivide or combine the securities as to which purchase rights under this Warrant exist, into a different number of securities of the same class, the Exercise Price for such securities shall be proportionately decreased in the case of a split or subdivision or proportionately increased in the case of a combination. Any adjustment under this Section 11.2 shall become effective at the close of business on the date the subdivision, or combination becomes effective.
11.3 Adjustments for Dividends in Stock or Other Securities or Property. If while this Warrant, or any portion hereof, remains outstanding and unexpired the holders of the securities as to which purchase rights under this Warrant exist at the time shall have received, or, on or after the record date fixed for the determination of eligible Stockholders, shall have become entitled to receive, without payment therefor, other or additional stock or other securities or property (other than cash) of the Company by way of dividend, then and in each case, this Warrant shall represent the right to acquire, in addition to the number of shares of the security receivable upon exercise of this Warrant, and without payment of any additional consideration therefor, the amount of such other or additional stock or other securities or property (other than cash) of the Company which such holder would hold on the date of such exercise had it been the holder of record of the security receivable upon exercise of this Warrant on the date hereof and had thereafter, during the period from the date hereof to and including the date of such exercise, retained such shares and/or all other additional stock available by it as aforesaid during such period, giving effect to all adjustments called for during such period by the provisions of this Section 11. Any adjustment under this Section 11.3 shall become effective at the close of business on the date the dividend becomes effective.
11.4 Certain Events. If any event of the type contemplated by the provisions of this Section 11 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights, or other rights with equity features) occurs, then the Company’s Board of Directors shall make an appropriate adjustment in the number of securities issuable upon exercise of this Warrant so as to protect the rights of the Holder in a manner consistent with the provisions of this Section 11; provided, that no such adjustment pursuant to this Section 11.5 shall decrease the number of securities issuable as otherwise determined pursuant to this Section 11.
11.5 Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment pursuant to this Section 11, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of this Warrant a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request, at any time, of any such holder, furnish or cause to be furnished to such holder a like certificate setting forth: (i) such adjustments and readjustments; (ii) the Exercise Price at the time in effect; and (iii) the number of shares and the amount, if any, of other property which at the time would be received upon the exercise of the Warrant.
12. No Impairment. The Company will not, by any voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Section 11 and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holders of this Warrant against impairment.
13. Miscellaneous.
13.1 Choice of Law. This Agreement shall be governed by and construed under the laws of the State of Delaware, irrespective of such state's conflicts of law principles.
13.2 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement shall not be effective until the execution and delivery between each of the parties of at least one set of counterparts. The parties authorize each other to detach and combine original signature pages and consolidate them into a single identical original. Any one of such completely executed counterparts shall be sufficient proof of this Agreement.
[remainder of page intentionally left blank; signature page follows]
IN WITNESS WHEREOF, Immunogenx, Inc. has caused this Warrant to be executed by its officers thereunto duly authorized.
Dated:_
| IMMUNOGENX, INC. | ||
| By | ||
| HOLDER | ||
NOTICE OF EXERCISE
To:
(1) The undersigned hereby elects to purchase shares of Common Stock of , pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price for such shares in full.
(2) In exercising this Warrant, the undersigned hereby confirms and acknowledges that the shares of Common Stock or the Common Stock to be issued upon conversion thereof are being acquired solely for the account of the undersigned and not as a nominee for any other party, and for investment, and that the undersigned will not offer, sell, or otherwise dispose of any such shares of Common Stock or Common Stock except under circumstances that will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws.
(3) Please issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned or in such other name as is specified below:
| [Name] | |
| [Name] |
(4) Please issue a new Warrant for the unexercised portion of the attached Warrant in the name of the undersigned or in such other name as is specified below:
| [Name] | ||
| [Date] | [Signature] | |
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned under the within Warrant, with respect to the number of shares of Common Stock (or Common Stock) set forth below:
| Name of Assignee | Address | No. of Shares | ||
and does hereby irrevocably constitute and appoint Attorney to make such transfer on the books of maintained for the purpose, with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee acknowledges that this Warrant and the shares of stock to be issued upon exercise hereof or conversion thereof are being acquired for investment and that the Assignee will not offer, sell or otherwise dispose of this Warrant or any shares of stock to be issued upon exercise hereof or conversion thereof except under circumstances which will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws. Further, the Assignee has acknowledged that upon exercise of this Warrant, the Assignee shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of stock so purchased are being acquired for investment and not with a view toward distribution or resale.
DATED:
| Signature of Holder | |
| (Witness) |
Exhibit 10.1
CREDIT AGREEMENT
Dated as of October 3, 2022
IMMUNOGENX, INC.
as Borrower
and
MATTRESS LIQUIDATORS, INC.
as Lender
TABLE OF CONTENTS
| Section | Heading | Page |
| SECTION 1. | Definitions; Interpretation | 1 |
| Section 1.1. | Definitions | 1 |
| Section 1.2. | Interpretation | 6 |
| SECTION 2. | The Credit Facilities | 6 |
| Section 2.1. | Revolving Loan | 6 |
| Section 2.2. | Disbursement of Revolving Loan | 6 |
| Section 2.3. | Interest on the Revolving Loan and Principal Payments | 7 |
| Section 2.4. | Prepayments | 7 |
| Section 2.5. | Default Rate and Late Fees | 8 |
| Section 2.6. | Collateral | 8 |
| Section 2.7. | Protective Advance | 8 |
| SECTION 3. | Fees and Expenses | 8 |
| Section 3.1. | Transaction Fees and Expenses | 8 |
| Section 3.2. | Upfront Closing Fee | 8 |
| Section 3.3. | Inspection Fees | 8 |
| SECTION 4. | Place and Application of Payments | 9 |
| Section 4.1. | Place of Payment | 9 |
| Section 4.2. | Application of Payments | 9 |
| Section 4.3. | Authorization for Direct Payment | 9 |
| SECTION 5. | Representations and Warranties of Borrower | 9 |
| Section 5.1. | Organization and Qualifications | 9 |
| Section 5.2. | Authority and Validity of Obligations | 10 |
| Section 5.3. | Use of Proceeds; Illegal Activities; Margin Stock | 10 |
| Section 5.4. | Financial Reports | 10 |
| Section 5.5. | Full Disclosure | 10 |
| Section 5.6. | Governmental Authority and Licensing | 10 |
| Section 5.7. | Good Title | 11 |
| Section 5.8. | Litigation and Other Controversies | 11 |
| Section 5.9. | Taxes | 11 |
| Section 5.10. | Approvals | 11 |
| Section 5.11. | Compliance with Laws | 11 |
| Section 5.12. | Other Agreements | 12 |
| Section 5.13. | Solvency | 12 |
| Section 5.14. | No Default | 12 |
| Section 5.15. | Patents, Trademarks, Franchises, and Licenses | 12 |
| Section 5.16. | Affiliate Transactions | 12 |
| SECTION 6. | Conditions Precedent | 12 |
| Section 6.1. | All Credit Events | 12 |
| Section 6.2. | Initial Credit Event | 13 |
| SECTION 7. | Covenants of Borrower | 14 |
| Section 7.1. | Maintenance of Business | 14 |
| Section 7.2. | Maintenance and Repair of Property | 14 |
| Section 7.3. | Taxes and Assessments | 14 |
| Section 7.4. | Insurance | 14 |
| Section 7.5. | Reporting and Covenants | 15 |
| Section 7.6. | Inspection of the Business and Collateral | 16 |
| Section 7.7. | Location of the Collateral | 16 |
| Section 7.8. | Liens | 16 |
| Section 7.9. | Borrowings and Guaranties | 17 |
| Section 7.10. | Compliance with Laws | 17 |
| Section 7.11. | Environmental Matters; Reporting | 17 |
| Section 7.12. | Change in the Nature of Business | 18 |
| Section 7.13. | Mergers, Consolidations and Sales | 18 |
| Section 7.14. | Burdensome Contracts With Affiliates | 18 |
| Section 7.15. | Subordinated Debt | 18 |
| Section 7.16. | Distributions | 18 |
| Section 7.17. | Use of Proceeds | 18 |
| Section 7.18. | Ownership Repurchase | 19 |
| Section 7.19. | Notification of Default | 19 |
| Section 7.20. | Material Notices | 19 |
| SECTION 8. | Events of Default and Remedies | 19 |
| Section 8.1. | Events of Default | 19 |
| Section 8.2. | Immediate Default and Acceleration | 21 |
| Section 8.3. | Effect of Default | 21 |
| Section 8.4. | Expenses | 22 |
| SECTION 9. | Miscellaneous | 22 |
| Section 9.1. | No Waiver, Cumulative Remedies | 22 |
| Section 9.2. | Non-Business Days | 22 |
| Section 9.3. | Documentary Taxes | 22 |
| Section 9.4. | Survival of Representations | 23 |
| Section 9.5. | Survival of Indemnities | 23 |
| Section 9.6. | Notices | 23 |
| Section 9.7. | Counterparts | 23 |
| Section 9.8. | Successors and Assigns | 23 |
| Section 9.9. | Participants | 24 |
| Section 9.10. | Assignments | 24 |
| Section 9.11. | Amendments and Waivers | 24 |
| Section 9.12. | Headings | 24 |
| Section 9.13. | Costs and Expenses; Indemnification | 24 |
| Section 9.14. | Set-off | 24 |
| Section 9.15. | Entire Agreement | 25 |
| Section 9.16. | Governing Law | 25 |
| Section 9.17. | Waiver of Jury Trial | 25 |
| Section 9.18. | Severability of Provisions | 25 |
| Section 9.19. | Excess Interest | 25 |
| Section 9.20. | Construction | 26 |
| Section 9.21. | Further Assurance | 26 |
| Section 9.22. | Relationship of the Parties | 26 |
Exhibits and Schedules
Exhibit A — Form of Advance Request
CREDIT AGREEMENT
This Credit Agreement is entered into as of October 3, 2022, by and between IMMUNOGENX, INC., a Delaware corporation (“Borrower”), and MATTRESS LIQUIDATORS, INC., a Colorado corporation (together with its successors and assigns, “Lender”). All capitalized terms used herein without definition shall have the same meanings herein as such terms are defined in Section 1.1 hereof.
PRELIMINARY STATEMENT
WHEREAS, Borrower has requested, and Lender has agreed to extend, a revolving loan on the terms and conditions of this Agreement; and
WHEREAS, Borrower has requested Lender enter into this Agreement and the other Loan Documents.
Now, Therefore, in consideration of the mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions; Interpretation.
Section 1.1. Definitions. The following terms when used herein shall have the following meanings:
“Advance” means a cash advance under the Note.
“Advance Request” is defined in Section 2.2 hereof.
“Affiliate” means any Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, another Person. A Person shall be deemed to control another Person for purposes of this definition if such Person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of the other Person, whether through the ownership of voting securities, common directors, trustees or officers, by contract or otherwise.
“Agreement” means this Credit Agreement, as the same may be amended, modified, restated or supplemented from time to time pursuant to the terms hereof.
“Attorney’s Fees and Costs” means attorneys’ fees, costs and expenses, expert witness fees, investigation costs and expenses, court costs, receivership fees and costs, and disbursements.
“Borrower” means ImmunogenX, Inc., a Delaware corporation.
“Business Day” means any day (other than a Saturday or Sunday) on which banks are not authorized or required to close in Denver, Colorado.
“Closing Date” means the first Business Day upon which each condition described in Section 6 shall be satisfied in a manner reasonably acceptable to Lender or waived by Lender in writing.
“Closing Fee” is defined in Section 3.2.
1
“Collateral” shall mean, collectively, the (i) the “collateral” as defined in the Security Agreement the , (ii) the assignment of the Stanford Agreement, and (iii) all other assets pledged by Borrower to Lender as collateral for the Revolving Loan.
“Collateral Assignment” shall mean the Collateral Assignment of Exclusive Agreement relating to the assignment of the Stanford Agreement, of even date herewith, between Borrower and Lender, as the same may be amended, modified, supplemented or restated from time to time.
“Collateral Documents” means the Collateral Assignment, the Security Agreement, the Security Agreement – PTO and all other security agreements, pledge agreements, assignments, financing statements and other documents as shall from time to time secure or relate to the Obligations, or any part thereof.
“Commitment” means Six Million and 00/100 Dollars ($6,000,000.00).
“Credit Event” means the advancing of any Loan in which the proceeds thereof have been delivered to a Borrower.
“Cure Period” is defined in Section 8.1(c).
“Default” means any event or condition the occurrence of which would, with the passage of time or the giving of notice, or both, constitute an Event of Default.
“Default Rate” is defined in Section 2.5.
“Distribution” means (a) with respect to any stock issued by such Person or any partnership, joint venture, limited liability company, membership or other interest of such Person, the retirement, redemption, purchase, or other acquisition for value of any such stock or partnership, joint venture, limited liability company, membership or other interest, (b) the declaration or payment of any dividend or other distribution on or with respect to any stock, partnership, joint venture, limited liability company, membership or other interest of such Person, and (c) any other payment by such Person with respect to such stock, partnership, joint venture, limited liability company, membership or other interest of such Person.
“Environmental Laws” is defined in Section 7.11.
“Event of Default” is defined in Section 8.1.
“Excess Interest” is defined in Section 9.19.
“GAAP” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination.
“Guaranty” means an Unconditional Guaranty of Payment, to be dated of even date herewith, to be executed by each Guarantor.
“Guarantor” means, individually, each of Jack A. Syage, an individual, The Jack A. Syage and Elizabeth T. Syage Revocable Trust, dated November 30, 1999, and any other Person who executes and delivers a Guaranty for the benefit of Lender, and “Guarantors” means, collectively, Jack A. Syage, an individual, The Jack A. Syage and Elizabeth T. Syage Revocable Trust, dated November 30, 1999, and any other Person who executes and delivers a Guaranty for the benefit of Lender.
2
“Hazardous Substances” means pollutants, contaminants, hazardous substances, hazardous wastes, or petroleum, and all other chemicals, wastes, substances and materials listed in, regulated by, subject to, or deemed hazardous or toxic under any Environmental Law.
“Indebtedness” means, with respect to any Person, (a) all obligations of such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, indentures, notes, or similar instruments upon which interest payments are customarily made; (c) all obligations of such Person under conditional sale or other title retention agreements relating to the property purchased by such Person; (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services purchased by such Person (other than trade debt incurred in the ordinary course of business and due within six months of the incurrence thereof) which would appear as liabilities on a balance sheet of such Person; (e) all indebtedness secured by any Lien on, or payable out of the proceeds of production from property owned or acquired by such Person, whether or not the obligations secured have been approved by such Person; (f) all guarantees of such Person with respect to indebtedness of the type referred to in this definition of another Person; (g) the principal portion of all obligations of such Person under capital leases; (h) all obligations of such Person under hedging agreements; and (i) the principal component of payments due on any capital lease or under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar or off-balance sheet financing product, other than operating leases that do not constitute any of the foregoing, during the applicable period ending on such date, determined on a consolidated basis and calculated on a consistent basis.
“Insurance” is defined in Section 7.4. “Lender Party” is defined in Section 9.13.
“Lender” means Mattress Liquidators, Inc., a Colorado corporation.
“Lien” means any mortgage, lien, security interest, pledge, charge or encumbrance of any kind in respect of any Property.
“Loan Availability” shall mean, at any time, the Commitment then in effect minus the outstanding balance under the Revolving Loan and minus the Revolving Loan Sublimit.
“Loan Documents” means this Agreement, the Note, each Guaranty, the Collateral Documents, the Warrant, any subordination agreement, and each other instrument or document to be delivered hereunder or thereunder or otherwise in connection therewith.
“Loan Party” means, Borrower and each Guarantor, and “Loan Parties” means, collectively, Borrower and Guarantors.
“Material Adverse Effect” means (a) a material adverse change in, or material adverse effect upon, the operations, business, Property, or condition (financial or otherwise) of Borrower taken as a whole, (b) a material impairment of the ability of Borrower to perform its material obligations under any Loan Document, or (c) a material adverse effect upon (i) the legality, validity, binding effect or enforceability against Borrower of any Loan Document or the rights and remedies of Lender thereunder or (ii) the perfection or priority of any Lien granted under any Collateral Document (which may, however, be subject to Permitted Liens).
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“Maturity Date of the Revolving Loan” means October 3, 2024.
“Maximum Rate” is defined in Section 9.19.
“Note” shall mean that certain Revolving Loan Promissory Note, of even date herewith, executed by Borrower and payable to Lender, in the principal amount of the Commitment, as the same may be amended, modified, restated or supplemented from time to time.
“Note Rate” shall mean a per annum floating rate equal to the WSJ Prime Rate plus 4.50%.
“Obligations” means all obligations of Borrower to pay principal and interest on the Loans, all fees and charges payable hereunder, and all other obligations incurred by Borrower under any agreement between Borrower and Lender or any Affiliate of Lender, all payment obligations of Borrower arising under or in relation to any Loan Document, or any other agreement between Borrower and Lender, in each case whether now existing or hereafter arising, due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired.
“Pass-Through Entity Tax Liabilities” means (without duplication) the amount of state and federal income tax paid or to be paid by a Borrower’s owners on taxable income earned by such Borrower and attributable to the owners as a result of such Borrower’s “pass-through” tax status, assuming the highest marginal income tax rate for federal and state (for the state or states in which any owner is liable for income taxes with respect to such income) income tax purposes, after taking into account any deduction for state income taxes in calculating the federal income tax liability and all other deductions, credits, deferrals and other reductions available to the owners from or through such Borrower.
“Permitted Liens” shall mean the Liens described in Section 7.8.
“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization or any other entity or organization, including a government or agency or political subdivision thereof.
“Property” means, as to any Person, all types of real, personal, tangible, intangible or mixed property owned by such Person whether or not included in the most recent balance sheet of such Person and its subsidiaries.
“Revolving Loan” means the loan described in Section 2 of this Agreement.
“Revolving Loan Sublimit” means One Million and 00/100 Dollars ($1,000,000.00).
“Revolving Loan Termination Date” shall mean the earliest to occur of the following: (i) the Maturity Date of the Revolving Loan; (ii) the date Borrower prepays the Revolving Loan in full in accordance with Section 2.4; or (iii) the date on which the Commitment is terminated in whole pursuant to Section 8.2 and Section 8.3.
“Security Agreement” means that certain Security Agreement, of even date herewith, between Borrower and Lender, as the same may be amended, modified, supplemented or restated from time to time.
“Security Agreement – PTO” means that certain Patent and Trademark Security Agreement, of even date herewith, between Borrower and Lender, as the same may be amended, modified, supplemented or restated from time to time.
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“Solvent” means, with respect to any Person, such Person (a) owns Property whose total fair salable value is greater than the amount required to pay all of its debts (including contingent, subordinated, unmatured and unliquidated liabilities); (b) owns Property whose total present fair salable value (as defined below) is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person as they become absolute and matured; (c) is able to pay all of its debts as they mature; (d) has capital that is not unreasonably small for its business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section 101(32) of the United States Bankruptcy Code; and (f) has not incurred (by way of assumption or otherwise) any obligations or liabilities (contingent or otherwise) under any Loan Document, or made any conveyance in connection therewith, with actual intent to hinder, delay or defraud either present or future creditors of such Person or any of its Affiliates. “Fair salable value” means the amount that could be obtained for Property within a reasonable time, either through collection or through sale under ordinary selling conditions by a capable and diligent seller to an interested unrelated buyer who is willing (but under no compulsion) to purchase.
“Stanford Agreement” means that certain Exclusive Agreement between The Board of Trustees of the Leland Stanford Junior University and Alvine Pharmaceuticals, Inc., dated as of September 19, 2005 as assigned to Borrower, as amended and as the same may be further amended, modified, supplemented or restated from time to time.
“Subsidiary” or “Subsidiaries” shall mean as to any Person (a) any corporation of which more than fifty percent (50%) of the outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time stock of any other class of such corporation shall have or might have voting power by reason of the happening of any contingency) is owned, directly or indirectly through Subsidiaries, by such Person and (b) any partnership, limited liability company, association, joint venture or other entity in which such Person, directly or indirectly through Subsidiaries, has more than a fifty percent (50%) interest in total equity, total income and/or total ownership interest of such entity at any time.
“Subordinated Debt” means any and all loans or advances made to Borrower by any of such Borrower’s members, Affiliates of Borrower or Affiliates of Borrower’s members and any Indebtedness of Borrower (including any convertible notes and other investor notes).
“U.S. Dollars” and “$” each means the lawful currency of the United States of America.
“Uniform Commercial Code” means Article 9 of the Uniform Commercial Code for the State of Colorado as of the date of this Agreement.
“Warrant” means that certain Warrant, on or about the date herewith, between Borrower and Lender, as the same may be amended, modified, supplemented or restated from time to time, wherein Borrower shall grant to Lender, or its assigns, the right to acquire up to 24,100 shares of Borrower’s stock at a valuation of $10.38 per share, representing $250,158 of enterprise value.
“WSJ Prime Rate” means, at the time of any determination, the variable interest rate published from time to time by the Wall Street Journal as the “prime rate” as quoted in the Wall Street Journal “Money Rates” table; each change in the Wall Street Journal prime rate shall be effective on the date such change is published. If multiple prime rates are quoted in the table, then the highest prime rate will be the WSJ Prime Rate. If the Wall Street Journal prime rate is unavailable or is no longer quoted, Lender may select such replacement index as approximates the Wall Street Journal prime rate. The WSJ Prime Rate may not necessarily represent the lowest interest rate charged by Lender for commercial or other extensions of credit. The WSJ Prime Rate shall change from time to time, and such changes shall be effective without prior notice to Borrower.
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Section 1.2. Interpretation. Any word herein which is expressed in the masculine, feminine or neuter gender shall be deemed to include the masculine, feminine and neuter genders. Any word herein which is expressed in the singular or plural number shall be deemed, whenever appropriate in the context, to include the singular and the plural. The words “hereof,” “herein,” and “hereunder” and words of like import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless the context in which used clearly requires otherwise, in each Loan Document, “or” has the inclusive meaning represented by the phrase “and/or”, and the words “shall” and “will” have the same meaning and effect as “must” and indicate a requirement or obligation. Use of the word “including” shall mean “including, without limitation” unless otherwise specifically expressed. All certifications made or signatures provided by any authorized representative of each such Borrower shall be made and given by any such person in such capacity as an officer, and not in any individual or personal capacity. All references to time of day herein are references to Denver, Colorado time unless otherwise specifically provided. All references in this Agreement or any other Loan Document to (a) the preamble or any section means, unless the context otherwise requires, the preamble or a section of this Agreement or (b) any law, rule, regulation, order, decree, requirement, policy, guideline, directive or interpretation means as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect on the determination date, including rules and regulations promulgated thereunder.
SECTION 2. The Credit Facilities.
Section 2.1. Revolving Loan. Subject to the terms and conditions of this Agreement and the other Loan Documents, prior to the Revolving Loan Termination Date, and provided no Event of Default shall exist or the occurrence of any event which, with the giving of notice or the passage of time, or both, will become an Event of Default hereunder, Lender will, at Borrower’s request, cause cash advances to be made pursuant to the Revolving Loan to be issued for the account of Borrower; provided, however, no Advance shall be made in an amount wherein the aggregate of all Revolving Loans exceeds Loan Availability for the Revolving Loan then in effect. Subject to the terms and conditions hereof, Revolving Loans may be repaid and the principal amount thereof reborrowed before the Revolving Loan Termination Date. If at any time the outstanding aggregate principal balance of the Revolving Loans exceeds the Loan Availability, Borrower shall immediately, and without the necessity of a demand by Lender, pay to Lender such amount as may be necessary to eliminate such excess, and a failure to do so shall constitute an Event of Default. In the event that the availability of the Revolving Loan hereunder expires by the terms of this Agreement, or by the terms of any agreement extending the Maturity Date of the Revolving Loan, Lender may, in its sole discretion, continue to make requested advances; however, it is expressly acknowledged and agreed that, in such event, Lender shall have the right, in its sole discretion, to decline to make any requested advance and may require payment in full of the Revolving Loan at any time and the making of any such advances shall not be construed as a waiver of such right by Lender.
Section 2.2. Disbursement of Revolving Loan. Subject to the terms and conditions of this Agreement and the Loan Documents, each request for an Advance of a Revolving Loan, shall be in a form acceptable to Lender (the form of the Advance Request is set forth in Exhibit “A”, as the same may be reasonably modified by Lender from time to time) (“Advance Request”), certified by an Authorized Representative of Borrower, and shall be accompanied by such information as Lender may reasonably require from time to time, in its sole but reasonable discretion. Lender may refuse to fund, or delay funding of, any Advance Request until Lender has reviewed, analyzed and approved such Advance Request and all supporting documentation and information. Lender shall not be obligated to make any Advance on or after the Revolving Loan Termination Date, or following the occurrence and during the continuance of an Event of Default, or that would cause the outstanding principal balance of all Revolving Loans to exceed the Revolving Loan Availability then in effect. Except as otherwise set forth herein and subject to the express conditions set forth herein, if Lender has received an Advance Request for a new Revolving Loan Advance by 2:00 p.m. (Denver time), Lender shall make available its Loan in funds immediately available at the office of Lender in Denver, Colorado not later than 8:00 a.m. (Denver time) on the Business Day following the date of such Advance Request. If Lender receives an Advance Request for a new Revolving Loan Advance after 2:00 p.m. (Denver time), Lender shall make available the Revolving Loan in funds immediately available at the office of Lender in Denver, Colorado not later than 8:00 a.m. (Denver time) two (2) Business Days after the date of such Advance Request. Borrower agrees that Lender may rely on any such telephonic or electronically transmitted notice of a requested advance given by any person Lender in good faith believes is an Authorized Representative without the necessity of independent investigation, and in the event any such notice by telephone conflicts with any written confirmation such telephonic notice shall govern if Lender has acted in reliance thereon. Lender shall make the proceeds of each new Revolving Loan Advance available to Borrower by transferring such funds to Borrower’s operating account or as Borrower and Lender may otherwise agree. Notwithstanding the above or anything to the contrary contained herein, Borrower may not request advances against the Revolving Loan Sublimit.
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Section 2.3. Interest on the Revolving Loan and Principal Payments.
(a) Interest. Subject in all cases to the terms and conditions of this Agreement, for the period beginning on the Closing Date and ending on the Revolving Loan Termination Date the Revolving Loan or Revolving Loans shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360 days) on the unpaid principal amount thereof from the date such Revolving Loan is advanced until maturity (whether by acceleration or otherwise) at a floating rate per annum equal to the Note Rate (including at the Default Rate, if applicable), payable in arrears on the 1st day of each calendar month, with payments beginning on the 1st day of the month following the Closing Date, and continuing on the 1st day of each calendar month thereafter.
(b) Payment in Full on Revolving Loan Termination Date. Notwithstanding anything to the contrary contained herein or in any other Loan Document, if not sooner paid as set forth herein or in any of the other Loan Documents, the entire unpaid outstanding balance of the Revolving Loan, together with interest and any other unpaid charges, shall mature and become due and payable by Borrower on the Revolving Loan Termination Date.
(c) Authorization to Lender. Borrower hereby requests and authorizes Lender to make advances directly to itself for monthly interest payments against the Revolving Loan Sublimit in accordance with Section 4.3.
Section 2.4. Prepayments. Borrower may prepay in whole or in part any of the Revolving Loans at any time without payment of any penalty or premium. Any prepayments received in accordance with this Section will not, unless agreed to by Lender in writing, relieve Borrower of Borrower’s obligation to continue to make regularly scheduled payment due hereunder. Rather, such prepayment will reduce the principal balance due. Notwithstanding any such repayments of Advances under the Revolving Loans, subject in all cases to the terms and conditions of this Agreement and the other Loan Documents, Borrower shall be entitled without penalty to borrow, repay and re-borrow Advances under the Revolving Loan on a revolving basis until the Revolving Loan Termination Date.
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Section 2.5. Default Rate and Late Fees. Notwithstanding anything to the contrary contained herein, while any Event of Default exists or at maturity or after acceleration, Borrower shall pay interest (after as well as before entry of judgment thereon to the extent permitted by law) on the unpaid principal amount of the Revolving Loan until paid in full at a rate per annum equal to Eighteen percent (18.0%) per annum, for so long as such Event of default shall be continuing (the “Default Rate”). No delay by Lender in electing to receive interest at the Default Rate after an Event of Default or at maturity or after acceleration shall be deemed a waiver by Lender of such right. In addition to default interest, if any regularly scheduled payment of principal or interest is ten (10) days or more late (including at maturity), Borrower will be charged a late fee equal to five percent (5.0%) of the regularly scheduled payment (including the balance at maturity, in the event of a default in the payment of the balance at maturity). While any Event of Default exists or after acceleration, interest shall be paid upon the demand of Lender. No delay by Lender in electing to receive interest at the Default Rate after an Event of Default or at the Maturity Date of the Revolving Loan shall be deemed a waiver by Lender of such right. The interest rate will not exceed the maximum rate permitted by applicable law.
Section 2.6. Collateral. The repayment of the Obligations shall be secured by: (a) a perfected security interest in all of the Collateral pledged by Borrower, subject only to Permitted Liens, and (b) all other Property of Borrower now or hereafter pledged to Lender to secure repayment of any of the Obligations.
Section 2.7. Protective Advance. Lender may initiate an advance in its sole discretion for any reason when an Event of Default exists or after the Revolving Loan Termination Date, without any Borrower’s compliance with any of the conditions of this Agreement, and (a) disburse the proceeds directly to any Person in order to protect Lender’s interest in Collateral or to perform any of any Borrower’s obligations under this Agreement, or (b) apply the proceeds to the amount of any Obligations then due and payable to Lender.
SECTION 3. Fees And Expenses.
Section 3.1. Transaction Fees and Expenses. Borrower shall pay to Lender on the Closing Date, all of Lender’s reasonable costs and expenses, including, without limitation, Lender’s reasonable Attorney’s Fees and Costs, Uniform Commercial Code and other public record searches, lien filings, title insurance, recording fees, Federal Express or similar express or messenger delivery costs for work done with respect to the preparation and negotiation of the Loan Documents. Borrower agrees and acknowledges that the fees outlined in this Section are earned fully as of the Closing Date and will not be subject to refund, except as required by law.
Section 3.2. Upfront Closing Fee. On the Closing Date Borrower shall pay to Lender a one- time non-refundable upfront closing fee equal to Sixty Thousand and 00/100 Dollars ($60,000.00) (“Closing Fee”). Borrower agrees and acknowledges that the fees outlined in this Section are earned fully as of the Closing Date and will not be subject to refund, except as required by law. Borrower hereby requests and authorizes Lender to advance directly to itself the Closing Fee against the Revolving Loan Sublimit in accordance with Section 4.3.
Section 3.3. Inspection Fees. At Lender’s option and request, Borrower shall pay to Lender reasonable fees and out-of-pocket costs incurred in connection with inspection of the Collateral performed by Lender or its agents or representatives as more particularly described in Section 7.7.
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SECTION 4. Place And Application Of Payments.
Section 4.1. Place of Payment. All payments of principal and interest on the Loans and of all other Obligations payable by Borrower under this Agreement and the other Loan Documents shall be made by Borrower to Lender by no later than 2:00 p.m. (Denver time) on the due date thereof by ACH, wire transfer, or in person at the office of Lender located at Mattress Liquidators, Inc., Attn: David Dolan, 1435 White Hawk Ranch Drive, Boulder, CO 80303 (or such other location as Lender may designate to any Borrower) or other method as may be agreed to by Lender. Any payments received after 2:00 p.m. (Denver time) on the due date thereof shall be deemed to have been received by Lender on the next Business Day. All such payments shall be made in U.S. Dollars, in immediately available funds at the place of payment, in each case without set-off or counterclaim.
Section 4.2. Application of Payments. Anything contained herein to the contrary notwithstanding, all payments and collections received in respect of the Obligations and all proceeds of the Collateral received, in each instance, by Lender after acceleration or the final maturity of the Obligations or termination of the Commitment as a result of an Event of Default shall be remitted to Lender and distributed as follows:
(a) first, to the payment of any outstanding reasonable costs and expenses incurred by Lender, and any security trustee therefor, in enforcing the Liens maintained by Lender on the Collateral, in enforcing rights under the Loan Documents, and in any event including all reasonable costs and expenses of a character which Borrower has agreed to pay Lender;
(b) second, to the payment of any outstanding interest and fees due under the Loan Documents;
| (c) | third, to the payment of principal on the Note; |
| (d) | fourth, to the payment of all other unpaid Obligations; and |
| (e) | finally, to Borrower or whoever else may be lawfully entitled thereto. |
Section 4.3. Authorization for Direct Payment. To effectuate any payment due under this Agreement, Borrower hereby requests and authorizes Lender to make advances directly to itself (to be charged against the Revolving Loan Sublimit) for payment and reimbursement of all interest, charges, actual and reasonable costs and expenses incurred by Lender in connection with the Loan, including, but not limited to, (i) interest due on the Loan, the Closing Fee, and other fees due to Lender in connection with the Loan; (ii) all filing, search, recording and registration fees and charges; (iii) all casualty, liability or other insurance premiums; and (iv) all reasonable Attorney’s Fees and Costs, including, without limitation, counsel engaged in connection with the enforcement or administration of this Agreement or any of the Loan Documents.
SECTION 5. Representations And Warranties Of Borrower.
Borrower represents, warrants and covenants to Lender that all representations, warranties and covenants of Borrower contained in this Agreement shall be true at the time of Borrower’s execution of this Agreement, shall survive the execution, delivery and acceptance hereof by the parties hereto and the closing of the transactions described herein or related hereto, shall remain true, except where such representations or warranties expressly relate to an earlier date, until the repayment in full of all of the Obligations and termination of this Agreement. Borrower represents and warrants to Lender as follows:
Section 5.1. Organization and Qualifications. Borrower is validly existing under the laws of the State of its formation and is duly licensed or qualified and in good standing in each jurisdiction in which the nature of the business conducted by it requires such licensing or qualifying, except where the failure to do so would not have a Material Adverse Effect.
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Section 5.2. Authority and Validity of Obligations. Borrower has full right and authority to enter into this Agreement and the other Loan Documents to which it is a party, to grant to Lender the Liens described in the Collateral Documents to which it is a party, and to perform all of its obligations hereunder and under the other Loan Documents to which it is a party. The Loan Documents delivered by Borrower have been duly authorized, executed, and delivered by Borrower and constitute valid and binding obligations of Borrower enforceable against Borrower in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally and general principles of equity (regardless of whether the application of such principles is considered in a proceeding in equity or at law); and this Agreement and the other Loan Documents do not, nor does the performance or observance by Borrower of any of the matters and things herein or therein provided for, (a) violate or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon Borrower or any organizational documents of Borrower, (b) violate or constitute a default under any covenant, indenture or agreement of or affecting Borrower, in each case where such violation or default, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (c) result in the creation or imposition of any Lien upon the Collateral other than the Liens granted in favor of Lender pursuant to the Collateral Documents.
Section 5.3. Use of Proceeds; Illegal Activities; Margin Stock. Borrower shall use the proceeds of the Revolving Loan for working capital purposes. Borrower covenants and agrees not to use the Revolving Loan for any other purpose, including the payment of any distributions or payments with respect to Subordinated Debt. Borrower is not engaged in any illegal activities as determined under applicable federal, state or local law, and no part of the proceeds of the Revolving Loan will be used in the furtherance of any illegal activities. Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no part of the proceeds of the Revolving Loan will be used to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock.
Section 5.4. Financial Reports. The financial statements, heretofore furnished to Lender by Borrower, fairly present in all material respects the consolidated financial condition of Borrower as at said dates and the consolidated results of its operations for the periods then ended in conformity with GAAP applied on a consistent basis. As of the dates of such financial statements, Borrower has no material obligation, contingent liability, liability for taxes or long-term lease obligation which is not reflected in such financial statements or in the notes thereto. Since the date of such statements, and as of the date of such statement(s) there will have been been no material adverse change in the business, operations, property, assets or condition, financial or otherwise, of Borrower.
Section 5.5. Full Disclosure. The written statements and information furnished to Lender in connection with the negotiation of this Agreement and the other Loan Documents and the commitments by Lender to provide all or part of the financing contemplated hereby do not, as of the date of this Agreement, contain any untrue statements of a material fact or omit to state a material fact necessary to make the material statements contained therein not misleading in light of the circumstances in which they are made, Lender acknowledging that as to any projections furnished, Borrower only represents that the same were prepared on the basis of information and estimates Borrower believed to be reasonable at the time such projections were prepared.
Section 5.6. Governmental Authority and Licensing. Borrower has received all licenses, permits, and approvals of all federal, state, and local governmental authorities, if any, necessary to conduct its business in all material respects, in each case where the failure to obtain or maintain the same could reasonably be expected to have a Material Adverse Effect. No investigation or proceeding which could reasonably be expected to result in revocation or denial of any material license, permit or approval of Borrower is pending or, to the knowledge of Borrower, threatened against Borrower unless such revocation or denial could not reasonably be expected to have a Material Adverse Effect.
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Section 5.7. Good Title. Borrower has, or immediately after the closing of the transactions contemplated hereby will have, good and defensible beneficial title to the Collateral it has pledged to Lender, subject to no Liens other than Permitted Liens, or such other items which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect..
Section 5.8. Litigation and Other Controversies. Except as has been disclosed to Lender in writing, there is no litigation, suit, proceeding, arbitration, governmental investigation or controversy pending, nor to the knowledge of Borrower threatened, against Borrower which if adversely determined, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.9. Taxes. All tax returns (if any) required to be filed by or on behalf of Borrower in any jurisdiction have, in fact, been filed, and all taxes, assessments, fees, and other governmental charges upon Borrower or any of its property, which are shown to be due and payable in such returns, have been paid, except such taxes, assessments, fees and governmental charges, if any, as are being contested in good faith and by appropriate proceedings which prevent enforcement of the matter under contest and as to which adequate reserves have been provided or such tax returns for which the failure to file and such taxes, assessments, fees, and other governmental charges for which the failure to pay could not reasonably be expected to result in a Material Adverse Effect. Borrower does not know of any proposed additional tax assessment against Borrower for which adequate provisions have not been made. Adequate provisions on the books of Borrower have been made for taxes which are being contested in good faith by Borrower for all open years, and for its current fiscal period.
Section 5.10. Approvals. No authorization, consent, license or exemption from, or filing or registration with, any court or governmental department, agency or instrumentality, nor any approval or consent of any other Person, is or will be necessary for the valid execution, delivery or performance by Borrower of any Loan Document, except for the filing of financing statements as contemplated by the Loan Documents, such approvals which have been obtained prior to the date of this Agreement and remain in full force and effect or where the absence of such authorization, consent, license or exemption from, or filing or registration with, any court or governmental department, agency or instrumentality, or approval or consent of any other Person could not reasonably be expected to have a Material Adverse Effect.
Section 5.11. Compliance with Laws. Borrower is in substantial compliance with the requirements of all federal, state and local laws, rules and regulations applicable to or pertaining to its Property or business operations, except where any such non-compliance, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Borrower has received no notice from any governmental authority that its operations are not in compliance with any of the requirements of applicable federal, state or local environmental, health, and safety statutes and regulations or is the subject of any governmental investigation evaluating whether any remedial action is needed to respond to a release of any toxic or hazardous waste or substance into the environment, where any such non- compliance or remedial action, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
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Section 5.12. Other Agreements. Borrower is not in default under the terms of any covenant, indenture or agreement of or affecting Borrower, which default if uncured could reasonably be expected to have a Material Adverse Effect.
Section 5.13. Solvency. Borrower is solvent, able to pay its debts as they become due, and, assuming the availability of the credit line provided hereunder, has sufficient capital to carry on its business and all businesses in which it is about to engage. On the Closing Date, Borrower is not contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidating of all or a substantial portion of its property.
Section 5.14. No Default. No Default or Event of Default has occurred and is continuing.
Section 5.15. Patents, Trademarks, Franchises, and Licenses. Borrower owns, possesses, or has the right to use all necessary patents, licenses, franchises, trademarks, trade names, trade styles, copyrights, trade secrets, know how, and confidential commercial and proprietary information to conduct its businesses as now conducted, without conflict known to Borrower with any patent, license, franchise, trademark, trade name, trade style, copyright or other proprietary right of any other Person that could reasonably be expected to have a Material Adverse Effect.
Section 5.16. Affiliate Transactions. Borrower is not a party to any contracts or agreements with any of its Affiliates on terms and conditions which are less favorable to Borrower than generally available on an arms-length basis from unrelated third parties.
SECTION 6. Conditions Precedent.
The obligation of Lender to advance or continue to advance the Revolving Loans shall be subject to the following conditions precedent:
Section 6.1. All Credit Events. At the time of each Credit Event hereunder:
(a) each of the representations and warranties set forth herein and in the other Loan Documents shall be and remain true and correct in all material respects as of said time, except to the extent the same expressly relate to an earlier date;
(b) there shall have been no material adverse change in the financial condition or operations of Borrower or any Guarantor which could reasonably be expected to result in the occurrence of a Material Adverse Effect;
(c) the Insurance shall be in full force and effect and all policies of Insurance shall designate Lender as an additional insured, mortgagee and/or lender loss payee;
(d) Borrower shall be in material compliance with all of the terms and provisions set forth in this Agreement and the Loan Documents with respect to their part to be observed or performed, and at the time of and immediately after such Revolving Loan or Advance, no Event of Default shall have occurred and be continuing or would occur as a result of such Credit Event;
(e) Borrower shall have delivered to Lender an Advance Request, certified to by an authorized representative of Borrower; and
(f) the Loan Documents shall be in full force and effect, and Lender shall maintain a perfected security interest in all the Collateral, subject to Permitted Liens
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Each request for an Advance hereunder shall be deemed to be a representation and warranty by Borrower on the date of such Credit Event as to the facts specified in this Section.
Section 6.2. Initial Credit Event. Before or concurrently with the initial Credit Event:
(a) Lender shall have received this Agreement duly executed by Borrower;
(b) Lender shall have received from Borrower, dated as of the date hereof, a duly executed Note, duly executed Guaranties executed by each Guarantor, a duly executed Warrant, duly executed Collateral Documents, UCC financing statements to be filed against each such debtor, as grantor, in favor of Lender, as secured party, and any other Loan Documents, and any other Loan Documents, and any other documentation requested by Lender in order to obtain and perfect its Liens on the Collateral;
(c) Lender shall have received copies of Borrower’s organizational documents, certified as being true, correct, and complete;
(d) Lender shall have received copies of resolutions of Borrower, authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with specimen signatures of the persons authorized to execute such documents on such Person’s behalf, all certified in each instance by an authorized representative of Borrower;
(e) Lender shall have received a copy of a certificate of good standing for Borrower (dated no earlier than thirty (30) days prior to the date hereof) from the office of the Secretary of the State of the State of its organization;
(f) Lender shall have received evidence of the binding coverage of the Insurance indicating Lender as an additional insured, mortgagee and/or lender loss payee;
(g) Lender shall have received the transaction fees and the upfront closing fee called for in Section 3;
(h) Lender shall have received financing statement lien search results against Borrower evidencing the absence of Liens on the Collateral except for Permitted Liens;
(i) Lender shall have received such other appraisals, evaluations and certifications as it may reasonably require in order to satisfy itself as to the value of the Collateral, the financial condition of Borrower, and the lack of material contingent liabilities of Borrower;
(j) All legal matters incident to this Agreement and the Loan Documents shall be reasonably satisfactory to Lender and its counsel; and
(k) Lender shall have received such other agreements, instruments, documents, certificates, and opinions as Lender may reasonably request.
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SECTION 7. Covenants Of Borrower.
Borrower agrees that, so long as the Obligations remain outstanding, except to the extent compliance in any case or cases is waived in writing pursuant to the terms of Section 9.11:
Section 7.1. Maintenance of Business. Borrower shall preserve and maintain its existence. Borrower shall preserve and keep in force and effect all licenses, permits, approvals, trademarks, trade names, trade styles, copyrights, and other proprietary rights necessary to the proper conduct of its business where the failure to do so could reasonably be expected to have a Material Adverse Effect.
Section 7.2. Maintenance and Repair of Property. Borrower shall maintain and preserve its assets in good repair, working order and condition (ordinary wear and tear excepted), and shall from time to time make all needful and proper repairs, renewals, replacements, additions, and betterments thereto so that at all times the efficiency thereof shall be fully preserved and maintained, except to the extent that, in the reasonable business judgment of Borrower, any such Property is no longer necessary for the proper conduct of Borrower’s business.
Section 7.3. Taxes and Assessments. Borrower shall duly pay and discharge all taxes, rates, assessments, fees, and governmental charges of any kind or nature upon or against it, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith and by appropriate proceedings and adequate reserves are provided therefore or would not be expected to have a Material Adverse Effect.
Section 7.4. Insurance. Borrower shall insure and keep insured, with sound and reputable insurance companies reasonably acceptable to Lender, all of the insurable Collateral and other insurable assets owned by it which is of a character usually insured by Persons similarly situated and operating like businesses against loss or damage from such hazards and risks, and in such amounts, as are insured by Persons similarly situated; and Borrower shall insure such other hazards and risks with good and responsible insurance companies as and to the extent usually insured by Persons similarly situated and conducting similar businesses (the “Insurance”). Borrower shall, upon the request of Lender, provide a certificate setting forth in summary form the nature and extent of the Insurance. All policies of Insurance (a) shall name Lender as an additional named insured, mortgagee and/or loss payee, as its interest may appear, (b) shall cover Borrower and any other persons or entities having an interest in the Collateral, as their interests may appear, (c) shall insure the named insureds against all liability for loss, injury, damage or claims caused by, arising out of or in connection with the ownership, possession, operation or maintenance of the Collateral, (d) shall provide that if such insurance is canceled for any reason, or if such insurance is allowed to lapse for nonpayment of premiums, such cancellation or lapse shall not be effective as to Lender for thirty (30) days after receipt by Lender of written notice from the insurers of such cancellation or lapse, (e) shall be primary without right of contribution from any other insurance which may be carried by Lender, and (f) shall expressly provide that all of the provisions thereof shall operate in the same manner as if there were a separate policy covering each insured (provided that such policies shall not operate to increase the insurer’s limit of liability). Upon request, Borrower shall furnish to Lender original policies, certificates or other appropriate evidence of the Insurance coverage required hereby and evidence that the applicable premium has been paid.
Borrower hereby agrees to direct all insurers under the Insurance to pay all proceeds payable thereunder to Lender and all proceeds received by Lender shall be delivered to Borrower for the sole purpose of replacing or repairing the damaged Collateral, except if an Event of Default has occurred and is continuing in which case such proceeds may be applied to the Obligations in such order and manner as Lender shall reasonably determine. Upon the occurrence and during the continuance of an Event of Default, Borrower irrevocably, makes, constitutes and appoints Lender (and all authorized representatives, employees or agents designated by Lender) as Borrower’s true and lawful attorney-in-fact (and agent-in- fact) for the purpose of making, settling and adjusting claims with respect to any Collateral under the Insurance, endorsing the name of Borrower on any check, draft, instrument or other item of payment for the proceeds of the Insurance payable in with respect to any Collateral and making all determinations and decisions with respect to the Insurance with respect to any Collateral. In the event that Lender is entitled hereunder to receive proceeds under the Insurance, Lender will have no obligation to see to the proper application of any Insurance proceeds paid over to Borrower, nor will any such proceeds received by Lender bear interest or be subject to any other charge for the benefit of Borrower. Upon the occurrence and during the continuance of any Event of Default, Lender may, prior to the application of any Insurance proceeds, commingle them with Lender’s own funds and otherwise act with regard to such proceeds as Lender may determine in Lender’s sole discretion.
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If Borrower at any time or times hereafter shall fail to obtain or maintain any of the Insurance or to pay any premium in whole or in part relating thereto, then Lender, without waiving or releasing any obligation or default by Borrower hereunder, may (but shall be under no obligation to) obtain and maintain the Insurance and pay such premiums and take such other actions with respect thereto as Lender deems advisable. All sums disbursed by Lender in connection with any such actions, including without limitation (other than limitations imposed by applicable law or rule of court) reasonable Attorney’s Fees and Costs, and other charges relating thereto, shall constitute Obligations hereunder and shall be payable upon written demand by Borrower to Lender and, if not paid within twenty (20) Business Days following such written demand, shall bear interest at the Default Rate.
If Lender shall at any time so request following any Event of Default and during the continuance of any such Event of Default, Borrower will immediately deposit with Lender an amount equal to 1/12th of the amount which Lender estimates will be required to make the next annual payments of the premium for the policies of Insurance referred to in this Section, multiplied by the number of whole and partial months which have elapsed since the most recent policy anniversary date for each such policy. Thereafter, with each monthly payment under the Note, Borrower will deposit an amount equal to 1/12th of the amount which Lender estimates will be required to pay the next required annual premium for each Insurance policy referred to in this Section. The purpose of these provisions is to provide Lender with sufficient funds on hand to pay all such premiums thirty (30) days before the date on which they become past due. Lender will apply the amounts so deposited to the payment of such Insurance premiums when due, but in no event will Lender be liable for any interest on any amounts so deposited, and the money so received may be commingled with Lender’s own funds.
Section 7.5. Reporting and Covenants. Borrower shall maintain a standard system of accounting, in accordance with GAAP, and shall furnish to Lender and its duly authorized representatives such information respecting the business and financial condition of Borrower as Lender may reasonably request in writing; and without any request, shall furnish or cause to be furnished to Lender:
(a) as soon as available, and in any event within thirty (30) days after the end of each calendar year-end, Borrower shall provide Lender with a copy of the balance sheet of Borrower as of the last day of such calendar year-end and the statements of income, retained earnings, and cash flows of Borrower for the previous calendar year-end, each in reasonable detail, prepared in accordance with GAAP and certified by an officer of Borrower;
(b) as soon as available, and in any event within thirty (30) days after the end of each calendar quarter, Borrower shall provide Lender with a copy of the balance sheet of Borrower as of the last day of such calendar quarter and the statements of income, retained earnings, and cash flows of Borrower for the previous quarter and for the fiscal year-to-date period then ended, each in reasonable detail, prepared in accordance with GAAP and certified by an officer of Borrower;
(c) as soon as available, and in any event within fifteen (15) days of filing, Borrower and each Guarantor shall provide to Lender a copy of their completed federal income tax return together with all schedules and exhibits and, if filed, any requests for extensions. If an extension is filed, a copy of the extension must be provided to Lender within fifteen (15) days of filing and a copy of the completed federal income tax return together with all schedules and exhibits must be provided to Lender within fifteen (15) days of filing such extended return;
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(d) as soon as available, and in any event sixty (60) days after the end of each calendar year, each Guarantor shall provide to Lender an updated personal financial statement listing each such Guarantor’s assets and liabilities, including liquidity statements and contingent liabilities, in such detail as Lender may reasonably require;
(e) promptly after knowledge thereof shall have come to the attention of any responsible officer of Borrower, written notice of (i) any material change in the condition, financial or otherwise, of Borrower or any Guarantor; (ii) any threatened or pending litigation or governmental or arbitration proceeding or controversy of or relating to the Collateral which, if determined adversely, could reasonably be expected to have a Material Adverse Effect; or (iii) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against Borrower which, if determined adversely, could reasonably be expected to have a Material Adverse Effect;
(f) Guarantors further agree, covenant, represent and warrant that, so long as any portion of the Indebtedness remains outstanding, Guarantor will not give or otherwise transfer or dispose of any material portion of any of their respective assets to any other Person for less than the fair market value of such assets; and
(g) Such other information (including non-financial information) as Lender may from time to time reasonably request.
Section 7.6. Inspection of the Business and Collateral. Borrower shall permit Lender, and its duly authorized representatives and agents, during regular business hours, to visit and inspect the Collateral, any of its books and financial records, to examine and make copies of its books of accounts and other financial records, and to discuss its affairs, finances, and accounts with, and to be advised as to the same by, its officers, employees, independent public accountants (and by this provision Borrower hereby authorizes such accountants to discuss with Lender the finances and affairs of Borrower), or Affiliates at such reasonable times and intervals as Lender may request and with reasonable prior written notice to Borrower; provided, however, Lender may conduct inspections without prior written notice to Borrower if an Event of Default has occurred and is continuing.
Section 7.7. Location of the Collateral. Upon the occurrence and during the continuance of an Event of Default, Borrower hereby covenants and agrees to notify Lender of the location of the Collateral within five (5) days following receipt of written demand from Lender.
Section 7.8. Liens. Borrower shall not create, assume or permit to exist any security interest, encumbrance, mortgage, deed of trust, or other lien (including, but not limited to, a lien of attachment, judgment or execution) affecting any of the Collateral, or execute or allow to be filed any financing statement or continuation thereof affecting any of such properties, except for permitted liens or as otherwise provided in this Agreement (collectively, “Permitted Liens”). Permitted Liens shall include:
(a) Liens arising by statute;
(b) mechanics’, workmen’s, materialmen’s, landlords’, warehousemen’s, carriers’ or other similar Liens arising in the ordinary course of business with respect to obligations which are not due or which are being contested in good faith by appropriate proceedings which prevent enforcement of the matter under contest;
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(c) Liens granted in favor of Lender pursuant to the Collateral Documents;
(d) Liens resulting from taxes which have not yet become delinquent, and as to which adequate reserves have been provided and provided that no such Lien shall attach to any Collateral;
(e) Liens resulting from indebtedness and guaranties permitted by Section 7.9; and
(f) such other Liens as may be permitted by Lender in writing.
Section 7.9. Borrowings and Guaranties. Without the prior written consent of Lender, Borrower shall not issue, incur, assume, create or have outstanding any indebtedness for borrowed money, or be or become liable as endorser, guarantor, surety or otherwise for any debt, obligation or undertaking of any other Person, or otherwise agree to provide funds for payment of the obligations of another, or otherwise assure a creditor of another against loss, or apply for or become liable to the issuer of a letter of credit which supports an obligation of another, or subordinate (other than in the ordinary course of business) any claim or demand it may have to the claim or demand of any other Person; provided, however, that the foregoing shall not restrict nor operate to prevent:
| (a) | the Obligations of Borrower to Lender; |
| (b) | obligations arising in connection with Permitted Liens; |
| (c) | accounts payable liabilities incurred in the ordinary course of business; and |
| (d) | such other obligations as may be permitted by Lender in writing. |
Section 7.10. Compliance with Laws. Borrower shall comply in all respects with the requirements of all federal, state, and local laws, rules, regulations, ordinances and orders applicable to or pertaining to its assets or business operations, except where the failure to do so, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or result in a Lien upon the Collateral (except Permitted Liens).
Section 7.11. Environmental Matters; Reporting. Borrower shall carry on its business and operations so as to comply and remain in compliance with all applicable federal, state, regional, county or local laws, statutes, rules, regulations or ordinances, concerning public health, safety or the environment including, without limitation, laws or regulations relating: (a) to releases, discharges, emissions or disposals to air, water, land or groundwater; (b) to the withdrawal or use of groundwater; (c) to the use, handling or disposal of polychlorinated biphenyls (PCB’s), asbestos or urea formaldehyde; (d) to the treatment, storage, disposal or management of hazardous substances (including, without limitation, petroleum, its derivatives, by-products or other hydrocarbons), and any other solid, liquid or gaseous substance, exposure to which is prohibited, limited or regulated, or may or could pose a hazard to the health and safety of the occupants of any of Borrower’s properties or any property adjacent to Borrower’s properties; (e) to the exposure of persons to toxic, hazardous, or other controlled, prohibited or regulated substance; and (f) to the transportation, storage, disposal, management or release of gaseous or liquid substances, and any order, injunction, judgment, declaration, notice or demand issued thereunder (collectively, “Environmental Laws”), except to the extent any non-compliance, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect or result in a Lien upon the Collateral (except Permitted Liens).
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Borrower will observe and comply in all material respects with all laws, rules, regulations and orders of any government or government agency relating to health, safety, pollution, hazardous materials or other Environmental Laws to the extent noncompliance could result in a Material Adverse Effect. Borrower will give Lender prompt written notice of any (i) violation of any Environmental Laws by Borrower and/or (ii) of the commencement of any judicial or administrative proceeding relating to any Environmental Laws, in each case (x) in which an adverse determination or result could result in the revocation of any operating permits, air emission permits, water discharge permits, hazardous waste permits or other permits held by Borrower, which individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (y) which will or threatens to impose a material liability on Borrower to any Person or which will require a material expenditure by Borrower to cure any alleged violation.
Borrower agrees to indemnify, defend and hold Lender, and its successors and assigns, harmless against and from any and all liabilities, claims and losses resulting, directly or indirectly, from a breach of this Section and Borrower will pay or reimburse Lender for all reasonable costs and expenses, including reasonable Attorney’s Fees and Costs required or requested by Lender in Lender’s reasonable discretion, to insure compliance with this Section. This obligation to indemnify shall survive the payment of all Obligations.
Section 7.12. Change in the Nature of Business. Borrower shall not engage in any business or activity if as a result the general nature of the business of Borrower would be changed in any material respect from the general nature of the business engaged in by it as of the Closing Date.
Section 7.13. Mergers, Consolidations and Sales. Borrower shall not liquidate or dissolve, merge or consolidate with or into, acquire any other business organization, or transfer, lease or otherwise dispose of all or any part of its assets, except in the ordinary course of Borrower’s business, in each case without the prior written consent of Lender, which shall not be unreasonably withheld.
Section 7.14. Burdensome Contracts With Affiliates. Borrower shall not enter into any contract, agreement or business arrangement with any of its Affiliates on terms and conditions which are less favorable to Borrower than would be generally available on an arms-length basis from unrelated third parties.
Section 7.15. Subordinated Debt. Borrower shall not, without the prior written consent of Lender, (a) amend or modify any of the terms or conditions relating to Subordinated Debt, (b) make any voluntary payment or any prepayment of Subordinated Debt of or effect any voluntary redemption thereof, or (c) make any payment on account of Subordinated Debt which is prohibited under the terms of any instrument or agreement subordinating the same to the Obligations. Borrower covenants and agrees, at Lender’s request, to enter into a subordination agreement with any subordinated debt holder.
Section 7.16. Distributions. Borrower may not declare or pay Distributions without the prior express written consent of Lender, which may be withheld in Lender’s sole discretion; provided, however, that so long as long as no Event of Default exists or would occur as a result of such payment and Borrower is a “pass-through” tax entity for United States federal income tax purposes, and after first providing such supporting documentation as Lender may request, Borrower may pay Pass-Through Entity Tax Liabilities as long as no Event of Default exists or would occur as a result of such payment.
Section 7.17. Use of Proceeds. Borrower shall use, or cause to be used, the credit extended under this Agreement solely for the purposes set forth in, or otherwise permitted by, Section 5.3.
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Section 7.18. Ownership Repurchase. Borrower shall not purchase or repurchase, in whole or part, any owner of Borrower’s equity interests without the prior written consent of Lender.
Section 7.19. Notification of Default. Immediately upon becoming aware of the existence of any condition or event which constitutes an Event of Default, or any condition of event which would upon notice or lapse of time, or both, constitute an Event of Default, Borrower shall give Lender written notice thereof specifying the nature and duration thereof and the action being or proposed to be taken with respect thereto.
Section 7.20. Material Notices. Borrower shall give Lender prompt written notice of any and all (i) litigation, arbitration or administrative proceedings to which affects the Collateral; (ii) other matters which have resulted in, or might result in a material adverse change in the Collateral of the financial condition or business operations of Borrower, and (iii) any enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Borrower or any of its properties.
SECTION 8. Events Of Default And Remedies.
Section 8.1. Events of Default. Any one or more of the following shall constitute an “Event of Default” hereunder:
(a) default in the payment when due of all or any part of the principal or interest of the Note (whether at the stated maturity thereof or at any other time provided for in this Agreement);
(b) default in the payment of fees payable hereunder, or of any other Obligation payable under any Loan Document, and, in each case, such default shall continue for a period of the earlier of (i) twenty (20) days following the due date thereof, or (ii) twenty (20) days following Lender’s written request thereof;
(c) default in the observance or performance of any other provision hereof or of any other Loan Document or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower which is not remedied within thirty (30) days after the earlier of (i) the date on which such failure shall first become actually known to any authorized representative of Borrower, (ii) written notice thereof is given to Borrower by Lender, or (iii) such other time period as set forth in Sections 8.1(f), 8.1(g) or 8.1(h) (“Cure Period”); provided that if such default is of such a nature that it is not reasonably susceptible to cure within the Cure Period, then within a reasonable time thereafter provided Borrower shall have begun to cure such default within the Cure Period and is diligently and in good faith attempting to effect such cure, the Cure Period shall be extended for up to thirty (30) additional days, but in no event shall the Cure Period be longer than sixty (60) days in the aggregate;
(d) any representation or warranty made herein or in any other Loan Document or in any certificate furnished to Lender pursuant hereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect, and which would reasonably be expected to have a Material Adverse Effect as of the date of the issuance or making or deemed making thereof;
(e) any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void, or any of the Collateral Documents shall for any reason fail to create a valid and perfected first priority Lien in favor of Lender in any Collateral purported to be covered thereby except as expressly permitted by the terms thereof ;
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(f) any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be entered or filed against Borrower or against any of its assets (including any of the Collateral), and, in each case, which remains undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days, unless the same are being contested in good faith and by appropriate proceedings which prevent enforcement of the matter under contest and as to which adequate reserves have been provided;
(g) Borrower shall (i) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, unless Borrower can cause the same to be removed and cured within thirty (30) days from the date thereof, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its assets, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) take any action in furtherance of any matter described in parts (i) through (v) above, or (vii) fail to contest in good faith any appointment or proceeding described in Section 8.1(h);
(h) a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for Borrower, or any substantial part of any of its assets, or a proceeding described in Section 8.1(g)(v) shall be instituted against Borrower, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) days;
(i) the death of a Guarantor, any Guarantor is not Solvent, the revocation of any Guaranty, the appointment of a receiver for any part of any Guarantor’s Property, any assignment for the benefit of creditors, any type of creditor workout, the commencement of any proceeding under any bankruptcy or insolvency laws by or against a Guarantor, or any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be entered or filed against any Guarantor or against any of its assets, and, in each case, which remains undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days, which in any case referred to above would reasonably be expected to have a Material Adverse Effect, unless the same are being contested in good faith and by appropriate proceedings which prevent enforcement of the matter under contest and as to which adequate reserves have been provided;
(j) any adverse change in the financial condition of Borrower or any Guarantor which would reasonably be expected to have a Material Adverse Effect;
(k) the occurrence of a default or an event of default under any other loan agreement, extension of credit, security agreement, or any other agreement between any Borrower and any other lender or between any Guarantor and any other lender, which would reasonably be expected to have a Material Adverse Effect;
(l) Borrower is not Solvent;
(m) Borrower uses the Revolving Loan proceeds for any purpose other than as set forth in Section 5.3.; and
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(n) the occurrence of a default or an event of default under any other agreement between Borrower and Lender.
Section 8.2. Immediate Default and Acceleration. Upon the occurrence of an Event of Default described in Section 8.1(g) or Section 8.1(h), the Revolving Loan and the other financial accommodations extended to Borrower by Lender pursuant to the Loan Documents shall immediately terminate and all Obligations, shall immediately become due and payable without presentment, demand, protest or notice of any kind, all of which Borrower hereby waives.
Section 8.3. Effect of Default. When any Event of Default has occurred and is continuing, after the expiration of any cure periods, Lender may, by written notice to Borrower:
(a) terminate the remaining Commitment and all other obligations of Lender hereunder on the date stated in such notice (which may be the date thereof);
| (b) | cease any future Advances as of the date of such Event of Default; |
(c) declare the then outstanding principal of and the accrued interest on the Note to be forthwith due and payable and thereupon all outstanding amounts, including principal and interest, shall be and become immediately due and payable together with all other amounts payable under the Loan Documents without further demand, presentment, protest or notice of any kind;
(d) with or without accelerating the maturity of the Revolving Loan, Lender may sue from time to time for any amount due under any of the Loan Documents;
(e) seek to enforce any rights and remedies set forth in this Agreement, the Note and any other of the Loan Documents against Borrower and nothing contained in this Agreement or any exercise by Lender of any right or remedy pursuant to this Agreement or any of the other Loan Documents shall modify or limit any obligations or liabilities of Borrower under this Agreement, the Note or any of the other Loan Documents;
(f) make any payment or perform any other obligation under the Loan Documents which Borrower has failed to make or perform, and Borrower hereby irrevocably appoints Lender as the true and lawful attorney-in-fact for Borrower to make any such payment and perform any such obligation in the name of Borrower. All payments made and expenses (including reasonable Attorney’s Fees and Costs) incurred by Lender in this connection, together with interest thereon at the Default Rate from the date paid or incurred until repaid, will be part of the Obligations and will be immediately due and payable by Borrower to Lender. In lieu of advancing Lender’s own funds for such purposes, Lender may use any funds of Borrower which may be in Lender’s possession, including but not limited to, insurance or condemnation proceeds and amounts deposited for taxes, insurance premiums, or other purposes;
(g) notwithstanding the availability of legal remedies, Lender will be entitled to obtain specific performance, mandatory or prohibitory injunctive relief, or other equitable relief requiring Borrower to cure or refrain from repeating any default;
(h) exercise all rights of a secured party under the Uniform Commercial Code and any other applicable law with respect to the Collateral and enforcing or otherwise realizing upon any accounts and general intangibles. Any requirement for reasonable notice of the time and place of any public sale, or of the time after which any private sale or other disposition is to be made, will be satisfied by Lender’s giving of such notice to Borrower at least fifteen (15) days prior to the time of any public sale or the time after which any private sale or other intended disposition is to be made;
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(i) exercise or pursue any other remedy or cause of action permitted at law or in equity or under this Agreement or any other Loan Document, and all of Lender’s rights and remedies shall be cumulative and non-exclusive to the extent permitted by law;
(j) surrender the insurance policies maintained pursuant to the terms hereof, or any part thereof, and receive and apply any unearned premiums as a credit on the Obligations and, in connection therewith, Borrower hereby appoints Lender (or any officer of Lender) as the true and lawful agent and attorney-in-fact for Borrower (with full powers of substitution), which power of attorney shall be deemed to be a power coupled with an interest and therefore irrevocable, to collect such premiums; and
(k) nothing contained in this Agreement or any exercise by Lender of any right or remedy pursuant to this Agreement or any of the other Loan Documents, shall modify or limit any obligations or liabilities of Borrower under the Note or any of the other Loan Documents. Borrower hereby agrees and acknowledges that Lender may seek to enforce any rights and remedies set forth in this Agreement, the Note and any other of the Loan Documents against Borrower.
Section 8.4. Expenses. Borrower agrees to pay to Lender, and any other holder of the Note outstanding hereunder, all reasonable costs and expenses reasonably incurred or paid by Lender or any such holder, including reasonable Attorney’s Fees and Costs, in connection with any Default or Event of Default hereunder or in connection with the enforcement of any of the Loan Documents (including all such costs and expenses incurred in connection with any proceeding under the United States Bankruptcy Code involving Borrower as a debtor thereunder) or in connection with the perfection and the continuation of the perfection of Lender’s Lien on the Collateral or in connection with the release of any of the Liens of Lender on the Collateral.
SECTION 9. Miscellaneous.
Section 9.1. No Waiver, Cumulative Remedies. Except as otherwise set forth in the Loan Documents, no delay or failure on the part of Lender or on the part of the holder or holders of any of the Obligations in the exercise of any power or right under any Loan Document shall operate as a waiver thereof or as an acquiescence in any Event of Default, nor shall any single or partial exercise of any power or right preclude any other or further exercise thereof or the exercise of any other power or right. The rights and remedies hereunder of Lender and of the holder or holders of any of the Obligations are cumulative to, and not exclusive of, any rights or remedies which any of them would otherwise have.
Section 9.2. Non-Business Days. If any payment hereunder becomes due and payable on a day which is not a Business Day, the due date of such payment shall be extended to the next Business Day on which date such payment shall be due and payable. In the case of any payment of principal falling due on a day which is not a Business Day, interest on such principal amount shall continue to accrue during such extension at the rate per annum then in effect, which accrued amount shall be due and payable on the next scheduled date for the payment of interest.
Section 9.3. Documentary Taxes. Borrower agrees to pay on demand any documentary, stamp or similar taxes payable in respect of this Agreement or any other Loan Document, including interest and penalties, in the event any such taxes are assessed, irrespective of when such assessment is made and whether or not any credit is then in use or available hereunder.
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Section 9.4. Survival of Representations. All representations and warranties made herein or in any other Loan Document or in certificates given pursuant hereto or thereto shall survive the execution and delivery of this Agreement and the other Loan Documents, and shall continue in full force and effect with respect to the date as of which they were made as long as any credit is in use or available hereunder.
Section 9.5. Survival of Indemnities. All indemnities and other provisions relative to reimbursement to Lender of amounts sufficient to protect the yield of Lender with respect to the Revolving Loan, including, but not limited to, Sections 8.4 and 9.13, shall survive the termination of this Agreement and the other Loan Documents and the payment of the Obligations.
Section 9.6. Notices. Any notice required or desired to be given hereunder shall be in writing and shall be considered effective, if by personal delivery, when delivered, if by nationally recognized overnight carrier, when delivered if prior to 5:00 p.m. local time of the recipient on a Business Day, or if not, at 9:00 a.m., local time on the next Business Day, if mailed by certified mail, return receipt requested, postage prepaid, upon first attempted delivery by the U.S. Postal Service after mailing, or if by email communication with delivery confirmation, when received if prior to 5:00 p.m., local time of the recipient on a Business Day, or if not, 9:00 a.m. local time on the next Business Day, addressed as follows (or any other address that the party to be notified may have designated to the sender by like notice):
| To Borrowers: | ImmunogenX, Inc. | |
| Attention: Jack A. Syage | ||
| 1600 Dove Street, Suite 330 | ||
| Newport Beach, CA 92660 | ||
| Email: jsyage@immunogenx.com | ||
| To Lender: | Mattress Liquidators, Inc. | |
| Attention: David Dolan | ||
| 1435 White Hawk Ranch Drive | ||
| Boulder, CO 80303 | ||
| Email: mattkingdolan@mattresskingcolo.com | ||
| With a copy to: | Armstrong Teasdale LLP | |
| Attention: Edward J. Adkins | ||
| 4643 South Ulster Street, Suite 800 | ||
| Denver, CO 80237 | ||
| Email: eadkins@armstrongteasdale.com | ||
Section 9.7. Counterparts. This Agreement may be executed in any number of counterparts, and by the different parties hereto on separate counterpart signature pages, and all such counterparts taken together shall be deemed to constitute one and the same instrument.
Section 9.8. Successors and Assigns. This Agreement shall be binding upon Lender and Borrower and their respective successors and permitted assigns, and shall inure to the benefit of Lender and Borrower and their respective successors and assigns, including any subsequent holder of any of the Obligations. Borrower may not assign any of its rights or obligations under any Loan Document without the written consent of Lender.
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Section 9.9. Participants. Lender shall have the right at its own cost to grant participations (to be evidenced by one or more agreements or certificates of participation) in the Revolving Loan held at any time and from time to time to one or more other Persons. Borrower authorizes Lender to disclose to any participant or prospective participant any financial or other information pertaining to Borrower.
Section 9.10. Assignments. Lender shall have the right at any time, to sell, assign, transfer or negotiate all or any part of its rights and obligations under the Loan Documents (including, without limitation, the indebtedness evidenced by the Note) to one or more commercial banks or other financial institutions or investors. Borrower hereby authorizes Lender to disclose to any purchaser or prospective purchaser of an interest in the Revolving Loan under this Section any financial or other information pertaining to Borrower.
Section 9.11. Amendments and Waivers. Any provision of this Agreement or the other Loan Documents may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by Borrower and Lender.
Section 9.12. Headings. Section headings used in this Agreement are for reference only and shall not affect the construction of this Agreement.
Section 9.13. Costs and Expenses; Indemnification. In addition to the expenses set forth in Section 3.1, Borrower agrees to pay all reasonable costs and expenses of Lender in connection with the administration of this Agreement, including, without limitation the reasonable Attorney’s Fees and Costs incurred by Lender in the exercise of any right or remedy available to it under this Agreement and reasonable Attorney’s Fees and Costs incurred by Lender, in connection with the preparation and execution of any amendment, waiver or consent to the Loan Documents related thereto. Borrower further agrees to indemnify Lender, and its directors, officers, employees, agents, attorneys, financial advisors, and consultants (each, a “Lender Party”) against all losses, claims, damages, penalties, judgments, liabilities and expenses (including, without limitation, all reasonable expenses of litigation or preparation therefor, whether or not the indemnified Person is a party thereto, or any settlement arrangement arising from or relating to any such litigation) which any of them may pay or incur arising out of or relating to any Loan Document or any of the transactions contemplated thereby or the direct or indirect application or proposed application of the proceeds of the Revolving Loan, other than those which arise from (a) the gross negligence, bad faith or willful misconduct of Lender Party claiming indemnification, or (b) any material breach or material violation of the Loan Documents by Lender Party (or its agents) claiming indemnification. Borrower, upon demand by Lender at any time, shall reimburse Lender for any reasonable legal or other expenses incurred in connection with investigating or defending against any of the foregoing (including any settlement costs relating to the foregoing) except if the same is directly due to the gross negligence, bad faith or willful misconduct of the party to be indemnified. The obligations of Borrower under this Section shall survive the termination of this Agreement.
Section 9.14. Set-off. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, and to the extent permitted by applicable law, upon the occurrence of any Event of Default, Lender and each subsequent holder of any Obligation is hereby authorized by Borrower at any time or from time to time, without notice to Borrower or to any other Person, any such notice being hereby expressly waived, to set-off and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts, and in whatever currency denominated) and any other indebtedness at any time held or owing by Lender or that subsequent holder to or for the credit or the account of Borrower, whether or not matured, against and on account of the Obligations of Borrower to Lender or that subsequent holder under the Loan Documents.
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Section 9.15. Entire Agreement. The Loan Documents constitute the entire understanding of the parties thereto with respect to the subject matter thereof and any prior agreements, whether written or oral, with respect thereto are superseded hereby.
Section 9.16. Governing Law. This Agreement and the other Loan Documents (except as otherwise specified therein), and the rights and duties of the parties hereto, shall be construed and determined in accordance with the internal laws of the State of Colorado. The parties hereby submit to the exclusive jurisdiction of the United States District Court for the District of Colorado and of any Colorado state court sitting in Boulder County, Colorado for purposes of all legal proceedings arising out of or relating to this Agreement, the other Loan Documents or the transactions contemplated hereby or thereby; provided, however, that the foregoing shall not limit Lender’s rights to bring any legal action or proceeding in any other appropriate jurisdiction in its unrestricted discretion. Each of Borrower and Lender irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
Section 9.17. Waiver of Jury Trial. IN CONSIDERATION OF LENDER’S DECISION TO APPROVE THE REVOLVING LOAN, LENDER AND BORROWER, HAVING BEEN REPRESENTED BY COUNSEL, EACH KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY LOAN DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH THIS AGREEMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. BORROWER AGREES THAT IT WILL NOT ASSERT ANY CLAIM AGAINST LENDER UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT ON ANY THEORY OF LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
Section 9.18. Severability of Provisions. Any provision of this Agreement or any Loan Document which is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. All rights, remedies and powers provided in this Agreement and the other Loan Documents may be exercised only to the extent that the exercise thereof does not violate any applicable mandatory provisions of law, and all the provisions of this Agreement and other Loan Documents are intended to be subject to all applicable mandatory provisions of law which may be controlling and to be limited to the extent necessary so that they will not render this Agreement or the other Loan Documents invalid or unenforceable.
Section 9.19. Excess Interest. Notwithstanding any provision to the contrary contained herein or in any other Loan Document, no provision shall require the payment or permit the collection of any amount of interest in excess of the maximum amount of interest permitted by applicable law to be charged for the use or detention, or the forbearance in the collection, of all or any portion of the Revolving Loan or other obligations outstanding under this Agreement or any other Loan Document (“Excess Interest”). If any Excess Interest is provided for, or is adjudicated to be provided for, herein or in any other Loan Document, then in such event (a) the provisions of this Section shall govern and control, (b) Borrower or any guarantor or endorser shall not be obligated to pay any Excess Interest, (c) any Excess Interest that Lender may have received hereunder shall, at the option of Lender, be (i) applied as a credit against the then outstanding principal amount of Obligations hereunder and accrued and unpaid interest thereon (not to exceed the maximum amount permitted by applicable law), (ii) refunded to Borrower, or (iii) any combination of the foregoing, (d) the interest rate payable hereunder or under any other Loan Document shall be automatically subject to reduction to the maximum lawful contract rate allowed under applicable usury laws (the “Maximum Rate”), and this Agreement and the other Loan Documents shall be deemed to have been, and shall be, reformed and modified to reflect such reduction in the relevant interest rate, and (e) neither Borrower nor any guarantor or endorser shall have any action against Lender for any damages whatsoever arising out of the payment or collection of any Excess Interest. Notwithstanding the foregoing, if for any period of time interest on any of the Obligations of Borrower is calculated at the Maximum Rate rather than the applicable rate under this Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of interest payable on the Obligations of Borrower shall remain at the Maximum Rate until Lender has received the amount of interest which Lender would have received during such period on the Obligations of Borrower had the rate of interest not been limited to the Maximum Rate during such period.
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Section 9.20. Construction. Nothing contained herein shall be deemed or construed to permit any act or omission which is prohibited by the terms of any Collateral Document, the covenants and agreements contained herein being in addition to and not in substitution for the covenants and agreements contained in the Collateral Documents.
Section 9.21. Further Assurance. Borrower hereby covenants and agrees to execute and deliver to Lender upon request, and pay the costs of preparation thereof, all such other and further documents, agreements and instruments in compliance with or accomplishment of the covenants and agreements in this Agreement or any of the other Loan Documents.
Section 9.22. Relationship of the Parties. Nothing contained in this Agreement and no action taken by Lender pursuant hereto shall be deemed to constitute Lender and Borrower as a partnership, association, joint venture or other entity.
[Signature Page to Follow]
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This Agreement is entered into between us for the uses and purposes hereinabove set forth as of the date first above written.
| "BORROWER" |
| IMMUNOGENX, INC., |
| a Delaware corporation |
| By: | /s/ Jack A. Syage | |
| Name: | Jack . Syage | |
| Title: | Authorized Representative |
[Borrower Signature Page to Credit Agreement]
"LENDER"
MATTRESS LIQUIDATORS, INC.,
| /s/ David Dolan | ||
| Name: | David Dolan | |
| Title: | Chief Executive Officer | |
[Lender Signature Page to Credit Agreement]
Exhibit A
Form of Advance Request
This request (“Advance Request”) is delivered by IMMUNOGENX, INC., a Delaware corporation (“Borrower”), pursuant to Section 2.2 of the Credit Agreement, dated as of October 3, 2022 (as may be amended, supplemented, amended and restated, or modified from time to time, the “Credit Agreement”) between Borrower and MATTRESS LIQUIDATORS, INC., a Colorado corporation, as Lender. Terms used herein, unless otherwise defined herein, shall have the meanings provided in the Credit Agreement.
Borrower hereby requests an Advance under the Credit Agreement in the amount of $ to be made available on (“Advance Date”).
Lender is instructed to disburse the proceeds of such Advance into Borrower’s deposit account, Account Number held with [ ].
Borrower herby certifies, represents and warrants to Lender that:
| 1. | No Default or Event of Default has occurred and is continuing; |
2. Borrower’s Representations and Warranties contained in Section 5 of the Credit Agreement remain true and correct as of the Advance Date.
3. The Covenants contained in Section 7 of the Credit remain true and correct as of the Advance Date.
4. The requested Advance, when made, will not cause the outstanding principal balance of all the Revolving Loans to exceed the Loan Availability for such Revolving Loan.
IN WITNESS WHEREOF, the undersigned have executed this Advance Request as of this day of , .
“BORROWERS”
IMMUNOGENX, INC.,
a Delaware corporation
By: Name: Title:
[Exhibit A]
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MODIFICATION OF LOAN DOCUMENTS
THIS MODIFICATION OF LOAN DOCUMENTS (“Agreement”) is made effective as of September 6, 2023 by and among MATTRESS LIQUIDATORS, INC., a Colorado corporation (“Lender”), and IMMUNOGENX, INC., a Delaware corporation (“Borrower”).
RECITALS:
A. WHEREAS, pursuant to the Credit Agreement, dated as of October 3, 2022, between Borrower and Lender (as amended, restated or modified from time to time, the “Credit Agreement”), Lender extended to Borrower a Revolving Loan to Borrower.
B. WHEREAS, to evidence the Revolving Loan (as defined in the Credit Agreement), the Borrower executed and delivered to lender that certain Revolving Loan Promissory Note, dated as of October 3, 2022, in the original principal amount of up to Six Million and 00/100 Dollars ($6,000,000.00) (“Revolving Loan Promissory Note”).
C. WHEREAS, Lender and Borrower now desire to amend the Credit Agreement and amend and restate the Revolving Loan Promissory Note as set forth herein.
NOW, THEREFORE, in consideration of the foregoing Recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned parties hereby agree to amend and modify the Credit Agreement, amend and restate the Revolving Loan Promissory Note, as follows:
AGREEMENT
| 1. | Incorporation of Recitals. The Recitals are incorporated as part of this Agreement, and the parties hereto agree that the above Recitals are accurate. |
| 2. | Definitions. Except as expressly defined herein, all defined terms used herein shall have the same meaning ascribed to them in the Credit Agreement. |
| 3. | Modifications to Credit Agreement. Effective as of the date of this Agreement and upon the terms and subject to the conditions set forth in this Agreement, the following provisions of the Credit Agreement are hereby amended as follows: |
(a) The definition of “Commitment” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
“Commitment” means Seven Million Five Hundred Thousand and 00/100 Dollars ($7,500,000.00).
(b) The definition of “Loan Availability” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
“Loan Availability” shall mean, at any time, the Commitment then in effect minus the outstanding balance under the Revolving Loan and minus the Revolving Loan Sublimit; provided, however, for the period commencing on September 1, 2023 and ending on September 30, 2023, Loan Availability shall mean Seven Million and 00/100 Dollars ($7,000,000.00) minus the Revolving Loan Sublimit, and after October 1, 2023, Loan Availability shall mean the Revolving Loan and minus the Revolving Loan Sublimit.
(c) The definition of “Note” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
“Note” shall mean that certain Amended and Restated Revolving Loan Promissory Note, dated as of September 6, 2023, executed by Borrower and payable to Lender, in the principal amount of the Commitment, as the same may be amended, modified, restated or supplemented from time to time.
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(d) The definition of “Revolving Loan Sublimit” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
“Revolving Loan Sublimit” means One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00).
(e) The definition of “Warrant” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
“Warrant” shall mean, collectively, that certain 2022 Warrant and the 2023 Warrant.
(f) The following new definition of “2022 Warrant” shall be added to Section 1.1 of the Credit Agreement to read as follows:
“2022 Warrant” means that certain Warrant, dated on or about October 3, 2022, between Borrower and Lender, as the same may be amended, modified, supplemented or restated from time to time, wherein Borrower shall grant to Lender, or its assigns, the right to acquire up to 24,100 shares of Borrower’s stock at a valuation of $10.38 per share, representing $250,158 of enterprise value. To the extent permitted by the Securities and Exchange Commission under applicable securities laws and the underwriters, the 2022 Warrant shall not be subject to any lock-up period.
(g) The following new definition of “2023 Warrant” shall be added to Section 1.1 of the Credit Agreement to read as follows:
“2023 Warrant” means that certain Warrant, dated on or about September 6, 2023, between Borrower and Lender, as the same may be amended, modified, supplemented or restated from time to time, wherein Borrower shall grant to Lender, or its assigns, the right to acquire up to 24,100 shares of Borrower’s stock at a valuation of $8.00 per share, representing $192,800 of enterprise value. To the extent permitted by the Securities and Exchange Commission under applicable securities laws and the underwriters, the 2023 Warrant shall not be subject to any lock-up period.
4. Liquidated Damages. In the event that any of the 2022 Warrant, the 2023 Warrant (together with the 2022 Warrant, the “Warrants”), and/or the shares of Common Stock underlying the Warrants (the “Warrant Shares”) are subject to any Lock-Up Agreement pursuant to which Lender is a party, Borrower covenants and agrees to pay to Lender on the earlier of (a) the Revolving Loan Termination Date, or (b) ten (10) days after the expiration of the Lock-Up Period, an amount equal to $2.50 per share of Common Stock underlying any and all of the Warrants subject to the Lock-Up Agreement as compensation to Lender for being subject to any such Lock-Up Period (”Liquidated Damages”). For illustration purposes, if the 48,200 shares underlying the 2022 Warrant and 2023 Warrant in the aggregate are subject to a Lock-Up Agreement, Borrower agrees to pay to Lender an amount equal to $120,500.00 in Liquidated Damages. Notwithstanding the foregoing, in the event the closing price per share of Common Stock of the Borrower (or its successor in interest) is not less than $35.00 per share as listed on any national securities exchange or quotation system during the ten (10) consecutive trading days following the expiration of the Lock-Up Period, Lender shall refund the full amount of the Liquidated Damages to Borrower. Borrower acknowledges and agrees the Liquidated Damages are fair, just and an equitable alternate form of compensation to Lender for being subject to the Lock-Up Period. For purposes of this Paragraph, (a) “Lock-Up Agreement” means any agreement to which Lender is a party that restricts, restrains, prohibits, or otherwise limits Lender from offering, selling, pledging, transferring, contracting to sell, granting any option or contract to purchase, or otherwise disposing of, directly or indirectly, the Warrants and/or the Warrant Shares for a specified period of time; provided, however, that “Lock-Up Agreement” shall not be interpreted to include any regulation or applicable federal or state law that imposes a holding period on the Warrants and/or Warrant Shares that are held by Lender; and (b) “Lock-Up Period” means the period of time established in any Lock-Up Agreement during which Lender is restricted from disposing of the Warrants and/or Warrant Shares pursuant to the provisions set forth in the Lock-Up Agreement.
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5. Effect of Amendments. All references to the Credit Agreement in the Loan Documents shall be amended to refer to the Credit Agreement as amended by this Agreement. All references to the Revolving Loan Promissory Note or the Note in the Loan Documents shall be amended to refer to the Amended and Restated Revolving Loan Promissory Note.
| 6. | Ratification of Loan Documents. Borrower hereby ratifies, affirms and acknowledges that all of the Loan Documents remain unmodified and continue in full force and effect except as specifically modified herein and are hereby ratified and confirmed by Borrower. It is expressly understood and agreed that this Agreement shall in no manner alter or affect (except as expressly provided therein), extinguish or impair any rights and remedies of Lender under the other Loan Documents. Any property or rights to, or interest in, property granted as security in the Loan Documents shall remain as security for the obligations of Borrower under the Loan Documents. Nothing contained in this Agreement shall be understood or construed to be a satisfaction or release in whole or in part of Borrower’s obligations evidenced by the Loan Documents. |
| 7. | Representations and Warranties. Borrower represents and warrants to Lender: |
Except as otherwise as disclosed in writing by Borrower to Lender as of the date hereof, no Event of Default under any of the Loan Documents, nor any event, that, with the giving of notice or the passage of time or both, would be an Event of Default under the Loan Documents has occurred and is continuing.
There has been no event that would have a material adverse effect on the financial condition of Borrower.
Except as disclosed in writing by Borrower to Lender as of the date hereof, each and all representations and warranties of Borrower in the Loan Documents are restated and reaffirmed and are accurate on the date hereof to the same extent as though made as of the date of this Agreement, except to the extent such representations and warranties specifically relate to an earlier date.
Borrower has no claims, counterclaims, defenses, or set-offs against Lender with respect to the Loans or the Loan Documents.
The Loan Documents, as modified herein, to which Borrower is a signatory, is the legal, valid, and binding obligation of Borrower, enforceable against Borrower in accordance with their terms.
Borrower validly exists under the laws of its state of formation or organization and has the requisite power and authority to execute and deliver this Agreement and to perform the Loan Documents to which Borrower is a signatory. The execution and delivery of this Agreement and the performance of the Loan Documents as modified herein have been duly authorized by all requisite action by or on behalf of Borrower. This Agreement has been duly executed and delivered on behalf of Borrower.
| 8. | Covenants. Borrower hereby covenants with Lender as follows: |
(a) Borrower shall execute and deliver to Lender that certain Amended and Restated Revolving Loan Promissory Note.
(b) Borrower shall execute and deliver to Lender that certain Warrant, dated on or about the date hereof, between Borrower and Lender, as the same may be amended, modified, supplemented or restated from time to time, wherein Borrower shall grant to Lender, or its assigns, the right to acquire up to 20,000 shares of Borrower’s stock at a valuation of $8.00 per share, representing $160,000 of enterprise value.
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(c) Borrower and Guarantors shall execute and deliver and provide to Lender such additional agreements, documents or instruments as reasonably required by Lender to effectuate the intent of this Agreement.
(d) Borrower shall pay to Lender on the effective date of this Agreement a one-time non-refundable upfront commitment fee equal to Fifteen Thousand and 00/100 Dollars ($15,000.00) (“Commitment Fee”). Borrower hereby requests and authorizes Lender to advance directly to itself the Commitment Fee against the Revolving Loan Sublimit in accordance with Section 4.3 of the Credit Agreement. Borrower agrees and acknowledges that the Commitment Fee is earned fully as of the date of execution of this Agreement and will not be subject to refund, except as required by law, Borrower hereby authorizes Lender to advance to itself the Commitment Fee.
| 9. | General Release Language. Borrower and Guarantors, for themselves, their successors, heirs, personal representatives, executors, administrators and assigns, do hereby completely and unconditionally fully, finally, and forever release and discharge Lender, together with their respective officers, directors, employees, agents, attorneys and shareholders, as well as their successors and assigns, from and against any and all claims, demands, actions, causes of action, costs, expenses, damages or liabilities of whatever kind or nature, direct, indirect, third-party or derivative, known or unknown, absolute or contingent, whether arising in law or equity or upon contract or tort or under any state or federal law or otherwise, which are based directly or indirectly upon facts, events, transactions or occurrences existing as of the date of this Agreement relating, in any manner whatsoever, to this Agreement and the Loan Documents. |
| 10. | Integration. The Loan Documents, as modified herein, contain a complete understanding of the agreement between Borrower and Lender with respect to the Loan Documents and supercede all prior representations, warranties, agreements, arrangements, understandings and negotiations. No provision of the Loan Documents, as modified herein, may be changed, discharged, supplemented, terminated or waived except in a writing signed by all parties. |
| 11. | No Release. Borrower specifically acknowledges and agrees that nothing contained in this Agreement shall be understood or construed to be a satisfaction or release in whole or in part of any of Borrower’s obligations evidenced by the Loan Documents. |
| 12. | Counterpart Execution. This Agreement may be executed in one or more counterparts (via facsimile, pdf. or other electronic means), each of which shall be deemed an original and all of which together shall constitute one and the same document. Signature pages may be detached from the counterparts and attached to a single copy of this Agreement to form one physical document. |
| 13. | Binding Effect. This Agreement shall be binding upon and inure to the benefit of Borrower and Lender and each of their respective successors and assigns. |
| 14. | Savings Clause. If any provision of this Agreement is held to be invalid, void or unenforceable, in whole or in part, then such provision shall be deemed to be modified or restricted to the extent and in the manner necessary to render the same valid and enforceable, or shall be deemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if such provision had been originally incorporated herein, as so modified or restricted or as if such provision had not been originally incorporated herein, as the case may be. In the event that any provision of this Agreement is held to be invalid, void or unenforceable, the remaining provisions shall continue in full force and effect, without being impaired or invalidated in any way. |
| 15. | Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. |
| 16. | WAIVER OF JURY TRIAL. IT IS MUTUALLY AGREED BETWEEN BORROWER AND LENDER THAT THE RESPECTIVE PARTIES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT AND ANY AND ALL OTHER LOAN DOCUMENTS. |
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| 17. | Lender’s Non-Waiver. Lender’s failure to insist upon strict performance of any terms hereof or as set forth in the Loan Documents shall not be deemed to be a waiver of any terms of this Agreement or of the Loan Documents. Lender may exercise any right or remedy it may have under this Agreement without prejudice to any additional rights or remedies Lender may have under the Loan Documents, or any other agreement between Lender and Borrower. |
| 18. | Miscellaneous. Time is of the essence for the payment and performance of all of the obligations and duties contained in this Agreement. This Agreement contains the entire agreement among the parties with respect to the subject matter covered herein, and supercedes all prior agreements (oral or written), negotiations and discussions among the parties relating thereto. Lender’s consent to this Agreement shall not be construed as consent by Lender to any future modification of the Loan Documents. |
[Signature Page to Follow]
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IN WITNESS WHEREOF, Borrower and Lender have executed this Modification of Loan Documents by and through their duly authorized representatives to be effective as of the date first above written.
“BORROWER” |
| IMMUNOGENX, INC., |
| a Delaware corporation |
| By: | /s/ Jack A. Syage | |
| Name: | Jack A. Syage | |
| Title: | Authorized Representative |
[Borrower Signature Page to the Modification of Loan Documents]
“LENDER” |
| MATTRESS LIQUIDATORS, INC., |
| a Colorado corporation |
| By: | /s/ David Dolan | |
| Name: | David Dolan | |
| Title: | Chief Executive Officer |
SECOND MODIFICATION OF LOAN DOCUMENTS
THIS SECOND MODIFICATION OF LOAN DOCUMENTS (“Agreement”) is made effective as of March 13, 2024, by and between MATTRESS LIQUIDATORS, INC., a Colorado corporation (“Lender”), and IMMUNOGENX, INC., a Delaware corporation (“Borrower”).
RECITALS:
D. WHEREAS, pursuant to the Credit Agreement, dated as of October 3, 2022 (as amended by that certain Modification of Loan Documents, dated as of September 6, 2023, and as may be further amended, restated or modified from time to time, the “Credit Agreement”), between Borrower and Lender, Lender extended to Borrower a Revolving Loan to Borrower.
E. WHEREAS, to evidence the Revolving Loan (as defined in the Credit Agreement), the Borrower executed and delivered to lender that certain Amended and Restated Revolving Loan Promissory Note, dated as of September 6, 2023 (as may be amended, restated or modified from time to time, “Revolving Loan Promissory Note”), in the original principal amount of up to Seven Million Five Hundred Thousand and 00/100 Dollars ($7,500,000.00).
F. WHEREAS, in connection with the Credit Agreement, Borrower and Lender executed that certain Security Agreement, dated as of October 3, 2022 (as may be amended, restated or modified from time to time, the “Security Agreement”), wherein Borrower pledged all of its assets as security for its Obligations to Lender under the Loan Documents.
G. WHEREAS, Lender and Borrower now desire to amend the Credit Agreement and the Security Agreement, and amend and restate the Revolving Loan Promissory Note as set forth herein.
H. WHEREAS, Borrower has informed Lender that (i) it anticipates entering into that certain Agreement and Plan of Merger (the “Merger Agreement”), by and among First Wave Biopharma, Inc., IMMUNO Merger Sub I, Inc., and IMMUNO Merger Sub II, LLC (the “Surviving Company”), pursuant to which Borrower shall consummate a merger transaction with the Surviving Company being the ultimate survivor of such merger (the “Merger”), and (ii) in connection with such Merger, the Surviving Company will assume all of Borrower’s rights, interests, duties, obligations, and liabilities in its capacity as Borrower in, to, and under the Credit Agreement, the Revolving Loan Promissory Note, and the other Loan Documents (the “Assumption”).
I. WHEREAS, Borrower has requested that Lender consent to the Merger Agreement, the Merger, and the Assumption and the transactions related thereto (collectively, the “Merger Transactions”) and Lender is willing to consent to the Merger Transactions.
NOW, THEREFORE, in consideration of the foregoing Recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned parties hereby agree to amend and modify the Credit Agreement and the Security Agreement, and amend and restate the Revolving Loan Promissory Note, as follows:
AGREEMENT
1. Incorporation of Recitals. The Recitals are incorporated as part of this Agreement, and the parties hereto agree that the above Recitals are accurate.
2. Definitions. Except as expressly defined herein, all defined terms used herein shall have the same meaning ascribed to them in the Credit Agreement.
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3. Confirmation of Debt. Borrower hereby acknowledges and agrees that the approximate outstanding principal balance on Revolving Loan, on or about the date hereof, is $7,330,069.66 upon which interest has accrued. Borrower acknowledges and agrees that interest continues to accrue until paid in full.
4. Consent to Merger Transactions. Notwithstanding anything contained in any Loan Document, effective as of the date of this Agreement and upon the terms and subject to the conditions set forth in this Agreement, Lender hereby irrevocably (a) consents to the Merger Transactions and (b) agrees the Merger Transactions will not result in or be deemed to constitute a Default or an Event of Default.
5. Modifications to Credit Agreement. Effective as of the date of this Agreement and upon the terms and subject to the conditions set forth in this Agreement, the following provisions of the Credit Agreement are hereby amended as follows:
(h) The definition of “Collateral” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
“Collateral” shall mean, collectively, the (i) the “Collateral” as defined in the Security Agreement, (ii) the assignment of the “Exclusive Agreement” as defined in the Collateral Assignment, (iii) the “Collateral” as defined in the Pledge Agreement, and (iv) all other assets pledged by Borrower to Lender as collateral for the Revolving Loan.
(i) The definition of “Collateral Documents” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
“Collateral Documents” means the Collateral Assignment, the Security Agreement, the Security Agreement – PTO, the Pledge Agreement and all other security agreements, pledge agreements, assignments, financing statements and other documents as shall from time to time secure or relate to the Obligations, or any part thereof.
(j) The definition of “Commitment” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
“Commitment” means Eight Million Two Hundred Twelve Thousand Three Hundred Forty-Five and 17/1000 Dollars ($8,212,345.17).
(k) The definition of “Loan Availability” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
“Loan Availability” mean, at any time, the Commitment then in effect minus the outstanding balance under the Revolving Loan.
(l) The definition of “Maturity Date of the Revolving Loan” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
“Maturity Date of the Revolving Loan” means September 13, 2025.
(m) The definition of “Note” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
“Note” shall mean that certain Second Amended and Restated Revolving Loan Promissory Note, dated as of March 13, 2024, executed by Borrower and payable to Lender, in the principal amount of the Commitment, as the same may be amended, modified, restated or supplemented from time to time.
(n) The definition of “Note Rate” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
“Note Rate” shall mean (i) for the period beginning on October 3, 2022 and ending on March 12, 2024, a per annum floating rate equal to the WSJ Prime Rate plus 4.50%, and (ii) for the period beginning on March 13, 2024 and thereafter, a per annum floating rate equal to the WSJ Prime Rate plus 6.0%.
(o) The definition of “Obligations” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
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“Obligations” means all obligations of Borrower to pay principal and interest on the Loans, all fees and charges payable hereunder, all Over-Advances, and all other obligations incurred by Borrower under any agreement between Borrower and Lender or any Affiliate of Lender with respect to the Loans and as set forth in the Loan Documents, all payment obligations of Borrower arising under or in relation to any Loan Document or any other agreement between Borrower and Lender with respect to the Loans and as set forth in the Loan Documents, in each case whether now existing or hereafter arising, due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired.
(p) The definition of “Revolving Loan Sublimit” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:
“Revolving Loan Sublimit” means, the Commitment then in effect minus the outstanding balance under the Revolving Loan.
(q) The following new definitions are hereby added to Section 1.1 of the Credit Agreement to be inserted in alphabetical order as follows:
“Authorized Representative” means any officer of the Borrower and any other Person the Borrower may from time to time designate as a Person authorized to act for and on behalf of Borrower.
“Loan” means, individually, a Revolving Loan, and “Loans” means, collectively, all Revolving Loans.
“Over-Advance” means, the amount, if any, by which the unpaid principal amount of all Loans exceeds the Commitment, which will be deemed an Advance of the Loan.
“Pledge Agreement” shall mean that certain Limited Recourse Pledge Agreement, dated as of March 13, 2024, between Borrower and the Grantors a party thereto, as the same may be amended, modified, supplemented or restated from time to time.
(r) Section 2.1 “Revolving Loan” of the Credit Agreement is hereby amended and restated as follows:
Subject to the terms and conditions of this Agreement and the other Loan Documents, prior to the Revolving Loan Termination Date, and provided no Event of Default shall exist or the occurrence of any event which, with the giving of notice or the passage of time, or both, will become an Event of Default hereunder, Lender will, at Borrower’s request, cause cash Advances to be made pursuant to the Revolving Loan to be issued for the account of Borrower; provided, however, no Advance shall be made in an amount wherein the aggregate of all Revolving Loans exceeds Loan Availability for the Revolving Loan then in effect; further provided, Borrower may not request Advances after March 13, 2024 (other than with respect to interest payable pursuant to Section 2.3(a) of this Agreement), without the prior written consent of Lender, which consent may be withheld in Lender’s sole and absolute discretion. Subject to the terms and conditions hereof, Revolving Loans may be repaid and the principal amount thereof reborrowed before the Revolving Loan Termination Date. If at any time an Over-Advance exists, Borrower shall immediately, and without the necessity of a demand by Lender, pay to Lender such amount as may be necessary to eliminate such excess, and a failure to do so shall constitute an Event of Default. In the event that the availability of the Revolving Loan hereunder expires by the terms of this Agreement, or by the terms of any agreement extending the Maturity Date of the Revolving Loan, Lender may, in its sole discretion, continue to make requested advances; however, it is expressly acknowledged and agreed that, in such event, Lender shall have the right, in its sole discretion, to decline to make any requested advance and may require payment in full of the Revolving Loan at any time and the making of any such advances shall not be construed as a waiver of such right by Lender.
(s) Section 2.2 “Disbursement of Revolving Loan” of the Credit Agreement is hereby amended and restated as follows:
With the exception of Lender making Advances to itself pursuant to Section 2.7 and Section 4.3, Borrower may not make any Advance requests after March 13, 2024.
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(t) Section 2.3(a) “Interest” of the Credit Agreement is hereby amended and restated as follows:
Subject in all cases to the terms and conditions of this Agreement, for the period beginning on the Closing Date and ending on the Revolving Loan Termination Date, the Revolving Loan or Revolving Loans shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360 days) on the unpaid principal amount thereof from the date such Revolving Loan is advance until maturity (whether by acceleration or otherwise) at a floating rate per annum equal to the Note Rate (including at the Default Rate, if applicable), payable in arrears on the 1st day of each calendar month, with payments beginning on the 1st day of the month following the Closing Date, and continuing on the 1st day of each calendar month thereafter. Borrower hereby authorizes Lender to advance monthly interest payments to itself pursuant to Section 4.3 below.
(u) Section 2.7 “Protective Advance” of the Credit Agreement is hereby amended and restated as follows:
Lender may initiate an Advance in its sole discretion for any reason when an Event of Default exists or after the Revolving Loan Termination Date, without Borrower’s compliance with any of the conditions of this Agreement, and (a) disburse the proceeds directly to any Person in order to protect Lender’s interest in Collateral or to perform any of Borrower’s obligations under this Agreement, or (b) apply the proceeds to the amount of any Obligations then due and payable to Lender. Borrower shall be responsible to repay any Over-Advances arising as a result of this Section 2.7 and any such Over-Advance shall constitute Obligations due and payable to Lender hereunder.
(v) Section 3.3 “Inspection Fees” of the Credit Agreement is hereby amended and restated as follows:
At Lender’s option and request, Borrower shall pay to Lender reasonable fees and out-of-pocket costs incurred in connection with inspection of the Collateral performed by Lender or its agents or representatives as more particularly described in Section 7.6.
(w) Section 4.3 “Authorization for Direct Payment” of the Credit Agreement is hereby amended and restated as follows:
To effectuate any payment due under this Agreement, Borrower hereby requests and authorizes Lender to make advances directly to itself (to be charged against the Revolving Loan Sublimit) for payment and reimbursement of all interest, charges, actual and reasonable costs and expenses incurred by Lender in connection with the Loan, including, but not limited to, (i) interest due on the Loan, the Closing Fee, and other fees due to Lender in connection with the Loan; (ii) all filing, search, recording and registration fees and charges; (iii) all casualty, liability or other insurance premiums; and (iv) all reasonable Attorney’s Fees and Costs, including, without limitation, counsel engaged in connection with the enforcement or administration of this Agreement or any of the Loan Documents. Borrower shall be responsible to repay any Over-Advances arising as a result of this Section 4.3 and any such Over-Advance shall constitute Obligations due and payable to Lender hereunder.
(x) The first paragraph of Section 7.8 “Liens” of the Credit Agreement is hereby amended and restated as follows:
Borrower shall not create, assume or permit to exist any security interest, encumbrance, mortgage, deed of trust, or other lien (including, but not limited to, a lien of attachment, judgment or execution) affecting any of the Collateral, or execute or allow to be filed any financing statement or continuation thereof affecting any of such properties, except for the following (collectively, “Permitted Liens”):
(y) Section 8.1(b) of the Credit Agreement is hereby amended and restated as follows:
default in the payment of fees payable hereunder, or of any other Obligation payable under any Loan Document, and, in each case, such default shall continue for a period of the earlier of (i) twenty (20) days following the due date thereof, or (ii) twenty (20) days following Lender’s written request for payment thereof;
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(z) Section 8.1(c) of the Credit Agreement is hereby amended and restated as follows:
default in the observance or performance of any other provision hereof or of any other Loan Document or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower which is not remedied within thirty (30) days after the earlier of (i) the date on which such failure shall first become actually known to any authorized representative of Borrower, (ii) written notice thereof is given to Borrower by Lender, or (iii) such other time period as set forth in Sections 8.1(f), 8.1(g), 8.1(h) or 8.1(i) (“Cure Period”); provided that if such default is of such a nature that it is not reasonably susceptible to cure within the Cure Period, then within a reasonable time thereafter provided Borrower shall have begun to cure such default within the Cure Period and is diligently and in good faith attempting to effect such cure, the Cure Period shall be extended for up to thirty (30) additional days, but in no event shall the Cure Period be longer than sixty (60) days in the aggregate;
| 6. | Modifications to Security Agreement. Effective as of the date of this Agreement and upon the terms and subject to the conditions set forth in this Agreement, the following provisions of the Security Agreement are hereby amended as follows: |
(a) The definition of “Event of Default” in Section 1(a) of the Security Agreement is hereby amended and restated as follows:
“Event of Default” is defined in Section 8.
(b) Section 8(b) of the Security Agreement is hereby amended and restated as follows:
The breach by Borrower of any of the terms or conditions of this Security Agreement that continues beyond the expiration of all applicable grace or cure periods, if any, or in the absence of such cure period, then if such failure by its nature can be cured, then so long as the priority, validity and enforceability of the liens created by this Security Agreement or any of the other Loan Documents and the value of the Collateral are not impaired, threatened or jeopardized (excluding, for the avoidance of doubt, any change or potential change in the stock price of any securities resulting from volatility in the public markets in the ordinary course), then Borrower shall have a period (“Cure Period”) of thirty (30) days after the earlier of (i) the date on which such failure shall first become actually known to an authorized representative of Borrower or (ii) the date on which Borrower receives written notice of such failure to cure the same and an Event of Default shall not be deemed to exist during the Cure Period; provided, however, that if such failure by its nature cannot be cured by the payment of a sum of money or is not reasonably susceptible of cure within the Cure Period, then so long as Borrower commences to cure such failure during the Cure Period and is diligently and in good faith attempting to effect such cure, the Cure Period shall be extended for thirty (30) additional days, but in no event shall the Cure Period be longer than sixty (60) days in the aggregate;
(c) The reference to ten (10) days in the Section 9(a) of the Security Agreement shall be changed to fifteen (15) days.
7. Effect of Amendments. All references to the Credit Agreement in the Loan Documents shall be amended to refer to the Credit Agreement as amended by this Agreement. All references to the Revolving Loan Promissory Note or the Note in the Loan Documents shall be amended to refer to the Second Amended and Restated Revolving Loan Promissory Note. All references to the Security Agreement in the Loan Documents shall be amended to refer to the Security Agreement as amended by this Agreement.
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| 8. | Ratification of Loan Documents. Borrower hereby ratifies, affirms and acknowledges that all of the Loan Documents remain unmodified and continue in full force and effect except as specifically modified herein, and are hereby ratified and confirmed by Borrower. It is expressly understood and agreed that this Agreement shall in no manner alter or affect (except as expressly provided therein), extinguish or impair any rights and remedies of Lender under the other Loan Documents. Any property or rights to, or interest in, property granted as security in the Loan Documents shall remain as security for the obligations of Borrower under the Loan Documents. Nothing contained in this Agreement shall be understood or construed to be a satisfaction or release in whole or in part of Borrower’s obligations evidenced by the Loan Documents. |
| 9. | Representations and Warranties. Borrower represents and warrants to Lender: |
Except as otherwise as disclosed in writing by Borrower to Lender as of the date hereof, no Event of Default under any of the Loan Documents, nor any event, that, with the giving of notice or the passage of time or both, would be an Event of Default under the Loan Documents has occurred and is continuing.
There has been no event that would have a material adverse effect on the financial condition of Borrower.
Except as disclosed in writing by Borrower to Lender as of the date hereof, each and all representations and warranties of Borrower in the Loan Documents are restated and reaffirmed and are accurate on the date hereof to the same extent as though made as of the date of this Agreement, except to the extent such representations and warranties specifically relate to an earlier date.
Borrower has no claims, counterclaims, defenses, or set-offs against Lender with respect to the Loans or the Loan Documents.
The Loan Documents, as modified herein, to which Borrower is a signatory, is the legal, valid, and binding obligation of Borrower, enforceable against Borrower in accordance with their terms.
Borrower validly exists under the laws of its state of formation or organization and has the requisite power and authority to execute and deliver this Agreement and to perform the Loan Documents to which Borrower is a signatory. The execution and delivery of this Agreement and the performance of the Loan Documents as modified herein have been duly authorized by all requisite action by or on behalf of Borrower. This Agreement has been duly executed and delivered on behalf of Borrower.
| 10. | Covenants. Borrower hereby covenants with Lender as follows: |
(a) Borrower shall execute and deliver to Lender that certain Second Amended and Restated Revolving Loan Promissory Note.
(b) Borrower shall cause a paydown of the Loan in the amount of $1,000,000.00.
(c) Borrower shall cause the delivery of that certain Limited Recourse Pledge Agreement, dated on or about the date hereof, by the Grantors party thereto.
(d) Borrower and the subordinated creditors shall execute and deliver to Lender a Subordination Agreement, in a form reasonably acceptable to Lender, subordinating related party debt in the amount of $1,000,000.00.
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(e) Borrower and Guarantors shall execute and deliver and provide to Lender such additional agreements, documents or instruments as reasonably required by Lender to effectuate the intent of this Agreement.
(f) Borrower shall pay to Lender on the effective date of this Agreement a one-time non-refundable upfront commitment fee equal to Two Hundred Forty-Six Thousand and 00/100 Dollars ($2460,000) (“Commitment Fee”). Borrower hereby requests and authorizes Lender to advance directly to itself the Commitment Fee in accordance with Section 4.3 of the Credit Agreement. Borrower agrees and acknowledges that the Commitment Fee is earned fully as of the date of execution of this Agreement and will not be subject to refund, except as required by law, Borrower hereby authorizes Lender to advance to itself the Commitment Fee.
| 11. | General Release Language. Borrower and Guarantors, for themselves, their successors, heirs, personal representatives, executors, administrators and assigns, do hereby completely and unconditionally fully, finally, and forever release and discharge Lender, together with their respective officers, directors, employees, agents, attorneys and shareholders, as well as their successors and assigns, from and against any and all claims, demands, actions, causes of action, costs, expenses, damages or liabilities of whatever kind or nature, direct, indirect, third-party or derivative, known or unknown, absolute or contingent, whether arising in law or equity or upon contract or tort or under any state or federal law or otherwise, which are based directly or indirectly upon facts, events, transactions or occurrences existing as of the date of this Agreement relating, in any manner whatsoever, to this Agreement and the Loan Documents. |
| 12. | Integration. The Loan Documents, as modified herein, contain a complete understanding of the agreement between Borrower and Lender with respect to the Loan Documents and supercede all prior representations, warranties, agreements, arrangements, understandings and negotiations. No provision of the Loan Documents, as modified herein, may be changed, discharged, supplemented, terminated or waived except in a writing signed by all parties. |
| 13. | No Release. Except as expressly provided in this Agreement, Borrower specifically acknowledges and agrees that nothing contained in this Agreement shall be understood or construed to be a satisfaction or release in whole or in part of any of Borrower’s obligations evidenced by the Loan Documents. |
| 14. | Counterpart Execution. This Agreement may be executed in one or more counterparts (via facsimile, pdf. or other electronic means), each of which shall be deemed an original and all of which together shall constitute one and the same document. Signature pages may be detached from the counterparts and attached to a single copy of this Agreement to form one physical document. |
| 15. | Binding Effect. This Agreement shall be binding upon and inure to the benefit of Borrower and Lender and each of their respective successors and assigns. |
| 16. | Savings Clause. If any provision of this Agreement is held to be invalid, void or unenforceable, in whole or in part, then such provision shall be deemed to be modified or restricted to the extent and in the manner necessary to render the same valid and enforceable, or shall be deemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if such provision had been originally incorporated herein, as so modified or restricted or as if such provision had not been originally incorporated herein, as the case may be. In the event that any provision of this Agreement is held to be invalid, void or unenforceable, the remaining provisions shall continue in full force and effect, without being impaired or invalidated in any way. |
| 17. | Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. |
| 18. | WAIVER OF JURY TRIAL. IT IS MUTUALLY AGREED BETWEEN BORROWER AND LENDER THAT THE RESPECTIVE PARTIES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT AND ANY AND ALL OTHER LOAN DOCUMENTS. |
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| 19. | Lender’s Non-Waiver. Lender’s failure to insist upon strict performance of any terms hereof or as set forth in the Loan Documents shall not be deemed to be a waiver of any terms of this Agreement or of the Loan Documents. Lender may exercise any right or remedy it may have under this Agreement without prejudice to any additional rights or remedies Lender may have under the Loan Documents, or any other agreement between Lender and Borrower. |
| 20. | Miscellaneous. Time is of the essence for the payment and performance of all of the obligations and duties contained in this Agreement. This Agreement contains the entire agreement among the parties with respect to the subject matter covered herein, and supercedes all prior agreements (oral or written), negotiations and discussions among the parties relating thereto. Lender’s consent to this Agreement shall not be construed as consent by Lender to any future modification of the Loan Documents. |
[Signature Page to Follow]
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IN WITNESS WHEREOF, Borrower and Lender have executed this Second Modification of Loan Documents by and through their duly authorized representatives to be effective as of the date first above written.
“BORROWER” |
| IMMUNOGENX, INC., |
| a Delaware corporation |
| By: | /s/ Jack A. Syage | |
| Name: | Jack A. Syage | |
| Title: | Authorized Representative |
[Borrower Signature Page to the Second Modification of Loan Documents]
“LENDER” |
| MATTRESS LIQUIDATORS, INC., |
| a Colorado corporation |
| By: | /s/ David Dolan | |
| Name: | David Dolan | |
| Title: | Chief Executive Officer |
Exhibit 10.2
SECOND AMENDED and restated REVOLVING Loan PROMISSORY NOTE
(“Note”)
| Principal Amount: $8,212,345.17 | Date of Note: March 13, 2024 |
FOR VALUE RECEIVED, on the Revolving Loan Termination Date, the undersigned, IMMUNOGENX, INC., a Delaware corporation (“Borrower”), hereby promises to pay to MATTRESS LIQUIDATORS, INC., a Colorado corporation, its successors and assigns (“Lender”) in accordance with the terms of the Credit Agreement (as hereinafter defined), the principal sum of Eight Million Two Hundred Twelve Thousand Three Hundred Forty-Fice and 17/100 Dollars ($8,212,345.17), or such lesser sum as may then constitute the aggregate unpaid principal amount of all Revolving Loans made by Lender to Borrower pursuant to the Credit Agreement. Revolving Loans may be borrowed, paid, reborrowed and repaid, in whole or in part, subject to the other terms, conditions and restrictions of this Note and of the Credit Agreement. Borrower further promises to pay to the order of Lender interest on the aggregate unpaid principal amount of such Revolving Loans on the dates and at the rate or rates provided for in the Credit Agreement. All payments of principal and interest shall be made in lawful currency of the United States in immediately available funds at the office of Lender, or such other place as Lender may from time to time designate in writing.
Revolving Loans made by Lender shall be evidenced by one or more loan accounts or records maintained by Lender in the ordinary course of business; provided, however that the obligation of Borrower to repay each Revolving Loan made by Lender shall be absolute and unconditional, notwithstanding any failure of Lender to keep such records or any mistake by Lender in connection with such records. The books and records of Lender showing the account between Lender and Borrower regarding the Revolving Loans and this Note shall be conclusive evidence of the items set forth therein in the absence of demonstrable error.
This Note is the Revolving Loan Promissory Note referred to in the Credit Agreement, dated as of October 3, 2022, between Borrower and Lender, as amended and as the same may be further amended, supplemented, amended and restated, or modified from time to time (“Credit Agreement”; all capitalized terms used and not otherwise defined in this Note shall have the respective meanings ascribed to them in the Credit Agreement). The Credit Agreement, among other things, contains provisions for acceleration of the maturity of this Note upon the occurrence of certain stated events, and for prepayments on account of principal of this Note and interest on this Note prior to the maturity of this Note, in each case, upon the terms and conditions specified therein.
This Note is secured by, among other things, the Collateral listed in the Collateral Documents and the Guaranties.
If an Event of Default under Section 8.1(g) or Section 8.1(h) of the Credit Agreement shall occur, then this Note shall immediately become due and payable, without notice, together with reasonable Attorney’s Fees and Costs if the collection hereof is placed in the hands of an attorney to obtain or enforce payment hereof. If any other Event of Default exists under the Credit Agreement or any breach, violation, default, event of default, “Default” or “Event of Default” shall occur under any other Loan Document, which is not cured within any applicable grace or cure period, then this Note may, as provided in the Credit Agreement, be declared to be immediately due and payable, without notice, together with Attorney’s Fees and Costs, if the collection hereof is placed in the hands of an attorney to obtain or enforce payment hereof. Upon the occurrence of any Event of Default under the Credit Agreement, Lender’s obligation to make additional Revolving Loans may be terminated in the manner and with the effect as provided in the Credit Agreement.
In the event that any payment due under this Note shall not be paid when due, whether by reason of maturity, acceleration or otherwise, and this Note is placed in the hands of an attorney or attorneys for collection or for foreclosure of the Collateral, or if this Note is placed in the hands of an attorney or attorneys for representation of Lender in connection with bankruptcy or insolvency proceedings relating hereto, Borrower hereby promises to pay to the order of Lender, in addition to all other amounts otherwise due on or under this Note or the Loan Documents, the costs and expenses of such collection, foreclosure and representation, including, without limitation, reasonable Attorney’s Fees and Costs (whether or not litigation shall be commenced in aid thereof).
If any part of this Note cannot be enforced, this fact will not affect the rest of this Note. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other Person who signs, guarantees or endorses this Note, to the extent allowed by law, waives presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) the Revolving Loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender’s security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All obligations of Borrower and all rights, powers and remedies of Lender expressed herein shall be in addition to and not in limitation of those provided by law or in any written agreement or instrument (other than this Note) relating to any of the indebtedness of Borrower to Lender or the security thereof. All such parties also agree that the Loan Documents may be modified without the consent of or notice to anyone other than the party with whom the modification is made.
No waiver of any breach, Event of Default, Default or failure of condition under the terms of this Note, the Credit Agreement or the other Loan Documents shall be implied from any failure of Lender to take, or any delay by Lender in taking, action with respect to any such breach of or Event of Default, Default or failure of condition or from any previous waiver of any similar or unrelated breach of or Event of Default, Default or failure of condition. A waiver of any term of this Note, the Credit Agreement or the other Loan Documents must be made in writing and shall be limited to the express written terms of such waiver.
This Note amends and restates in its entirety and consolidates that certain Amended and Restated Revolving Loan Promissory Note, dated September 6, 2023, payable from Borrower to Lender in the original principal amount of Seven Million Five Hundred Thousand and 00/100 Dollars ($7,500,000.00) (“Prior Note”), and is used, not as a refinancing or refunding of or payment toward, but as a continuation of the Prior Note. Accordingly, this Note shall not be construed as a novation or extinguishment of the obligations arising under the Prior Note, and its issuance shall not affect the priority of any lien granted in connection with the Prior Note. Unless otherwise agreed between borrower and lender, interest accrued under the Prior Note prior to the date hereof remains accrued and unpaid under this Note and does not constitute any part of the principal amount of the indebtedness evidenced hereby. The indebtedness evidenced by this Note will continue to be secured by all of the collateral and other security granted to Lender under the Prior Note and the other Loan Documents.
This Note shall be governed by and construed in accordance with the substantive laws of the State of Colorado (without reference to conflict of law principles). IN CONSIDERATION OF LENDER’S DECISION TO PROVIDE THIS NOTE AND THE REVOLVING LOAN, BORROWER AGREES TO WAIVE THE RIGHT TO A JURY TRIAL IN ANY LAWSUIT THAT MAY ARISE BETWEEN BORROWER AND LENDER.
PRIOR TO SIGNING THIS NOTE, BORROWER HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE AND BORROWER AGREES TO THE TERMS OF THIS NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS NOTE.
[Signature Page to Follow]
2
| “BORROWER” | ||
| IMMUNOGENX, INC., | ||
| a Delaware corporation | ||
| By: | /s/ Jack A. Syage | |
| Name: | Jack A. Syage | |
| Title: | Authorized Representative | |
[Signature Page to Second Amended and Restated Revolving Loan Promissory Note]
Exhibit 10.3
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this “Security Agreement”) is entered into as October 3, 2022, by and between IMMUNOGENX, INC., a Delaware corporation (“Borrower”), and MATTRESS LIQUIDATORS, INC., a Colorado corporation, its successors and assigns (“Lender”).
RECITALS
A. WHEREAS, pursuant to that certain Credit Agreement (as may be amended, supplemented, amended and restated, or modified from time to time, the “Credit Agreement”), of even date herewith, between Borrower and Lender, Lender has agreed to make certain loans to Borrower upon the terms and subject to the conditions set forth therein.
| B. | WHEREAS, this Security Agreement is required by the terms of the Credit Agreement. |
NOW, THEREFORE, in consideration of these premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
| 1. | Definitions. |
(a) Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to such terms in the Credit Agreement, and the following terms which are defined in the Uniform Commercial Code are used herein as so defined: Accessions, Account debtor, Accounts, Certificate of title, Chattel paper, Commercial tort claims, Commodity accounts, Commodity contracts, Commodities intermediary, Deposit accounts, Documents, Equipment, Fixtures, General intangibles, Goods, Instruments, Inventory, Investment property, Letter-of-credit rights, Proceeds, Securities, Security entitlements, Securities accounts, Securities intermediary, Software and Supporting obligations.
(b) In addition, the following terms shall have the following meanings: “Collateral” is defined in Section 2.
“Control” means (i) in the case of each Deposit account, “control” as such term is defined in Section 9-104 of the Uniform Commercial Code, (ii) in the case of any Security entitlement, “control” as such term is defined in Section 8-106 of the Uniform Commercial Code, and (iii) in the case of any Commodity contract, “control” as such term is defined in Section 9-106 of the Uniform Commercial Code.
“Event of Default” is defined in Section 7.
“Lien” means any mortgage, lien, security interest, pledge, charge or encumbrance of any kind in respect of any Property.
“Secured Obligations” means (a) all obligations of Borrower to Lender under the Loan Documents, including the Obligations, in each case howsoever evidenced, created, incurred or acquired, whether primary, secondary, direct or contingent, or joint and several, and (b) any future indebtedness or other financial accommodation of Borrower to Lender arising under or in respect of the Credit Agreement, any Loan Document or any subsequent agreement between Borrower and Lender as the same may be amended from time to time, and (c) all reasonable expenses and charges, legal and otherwise, incurred by Lender in collecting or enforcing any such obligations or in realizing on or protecting any security therefor, including the security afforded hereunder.
“Uniform Commercial Code” shall mean Article 9 of the Uniform Commercial Code for the State of Colorado, as amended and any successor statute thereto. However, in the event that, by reason of any applicable law, any attachment, perfection, priority, or remedy with respect to Lender’s Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of Colorado, the term “Uniform Commercial Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedy.
2. Grant of Security Interest in the Collateral. To secure the prompt payment and performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or otherwise, of the Secured Obligations, Borrower hereby grants to Lender, to the maximum extent assignable, a continuing Lien in, and a right to set off against, any and all right, title and interest of Borrower in and to all of Borrower’s assets, including, without limitation, the following, whether now owned or existing or owned, acquired, or arising hereafter (collectively, the “Collateral”):
| (a) | all Accounts; |
| (b) | all cash and cash equivalents; |
| (c) | all Chattel paper; |
| (d) | all Commercial tort claims; |
| (e) | all Deposit accounts of Borrower, and any replacement or successor accounts relating thereto; |
| (f) | all Documents; |
| (g) | all Equipment (including all Software, whether or not the same constitutes embedded software, used in the operation thereof); |
| (h) | all Fixtures; |
| (i) | all Goods; |
| (j) | all General intangibles, including all tax refunds, registered and unregistered patents, trademarks, service marks, copyrights, trade names, trade secrets, customer lists and licenses); |
| (k) | all Instruments; |
| (l) | all Inventory; |
| (m) | all Investment property, including all Commodity accounts, Commodity contracts, Securities, Security entitlements and Securities accounts; |
| (n) | all Letter-of-credit rights; |
| (o) | all Supporting obligations; |
| (p) | all books, records, ledger cards, files, correspondence, computer programs, tapes, disks, and related data processing software (owned by Borrower or in which it has an interest) that at any time evidence or contain information relating to any Collateral or are otherwise reasonably necessary or helpful in the collection thereof or realization thereupon; |
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| (q) | to the extent not otherwise included, all Accessions, Proceeds and products of any and all of the foregoing. |
Borrower also hereby collaterally assigns to Lender all of Borrower’s rights under and interests in every policy of insurance covering the Collateral. Borrower and Lender hereby acknowledge and agree that the Lien created hereby in the Collateral constitutes continuing collateral security for all of the Secured Obligations, whether now existing or hereafter arising. Any of the foregoing to the contrary notwithstanding, the “Collateral” shall not include, and the Lien granted herein shall not attach to, any asset subject to a rule of law, statute or regulation or of a lease agreement or any General intangible (including a contract, permit, license or franchise) or a Lien permitted under the Loan Documents (“Permitted Lien”), where the grant of such Lien would invalidate or constitute a breach or violation of any such rule of law, statute, regulation, lease agreement or General intangible or agreement or agreements creating or giving rise to such Permitted Lien, provided that the limitation set forth in this sentence shall (i) exist only for so long as such rule of law, statute, regulation, lease agreement or General intangible or agreement and the Permitted Lien created therein continue to be effective (and, upon the cessation, termination, expiration of such rule of law, statute, regulation, lease agreement or General intangible or Permitted Lien, or if any such rule of law, statute or regulation is no longer applicable, the Lien granted herein shall be deemed to have automatically attached to such asset), and (ii) not apply with respect to any asset if and to the extent that the prohibition or restriction on the Lien in and to such asset granted in this Security Agreement is rendered ineffective under Sections 9-406, 9-407, 9-408, or 9-409 of the Uniform Commercial Code.
3. Representations and Warranties. Borrower hereby represents and warrants to Lender that until all of the Secured Obligations have been repaid in full:
(a) Ownership. Borrower is the legal and beneficial owner of its Collateral and has the right to pledge, sell, assign or transfer the same.
(b) Security Interest/Priority. This Security Agreement creates a valid Lien in favor of Lender in the Collateral and, when properly perfected by filing or upon Lender’s obtaining Control of such Collateral, shall constitute a valid first priority (except with respect to Collateral subject to a Permitted Lien), perfected Lien in such Collateral, to the extent such Lien can be perfected by filing or through Control under the Uniform Commercial Code, free and clear of all Liens except for Permitted Liens.
(c) Consents. Subject only to Permitted Liens and except for the filing or recording of Uniform Commercial Code termination statements, Uniform Commercial Code financing statements or obtaining Control to perfect the Liens created by this Security Agreement that may be perfected through the filing of a Uniform Commercial Code financing statement or obtaining Control no consent or authorization of, filing with, or other act by or in respect of, any arbitrator or governmental authority and no consent of any other Person (including, without limitation, any stockholder or creditor of Borrower), is required (except as such have been duly obtained, made or given and are in full force and effect) (i) for the grant by Borrower of the Lien in the Collateral granted hereby or for the execution, delivery or performance of this Security Agreement by Borrower, or (ii) for the perfection of such Lien or the exercise by Lender of the rights and remedies provided for in this Security Agreement.
(d) Accounts. With respect to Borrower’s Accounts: (i) the Goods sold, rented or leased, licensed, or assigned or services furnished giving rise to each Account are not subject to any Lien except the first priority, perfected Lien granted to Lender herein and except for Permitted Liens; (ii) each Account and the papers and Documents of Borrower relating thereto are genuine and in all material respects what they purport to be; (iii) each Account arises out of a bona fide transaction for Goods sold and delivered (or in the process of being delivered), leased, licensed, or assigned by Borrower or for services actually rendered by Borrower, which transaction was conducted in the ordinary course of Borrower’s business and was completed in all material respects in accordance with the terms of any Documents, Instruments or agreements pertaining thereto; (iv) no Account is evidenced by any Instrument unless such Instrument has been endorsed over and delivered to, or submitted to the Control of Lender; (v) the amount of each Account as shown on Borrower’s books and records, and on all invoices and statements which may be delivered to Lender with respect thereto, is due and payable to Borrower; (vi) to Borrower’s knowledge, the Account debtor with respect to each Account has the capacity to contract; (vii) to Borrower’s knowledge, there are no proceedings or actions that are threatened or pending against any Account debtor whose business is material to Borrower that are reasonably likely to have a Material Adverse Effect, and (viii) no surety bond was required or given in connection with any Account or the contracts or purchase orders out of which they arose.
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(e) Equipment and Inventory. As of the Closing Date, all Equipment and Inventory, if any, is located at such locations as a Borrower has designated or may designate, from time to time, to Lender in writing. As of the Closing Date, and except as otherwise disclosed to Lender or in the ordinary course of each Borrower’s business, no Inventory is held by a Person other than a Borrower pursuant to consignment, sale or return, sale on approval or similar arrangement.
(f) Documents and Instruments. All Documents and Instruments are, to Borrower’s knowledge, complete, valid, and genuine.
4. Covenants. Borrower covenants that, until all of the Secured Obligations have been paid in full, Borrower shall:
(a) Other Liens. Use commercially reasonable efforts to defend the Collateral against the claims and demands of all other parties claiming an interest therein, and keep the Collateral free from all Liens, except for Permitted Liens. Borrower shall not sell, exchange, transfer, assign, lease or otherwise dispose of any of the Collateral or any interest therein, except as permitted under the Credit Agreement, this Security Agreement or the other Loan Documents, except for the sale or use of Inventory in the ordinary course of business and except for the disposition or transfer in the ordinary course of business of obsolete and worn-out Inventory and Equipment; provided, however, intercompany transfers shall not be deemed to occur in the ordinary course of Borrower’s business.
(b) Preservation of Collateral. Use commercially reasonable efforts to keep the Collateral in good order, condition and repair in all material respects (reasonable wear and tear excepted); not use the Collateral in any material respect in violation of the provisions of this Security Agreement; not use the Collateral in any material respect in violation of any other agreement relating to the Collateral or any policy insuring the Collateral or any applicable statute, law, bylaw, rule, regulation or ordinance; and not permit any Collateral to be or become a fixture to real Property or an accession to other personal Property unless Lender has a valid, perfected and first priority (except with respect to Collateral subject to a Permitted Lien) Lien for the benefit of Lender in such Property.
(c) Possession or Control of Certain Collateral. If (i) any amount in excess of $25,000 payable to such Borrower under or in connection with any of the Collateral shall be or become evidenced by any Instrument or Supporting obligation, or (ii) if any Collateral shall be stored or shipped subject to a Document, such Borrower shall immediately notify Lender of the existence of such Collateral and, at the request of Lender, deliver such Instrument, Supporting obligation, or Document to Lender, duly endorsed in a manner satisfactory to Lender, to be held as Collateral pursuant to this Security Agreement. If any Collateral shall consist of Deposit accounts, Borrower shall execute and deliver to Lender, upon Lender’s request, all control agreements, assignments, instruments or other documents as reasonably requested by Lender for the purposes of obtaining and maintaining Control of such Collateral.
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(d) Changes in Entity Structure or Location. Not, without providing prior written notice to Lender and without confirming that Lender has filed such amendments to any previously filed financing statements as Lender may require, (i) alter its corporate existence or, in one transaction or a series of transactions, merge into or consolidate with any other entity, or sell all or substantially all of its assets, (ii) change its state of incorporation or organization, (iii) change its registered name, (iv) change the location of its chief executive office and chief place of business (as well as its books and records), or (v) except as otherwise permitted by the Credit Agreement, maintain any Equipment or Inventory at any location other than as designated to Lender in writing.
(e) Inspection. Allow Lender or its representatives to visit and inspect the Collateral as set forth in the Credit Agreement.
(f) Perfection of Security Interest. Borrower hereby authorizes Lender to prepare and file such financing statements and notices (including renewal statements) or amendments thereof or supplements thereto or other instruments as Lender may from time to time deem necessary or appropriate to perfect and maintain the Liens granted hereunder in accordance with the Uniform Commercial Code and, subject only to Permitted Liens, to ensure the first priority of such Liens. Any financing statement filed by Lender may contain a general description of the Collateral covered thereby, as permitted by the Uniform Commercial Code, which states that the Lien attaches to all personal Property or to all assets of the debtor. Borrower shall from time to time upon request by Lender also execute and deliver to Lender such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as Lender may reasonably request) and do all such other things as Lender may reasonably deem necessary or appropriate (i) to assure Lender that its Liens hereunder are perfected and, subject only to Permitted Liens, of the first priority, including, without limitation, such financing statements (including renewal statements) or amendments thereof or supplements thereto or other instruments as Lender may from time to time reasonably request in order to perfect and maintain the Liens granted hereunder and to ensure the first priority (subject only to Permitted Liens) thereof in accordance with the Uniform Commercial Code, (ii) to consummate the transactions contemplated hereby, and (iii) to otherwise protect and assure Lender of its rights and interests hereunder. In the event for any reason the law of any jurisdiction other than Colorado becomes or is applicable to the Collateral or any part thereof, or to any of the Secured Obligations, Borrower agrees from time to time upon request of Lender to execute and deliver all such instruments and to do all such other things as Lender in its reasonable discretion deems reasonably necessary or appropriate to preserve, protect and enforce the Liens of Lender and the first priority thereof (subject only to Permitted Liens) under the law of such other jurisdiction (and, if Borrower shall fail to do so promptly upon the request of Lender, then Lender may execute any and all such requested documents on behalf of Borrower pursuant to the power of attorney granted herein below). Borrower agrees to notate in its books and records to reflect the Lien of Lender in the Collateral (notes in Borrower’s financial statements shall be deemed a sufficient notation).
(g) Treatment of Accounts. (i) Comply in all material respects with all reporting requirements set forth in the Credit Agreement with respect to Accounts, (i) not grant or extend the time for payment of any Account, or compromise or settle any Account for less than the full amount thereof, or release any Person or Property, in whole or in part, from payment thereof, or allow any credit or discount thereon, in each case other than as is normal and customary in the ordinary course of Borrower’s business, (iii) maintain at its principal place of business a record of Accounts consistent with its customary business practices, or (vi) upon the occurrence and during the continuation of any Event of Default, set aside and hold as trustee for Lender any merchandise that is returned by a customer or Account debtor or otherwise recovered. Unless and until an Event of Default occurs and is continuing, Borrower may settle and adjust disputes and claims with its customers and Account debtors, and grant discounts, credits and allowances in the ordinary course of its business as presently conducted and otherwise for amounts and on terms which Borrower in good faith considers advisable. However, upon the occurrence of any Event of Default and during the continuation thereof, if so instructed by Lender, Borrower shall settle and adjust disputes and claims, at no expense to Lender, but no discount, credit or allowance other than on normal trade terms in the ordinary course of business shall be granted to any customer or Account debtor. Lender may (but shall not be required to), at all times upon the occurrence of any Event of Default and during the continuation thereof, settle or adjust disputes and claims directly with customers or Account debtors for amounts and upon terms which Lender considers advisable.
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(h) Covenants Relating to Inventory. Borrower shall: (i) use commercially reasonable efforts to maintain, keep and preserve its Inventory in good salable condition at its own cost and expense, in accordance with the provisions of the Credit Agreement, subject to obsolescence; and (ii) comply with all reporting requirements set forth in the Credit Agreement with respect to Inventory.
(i) Bank Accounts/Investment Property. All amounts on deposit in any such Deposit account and any replacement or successor account relating thereto shall be subject to the Lien of Lender hereunder. Upon the request of Lender, Borrower shall obtain control agreements in a form reasonably acceptable to Lender, to establish Control for Lender over Securities accounts, Security entitlements, and Deposit accounts held or placed with any Securities intermediary or other third Person.
(j) Insurance. Insure, repair and replace the Collateral of Borrower as set forth in the Loan Documents. All Insurance proceeds shall be subject to the Lien of Lender hereunder.
(k) Books and Records. At all times, comply with applicable law regarding the maintenance of business records and electronic data. Upon receipt of a notice of an Event of Default by Lender, Borrower shall immediately cease the destruction of any and all paper and electronic documents and records and shall preserve any new paper or electronic information that is generated after the notice of an Event of Default (“Document Hold and Preservation”). Borrower’s obligation with respect to Document Hold and Preservation shall extend to all forms of electronic communications, including, but not limited to, email, word processing documents, spreadsheets, text messages, voice messages, Internet usage files, and information stored in any electronic form and on any format. Borrower’s obligation for compliance with the Document Hold and Preservation shall continue until notice from Lender to Borrower.
5. Special Provisions Relating to Accounts. Anything herein to the contrary notwithstanding, nothing contained herein shall relieve Borrower from any obligation under each of the Accounts to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise to each such Account. Lender shall not have any obligation or liability under any Account (or any agreement giving rise thereto) by reason of or arising out of this Security Agreement or the receipt by Lender of any payment relating to such Account pursuant hereto, nor shall Lender be obligated in any manner to perform any of the obligations of Borrower under or pursuant to any Account (or any agreement giving rise thereto), to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party under any Account (or any agreement giving rise thereto), to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.
6. Special Provisions Regarding Inventory. Notwithstanding anything to the contrary contained in this Security Agreement, Borrower may, unless and until an Event of Default occurs and is continuing and Lender instructs Borrower otherwise, without further consent or approval of Lender, use, consume, sell, rent, lease and exchange the Inventory in the ordinary course of its business as presently conducted, whereupon, in the case of such a sale or exchange, the security interest created hereby in the Inventory so sold or exchanged (but not in any Proceeds arising from such sale or exchange) shall cease immediately without any further action on the part of Lender.
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7. Performance of Obligations; Advances by Lender. Upon the occurrence and during the continuance of an Event of Default and upon the failure of Borrower to perform any of the covenants and agreements contained herein, Lender may, in its reasonable discretion, perform or cause to be performed the same and in so doing may (but shall have no obligation to do so) expend such sums as Lender may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any Insurance premiums, the payment of any taxes, a payment to obtain a release of a Lien or potential Lien (other than a Permitted Lien), expenditures made in defending against any materially adverse claim (other than a Permitted Lien) and all other expenditures which Lender may make for the protection of the Lien hereof or may be compelled to make by operation of law. All such sums and amounts so expended shall be repayable by Borrower as provided in the Credit Agreement, shall constitute additional Secured Obligations and shall bear interest from the date said amounts are expended at the Default Rate as set forth in the Credit Agreement. No such performance of any covenant or agreement by Lender on behalf of Borrower, and no such advance or expenditure therefor, shall relieve Borrower of any default under the terms of this Security Agreement or any of the other Loan Documents. Lender may make any payment hereby authorized in accordance with any bill, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax Lien, title or claim except to the extent such payment is being contested in good faith by Borrower in appropriate proceedings as permitted under the terms of the Loan Documents.
8. Events of Default. The occurrence of any one or more of the following events shall constitute an Event of Default hereunder:
(a) An “Event of Default” as defined in the Credit Agreement occurs and continues beyond any applicable grace or cure periods;
(b) The breach by Borrower of any of the terms or conditions of this Security Agreement that continues beyond the expiration of all applicable grace or cure periods, if any, or in the absence of such cure period, then if such failure by its nature can be cured, then so long as the priority, validity and enforceability of the liens created by this Security Agreement or any of the other Loan Documents and the value of the Collateral are not impaired, threatened or jeopardized, then Borrower shall have a period (“Cure Period”) of thirty (30) days after the earlier of (i) the date on which such failure shall first become actually known to an authorized representative of Borrower or (ii) receives written notice of such failure to cure the same and an Event of Default shall not be deemed to exist during the Cure Period; provided, however, that if such failure by its nature cannot be cured by the payment of a sum of money or is not reasonably susceptible of cure within the Cure Period, then so long as Borrower commences to cure such failure during the Cure Period and is diligently and in good faith attempting to effect such cure, the Cure Period shall be extended for thirty (30) additional days, but in no event shall the Cure Period be longer than sixty (60) days in the aggregate; or
(c) Any representation or warranty made by or on behalf of Borrower under or in connection with this Security Agreement proves untrue in any material respect as of the date of the issuance or making or deemed making thereof.
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| 9. | Remedies. |
(a) General Remedies. Upon the occurrence of an Event of Default and during the continuation thereof, Lender shall have, in addition to the rights and remedies provided herein, in the Loan Documents, or by law (including, but not limited to, levy of attachment, garnishment and the rights and remedies set forth in the Uniform Commercial Code of the jurisdiction applicable to the affected Collateral), the rights and remedies of a secured party under the Uniform Commercial Code (regardless of whether the Uniform Commercial Code is the law of the jurisdiction where the rights and remedies are asserted and regardless of whether the Uniform Commercial Code applies to the affected Collateral), and further, Lender may, with or without judicial process or the aid and assistance of others, (i) enter on any premises on which any of the Collateral may be located and, without resistance or interference by Borrower, take possession of the Collateral, (ii) dispose of any Collateral on any such premises, (iii) require Borrower to assemble and make available to Lender at the expense of Borrower any Collateral at any place and time designated by Lender which is reasonably convenient to both parties, (iv) remove any Collateral from any such premises for the purpose of effecting sale or other disposition thereof, (v) at any place and time or times, sell and deliver any or all Collateral held by or for it at public or private sale, by one or more contracts, in one or more parcels, for cash, upon credit or otherwise, at such prices and upon such terms as Lender deems advisable, in its sole discretion, (vi) seek the ex parte appointment of a receiver for all or any part of the Collateral and other Property and businesses of Borrower, or (vii) without notice to Borrower except as may be required by law and at any time or from time to time, charge, set off and otherwise apply all or part of the Secured Obligations against any funds held by Lender. Borrower agrees that it shall not assert that any action taken by Lender in compliance with any applicable state or federal law in the conduct of such sale, nor in disclaiming any warranties relating to the Collateral, made such sale not commercially reasonable. In addition to all other sums due Lender with respect to the Secured Obligations, Borrower shall pay Lender all reasonable costs and expenses incurred by Lender, including, but not limited to, reasonable Attorney’s Fees and Costs, in obtaining or liquidating the Collateral, in enforcing payment of the Secured Obligations, or in the prosecution or defense of any action or proceeding by or against Lender or Borrower concerning any matter arising out of or connected with this Security Agreement, any Collateral or the Secured Obligations, including, without limitation, any of the foregoing arising in, arising under or related to a case under any bankruptcy, insolvency or similar law. To the extent the rights of notice cannot be legally waived hereunder, Borrower agrees that any requirement of reasonable notice shall be met if such notice is personally served on or mailed, postage prepaid, to Borrower in accordance with the notice provisions of the Credit Agreement at least ten (10) days before the time of sale or other event giving rise to the requirement of such notice. Lender shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. To the extent permitted by applicable law, Lender may be a purchaser at any such sale. To the extent permitted by applicable law, Borrower hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of applicable law, Lender may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, to the extent permitted by applicable law, be made at the time and place to which the sale was postponed, or Lender may further postpone such sale by announcement made at such time and place.
(b) Remedies Relating to Accounts. Upon the occurrence of an Event of Default and during the continuation thereof, whether or not Lender has exercised any or all of its rights and remedies hereunder, Lender shall have the right to (i) enforce Borrower’s rights against any Account debtors on Borrower’s Accounts (ii) notify (or cause its designee to notify) Borrower’s customers and Account debtors that the Accounts of Borrower have been assigned to Lender or of Lender’s Lien therein, (iii) (either in its own name or in the name of Borrower or both) demand, collect, receive, take receipt for, sell, sue for, compound, settle, compromise and give acquittance for any and all amounts due or to become due on any Account, and (iv) in Lender’s reasonable discretion, file any claim or take any other action or proceeding to protect and realize upon the Lien of Lender in the Accounts. Borrower acknowledges and agrees that, after the occurrence and during the continuance of any Event of Default, the Proceeds of its Accounts remitted to or on behalf of Lender in accordance with the provisions hereof shall be solely for Lender’s own convenience and that Borrower shall not have any right, title or interest in such Proceeds or in any such other amounts except as expressly provided herein. Lender shall not have any liability or responsibility to Borrower for acceptance of a check, draft or other order for payment of money bearing the legend “payment in full” or words of similar import or any other restrictive legend or endorsement or be responsible for determining the correctness of any remittance. Furthermore, during the continuation of an Event of Default, (x) Lender shall have the right, but not the obligation, to make test verifications of the Accounts in any manner and through any medium that it reasonably considers advisable, and each Borrower shall furnish all such assistance and information as Lender may require in connection with such test verifications, (y) upon Lender’s request and at the expense of Borrower, Borrower shall cause independent public accountants or others satisfactory to Lender to furnish to Lender reports showing reconciliations, aging and test verifications of, and trial balances for, the Accounts and (z) Lender in its own name or in the name of others may communicate with Account debtors on the Accounts to verify with them to Lender’s satisfaction the existence, amount and terms of any Accounts.
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(c) Access. In addition to the rights and remedies hereunder, upon the occurrence of an Event of Default and during the continuation thereof and subject only to Permitted Liens and applicable law, (i) Lender shall have the right to enter and remain upon the various premises of Borrower without cost or charge to Lender, and use the same, together with materials, supplies, books and records of Borrower for the purpose of collecting and liquidating the Collateral, or for preparing for sale and conducting the sale of the Collateral, whether by foreclosure, auction or otherwise, , (ii) Lender may remove Collateral, or any part thereof, from such premises or any records with respect thereto, in order to effectively collect or liquidate such Collateral, and (iii) if Lender exercises its right to take possession of the Collateral, Borrower shall also at its expense perform any and all other steps reasonably requested by Lender to preserve and protect the Lien hereby granted in the Collateral, such as placing and maintaining signs indicating the Lien of Lender, appointing overseers for the Collateral.
(d) Nonexclusive Nature of Remedies. Failure by Lender to exercise any right, remedy or option under this Security Agreement, any other Loan Document, or as provided by law, or any delay by Lender in exercising the same, shall not operate as a waiver of any such right, remedy or option. No waiver hereunder shall be effective unless it is in writing, signed by the party against whom such waiver is sought to be enforced and then only to the extent specifically stated, which in the case of Lender shall only be granted as provided herein. To the extent permitted by law, neither Lender nor any party acting as attorney for Lender, shall be liable hereunder for any acts or omissions or for any error of judgment or mistake of fact or law other than their gross negligence, bad faith or willful misconduct hereunder. The rights and remedies of Lender under this Security Agreement shall be cumulative and not exclusive of any other right or remedy which Lender may have.
(e) Retention of Collateral. In addition to the rights and remedies hereunder, during the continuation of an Event of Default Lender may, in compliance with Sections 9-620 and 9-621 of the Uniform Commercial Code or otherwise complying with the requirements of applicable law of the relevant jurisdiction, accept or retain the Collateral in full or partial satisfaction of the Secured Obligations. Unless and until Lender shall have provided such notices, however, Lender shall not be deemed to have retained any Collateral in satisfaction of any Secured Obligations for any reason.
(f) Deficiency. In the event that the Proceeds of any sale, collection or realization are insufficient to pay all amounts to which Lender is legally entitled, Borrower shall be liable for the deficiency, together with interest thereon at the Default Rate as set forth in the Credit Agreement, together with the costs of collection and the reasonable Attorney’s Fees and Costs, and costs of any attorney employed by Lender to collect such deficiency. Any surplus remaining after the full payment and satisfaction of the Secured Obligations shall be returned to Borrower or to whomsoever a court of competent jurisdiction shall determine to be entitled thereto.
(g) Other Security. To the extent that any of the Secured Obligations are now or hereafter secured by Property other than the Collateral (including, without limitation, real and personal Property owned by Borrower), or by a guarantee, endorsement or Property of any other Person, then Lender shall have the right to proceed against such other Property, guarantee or endorsement upon the occurrence and during the continuation of any Event of Default, and Lender has the right, in its sole discretion, to determine which rights, security, Liens or remedies Lender shall at any time pursue, relinquish, subordinate, modify or take with respect thereto, without in any way modifying or affecting any of them or any of Lender’s rights or the Secured Obligations under this Security Agreement, under any other of the Loan Documents.
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| 10. | Rights of Lender. |
(a) Power of Attorney. Borrower hereby designates and appoints Lender, and each of its designees or agents, as attorney-in-fact of Borrower, irrevocably and with power of substitution, with authority to take any or all of the following actions upon the occurrence and during the continuation of any Event of Default:
(i) to demand, collect, settle, compromise, adjust, and give discharges and releases, all as Lender may reasonably determine;
(ii) to commence and prosecute any actions at any court for the purposes of collecting any Collateral and enforcing any other right in respect thereof;
(iii) to defend, settle, adjust or compromise any action, suit or proceeding brought and, in connection therewith, give such discharge or release as Lender may deem reasonably appropriate;
(iv) to receive, open and dispose of mail addressed to Borrower and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other Instruments or Documents evidencing payment, shipment or storage of the goods giving rise to the Collateral, or securing or relating to such Collateral, on behalf of and in the name of Borrower;
(v) subject only to Permitted Liens, to sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any Collateral or the goods or services which have given rise thereto, as fully and completely as though Lender was the absolute owner thereof for all purposes;
| (vi) | to adjust and settle claims under any Insurance policy relating thereto; |
(vii) to execute and deliver all assignments, conveyances, statements, financing statements, renewal financing statements, security agreements, affidavits, notices and other agreements, Instruments and Documents that Lender may determine necessary in order to perfect and maintain the Liens granted in this Security Agreement and in order to fully consummate all of the transactions contemplated herein;
| (viii) | to institute any foreclosure proceedings that Lender may deem appropriate; |
(ix) to sign and endorse any drafts, assignments, proxies, stock powers, verifications, notices and other documents relating to the Collateral;
(x) to pay or discharge taxes, Liens or other encumbrances levied or placed on or threatened against the Collateral;
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(xi) to direct any parties liable for any payment in connection with any of the Collateral to make payment of any and all monies due and to become due thereunder directly to Lender or as Lender shall direct;
(xii) to receive payment of and receipt for any and all monies, claims, and other amounts due and to become due at any time in respect of or arising out of any Collateral; and
(xiii) to do and perform all such other acts and things as Lender may reasonably deem to be necessary, proper or convenient in connection with the Collateral.
This power of attorney is a power coupled with an interest and shall be irrevocable until all of the Secured Obligations have been paid in full. Lender shall be under no duty to exercise or withhold the exercise of any of the rights, powers, privileges and options expressly or implicitly granted to Lender in this Security Agreement, and shall not be liable for any failure to do so or any delay in doing so. Lender shall not be liable for any act or omission or for any error of judgment or any mistake of fact or law in its individual capacity or its capacity as attorney-in-fact except acts or omissions resulting from its gross negligence, bad faith or willful misconduct. This power of attorney is conferred on Lender solely to protect, preserve and realize upon its Lien in the Collateral.
(b) Assignment by Lender. Subject to the terms of the Credit Agreement, Lender may from time to time assign the Secured Obligations and any portion thereof or the Collateral and any portion thereof, and the assignee shall be entitled to all of the rights and remedies of Lender under this Security Agreement in relation thereto.
(c) Lender’s Duty of Care. Other than the exercise of reasonable care to assure the safe custody of the Collateral while being held by Lender hereunder, Lender shall not have any duty or liability to preserve rights pertaining thereto, it being understood and agreed that Borrower shall be responsible for preservation of all rights in the Collateral, and Lender shall be relieved of all responsibility for the Collateral upon surrendering it or tendering the surrender of it to Borrower. Lender shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which Lender accords its own Property, which shall be no less than the treatment employed by a reasonable and prudent agent in the industry, it being understood that Lender shall not have responsibility for taking any necessary steps to preserve rights against any parties with respect to any of the Collateral. In the event of a public or private sale of Collateral pursuant to this Security Agreement, Lender shall have no obligation to clean up, repair or otherwise prepare the Collateral for sale.
11. Application of Proceeds. Except as otherwise provided in the Credit Agreement, upon the occurrence and during the continuation of an Event of Default, any payments in respect of the Secured Obligations and any Proceeds of the Collateral, when received by Lender in cash or its equivalent, will be applied in reduction of the Secured Obligations in the order set forth in the Credit Agreement, and Borrower irrevocably waives the right to direct the application of such payments and Proceeds and acknowledges and agrees that Lender shall have the continuing and exclusive right to apply and reapply any and all such payments and Proceeds in Lender’s sole discretion, notwithstanding any entry to the contrary upon any of its books and records.
12. Costs of Counsel. If at any time hereafter, whether upon the occurrence of an Event of Default or not, Lender employs counsel to prepare or consider amendments, waivers or consents with respect to this Security Agreement, or to take action or make a response in or with respect to any legal or arbitral proceeding relating to this Security Agreement or relating to the Collateral, or to protect the Collateral or exercise any rights or remedies under this Security Agreement or with respect to the Collateral, then Borrower agrees to promptly pay in accordance with the Credit Agreement any and all such reasonable Attorney’s Fees and Costs of Lender, all of which shall constitute Secured Obligations hereunder.
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| 13. | Continuing Agreement. |
(a) This Security Agreement shall be a continuing agreement in every respect and shall remain in full force and effect until all of the Secured Obligations have been paid in full in cash or immediately available funds. Upon the repayment in full in cash or immediately available funds of all Secured Obligations, performance and observance by Borrower and discharge of all Secured Obligations, and evidence that the commitment of Lender to make advances under the Loan or under any other facility with Borrower has been terminated, this Security Agreement shall be automatically terminated and Lender shall, upon the request and at the expense of Borrower, forthwith release all of its Liens hereunder and shall execute, if necessary, and deliver all Uniform Commercial Code termination statements or other documents reasonably requested by Borrower evidencing such termination. Notwithstanding the foregoing all releases and indemnities provided hereunder or in the Credit Agreement shall survive termination of this Security Agreement.
(b) This Security Agreement shall continue to be effective or be automatically reinstated, as the case may be, if at any time payment, in whole or in part, of any of the Secured Obligations is rescinded or must otherwise be restored or returned by Lender as a preference, fraudulent conveyance or otherwise under any bankruptcy, insolvency or similar law, all as though such payment had not been made; provided that in the event payment of all or any part of the Secured Obligations is rescinded or must be restored or returned, all reasonable costs and expenses (including without limitation any reasonable legal fees and disbursements) incurred by Lender in defending and enforcing such reinstatement shall be deemed to be included as a part of the Secured Obligations.
14. Amendments; Waivers; Modifications. This Security Agreement and the provisions hereof may not be amended, waived, modified, changed, discharged or terminated except as set forth in the Credit Agreement.
15. Successors in Interest. This Security Agreement shall create a continuing Lien in the Collateral and shall be binding upon each of the parties hereto, and their respective successors and assigns, and shall inure, together with all rights and remedies of each of the parties hereto and their respective permitted successors and assigns. Borrower may not assign or transfer this Security Agreement without the prior written consent of Lender and any such purported assignment or transfer shall be void.
16. Notices. All notices required or permitted to be given under this Security Agreement shall be in conformance with the notice provisions of the Credit Agreement.
17. Counterparts. This Security Agreement may be executed in any number of counterparts, and by the different parties hereto on separate counterpart signature pages, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Security Agreement by email (e.g. “pdf” or “tiff”) or telecopy shall be effective as delivery of a manually executed counterpart of this Security Agreement. Each party shall promptly send an original of each counterpart to Lender, but any failure to do so shall not affect the validity, enforceability, and binding effect of this Security Agreement.
18. Headings. The headings of the sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning, construction or interpretation of any provision of this Security Agreement.
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19. Choice of Law and Venue. This Security Agreement, and the rights and duties of the parties hereto, shall be construed and determined in accordance with the internal laws of the State of Colorado. The parties hereby submit to the exclusive jurisdiction of the United States District Court for the District of Colorado and of any Colorado state court sitting in Boulder County, Colorado for purposes of all legal proceedings arising out of or relating to this Security Agreement, the other Loan Documents or the transactions contemplated hereby or thereby; provided, however, that the foregoing shall not limit Lender’s rights to bring any legal action or proceeding in any other appropriate jurisdiction in its unrestricted discretion. Borrower and Lender irrevocably waive, to the fullest extent permitted by law, any objection which they may now or hereafter have to the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
20. Waiver of Jury Trial. BORROWER AND LENDER, HAVING BEEN REPRESENTED BY COUNSEL, EACH KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (a) UNDER THIS SECURITY AGREEMENT OR ANY LOAN DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH THIS SECURITY AGREEMENT OR (b) ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS SECURITY AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. BORROWER AGREES THAT IT WILL NOT ASSERT ANY CLAIM AGAINST LENDER UNDER THIS SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT ON ANY THEORY OF LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
21. Severability. Any provision of this Security Agreement which is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. All rights, remedies and powers provided in this Security Agreement may be exercised only to the extent that the exercise thereof does not violate any applicable mandatory provisions of law, and all the provisions of this Security Agreement are intended to be subject to all applicable mandatory provisions of law which may be controlling and to be limited to the extent necessary so that they will not render this Security Agreement invalid or unenforceable.
22. Entirety. This Security Agreement and the other Loan Documents, represent the entire agreement of the parties hereto and thereto, and supersede all prior agreements and understandings, oral or written, if any, including any commitment letters or correspondence relating to the Loan Documents or the transactions contemplated herein and therein.
23. Survival. All representations and warranties of Borrower hereunder shall survive the execution and delivery of this Security Agreement and the other Loan Documents, the delivery of the Note and the making of the Loan under the Credit Agreement.
24. Marshalling. Lender shall not be under any obligation to marshal any Property in favor of Borrower or any other Person or against or in payment of any or all of the Secured Obligations. To the extent that it lawfully may, Borrower hereby agrees that it will not invoke any law relating to the marshaling of Collateral which might cause delay in or impede the enforcement of Lender’s rights and remedies under this Security Agreement, any other Loan Document or under any other instrument creating or evidencing any of the Secured Obligations or under which any of the Secured Obligations is outstanding or by which any of the Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, Borrower hereby irrevocably waives the benefits of all such laws.
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25. Interpretation. Any word herein which is expressed in the masculine, feminine or neuter gender shall be deemed to include the masculine, feminine and neuter genders. Any word herein which is expressed in the singular or plural number shall be deemed, whenever appropriate in the context, to include the singular and the plural. The words “hereof,” “herein,” and “hereunder” and words of like import when used in this Security Agreement shall refer to this Security Agreement as a whole and not to any particular provision of this Security Agreement. Unless the context in which used clearly requires otherwise, in each Loan Document, “or” has the inclusive meaning represented by the phrase “and/or”, and the words “shall” and “will” have the same meaning and effect as “must” and indicate a requirement or obligation. Use of the word “including” shall mean “including, without limitation” unless otherwise specifically expressed. All certifications made or signatures provided by any authorized representative of each such Borrower shall be made and given by any such person in such capacity as an officer, and not in any individual or personal capacity. All references to time of day herein are references to Denver, Colorado time unless otherwise specifically provided. All references in this Security Agreement or any other Loan Document to (a) the preamble or any section means, unless the context otherwise requires, the preamble or a section of this Security Agreement or (b) any law, rule, regulation, order, decree, requirement, policy, guideline, directive or interpretation means as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect on the determination date, including rules and regulations promulgated thereunder.
26. Further Assurance. Borrower hereby covenants and agrees to execute and deliver to Lender upon request, and pay the costs of preparation thereof, all such other and further documents, agreements and instruments in compliance with or accomplishment of the covenants and agreements in this Security Agreement or any of the other Loan Documents. Borrower will from time to time execute, deliver, endorse and authorize the filing of any instruments, documents, conveyances, assignments, security agreements, financing statements, control agreements and other agreements that Lender may reasonably request or cause Lender’s name to be noted as secured party on any certificate of title for titled Equipment in order to secure, protect, perfect or enforce Lender’s Lien in any Collateral or Lender’s rights under any Loan Document (but any failure to request or assure that Borrower executes, delivers, endorses or authorizes the filing of any such item shall not affect or impair the validity, sufficiency or enforceability of any Loan Document or Lender’s Lien in Collateral, regardless of whether any such item was or was not executed, delivered or endorsed in a similar context or on a prior occasion).
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| "BORROWER" | ||
| IMMUNOGENX, INC., | ||
| a Delaware corporation | ||
| By: | /s/ Jack A. Syage | |
| Name: Jack A. Syage | ||
| Title: Authorized Representative | ||
[Borrower Signature Page to Security Agreement]
| "LENDER" | ||
| MATTRESS LIQUIDATORS, INC., | ||
| a Colorado corporation | ||
| By: | /s/ David Dolan | |
| Name: David Dolan | ||
| Title: Chief Executive Officer | ||
[Lender Signature Page to Security Agreement]
Exhibit 10.4
Lender Support Letter
| March 13, 2024 | ||
| ImmunogenX, Inc. | ||
| 1600 Dove Street, Suite 330 | ||
| Newport Beach, CA 92660 | ||
| Attention: Jack A. Syage | ||
| Chief Executive Officer |
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October 1, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and between ImmunogenX, Inc., a Delaware corporation (“ImmunogenX”), and Mattress Liquidators, Inc. (together with its successors and assigns, the “Lender”). Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the Credit Agreement. Pursuant to the Credit Agreement and the Collateral Documents, the obligations under the Credit Agreement and the other Loan Documents are secured by security interests, liens and charges in certain property and assets of ImmunogenX (the “Collateral”) granted to the Lender. ImmunogenX currently proposes to engage in a business combination transaction pursuant to which ImmunogenX will engage in two mergers with subsidiaries of First Wave BioPharma, Inc. (the “Merger Transaction”).
In connection with the repayment of $1,000,000 towards the principal amount of amounts owed by ImmunogenX under the Credit Agreement to the Lender on the date hereof, the Lender hereby confirms, covenants and agrees as follows, notwithstanding anything contained in the Credit Agreement:
(a) (i) ImmunogenX (or any successor thereto) shall be entitled to license or transfer rights to any intellectual property which may constitute Collateral (including without limitation patents, licenses, trademarks, trade names, trade styles, copyrights, trade secrets, know how, and confidential commercial and proprietary information) pursuant to a license agreement (or similar agreement) with any third parties (each such agreement, a “License Agreement”) subject to the security interests, liens and charges granted to the Lender under the Credit Agreement, and (ii) the Lender hereby consents to each such License Agreement and acknowledges and agrees that ImmunogenX and each licensee under each License Agreement (each, a “Licensee”) shall be entitled to rely as beneficiaries under this letter agreement. Lender hereby consents to the Merger Transaction.
(b) If, upon enforcement by the Lender of any of its rights and remedies under the Loan Documents, the Lender (including any of its representatives or designees) takes possession of, sells, assigns, transfers, grants any rights with respect to or otherwise exercises its rights and remedies under the Loan Documents with respect to all or any portion of the Collateral licensed under a License Agreement (any such action, a “Foreclosure Action”), then:
(i) Any transfer by Lender of any such Collateral licensed under a License Agreement to any transferee (a “Successor Licensor”), including to any purchaser as part of any sale or other disposition conducted as part of any foreclosure sale or bankruptcy court supervised sale, liquidation or reorganization, shall be subject to and not free and clear of the rights of the Licensee under the applicable License Agreement (the “Licensee Rights”), and the Lender covenants and agrees not to seek or support any plan or action that would result in any discharge, waiver, modification or termination of any Licensee Rights.
(ii) The Lender further acknowledges, covenants and agrees that no Foreclosure Action will disturb, diminish or interfere with the Licensee Rights (including, without limitation, any sublicenses granted or permitted to be granted thereunder), and (y) the Lender shall notify any Successor Licensor of the Licensee Rights described in the applicable License Agreement in writing prior to any transfer thereof, and condition any sale, transfer or other disposition thereof to the written acknowledgement by such Successor Licensor of the same.
This letter and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of New York without giving effect its conflict of laws provisions.
| Yours faithfully | |
| MATTRESS LIQUIDATORS, INC. | |
| /s/ David Dolan | |
| Agreed and acknowledged: | |
| IMMUNOGENX, INC. | |
| /s/ Jack A. Syage |
Exhibit 10.5
FORM OF SECURED PROMISSORY NOTE
_____, 2024
$_____
For value received, IMMUNOGENX, INC, a Delaware corporation ( “Maker”), hereby promises to pay to the order of _____ (the “Holder”) or to the Holder’s registered assigns, the sum of _____ ($_____) and any unpaid accrued interest hereon, as set forth below.
Payment of principal and unpaid accrued interest under this Secured Promissory Note (as amended, restated, supplemented or otherwise modified from time to time, the “Note”) shall be due and payable in full on _____, 2025 (the “Maturity Date”). The Maturity Date may be changed on written mutual consent of the Maker and the Holder of this Note.
1. Interest. The unpaid principal balance of this Note shall bear variable interest at a rate equal to the published WSJ Prime Rate (as defined below) plus four and one half percent (4.5%) per annum, based on a 365 day year, from the date hereof until paid in full. All accrued and unpaid interest shall be payable in full on the Maturity Date.
For the purposes of this instrument, “WSJ Prime Rate” means, at the time of any determination, the variable interest rate published from time to time by the Wall Street Journal as the “prime rate” as quoted in the Wall Street Journal “Money Rates” table; provided that each change in the Wall Street Journal prime rate shall be effective on the date such change is published. If multiple prime rates are quoted in the table, then the highest prime rate will be the WSJ Prime Rate. If the Wall Street Journal prime rate is unavailable or is no longer quoted, Holder and Maker may select such replacement index as approximates the Wall Street Journal prime rate. The WSJ Prime Rate shall change from time to time, and such changes shall be effective without prior notice to Borrower.
2. Prepayment. The Maker may prepay, in whole or in part, any portion of the outstanding balance under this Note at any time from time to time by tender to the Holder of funds by check or wire transfer of a portion or all of the outstanding balance.
3. Security. The amounts due under this Note are secured by the Patent and Trademark Security Agreement of even date herewith (as amended, restated, supplemented or otherwise modified from time to time), between the Maker and the Holder, covering certain property described therein.
4. Defaults and Remedies.
(a) Events of Default. An “Event of Default” shall occur (i) if the Maker shall default in the payment of the principal or interest of this Note, when and as the same shall become due and payable and such default continues for five (5) business days after the due date thereof; (ii) if Maker shall become Insolvent or make an assignment for benefit of creditors; (iii) Maker shall have defaulted under the Second Amended and Restated Revolving Loan Promissory Note in favor of Mattress Liquidators, Inc.; or (iv) if Maker shall institute, or suffer proceedings instituted by a third party, under any bankruptcy, insolvency or other similar law, which proceedings are not dismissed within sixty days of institution. For the purposes of this instrument, “Insolvent” means (i) the sum of the fair market value of Maker’s assets does not exceed the sum of Maker’s liabilities, and (ii) that Maker is no longer able to pay its debts as they become due and payable.
(b) Acceleration. If an Event of Default occurs and is continuing, then, at the option of the Holder and upon notice to the Maker, the outstanding principal of, and all accrued interest on, this Note shall automatically become immediately due and payable.
5. Subordination. All payments on account of the debt represented by this Note shall be subject, subordinate and junior in right of payment and exercise of remedies, to the prior payment in full in cash or cash equivalents of the senior debt in favor of Mattress Liquidators, Inc.
6. Notices. Any notice, demand or request required or permitted to be given under this Note shall be in writing and shall be deemed given when delivered personally or three (3) days after being deposited in the United States mail, as certified or registered mail, with postage prepaid.
7. Solvency. After taking into account the provisions of this Note and the obligations hereof, Maker represents and warrants that Maker is not Insolvent.
8. Waivers.
(a) Maker hereby waives diligence, presentment, protest and demand, and notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note. Maker expressly agrees that this Note or any payment hereunder may be extended from time to time, and that the Holder may accept further security or release any security for this Note, all without in any way affecting the liability of Maker.
(b) No extension of time for payment of this Note or any installment hereof made by agreement of Holder with any person now or hereafter liable for payment of this Note will operate to release, discharge, modify, change or affect the original liability of Maker under this Note, either in whole or in part.
(c) The obligations of Maker under this Note shall be absolute and Maker waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for any reason whatsoever.
9. Attorneys’ Fees. Maker promises to pay all reasonable costs and expenses incurred by the Holder in connection with the enforcement of the provisions of this Note, including reasonable attorney's fees and other professional service fees and costs, regardless of whether suit is filed to seek enforcement.
10. Successors and Assigns. All of the covenants, stipulations, promises, and agreements in this Note shall bind and inure to the benefit of the parties’ respective successors and assigns, whether so expressed or not.
11. Governing Law. This Note shall be governed by the laws of the State of Colorado, as applied to agreements entered into between residents of Colorado, and to be performed entirely within the State of Colorado.
12. Termination. This Note shall automatically terminate and have no further force or effect, and all liens and security interests granted in connection herewith shall be automatically be terminated and released, upon the repayment in full of all principal and accrued interest under this Note (other than contingent indemnification and reimbursement obligations) without any further action from any party hereto.
IN WITNESS WHEREOF, the Maker has caused this Note to be issued this __ day of ____, 2024.
| MAKER: | ||
| IMMUNOGENX, INC. | ||
| By | ||
| [Name] | ||
| [Title} | ||
Exhibit 10.6
FORM OF
PATENT AND TRADEMARK SECURITY AGREEMENT
This Patent and Trademark Security Agreement (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of _____, 2024, is made by and between IMMUNOGENX, INC., a Delaware corporation, having a business address of 1600 Dove Street, Suite 330, Newport Beach, CA 92660 (together with its affiliates, successors and assigns, “Borrower”), and _____ (together with its affiliates, successors and assigns, “Lender”).
Recitals
Lender has extended credit to Borrower evidenced by that certain Secured Promissory Note, dated as of even date herewith (as amended, restated, supplemented or otherwise modified from time to time, the “Note”), by Borrower in favor of Lender.
As a condition to extending credit to or for the account of Borrower, Lender has required the execution and delivery of this Agreement by Borrower.
ACCORDINGLY, in consideration of the credit so extended and the mutual covenants contained herein, the parties hereby agree as follows:
1. Definitions. All terms defined in the Recitals hereto or in the Note that are not otherwise defined herein shall have the meanings given to them in the Note. In addition, the following terms have the meanings set forth below:
“Affiliate” means any person directly or indirectly controlling or controlled by, or under direct or indirect common control with, another person. A person shall be deemed to control another person for purposes of this definition if such person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of the other person, whether through the ownership of voting securities, common directors, trustees or officers, by contract or otherwise.
“Obligations” means the principal and unpaid accrued interest under the Note.
“Patents” means all of Borrower’s right, title and interest in and to patents or applications for patents, fees or royalties with respect to each, and including without limitation the right to sue for past infringement and damages therefor, and licenses thereunder, all as presently existing or hereafter arising or acquired, including without limitation the patents listed on Exhibit A.
“Permitted Liens” has the meaning set forth in the Senior Debt Agreement.
“Security Interest” has the meaning given in Section 2.
“Senior Debt Agreement” means that certain Credit Agreement, dated as of October 1, 2022 (as amended, restated, refinanced, replaced, supplemented or otherwise modified from time to time), between Borrower and Mattress Liquidators, Inc. Reference to Senior Credit Agreement.
“Trademarks” means all of Borrower’s right, title and interest in and to: (i) trademarks, service marks, collective membership marks, registrations and applications for registration for each, and the respective goodwill associated with each, (ii) licenses, fees or royalties with respect to each, (iii) the right to sue for past, present and future infringement, dilution and damages therefor, and (iv) licenses thereunder, all as presently existing or hereafter arising or acquired, including those registered federally or at the state level, or arising from common law.
2. Security Interest. Borrower hereby irrevocably pledges and assigns to, and grants, Lender a security interest (the “Security Interest”) in the Patents and in the Trademarks to secure payment of the Obligations. This Agreement grants only the Security Interest herein described, is not intended to and does not affect any present transfer of title of any trademark registration or application and makes no assignment and grants no right to assign or perform any other action with respect to any intent to use trademark application, unless such action is permitted under 15 U.S.C. § 1060.
3. Representations, Warranties and Agreements. Borrower represents, warrants and agrees as follows:
(a) Existence; Authority. Borrower is duly organized and validly existing, and this Agreement has been duly authorized by all necessary action on the part of Borrower.
(b) Patents. Exhibit A accurately lists all Patents owned or controlled by Borrower as of the date hereof, or to which Borrower has a right as of the date hereof to have assigned to it, and accurately reflects the existence and status of applications and letters patent pertaining to the Patents as of the date hereof. If after the date hereof, Borrower owns, controls or has a right to have assigned to it any Patents not listed on Exhibit A, or if Exhibit A ceases to accurately reflect the existence and status of applications and letters patent pertaining to the Patents, then Borrower shall within thirty (30) days provide written notice to Lender with a replacement Exhibit A, which upon acceptance by Lender shall become part of this Agreement.
(c) Trademarks. If after the date hereof, Borrower owns or controls any Trademarks (other than common law marks which are not material to Borrower’s business(es)), then Borrower shall promptly provide written notice to Lender detailing such Trademarks and this Agreement shall be amended to include with a replacement Exhibit B, which upon acceptance by Lender shall become part of this Agreement.
(d) Affiliates. As of the date hereof, no Affiliate owns, controls, or has a right to have assigned to it any items that would, if such item were owned by Borrower, constitute Patents or Trademarks. If after the date hereof any Affiliate owns, controls, or has a right to have assigned to it any such items, then Borrower shall promptly either: (i) cause such Affiliate to assign all of its rights in such item(s) to Borrower; or (ii) notify Lender of such item(s) and cause such Affiliate to execute and deliver to Lender a patent and trademark security agreement substantially in the form of this Agreement.
(e) Title. Borrower has absolute title to each Patent listed on Exhibit A and each Trademark, free and clear of all liens except Permitted Liens. Borrower (i) will have, at the time Borrower acquires any rights in Patents or Trademarks hereafter arising, absolute title to each such Patent or Trademark free and clear of all liens except Permitted Liens, and (ii) will keep all Patents and Trademarks free and clear of all liens except Permitted Liens, in each case, other than as permitted by the Senior Debt Agreement.
(f) No Sale. Borrower will not assign, transfer, encumber or otherwise dispose of the Patents or Trademarks, or any interest therein (other than (i) licenses in the ordinary course of business or (ii) as permitted by the Senior Debt Agreement), without Lender’s prior written consent.
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(g) Defense. Borrower will at its own expense and using commercially reasonable efforts, protect and defend the Patents and Trademarks against all claims or demands of all persons other than those holding Permitted Liens, in each case, other than as permitted by the Senior Debt Agreement.
(h) Maintenance. Borrower will at its own expense maintain the Patents and the Trademarks to the extent reasonably advisable in its business including, but not limited to, filing all applications to obtain letters patent or trademark registrations and all affidavits, maintenance fees, annuities, and renewals possible with respect to letters patent, trademark registrations and applications therefor, in each case, other than as permitted by the Senior Debt Agreement. Borrower covenants that, subject to the exercise of its reasonable business judgment, it will not abandon nor fail to pay any maintenance fee or annuity due and payable on any Patent or Trademark, nor fail to file any required affidavit or renewal in support thereof, except (i) that Borrower may permit any Patent or Trademark to lapse if it has reasonably determined that such Patent or Trademark is no longer useful in its business or (ii) as permitted by the Senior Debt Agreement.
(i) Lender’s Right to Take Action. If Borrower fails to perform or observe any of its covenants or agreements set forth in this Section 3, or if Borrower notifies Lender that it intends to abandon a Patent or Trademark (other than as permitted hereunder or under the terms of the Senior Debt Agreement), Lender may (but need not) perform or observe such covenant or agreement or take steps to prevent such intended abandonment on behalf and in the name, place and stead of Borrower and may (but need not) take any and all other actions which Lender may reasonably deem necessary to cure or correct such failure or prevent such intended abandonment.
(j) Costs and Expenses. Except to the extent that the effect of such payment would be to render any loan or forbearance of money usurious or otherwise illegal under any applicable law, Borrower shall pay Lender on demand the amount of all moneys expended and all costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by Lender in connection with or as a result of Lender taking action under Section 3(i) or exercising its rights under Section 7 hereof.
(k) Power of Attorney. Solely to facilitate Lender’s taking action under Section 3(i) and exercising its rights under Section 7, Borrower hereby irrevocably appoints (which appointment is coupled with an interest) Lender, or its delegate, as the attorney-in-fact of Borrower with the right (but not the duty) from time to time to create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of Borrower, any and all instruments, documents, applications, financing statements, and other agreements and writings required to be obtained, executed, delivered or endorsed by Borrower under this Section 3, or, necessary for Lender, after an Event of Default, to enforce or use the Patents or Trademarks or to grant or issue any exclusive or non-exclusive license under the Patents or Trademarks to any third party, or to sell, assign, transfer, pledge, encumber or otherwise transfer title in or dispose of the Patents or Trademarks to any third party. Borrower hereby ratifies all that such attorney shall lawfully do or cause to be done by virtue hereof. The power of attorney granted herein shall automatically terminate upon the termination of the Note as provided therein without any further action from any party hereto.
(l) Senior Debt Agreement. In the event that the Senior Debt Agreement is terminated (and is not refinanced or replaced), this Agreement shall be automatically amended to incorporate the applicable exceptions in effect in the Senior Debt Agreement at the time of such termination.
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4. Borrower’s Use of the Patents and Trademarks. Borrower shall be permitted to control and manage the Patents and Trademarks, including the right to exclude others from making, using or selling items covered by the Patents and Trademarks and any licenses thereunder, in the same manner and with the same effect as if this Agreement had not been entered into, so long as no Event of Default occurs and remains uncured.
5. Events of Default. Each of the following occurrences shall constitute an event of default under this Agreement (herein called “Event of Default”): (a) an Event of Default, as defined in the Note, shall occur; or (b) Borrower shall fail promptly to observe or perform any covenant or agreement herein binding on it and such failure shall not have been remedied or waived within thirty (30) days after receipt by the Borrower of notice of such default; or (c) any of the representations or warranties contained in Section 3 shall prove to have been incorrect in any material respect when made.
6. Recordation. Borrower hereby authorizes the Commissioner for Patents and any other government officials to record and register this Agreement upon request by Lender.
7. Remedies. Upon the occurrence and during the continuation of an Event of Default, Lender may, at its option, take any or all of the following actions:
(a) Lender may exercise any or all remedies available under the Note.
(b) Lender may sell, assign, transfer, pledge, encumber or otherwise dispose of the Patents and Trademarks.
(c) Lender may enforce the Patents and Trademarks and any licenses thereunder, and if Lender shall commence any suit for such enforcement, Borrower shall, at the request of Lender, do any and all lawful acts and execute any and all proper documents required by Lender in aid of such enforcement.
8. Governing Law. This Agreement and the rights and duties of the parties hereto, shall be construed and determined in accordance with the internal laws of the State of Colorado. The parties hereby submit to the exclusive jurisdiction of the United States District Court for the District of Colorado and of any Colorado state court sitting in Boulder County, Colorado for purposes of all legal proceedings arising out of or relating to this Agreement, the Note or the transactions contemplated hereby or thereby; provided, however, that the foregoing shall not limit Lender’s rights to bring any legal action or proceeding in any other appropriate jurisdiction in its unrestricted discretion. Each of Borrower and Lender irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
9. Severability of Invalid Provisions. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction only, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
10. Duplicate Originals; Counterpart Execution. This Agreement may be executed in any number of counterparts, and by the different parties hereto on separate counterpart signature pages, and all such counterparts taken together shall be deemed to constitute one and the same instrument. Each of such counterparts shall be an original, but all counterparts together shall constitute one and the same instrument. The delivery of an executed counterpart of a signature page to this Agreement by telecopier or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement. Borrower shall promptly send its original of each counterpart to Lender, but Borrower’s failure to do so shall not affect the validity, enforceability, and binding effect of this Agreement. Lender may execute this Agreement if appropriate for the purpose of filing, but the failure of Lender to execute this Agreement shall not affect or impair the validity or effectiveness of this Agreement.
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11. WAIVER OF JURY TRIAL. EACH OF BORROWER AND LENDER, HAVING BEEN REPRESENTED BY COUNSEL, EACH KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR THE NOTE OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. BORROWER AGREES THAT IT WILL NOT ASSERT ANY CLAIM AGAINST LENDER UNDER THIS AGREEMENT OR THE NOTE ON ANY THEORY OF LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
12. Miscellaneous. This Agreement can be waived, modified or amended only explicitly in a writing signed by Borrower and Lender. A waiver signed by Lender shall be effective only in the specific instance and for the specific purpose given. No course of dealing or delay or failure to assert any Event of Default shall constitute a waiver of that Event of Default or of any prior or subsequent Event of Default. All rights and remedies of Lender are cumulative and not exclusive of any other rights or remedies, and shall be in addition to every other right, power, and remedy that Lender may have, whether specifically granted herein or hereafter existing at law, in equity, or by statute. Any and all such rights and remedies may be exercised from time to time and as often and in such order as Lender may deem expedient in its sole discretion. Lender shall not be obligated to preserve any rights Borrower may have against prior parties, to realize on the Patents and Trademarks at all or in any particular manner or order, or to apply any cash proceeds of the Patents and Trademarks in any particular order of application. This Agreement shall be binding upon and inure to the benefit of Borrower and Lender and their respective participants, successors and assigns and shall take effect when signed by Borrower and delivered to Lender, and Borrower waives notice of Lender’s acceptance hereof. A carbon, photographic or other reproduction of this Agreement or of any financing statement signed by Borrower shall have the same force and effect as the original for all purposes of a financing statement.
13. Termination. This Agreement shall automatically terminate and have no further force or effect, all liens and security interests granted hereunder shall be automatically be terminated and released and all rights in the Patents and in the Trademarks shall revert to Borrower upon the repayment in full of the Obligations (other than contingent indemnification and reimbursement obligations). Lender shall, upon the request and at the expense of Borrower, execute and deliver all UCC termination statements, lien releases, termination agreements, discharges of security interests, and other similar documents reasonably requested by Borrower evidencing such termination and, if applicable, file, or authorize Borrower or its designee to file, such termination statements, lien releases, discharges of security interests, and other similar discharge or release documents.
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IN WITNESS WHEREOF, the parties have executed this Security Agreement as of the date first written above.
| “BORROWER” | ||
| IMMUNOGENX, INC., | ||
| a Delaware corporation | ||
| By: | ||
| Name: | ||
| Title: | ||
| “LENDER” | ||
EXHIBIT A
PATENTS
Exhibit 10.7
| Jack Syage | March 13, 2024 |
Dear Jack,
First Wave BioPharma, Inc. is pleased to offer you the position of President and Chief Operating Officer, contingent on completion of a background check and I-9 verification. You will report to James Sapirstein, CEO of First Wave BioPharma, Inc. Your first day of employment with us is March 14, 2024.
The terms of the offer are as follows:
| · | A semi-monthly rate of $14,583.34 which annualizes to $350,000.00. This position is considered exempt under the federal and state wage and hour laws, which means you are not eligible for overtime pay beyond your salary. |
| · | An incentive bonus of up to 40% of your annual salary which is dependent on meeting pre-determined objectives at the sole discretion of the company. |
| · | You will be eligible to participate in company benefits on your first day of employment including medical, dental, vision, disability, life insurance and 401k plan. Benefit costs will be covered at 100% by the company for you and your eligible dependents for the following: Medical, Dental, Vision. |
| · | You will receive (3) three weeks of paid vacation per annum, which shall accrue and will otherwise be subject to the company's established policies. Sick leave and holidays will also be provided in accordance with the company's established policies. |
Your employment with our company is at-will, which means that either you or the company may terminate the relationship at any time.
Kindly indicate your understanding and acceptance of our offer by signing below.
We look forward to you joining our team!
Sincerely,
| /s/ James Sapirstein | |
| James Sapirstein | |
| Chairman, President and CEO |
I accept the offer of employment set forth above.
| Signature: | /s/ Jack Syage | Date: March 13, 2024 |
777 Yamato Road Suite 502 Boca Raton, FL 33431
561-589-7020 info@firstwavebio.com
Exhibit 99.1
First Wave BioPharma Announces Completion of Business Combination with ImmunogenX, Adding Phase 3-Ready Latiglutenase to its Late-Stage GI-Focused Clinical Pipeline
Latiglutenase is a potentially first-in-class oral biotherapeutic for the treatment of celiac disease
James Sapirstein, Chairman and Chief Executive Officer, to continue leading First Wave BioPharma; Jack Syage, Ph.D., named President and Chief Operating Officer
A strategic U.S. commercial license agreement with a global pharmaceutical company and concurrent institutional investment expected to close in 2H’24
Conference Call Scheduled for Today at 8:30 a.m. ET
BOCA RATON, FL., March 14, 2024 – First Wave BioPharma, Inc., (NASDAQ: FWBI), (“First Wave BioPharma” or the “Company”), a clinical-stage biopharmaceutical company specializing in the development of targeted, non-systemic therapies for gastrointestinal (GI) diseases, today announced it has acquired ImmunogenX in an all-stock transaction with the combined company focused on advancing a GI pipeline comprised of multiple, late-stage clinical assets, including latiglutenase, a potentially first-in-class, near Phase 3-ready, targeted, oral biotherapeutic for celiac disease. James Sapirstein will continue to serve as Chairman and Chief Executive Officer of First Wave BioPharma with Jack Syage, Ph.D., previously the Chief Executive Officer and Co-Founder of ImmunogenX, assuming the role of President and Chief Operating Officer of First Wave BioPharma. Dr. Syage and Dr. Chaitan Khosla will also join the board of directors of First Wave BioPharma.
First Wave BioPharma intends to license the commercial rights to latiglutenase in the United States and Canada to a strategic global pharmaceutical company which will commercialize latiglutenase following receipt of marketing approval. First Wave BioPharma will also seek to secure financing commitments from a syndicate of institutional healthcare investors to fund the ongoing development of latiglutenase. The closing of a strategic licensing agreement and any other financings would be contingent upon the satisfaction of a number of conditions, including customary due diligence, the negotiation and execution of definitive agreements, Board approval and receipt of all required third-party (including governmental) approvals, licenses, consents, and clearances, as and when applicable.
Latiglutenase, an oral biotherapeutic composed of two gluten-specific recombinant proteases, has demonstrated effectiveness in reducing intestinal damage and alleviating symptoms of celiac disease in two Phase 2 trials involving approximately 200 patients. The Phase 3 clinical plan for latiglutenase has been reviewed by the GI Division of the U.S. Food and Drug Administration (FDA) and the trials are anticipated to begin in early 2025.
“Completion of the acquisition of ImmunogenX and the addition of latiglutenase to our clinical pipeline is a transformative event for First Wave BioPharma as it provides our company with a Phase 3-ready asset in a multibillion-dollar GI market – celiac disease – for which no approved pharmacologic treatment currently exists,” stated Mr. Sapirstein. “Given this enormous potential, we are working with Dr. Syage and his team to advance the regulatory, manufacturing, and clinical processes that would enable the initiation of the pivotal Phase 3 clinical trials of latiglutenase in 2025. To that end, we will seek to develop latiglutenase by completing an agreement with a global pharmaceutical company to provide First Wave with non-dilutive financing in exchange for U.S. and Canadian rights to the drug and to obtain financing with a syndicate of leading institutional healthcare funds in 2H’24. We expect to finalize these agreements prior to initiating preparatory work for the Phase 3 latiglutenase trials.”
Dr. Syage commented: “I am excited to join First Wave BioPharma and advance the company’s mission to become a leading developer of targeted, orally delivered therapeutics for GI diseases. We believe latiglutenase has the potential to transform the treatment of celiac disease with data from two prior Phase 2 trials indicating the therapy is well tolerated and effective in degrading the key gluten proteins responsible for intestinal damage and celiac disease symptoms. This merger with First Wave will provide the support needed to propel the development of latiglutenase, a program that has already received significant NIH grant funding and encouragement from the FDA.”
Mr. Sapirstein concluded: “First Wave BioPharma now possesses a GI-development pipeline unrivaled by other companies of similar size. In addition to latiglutenase, our product portfolio includes capeserod, a selective 5-HT4 receptor partial agonist in-licensed from Sanofi, which is being developed for an anticipated Phase 2 trial in gastroparesis, and Phase 2-ready adrulipase, a recombinant lipase designed to enable the digestion of fats and improve nutritional health in cystic fibrosis patients with exocrine pancreatic insufficiency.”
Upon closing of the acquisition, the Company issued 365,162 shares of its common stock to the shareholders (including option and warrant holders) of ImmunogenX equal to 19.02% of its currently issued and outstanding common stock and 11,777.418 shares of its newly issued Series G Convertible Preferred Stock (with a conversion ratio of Preferred to Common at 1:1000) representing on a fully diluted basis 81.9% for ImmunogenX and 18.1% for First Wave Biopharma (excluding transaction fees) with a combined fully diluted equity value of $104 million. The shares of the Company’s common stock issuable upon conversion of the Series G Preferred Stock shall be subject to stockholder approval in compliance with the rules of the Nasdaq Stock Market.
Tungsten Advisors served as the exclusive financial advisor to First Wave BioPharma.
Conference Call Information:
First Wave BioPharma will host a conference call and live audio webcast today, March 14, 2024, at 8:30 a.m. ET, to discuss the definitive merger agreement with ImmunogenX and provide a strategic outlook for company.
| · | Webcast Access: |
The audio webcast of the conference call will be accessible via the Investors section of the First Wave website: https://www.firstwavebio.com/investors/overview and from the following URL: https://edge.media-server.com/mmc/p/caeg5tgz.
An archive of the webcast will remain available for 90 days beginning at approximately 10:30 a.m. ET, on March 14, 2024.
| · | Telephone Access: |
Additionally, interested participants and investors may access the conference call telephonically by registering via the following online form:
https://register.vevent.com/register/BI36686d07f85e40b4ad95f761fb3e22d2
Once registered, all individuals will be provided with a participant dial-in number, a passcode, and a registrant ID, which can then be used to access the conference call.
About Latiglutenase
Latiglutenase is an orally administered mixture of two minimally systemically absorbed gluten-specific recombinant proteases being developed as an oral biotherapeutic for celiac disease. In Phase 2a and 2b clinical trials, latiglutenase was shown to mitigate gluten-induced intestinal mucosal injury as well as reduce the severity and frequency of symptoms in celiac disease patients. The Phase 3 clinical development plan for latiglutenase has been reviewed by the GI Division of the U.S. Food and Drug Administration (FDA) at the End of Phase 2 meeting with an agreed plan forward, with initiation of the Phase 3 trials expected in 2025.
About Celiac Disease
Celiac disease is a chronic, hereditary autoimmune and inflammatory disease triggered by gluten consumption. Celiac disease is characterized by damage to the lining of the small intestine, causing malabsorption, gastrointestinal dysfunction, and debilitating symptoms. Over the course of a lifetime, untreated or poorly managed celiac disease is often associated with deteriorating general health, multiple serious intestinal and extra-intestinal medical complications, and increased morbidity and mortality. Celiac disease is a global disease and affects approximately 1% of the population worldwide and is increasing in prevalence with improved diagnostic tools and improved awareness.
About First Wave BioPharma, Inc.
First Wave BioPharma is a clinical-stage biopharmaceutical company specializing in the development of targeted, non-systemic therapies for gastrointestinal (GI) diseases. The Company is currently advancing a therapeutic development pipeline with multiple late-stage clinical programs built around three proprietary technologies – latiglutenase, a Phase 3-ready, potentially first-in-class, targeted, oral biotherapeutic for celiac disease; capeserod, a selective 5-HT4 receptor partial agonist being developed for gastroparesis; and adrulipase, a recombinant lipase enzyme designed to enable the digestion of fats and other nutrients in cystic fibrosis and chronic pancreatitis patients with exocrine pancreatic insufficiency. First Wave BioPharma is headquartered in Boca Raton, Florida. For more information visit www.firstwavebio.com.
About Tungsten Advisors
Tungsten Advisors (www.tungstenadv.com) is an investment banking firm focused on strategic advisory and corporate finance for healthcare and technology companies. Tungsten provides transactional services including financings (private placements/PIPEs), corporate licensing and mergers and acquisitions (M&A). Tungsten also focuses on company incubation and makes direct investments alongside the creation of new companies in healthcare and technology.
Securities offered through Finalis Securities LLC Member FINRA/SIPC. Tungsten Partners LLC d/b/a Tungsten Advisors and Finalis Securities LLC are separate, unaffiliated entities.
Forward-Looking Statements
This press release may contain certain statements relating to future results which are forward-looking statements. It is possible that the Company’s actual results and financial condition may differ, possibly materially, from the anticipated results and financial condition indicated in these forward-looking statements, depending on factors including whether any financing or licensing transaction may be completed with different terms, in an untimely manner, or not at all; whether the Company will be able to realize the benefits of the completed transaction described herein; the Company’s ability to integrate the assets and commercial operations contemplated acquired from ImmunogenX into the Company’s business; whether results obtained in preclinical and nonclinical studies and clinical trials will be indicative of results obtained in future clinical trials; whether preliminary or interim results from a clinical trial will be indicative of the final results of the trial; whether the Company will be able to maintain compliance with Nasdaq’s continued listing criteria and the effect of a delisting from Nasdaq on the market for the Company’s securities; the size of the potential markets for the Company’s drug candidates and its ability to service those markets; the effects of the First Wave Bio, Inc. acquisition, the related settlement and their effect on the Company’s business, operating results and financial prospects; and the Company’s current and future capital requirements and its ability to raise additional funds to satisfy its capital needs. Additional information concerning the Company and its business, including a discussion of factors that could materially affect the Company’s financial results are contained in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022, under the heading “Risk Factors,” as well as the Company’s subsequent filings with the Securities and Exchange Commission. All forward-looking statements included in this press release are made only as of the date of this press release, and we do not undertake any obligation to publicly update or correct any forward-looking statements to reflect events or circumstances that subsequently occur or of which we hereafter become aware.
For more information:
First Wave BioPharma, Inc.
777 Yamato Road, Suite 502
Boca Raton, FL 33431
Phone: (561) 589-7020
info@firstwavebio.com
Media contact:
Tiberend Strategic Advisors, Inc.
David Schemelia
(609) 468-9325
dschemelia@tiberend.com