Borrower Reporting. The Borrower shall file with the SEC a Current Report on Form 8-K disclosing its delivery of a Share Issuance Notice, no later than 8:35 a.m., New York City time, on the first Reference Date in each Issuance Period. Annex 1 to Exhibit 2.7 - Payment Share Provisions [Date] [Transfer Agent Name and Address] Attention: [ ] Re: Melinta Therapeutics, Inc. (the “Borrower”) Ladies and Gentlemen: Pursuant to Section 3 of Exhibit 2.7 (the “Exhibit”) of that certain Facility Agreement (the “Facility Agreement”), dated as of January 5, 2018, between the Borrower and the Lenders party thereto from time to time (each an “Lender” and collectively, the “Lenders”), the Borrower has delivered to the Lenders a Share Issuance Notice (as defined in the Exhibit), dated as of [•], pursuant to which the Borrower has elected to satisfy certain payment obligations under the Facility Agreement by issuing shares of Common Stock to the Lenders. Capitalized terms used but not defined herein shall have the meanings set forth in the Facility Agreement or the Exhibit, as applicable. We are counsel for the Borrower and have been requested to furnish to you an opinion with respect to all of the shares of Common Stock of the Borrower that will be issued to the Lenders in connection the abovementioned Share Issuance Notice (the “Shares”). As a basis for this opinion, we have received and reviewed (1) the Facility Agreement, including the Exhibit, (2) the Share Issuance Notice, (3) an officer’s certificate from the Borrower and (4) such other documents as we have deemed relevant or necessary. On the basis of the foregoing and assuming the accuracy of the aforementioned representations of each Lender, it is our opinion that the Shares may be resold by each Lender without restriction under the Securities Act of 1933, as amended, and, accordingly, the Shares may be issued without any restrictive legend to each Lender or its designee in accordance with each such Lender’s instructions with respect to Shares delivered to such Lender. Any questions concerning the foregoing opinion should be communicated to [•] of this firm. Very truly yours, [•] [•],[•}
Appears in 1 contract
Samples: Facility Agreement (Melinta Therapeutics, Inc. /New/)
Borrower Reporting. The Borrower shall file with the SEC a Current Report on Form 8-K disclosing its delivery of a Share Issuance Notice, no later than 8:35 a.m., New York City time, on the first Reference Date in each Issuance Period. Annex 1 to Exhibit 2.7 - Payment Share Provisions [Date] [Transfer Agent Name and Address] Attention: [ ] Re: Melinta Therapeutics, Inc. (the “Borrower”) Ladies and Gentlemen: Pursuant to Section 3 of Exhibit 2.7 (the “Exhibit”) of that certain Facility Agreement (the “Facility Agreement”), dated as of January 5, 2018, between the Borrower and the Lenders party thereto from time to time (each an “Lender” and collectively, the “Lenders”), the Borrower has delivered to the Lenders a Share Issuance Notice (as defined in the Exhibit), dated as of [•●], pursuant to which the Borrower has elected to satisfy certain payment obligations under the Facility Agreement by issuing shares of Common Stock to the Lenders. Capitalized terms used but not defined herein shall have the meanings set forth in the Facility Agreement or the Exhibit, as applicable. We are counsel for the Borrower and have been requested to furnish to you an opinion with respect to all of the shares of Common Stock of the Borrower that will be issued to the Lenders in connection the abovementioned Share Issuance Notice (the “Shares”). As a basis for this opinion, we have received and reviewed (1) the Facility Agreement, including the Exhibit, (2) the Share Issuance Notice, (3) an officer’s certificate from the Borrower and (4) such other documents as we have deemed relevant or necessary. On the basis of the foregoing and assuming the accuracy of the aforementioned representations of each Lender, it is our opinion that the Shares may be resold by each Lender without restriction under the Securities Act of 1933, as amended, and, accordingly, the Shares may be issued without any restrictive legend to each Lender or its designee in accordance with each such Lender’s instructions with respect to Shares delivered to such Lender. Any questions concerning the foregoing opinion should be communicated to [•●] of this firm. Very truly yours, [•●] [•],[•}●],[●} cc: [Lenders] Investments None. Schedule 2.4 List of Agreement Date Lenders and Such Lenders’ Wire Instructions and Information for Notices Schedule 3.1(d) Existing Liens None. Schedule 3.1(f) Existing Indebtedness None. Schedule 3.1(m) Real Estate Owned Real Property: Loan Party or Subsidiary Complete Street and Mailing Address, Including Zip Code N/A Leased Real Property: Loan Party or Subsidiary Complete Street and Mailing Address, Including Zip Code Landlord Name and Contact Information Cempra Pharmaceuticals, Inc. 0000 Xxxxxxxxxx Xx, xxxxx 000 Xxxxxx Xxxx, XX 00000 TDC Blue Quadrangle, LLC 0000 X. Xxxxxx Avenue, Ste 210 Durham, NC 27713 Melinta Subsidiary Corp. (formerly Melinta Therapeutics, Inc.) 000 Xxx-Xxxxx Xxxxxxxxxxxxx, Xxxxx 000 Xxxxxxxxxxxx, XX 00000 IHP Tri-State Assets, LLC 00 Xxxxxxxxxx Xxxxx Xxxx 0000 Xxxxxxx, XX 00000 Melinta Subsidiary Corp. (formerly Melinta Therapeutics, Inc.) 000 Xxxxxx Xx, Ste 301 New Haven, CT 06511 WE Xxxxxx Street, LLC Attn: Entity 6751 PO. Xxx 000000 Xxx Xxxxxxx, XX 00000-0000 Targanta Therapeutics Corporation 0000 Xxxxxxxx Xxxxxxx, Suite 200 Montreal, Canada CIG III Technoparc Nominee Inc./Fiduciaire CIG III Technoparc Inc. Rempex Pharmaceuticals, Inc. 0 Xxxxxx Xxx Xxxxxxxxxx, XX 00000 ARE-SD Region No. 35, LLC Subleased Real Property: Loan Party or Subsidiary Complete Street and Mailing Address, Including Zip Code Landlord and Sublandlord Name and Contact Information Cempra Pharmaceuticals, Inc. 0000 Xxxxxxxxxx Xx, xxxxx 000 Xxxxxx Xxxx, XX 00000 Level Carolina Homes, LLC .. . Other Real Property Operated or Occupied: Loan Party or Subsidiary Complete Street and Mailing Address, Including Zip Code Nature of Use N/A Schedule 3.1(q) Licenses Melinta Therapeutics, Inc. (“Melinta”) has in agreements in place with the following companies, granting them rights to develop, license, market and sell Products in regions outside the United States: • Eurofarma for Latin America (Baxdela) • Menarini for various countries in Europe and Asia (Baxdela) • Toyama for Japan (Solithromycin) Melinta has globally licensed radezolid to for the development of radezolid for a topical acne indication. Melinta has the right to opt-in to the program at various milestones, but if Melinta chooses not to opt-in, the product will be owned by . Schedule 3.1(w) Borrower’s Subsidiaries Parent Percentage Ownership Name of Subsidiary Jurisdiction of Subsidiary Date of Formation of Subsidiary Federal Employer ID No. of Subsidiary Organizational Identification No. of Subsidiary Melinta Therapeutics, Inc. 100 CEM-102 Pharmaceuticals, Inc Delaware 5/16/2008 . . N/A Melinta Therapeutics, Inc. 100 Cempra Pharmaceuticals, Inc. Delaware 11/18/2005 . . N/A Melinta Therapeutics, Inc. 100 Melinta Subsidiary Corp (formerly Melinta Therapeutics, Inc.) Delaware 10/30/2000 . . N/A Melinta Subsidiary Corp 100 Rib-X Therapeutics Limited England and Wales 8/9/2005 . . 5532277 Melinta Therapeutics, Inc. 100 Rempex Pharmaceuticals, Inc. Delaware 2/15/11 . . 4940675 Rempex Pharmaceuticals, Inc. 100 Rempex London Limited England and Wales 8/29/12 .. 08194048 Rempex Pharmaceuticals, Inc. 100 Rempex Australia Pty Limited Australia 12/11/12 .. 161599391 Melinta Therapeutics, Inc. 100 Targanta Therapeutics Corporation Delaware 12/6/05 . . 4071702 Targanta Therapeutics Corporation 100 Targanta Therapeutics Inc. Canada 1/1/10 . . 454492-7 Schedule 3.1(x) Dividends None. Schedule 3.1(y) Borrower’s Outstanding Shares of Stock, Options and Warrants Authorized Stock: 80 million Issued and outstanding Stock: 21,988,942 Owner Shares Percentage Certificated (Yes or No) Certificate No. (if applicable) See attached computershare report for details Options/RSUs – 2,454,416 (Table below) Options/RSUs Legacy Cempra 912,275 Melinta 732,499 Inducement Grants 809,642 Total 2,454,416 Warrants: 31,697 MELINTA THERAPEUTICS, INC. Document Created: 1/4/2018 3:55 PM C02 - NEW COMMON Include Back Date = Yes Capital Activity Summary - Nov 03, 2017 - Jan 04, 2018 Outstanding Treasury Issued Beginning Balance 0 0 0 Shares/Units Issued 21,998,942 0 21,998,942 Retire to Unallocated 0 0 0 CLOSING BALANCE AS OF Jan 04, 2018 23,236,971 0 23,236,971 Variance 1,238,029 0 1,238,029 * Please refer to your RM for additional detail pertaining to any variances Capital Activity Details - Nov 03, 2017 - Jan 04, 2018 CLOSING BALANCE AS OF Jan 04, 2018 23,236,971 0 23,236,971 EFF-DATE PROC-DATE DEBIT FROM CREDIT TO SEQ-NUM SHARES/UNITS OUTSTANDING TREASURY ISSUED 12/7/2017 12/7/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT008 10,000 21,998,942 0 21,998,942 12/1/2017 12/1/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT007 863 21,988,942 0 21,988,942 11/22/2017 11/22/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT004 15,000 21,988,079 0 21,988,079 11/22/2017 11/22/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT006 1,000 21,973,079 0 21,973,079 11/22/2017 11/22/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT005 1,000 21,972,079 0 21,972,079 11/22/2017 11/22/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT003 5,000 21,971,079 0 21,971,079 11/22/2017 11/22/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT002 5,000 21,966,079 0 21,966,079 11/22/2017 11/22/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT001 15,000 21,961,079 0 21,961,079 | CERTAINTY | INGENUITY | ADVANTAGE | MELINTA THERAPEUTICS, INC. Document Created: 1/4/2018 3:55 PM EFF-DATE PROC-DATE DEBIT FROM CREDIT TO SEQ-NUM SHARES/UNITS OUTSTANDING TREASURY ISSUED 11/15/2017 11/15/2017 U0000000019|UNALLOCATED Cede & Co CEMP127 10,000 21,946,079 0 21,946,079 11/9/2017 11/15/2017 R0000000060|CEMPRA 2017 REVERSE SPLIT, Shareholder SEED 10,459,938 21,936,079 0 21,936,079 11/9/2017 11/15/2017 R0000000060|CEMPRA 2017 REVERSE SPLIT, U0000000019|UNALLOCATED ADJUST 42,530 11,476,141 0 11,476,141 11/9/2017 11/10/2017 U0000000019|UNALLOCATED Nominee REV SPLIT 42,530 11,476,141 0 11,476,141 11/6/2017 11/10/2017 R0000000051|MELINTA EXCHANGE, Shareholder SEED 11,433,611 11,433,611 0 11,433,611 11/6/2017 11/7/2017 U0000000019|UNALLOCATED R0000000051|MELINTA EXCHANGE, OPN/MRGR 11,433,611 0 0 0 11/3/2017 11/6/2017 One Sided U0000000019|UNALLOCATED 8K 250,000,000 0 0 0 | CERTAINTY | INGENUITY | ADVANTAGE | MELINTA THERAPEUTICS, INC. Document Created: 1/4/2018 3:55 PM R0000000019 SIXTH AMENDED AND RESTATED 2006 STOCK PLAN CLOSING BALANCE AS OF Jan 04, 2018 68,371 EFF-DATE PROC-DATE DEBIT FROM CREDIT TO SEQ-NUM SHARES/UNITS BALANCE 11/3/2017 11/14/2017 U0000000019|UNALLOCATED Multiple Capital Accounts REV SPLIT 68,371 68,371 OPENING BALANCE 0 | CERTAINTY | INGENUITY | ADVANTAGE | MELINTA THERAPEUTICS, INC. Document Created: 1/4/2018 3:55 PM R0000000027 2011 EQUITY INCENTIVE PLAN CLOSING BALANCE AS OF Jan 04, 2018 899,960 EFF-DATE PROC-DATE DEBIT FROM CREDIT TO SEQ-NUM SHARES/UNITS BALANCE 12/7/2017 12/7/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT008 -10,000 899,960 12/1/2017 12/1/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT007 -863 909,960 11/22/2017 11/22/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT004 -15,000 910,823 11/22/2017 11/22/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT006 -1,000 925,823 11/22/2017 11/22/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT005 -1,000 926,823 11/22/2017 11/22/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT003 -5,000 927,823 11/22/2017 11/22/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT002 -5,000 932,823 11/22/2017 11/22/2017 R0000000027|2011 EQUITY INCENTIVE PLAN, Cede & Co MLNT001 -15,000 937,823 11/3/2017 11/14/2017 U0000000019|UNALLOCATED Multiple Capital Accounts REV SPLIT 952,823 952,823 OPENING BALANCE 0 | CERTAINTY | INGENUITY | ADVANTAGE | MELINTA THERAPEUTICS, INC. Document Created: 1/4/2018 3:55 PM R0000000035 AUGUST 2011 WARRANTS CLOSING BALANCE AS OF Jan 04, 2018 18,982 EFF-DATE PROC-DATE DEBIT FROM CREDIT TO SEQ-NUM SHARES/UNITS BALANCE 11/3/2017 11/14/2017 U0000000019|UNALLOCATED Multiple Capital Accounts REV SPLIT 18,982 18,982 OPENING BALANCE 0 | CERTAINTY | INGENUITY | ADVANTAGE | Schedule 3.1(z) Margin Stock None. Schedule 3.1(cc) Environmental None. Schedule 3.1(ee) Labor Relations None. Schedule 3.1(ff) Jurisdiction of Organization, Legal Name, Organizational Identification Number and Chief Executive Office Loan Party Jurisdiction of Organization All Other Jurisdictions of Organization of Loan Party for 5 Years Preceding the Agreement Date Legal Name All Other Legal Names of Loan Party for 5 Years Preceding the Agreement Date Organizational Identification No. Location of Chief Executive Office or Sole Place of Business Melinta Therapeutics, Inc. Delaware Melinta Subsidiary Corp. Melinta Therapeutics, Inc. Cempra, Inc.; Cempra Holdings, LLC; Rib-X Pharmaceuticals 00-0000000 000 Xxx-Xxxxx Xxxxxxxxxxxxx Xxxxx 000 Xxxxxxxxxxxx, XX 00000 Rempex Pharmaceuticals, Inc. Delaware Melinta Subsidiary Corp. Rempex Pharmaceuticals, Inc. Ravioli Acquisition Corp. 4940675 0 Xxxxxx Xxx Xxxxxxxxxx, XX 00000 Targanta Therapeutics Corporation Delaware Melinta Subsidiary Corp. Targanta Therapeutics Corporation N/A 4071702 0 Xxxxxx Xxx Xxxxxxxxxx, XX 00000 Melinta Subsidary Corp. Delaware Melinta Subsidary Corp. Melinta Subsidary Corp. Melinta Therapeutics, Inc. 3309624 000 Xxxxxx Xxxxxx, Suite 301New Haven, Connecticut 06511 Cempra Pharmaceuticals, Inc. Delaware Melinta Subsidary Corp. Cempra Pharmaceuticals, Inc. N/A 4059767 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000 Xxxxxx Xxxx, XX 00000 CEM-102 Pharmaceuticals, Inc. Delaware Melinta Subsidary Corp. CEM-102 Pharmaceuticals, Inc. N/A 4548841 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000 Xxxxxx Xxxx, XX 00000 Schedule 3.1(gg) Deposit Accounts and Other Accounts Schedule 3.1(uu) Registrations US IND (Melinta) Delafloxacin 450 mg oral tablet IND062772 Delafloxacin 300 mg IV solution IND076096 Radezolid Bacterial Vaginosis PIND137157 Radezolid oral IND076553 Radezolid Tablet IND111839 RX-04 PIND133508 US IND (MDCO) Minocin (MDCO) IND: none Vabomere IV (MDCO) IND120040 Orbactiv IV (MDCO) IND051292 US NDA (Melinta) BAXDELA Delafloxacin 450 mg oral tablet NDA208610 Baxdela Delafloxacin 300 mg IV solution NDA208611 US NDA (MDCO) Minocin (MDCO) NDA050444 Vabomere IV (MDCO) NDA209776 Orbactiv IV (MDCO) NDA206334 EU MAA (MDCO) Minocin (MDCO) MAA: none Vabomere IV (MDCO) MAA none- registration process pending Orbactiv IV (MDCO) MAA EU/1/15/989/001 EU Reimbursement Approved (MDCO) Orbactiv IV France (MDCO) Nov 2015 Orbactiv IV Germany (MDCO) Jun 2015 Schedule 3.1(ww) Regulatory Matters None. Schedule 3.1(xx) Inspections and Investigations The FDA is currently conducting a general GMP inspection at Austar Pharma, the manufacturer of Baxdela tablets. Rights Granted Melinta Therapeutics, Inc. has in agreements in place with the following companies, granting them rights to develop, manufacture, produce, assemble, distribute, license, prepare, package, label, market and sell Products in regions outside the United States: • Eurofarma for Latin America (Baxdela) • Menarini for various countries in Europe and Asia (Baxdela) • Toyama for Japan (Solithromycin) Melinta has globally licensed radezolid to for the development of radezolid for a topical acne indication. Melinta has the right to opt-in to the program at various milestones, but if Melinta chooses not to opt-in, the product will be owned by . Schedule 3.1(bbb) Products In December 2016, Cempra, Inc. received a warning letter from the FDA1 regarding the production of API for Soli at its Wockhardt, India facility. Following receipt of the letter, Cempra Inc. took steps to establish alternate supplier of API for Stoli, and Melinta Theraputics, Inc. does not consider Soli a material or critical asset. 1 xxxxx://xxx.xxx.xxx/ICECI/EnforcementActions/WarningLetters/2016/ucm534983.htm Schedule 5.1(w) Post-Closing Obligations
Appears in 1 contract
Samples: Facility Agreement (Melinta Therapeutics, Inc. /New/)
Borrower Reporting. The Borrower shall file with the SEC a Current Report on Form 8-K disclosing its delivery of a Share Issuance NoticeNotice include the amount of principal or interest to which such Share Issuance Notice relates, no later than 8:35 a.m., New York City time, on the first Reference Date Trading Day immediately following the date the applicable Share Issuance Notice is sent by the Borrower. In addition, if as of the end of the Issuance Period in each respect of any Share Issuance Notice, the Credit Amounts for such Issuance Period are less than the Share Issuance Amount specified in the Share Issuance Notice (such shortfall, the “Unsatisfied Principal Amount”), then no later than 8:35 a.m., New York City time, on the Trading Day immediately following the expiration of such Issuance Period, the Borrower shall file with the SEC a Current Report on Form 8-K disclosing the portion of the Share Issuance Amount that was satisfied through the issuance of Freely Tradeable Shares, and the Unsatisfied Principal Amount as of the end of the Issuance Period. Annex 1 to Exhibit 2.7 2.3 - Payment Share Provisions [Date] [Transfer Agent Name and Address] Attention: [ ] Re: Melinta EXHIBIT A Notes EXHIBIT B Closing Document Checklist DEERFIELD / NEOS THERAPEUTICS SECOND AMENDMENT TO FACILITY AGREEMENT CLOSING CHECKLIST Borrower Neos Therapeutics, Inc. Inc., a Delaware corporation Deerfield Deerfield Private Design Fund III, L.P. and Deerfield Special Situations fund, X.X. Xxxxxxx Xxxxxxx Procter LLP, Borrower’s counsel Katten Xxxxxx Xxxxxx Xxxxxxxx LLP, Deerfield’s counsel Guarantors Neos Therapeutics Commercial, LLC (the “Borrower”DE) Ladies and Gentlemen: Pursuant to Section 3 of Exhibit 2.7 (the “Exhibit”NTC) of that certain Facility Agreement Neos Therapeutics Brands, LLC (the “Facility Agreement”)DE) (NTB) Neos Therapeutics, dated as of January 5LP (TX) (NTLP) PharmaFab Texas, 2018, between the Borrower and the Lenders party thereto from time to time LLC (each an “Lender” and collectively, the “Lenders”), the Borrower has delivered to the Lenders a Share Issuance Notice TX) (as defined in the Exhibit), dated as of [•], pursuant to which the Borrower has elected to satisfy certain payment obligations under the Facility Agreement by issuing shares of Common Stock to the Lenders. Capitalized terms used but not defined herein shall have the meanings set forth in the Facility Agreement or the Exhibit, as applicable. We are counsel for the Borrower and have been requested to furnish to you an opinion with respect to all of the shares of Common Stock of the Borrower that will be issued to the Lenders in connection the abovementioned Share Issuance Notice (the “Shares”). As a basis for this opinion, we have received and reviewed (1PFT) the Facility Agreement, including the Exhibit, (2) the Share Issuance Notice, (3) an officer’s certificate from the Borrower and (4) such other documents as we have deemed relevant or necessary. On the basis of the foregoing and assuming the accuracy of the aforementioned representations of each Lender, it is our opinion that the Shares may be resold by each Lender without restriction under the Securities Act of 1933, as amended, and, accordingly, the Shares may be issued without any restrictive legend to each Lender or its designee in accordance with each such Lender’s instructions with respect to Shares delivered to such Lender. Any questions concerning the foregoing opinion should be communicated to [•] of this firm. Very truly yours, [•] [•],[•}Document Responsible Party Signatures Status
Appears in 1 contract
Borrower Reporting. The Borrower shall file with the SEC a Current Report on Form 8-K disclosing its delivery of a Share Issuance Notice, no later than 8:35 a.m., New York City time, on the first Reference Date in each Trading Day immediately following the date of the Share Issuance PeriodNotice. Annex 1 to Exhibit 2.7 - 2.6—Payment Share Provisions [Date] [Transfer Agent Name and Address] Attention: [ ] Re: Melinta TherapeuticsEndologix, Inc. (the “Borrower”) Ladies and Gentlemen: Pursuant to Section 3 of Exhibit 2.7 2.6 (the “Exhibit”) of that certain Amended and Restated Facility Agreement (the “Facility Agreement”), dated as of January 5August 9, 2018, between the Borrower and the Lenders party thereto from time to time (each an “Lender” and collectively, the “Lenders”), the Borrower has delivered to the Lenders a Share Issuance Notice (as defined in the Exhibit), dated as of [•[ , ], pursuant to which the Borrower has elected to satisfy certain payment obligations under the Facility Agreement by issuing shares of Common Stock to the Lenders. Capitalized terms used but not defined herein shall have the meanings set forth in the Facility Agreement or the Exhibit, as applicable. We are counsel for the Borrower and have been requested to furnish to you an opinion with respect to all of the shares of Common Stock of the Borrower that will be issued to the Lenders in connection the abovementioned Share Issuance Notice (the “Shares”). As a basis for this opinion, we have received and reviewed (1) the Facility Agreement, including the Exhibit, (2) the Share Issuance Notice, (3) an officer’s certificate from the Borrower and (4) such other documents as we have deemed relevant or necessary. On the basis of the foregoing and assuming the accuracy of the aforementioned representations of each Lender, it is our opinion that the Shares may be resold by each Lender without restriction under the Securities Act of 1933, as amended, and, accordingly, the Shares may be issued without any restrictive legend to each Lender or its designee in accordance with each such Lender’s instructions with respect to Shares delivered to such Lender. Any questions concerning the foregoing opinion should be communicated to [•[ ] of this firm. Very truly yours, [•_____________________________] _____________________________ [__________________],[_______________] cc: [Lenders] EXHIBIT A-1 FORM OF FIRST OUT WATERFALL NOTE THE SECURITIES REPRESENTED BY THIS NOTE (AS DEFINED BELOW) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN, FINANCING OR INDEBTEDNESS ARRANGEMENT SECURED BY THE SECURITIES. THE FOLLOWING INFORMATION IS PROVIDED PURSUANT TO TREAS. REG. SECTION 1.1275-3: THE BORROWER (AS DEFINED BELOW) WILL MAKE AVAILABLE ON REQUEST TO HOLDER(S) OF THIS NOTE THE FOLLOWING INFORMATION: ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY. THIS NOTE IS BEING AMENDED AND RESTATED AS PART OF AND PURSUANT TO A PLAN OF RECAPITALIZATION AND REORGANIZATION OF THE BORROWER DESCRIBED IN SECTION 368(A)(1)(E) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. FIRST OUT WATERFALL NOTE First Out Waterfall Lender: _____________________ Original Issue Date: April 3, 2017 Principal Amount: $[__________] [•],[•}Re-Issuance Date: January 1, 2018]1 Amendment and Restatement Date: August 9, 2018 FOR VALUE RECEIVED, the undersigned, Endologix, Inc., a Delaware corporation (the “Borrower”), hereby unconditionally promises to pay to the First Out Waterfall Lender set forth above (the “Lender”) the “Principal Amount” set forth above, or, if less, the aggregate unpaid Principal (as defined below) amount of the First Out Waterfall Loan (as defined in the Facility Agreement referred to below) of the Lender to the Borrower, payable at such times and in such amounts as are specified in the Facility Agreement. The Borrower promises to pay interest on the outstanding Principal amount of the First Out Waterfall Loan and any overdue interest from and after the Amendment and Restatement Date (as defined below) until such outstanding Principal amount of the First Out Waterfall Loan and any overdue interest are paid in full, payable at such times and at such interest rates as are specified in the Facility Agreement. The Borrower promises to pay any Non-Callable Make Whole Amount, any CoC Fee and the First Out Waterfall Exit Payment (each, as defined in the Facility Agreement) that is due on the First Out Waterfall Loan in accordance with the Facility Agreement. In lieu of making any payment of interest in cash (but not (i) interest payable pursuant to the second sentence of Section 2.6(a) of Facility Agreement, (ii) interest payable-in-kind or (iii) in connection with any Event of Default or late payment hereunder or any other interest payable pursuant to Section 2.7 of the Facility Agreement) and subject to the conditions set forth in Section 2.6 of the Facility Agreement and Exhibit 2.6 to the Facility Agreement, the Borrower may elect to satisfy all or any such payment by the issuance to the Lender of shares of Freely Tradable Common Shares (as defined in Exhibit 2.6) in accordance with the provisions of Exhibit 2.6. This First Out Waterfall Note (this “Note”) was originally issued on April 3, 2017[, reissued on January 1, 2018],2 and amended and restated on August 9, 2018 (the “Amendment and Restatement Date”) and is one of the “First Out Waterfall Notes”, “Loan Notes” and “Notes” referred to in, and is entitled to the benefits of, the Amended and Restated Facility Agreement, dated as of August 9, 2018 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Facility Agreement”), by and among the Borrower, the other Loan Parties party thereto, the Lenders party thereto and Deerfield Private Design Fund IV, L.P., as agent for the Secured Parties, and the other Loan Documents. The Facility Agreement, among other things, (a) provides for the making of a First Out Waterfall Loan by the Lender to the Borrower in an aggregate amount not to exceed at any time outstanding the “Principal Amount” set forth above, the indebtedness of the Borrower resulting from such First Out Waterfall Loan being evidenced by this Note and (b) contains provisions for acceleration of the maturity of the unpaid Principal amount of this Note upon the happening of certain stated events and also for prepayments pursuant to Section 2.3(c) or Section 5.3 of the Facility Agreement on account of the Principal hereof prior to the maturity hereof upon the terms and conditions specified therein.
Appears in 1 contract
