Amendment No. 1 to Securities PURCHASE AGREEMENT
Exhibit 10.1
Amendment No. 1 to Securities PURCHASE AGREEMENT
This Amendment No. 1 to Securities Purchase Agreement (this “Amendment”) is effective as of June 13, 2018 by and among Sorrento Therapeutics, Inc., a Delaware corporation (the “Company”), and the purchasers identified on the signature pages to this Amendment (collectively, the “Majority Purchasers”).
Recitals
Whereas, the Company and the Majority Purchasers are parties to that certain Securities Purchase Agreement, dated as of March 26, 2018 (as may be amended or restated from time to time, the “Purchase Agreement”), pursuant to which, among other things, the Company agreed to issue and sell to the purchasers identified on Schedule A thereto, and such purchasers agreed to purchase from the Company, (1) convertible promissory notes in an aggregate principal amount of $120,500,000, and (2) warrants to purchase an aggregate of 8,591,794 shares of common stock of the Company, par value $0.0001 per share;
Whereas, pursuant to Section 15 of the Purchase Agreement, no provision of the Purchase Agreement may by amended, waived or modified other than by an instrument in writing signed by the Company and, prior to the Closing, the Purchasers purchasing at least a majority of the aggregate principal amount of the Notes, as set forth on Schedule A thereto, and any such amendment, waiver or modification effected in accordance with Section 15 of the Purchase Agreement shall be binding upon all Purchasers and each transferee of the Securities, each future holder of all such securities and the Company;
Whereas, as of the date of this Amendment, the Closing has not occurred;
Whereas, the Majority Purchasers are Purchasers purchasing at least a majority of the aggregate principal amount of the Notes as set forth on Schedule A to the Purchase Agreement; and
Whereas, the Company and the Majority Purchasers wish to amend the Purchase Agreement to reduce the aggregate principal amount of Notes to be issued thereunder and reduce the aggregate number of shares of Common Stock issuable upon conversion of the Warrants on the terms set forth herein.
Now Therefore, in consideration of the mutual covenants and agreements contained herein, and with reference to the above recitals, the parties hereby agree as follows:
ARTICLE
1
AMENDMENTS
1.1 Amendment of Recitals. The first recital of the Purchase Agreement is hereby amended by deleting the reference to “$120,500,000” therein and replacing it with “$37,848,750” and by deleting the reference to “8,591,794” therein and replacing it with “2,698,662”.
1.2 Amendment and Restatement of Schedule A. Schedule A of the Purchase Agreement is hereby amended and restated in its entirety to read as set forth on Exhibit 1 hereto.
1.3 Amendment to Section 4.2. Section 4.2 of the Purchase Agreement is hereby amended by deleting the reference to “$60,250,000” therein and replacing with “$18,924,375”.
1.4 Amendment to Section 15 of Exhibit A. Section 15 of Exhibit A of the Purchase Agreement is hereby amended by deleting the reference to “$115,000,000” therein and replacing with “$36,121,214”.
1.5 Amendment to Section 16 of Exhibit A. Section 16 of Exhibit A of the Purchase Agreement is hereby amended by deleting the reference to “$60,000,000” therein and replacing with “$18,845,851”.
1.6 Amendment and Restatement of Schedule A to Exhibit C. Schedule A of Exhibit C of the Purchase Agreement is hereby amended and restated in its entirety to read as set forth on Exhibit 2 hereto.
ARTICLE
2
GENERAL PROVISIONS
2.1 Definitions. Capitalized terms in this Amendment but not otherwise defined in this Amendment shall have the meanings set forth in the Purchase Agreement.
2.2 Recitals. The Recitals shall be deemed to form part of this Amendment and are binding on the parties hereto.
2.3 Continuing Effectiveness. Except as modified by this Amendment, the Purchase Agreement shall remain in full force and effect and no party by virtue of entering into this Amendment is waiving any rights it has under the Purchase Agreement, and once this Amendment is executed by the parties hereto, all references in the Purchase Agreement to “the Agreement” or “this Agreement,” as applicable, shall refer to the Purchase Agreement as modified by this Amendment.
2.4 Successors and Assigns. No party to this Amendment may assign any of its rights or delegate any of its obligations under this Amendment without the prior written consent of the other parties to this Amendment. Subject to the preceding sentence, this Amendment shall apply to, be binding in all respects upon and inure to the benefit of the successors and permitted assigns of the parties to this Amendment.
2.5 Governing Law; Venue. This Amendment, the relationship of the parties hereto and any claims or disputes arising under or relating to this Amendment shall be governed by and construed in accordance with Section 10 of the Purchase Agreement.
2
2.6 Counterparts. This Amendment may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a .pdf or other form of electronic signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a .pdf or other form of electronic signature.
[Signature Page Follows]
3
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first written above.
COMPANY:
By:/s/ Xxxxx Xx, Ph.D.
Name: Xxxxx Xx, Ph.D.
Title: Chairman of the Board, President & Chief Executive Officer
[Signature Page to Amendment No. 1 to Securities Purchase Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first written above.
PURCHASER:
Asia Pacific MedTech (BVI) Limited
By: /s/ GU NANA
Name: GU NANA
Title: Director
[Signature Page to Amendment No. 1 to Securities Purchase Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first written above.
PURCHASER:
Famous Sino Limited
By: /s/ Guangze WU
Name: Guangze WU
Title: Director
[Signature Page to Amendment No. 1 to Securities Purchase Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first written above.
PURCHASER:
China In Shine Investment Limited
By: /s/ CHIT XXXX
Name: CHIT XXXX
Title: Director
[Signature Page to Amendment No. 1 to Securities Purchase Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first written above.
PURCHASER:
Himark Group (Holdings) Company Limited
By: /s/ O Na
Name: O Na
Title: Director
[Signature Page to Amendment No. 1 to Securities Purchase Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first written above.
PURCHASER:
Success Indicator Investments Limited
By: /s/ Xxxx XX
Name: Xxxx XX
Title: Director
[Signature Page to Amendment No. 1 to Securities Purchase Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first written above.
PURCHASER:
Pipeline Ventures, LLC
By: /s/ Xxxxxxx Xxx
Name: Xxxxxxx Xxx
Title: Partner
[Signature Page to Amendment No. 1 to Securities Purchase Agreement]
Exhibit 1
Schedule A
Schedule of Purchasers
| Name of Purchaser | Address | Jurisdiction of Formation (for Entities) | Principal Amount of Note Purchased | Number of Warrant Shares |
| Asia Pacific MedTech (BVI) Limited | x/x Xxxxxxxx Xxxxxxxxxxxxxx Xxxxxxx, X.X. Xxx 000, Xxxxxxxx Incorporations Centre, Road Town, Tortola, British Virgin Islands | British Virgin Islands | $10,000,000 | 713,012 |
| Famous Sino Limited | Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands | British Virgin Islands | $5,610,000 | 400,000 |
| China In Shine Investment Limited | Flat F, 12/F, Tower 5, Harbour Green, 0 Xxxx Xxxx Xxxx, Xxx Xxx Xxxx, Xxxxxxx, Xxxx Xxxx | British Virgin Islands | $7,713,750 | 550,000 |
| Himark Group (Holdings) Company Limited | Xxxx X, 0/X, Xxx Xxxxxx Xxxxx, 00 Xxxxxx Xxxx, Xxxxx Xxxxx, Xxxx Xxxx | British Virgin Islands | $7,012,500 | 500,000 |
| Success Indicator Investments Limited | P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands | British Virgin Islands | $7,012,500 | 500,000 |
| Pipeline Ventures, LLC |
Pipeline Ventures, LLC c/o Xxxxxxx Xxx 21 “C” Xxxxxx Xxx #000 Xxxxxx, XX 00000 |
California | $500,000 | 35,650 |
| TOTAL | $37,848,750.00 | 2,698,662 | ||
Schedule A- 1
Exhibit 2
Schedule A
Purchasers
| Purchaser | Contact Information for Notices | Principal Amount of Note Purchased | Shares Issuable Upon Conversion of Notes | Shares Issuable Upon Exercise of Warrants | Total Registrable Securities |
| Asia Pacific MedTech (BVI) Limited | x/x Xxxxxxxx Xxxxxxxxxxxxxx Xxxxxxx, X.X. Xxx 000, Xxxxxxxx Incorporations Centre, Road Town, Tortola, British Virgin Islands | $10,000,000 | 1,426,024 | 713,012 | 2,139,036 |
| Famous Sino Limited | Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands | $5,610,000 | 800,000 | 400,000 | 1,200,000 |
| China In Shine Investment Limited | Flat F, 12/F, Tower 5, Harbour Green, 0 Xxxx Xxxx Xxxx, Xxx Xxx Xxxx, Xxxxxxx, Xxxx Xxxx | $7,713,750 | 1,100,000 | 550,000 | 1,650,000 |
| Himark Group (Holdings) Company Limited | Xxxx X, 0/X, Xxx Xxxxxx Xxxxx, 00 Xxxxxx Xxxx, Xxxxx Xxxxx, Xxxx Xxxx | $7,012,500 | 1,000,000 | 500,000 | 1,500,000 |
| Success Indicator Investments Limited | P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands | $7,012,500 | 1,000,000 | 500,000 | 1,500,000 |
| Pipeline Ventures, LLC |
Pipeline Ventures, LLC c/o Xxxxxxx Xxx 21 “C” Xxxxxx Xxx #000 Xxxxxx, XX 00000 |
$500,000 | 71,301 | 35,650 | 106,951 |
| TOTAL | $37,848,750.00 | 5,397,325 | 2,698,662 | 8,095,987 | |
Schedule X- 0
