AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
Exhibit 10.1
AMENDMENT NO. 1
TO
This
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT (this
“Amendment”) is
made effective as of April 24, 2019. This Amendment amends that
certain Securities Purchase Agreement (the “Agreement”) dated August 11, 2017
by and among Aytu BioScience, Inc., a Delaware corporation (the
“Company”) and
the purchasers set forth identified on the signature pages thereto
(the “Purchasers” and, together, with
the Company, the “Parties”).
WHEREAS, Section 5.5 of the Agreement
provides that the Agreement may be waived, supplemented or amended
with a written instrument signed by the Company and the Purchasers
holding at least 51% in interest of the outstanding securities
issued or issuable pursuant to the Agreement;
WHEREAS, the Parties desire to amend and
restate Section 4.11 of the Agreement as set forth in this
Amendment; and
WHEREAS, as set forth more fully in
Section 1.1 below, the Parties affirm the rights set forth in
Section 4.11(a) of the Agreement granting the Purchasers the right
to participate in up to 35% of a Subsequent Financing on the same
terms, conditions and price provided for in the Subsequent
Financing.
NOW, THEREFORE, in consideration of the
mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
SECTION 1
Amendment of the Agreement
Section
1.1 Amendment of
Section 4.11. Effective immediately as of the date hereof,
Section 4.11 of the Agreement is hereby amended and restated in its
entirety to read as follows:
4.11
Participation in Future
Financing.
(a) From
the date hereof until the date that is the twenty four (24) month
anniversary of the Effective Date, upon any issuance by the Company
or any of its Subsidiaries of Common Stock, Common Stock
Equivalents for cash consideration, Indebtedness or a combination
of units hereof (a “Subsequent Financing”), each
Purchaser shall have the right to participate in up to an amount of
the Subsequent Financing equal to 35% of the Subsequent Financing
(the “Participation Maximum”) on the same terms,
conditions and price provided for in the Subsequent
Financing.
(b) At
least four (4) hours prior to the pricing of the Subsequent
Financing, the Company shall deliver to each Purchaser a written
notice of its intention to effect a Subsequent Financing
(“Notice”), which Notice shall describe in reasonable
detail the proposed terms of such Subsequent Financing, the amount
of proceeds intended to be raised thereunder and the Person or
Persons through or with whom such Subsequent Financing is proposed
to be effected and shall include a term sheet or similar document
relating thereto as an attachment.
(c) Any
Purchaser desiring to participate in such Subsequent Financing must
provide written notice to the Company within four hours of the time
the Company provided the Notice that such Purchaser is willing to
participate in the Subsequent Financing, the amount of such
Purchaser’s participation, and representing and warranting
that such Purchaser has such funds ready, willing, and available
for investment on the terms set forth in the Notice. If the Company
receives no such notice from a Purchaser by that time, such
Purchaser shall be deemed to have notified the Company that it does
not elect to participate.
(d) If
after four hours from the time the Company provided the Notice,
notifications by the Purchasers of their willingness to participate
in the Subsequent Financing (or to cause their designees to
participate) are, in the aggregate, less than the total amount of
the Subsequent Financing, then the Company may effect the remaining
portion of such Subsequent Financing on the terms and with the
Persons set forth in the Notice.
(e) If
after four hours from the time the Company provided the Notice, the
Company receives responses to the Notice from Purchasers seeking to
purchase more than the aggregate amount of the Participation
Maximum, each such Purchaser shall have the right to purchase its
Pro Rata Portion (as defined below) of the Participation Maximum.
“Pro Rata Portion” means the ratio of (x) the
Subscription Amount of Securities purchased on the Closing Date by
a Purchaser participating under this Section 4.11 and (y) the sum
of the aggregate Subscription Amounts of Securities purchased on
the Closing Date by all Purchasers participating under this Section
4.11.
(f) [RESERVED]
(g) The
Company and each Purchaser agree that if any Purchaser elects to
participate in the Subsequent Financing, the transaction documents
related to the Subsequent Financing shall not include any term or
provision whereby such Purchaser shall be required to agree to any
restrictions on trading as to any of the Securities purchased
hereunder or be required to consent to any amendment to or
termination of, or grant any waiver, release or the like under or
in connection with, this Agreement, without the prior written
consent of such Purchaser.
(h) Notwithstanding
anything to the contrary in this Section 4.11 and unless otherwise
agreed to by such Purchaser, the Company shall either confirm in
writing to such Purchaser that the transaction with respect to the
Subsequent Financing has been abandoned or shall publicly disclose
its intention to issue the securities in the Subsequent Financing,
in either case in such a manner such that such Purchaser will not
be in possession of any material, non-public information, by the
tenth (10th) Business Day following delivery of the Notice. If by
such tenth (10th) Business Day, no public disclosure regarding a
transaction with respect to the Subsequent Financing has been made,
and no notice regarding the abandonment of such transaction has
been received by such Purchaser, such transaction shall be deemed
to have been abandoned and such Purchaser shall not be deemed to be
in possession of any material, non-public information with respect
to the Company or any of its Subsidiaries.
(i) Notwithstanding
the foregoing, this Section 4.11 shall not apply in respect of an
Exempt Issuance.
2
Section
1.2 Amendment of
Section 4.12. Effective immediately as of the date hereof,
Section 4.12 of the Agreement is hereby amended and restated in its
entirety to read as follows:
4.12
Participation in Future
Financing.
(a) From
the date hereof until the later of (i) two hundred and seventy
(270) days after the Effective Date and (ii) three hundred and
sixty-five (365) days from the Closing Date, without the consent of
the Purchasers that purchased at least fifty-one (51%) percent of
the Shares purchased hereunder, neither the Company nor any
Subsidiary shall issue, enter into any agreement to issue or
announce the issuance or proposed issuance of any shares of Common
Stock or Common Stock Equivalents, or file any registration
statement covering the issuance or resale of any shares of Common
Stock or Common Stock Equivalents.
(b) [RESERVED]
(c) Notwithstanding
the foregoing, clause (a) of this Section 4.12 shall not apply in
respect of an Exempt Issuance.
(d) If
the VWAP of the Common Stock exceeds $1.00 (as adjusted for reverse
and forward stock splits, stock dividends, stock combinations and
other similar transaction of the Common Stock that occurs after the
date of this Agreement, including, without limitation, any reverse
stock splits previously approved by the Company's stockholders) for
five (5) or more consecutive Trading Days, clause (a) of this
Section 4.12 shall terminate and be of no further force and
effect.
SECTION 2
Miscellaneous Provisions
Section
2.1 Effect of
Amendment. This Amendment is not to be construed as a waiver
of any term, condition or provision of the Agreement, and that
except as expressly provided for by this Amendment, all terms and
conditions of the Agreement, as amended by this Amendment shall
remain in full force and effect, without any modification
whatsoever.
Section
2.2 Counterparts.
This Amendment may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of
more than one Party, but all such counterparts taken together shall
constitute one and the same agreement.
[Signature
Pages Follow]
|
|
3
IN
WITNESS WHEREOF, the undersigned have executed this Amendment No. 1
to Agreement effective as of the date first written
above.
By:
Name:
Xxxxxx X. Xxxxxxx
Title:
Chief Executive Officer
IN
WITNESS WHEREOF, the undersigned have executed this Amendment No. 1
to Agreement effective as of the date first written
above.
NAME
By:
Name:
Title:
