EX-4.2 6 d721131dex42.htm EX-4.2 NOTE PURCHASE AGREEMENT
Exhibit 4.2
This Note Purchase Agreement (this “Agreement”) is dated as of September 9, 2013 by and among ZP Holdings, Inc., a Delaware corporation (the “Company”), and the entities listed on Exhibit A attached hereto (each, a “Purchaser” and collectively, the “Purchasers”).
In consideration of the mutual promises and covenants contained in this Agreement, the parties hereto agree as follows:
1. Authorization; Sale of Notes.
3. Certain Terms of the Notes.
Date) only upon the prior written consent of the Requisite Noteholders (as defined below).
(b) Upon a Sale of the Company. The Company shall notify the holders of the Notes of the closing of a Sale Transaction (as defined in Section 3.6 below) at least ten (10) days prior to the expected date of closing of such Sale Transaction. Such notice shall include any information generally provided by the Company to the holders of the common stock, $0.0001 par value per share, of the Company (“Common Stock”) in connection with the Sale Transaction, if any, and such other information as reasonably requested by the Purchasers. Upon the closing of such Sale Transaction, each Purchaser shall be entitled to receive in respect of such Purchaser’s Note and in preference to the holders of Common Stock, an amount equal to any unpaid interest on the Note plus twice (2X) the outstanding principal balance of such Note.
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issuable upon conversion of any Note pursuant to Section 3.4(a), the Company or its ultimate parent, as applicable, shall pay the holder of such Note an amount in cash equal to the product of (i) such fraction multiplied by (ii) the Qualified Financing Price (or the Discounted Qualified Financing Price, in the event the Qualified Financing is consummated more than sixty (60) days from the Closing). Upon conversion of each Note, the holder thereof shall surrender such Note, duly endorsed, at the principal offices of the Company; provided, however, that upon the closing of the Qualified Financing, each Note shall be deemed converted and of no further force and effect, whether or not it is delivered for cancellation as set forth in this sentence. Following such surrender, the Company or its ultimate parent, as applicable, will, at its expense, (i) in the case of a conversion pursuant to Section 3.4(a), issue and deliver to such holder a certificate or certificates for the securities to which such holder is entitled as a result of such conversion in accordance with Section 3.4(a) and a check payable to such holder for any cash amounts payable in lieu of any fractional share in accordance with this Section 3.4(c), or (ii) in the case of a conversion pursuant to Section 3.4(b), issue and deliver, or cause to be issued and delivered, to such holder a check payable to such holder for the cash amount payable in respect of such Note in accordance with Section 3.4(b).
(a) the failure by Company to pay any amount due hereunder within five (5) days of the due date thereof;
(b) the appointment of a receiver of any property, the assignment or trust mortgage for the benefit of creditors, the commencement of any kind of voluntary or involuntary insolvency proceedings under any bankruptcy or other law relating to the relief of debtors, or the entry of an order for relief with respect to the Company in any proceeding pursuant to the United States Bankruptcy Code, as amended;
(c) a final judgment or judicial order for the payment of money in excess of $250,000 (exclusive of amounts covered by insurance) shall be rendered against the Company and the same shall remain undischarged for a period of thirty days during which execution shall not be effectively stayed, or any judgment, writ, assessment, warrant of attachment, or execution or similar process shall be issued or levied against a substantial part of the property of the Company or any of its subsidiaries, if any and such judgment, writ, or similar process shall not be released, stayed, vacated or otherwise dismissed within thirty days after issue or levy; or
(d) the Company shall fail to observe or perform in any material respect any covenant, obligation, condition or agreement contained in this Agreement or any Note (other than those otherwise specified in this Section 3.5) and such failure shall continue for twenty (20) days after the Company’s receipt of written notice to the Company of such failure.
3.6. Definitions. For purposes of this Agreement:
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(a) “Discounted Qualified Financing Price” shall mean the price that is equal to 85% of the lowest per share price at which the shares of Qualified Financing Securities are to be sold in the Qualified Financing (not including any discounts applicable as a result of the Notes).
(b) “Qualified Financing” shall mean an equity financing involving the sale of equity securities of the Company (or equity securities of the ultimate parent of the surviving entity of a merger to which the Company is a party that does not constitute a Sale Transaction) to one or more institutional investors primarily for capital-raising purposes and resulting in aggregate gross proceeds to the Company (or such ultimate parent) of at least $25,000,000 (which threshold may be waived in connection with an equity financing with aggregate gross proceeds less than such amount (but in any case not less than $4,000,000) upon the written consent of the Requisite Noteholders in which case such equity financing shall constitute a Qualified Financing notwithstanding the amount of such equity financing), excluding the outstanding principal amount of the Notes to be converted into Qualified Financing Securities upon the closing of such financing.
(c) “Qualified Financing Price” shall mean the price that is equal to the lowest per share price at which the shares of Qualified Financing Securities are to be sold in the Qualified Financing (not including any discounts applicable as a result of the Notes).
(d) “Sale Transaction” shall have the meaning given to such term in the Stockholder Rights and Voting Agreement, dated as of April 26, 2012, by and among the Company, the Purchasers and certain other of the Company’s stockholders.
4.1. Corporate Organization and Authority. The Company:
(a) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware;
(b) has the corporate power and authority to own and operate its properties and to carry on its business as now conducted and as presently proposed to be conducted; and
(c) is duly qualified, licensed to do business and in good standing as a foreign corporation in each jurisdiction where the failure to be so qualified or licensed could reasonably be expected to have a material adverse effect on the Company.
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the Company. This Agreement and the Notes to be issued at the Closing have been duly executed and delivered by the Company and constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium, or other laws of general application relating to or affecting enforcement of creditors’ rights and laws concerning equitable remedies.
5. Representations, Warranties, and Covenants of each Purchaser. Each Purchaser represents and warrants to and covenants with the Company as follows:
5.1. Authorization. When executed and delivered by the Purchaser, and assuming execution and delivery by the Company, this Agreement will constitute a valid and binding obligation of the Purchaser, enforceable against such Purchaser in accordance with its terms, except to the extent that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium, or other laws of general application relating to or
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affecting enforcement of creditors’ rights and laws concerning equitable remedies.
5.2. Brokers and Finders. The Purchaser has not retained any investment banker, broker, or finder in connection with the transactions contemplated by this Agreement.
5.3. Investment. The Purchaser is acquiring the Note as well as any shares of the Qualified Financing Securities (collectively, the “Securities”) for investment for the Purchaser’s own account, not as a nominee or agent, and not with a view to the sale or distribution of any part thereof. The Purchaser has no present intention of selling, granting any participation in, or otherwise distributing any Securities. By executing this Agreement, the Purchaser further represents that it has no contract, undertaking, agreement, or arrangement with any person to sell, transfer, or grant participation to such person or to any third person, with respect to any Securities.
5.4. No Public Market. The Purchaser understands and acknowledges that the offering of the Securities pursuant to this Agreement will not be registered under the Securities Act on the grounds that the offering and sale of securities contemplated by this Agreement are exempt from registration pursuant to one or more exemptions under the Securities Act, including without limitation the exemption provided by Section 4(a)(2) thereof, and that the Company’s reliance upon such exemption is predicated upon the Purchaser’s representations as set forth in this Agreement. The Purchaser further understands that no public market now exists for any of the securities issued by the Company and that the Company has given no assurances that a public market will ever exist for the Company’s securities.
5.5. Experience; Etc. The Purchaser represents that he, she or it: (a) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of a prospective investment in the Note being purchased by the Purchaser; (b) believes that he, she or it has received all the information requested from the Company that might be necessary or appropriate for deciding whether to obtain the Note; (c) has had the opportunity to discuss the Company’s business, management, and financial affairs with the Company’s management; (d) has the ability to bear the economic risks of this investment; and (e) is able, without materially impairing its financial condition, to hold the Securities for an indefinite period of time and to suffer a complete loss on this investment.
5.6. Accredited Investor. The Purchaser qualifies as an “accredited investor” within the meaning of Regulation D of the rules and regulations promulgated under the Securities Act.
5.7. Investment Representations, Warranties and Covenants by Non-United States Persons. Each Purchaser who is a Non-U.S. person (as defined in Section 5.7(d) below) hereby represents and warrants to the Company as follows:
(a) This Agreement is made by the Company with the Purchaser, who is a Non-U.S. person, in reliance upon such Non-U.S. person’s representations, warranties and covenants made in this Section 5.7.
(b) Such Non-U.S. person has been advised and
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acknowledges that:
(i) the Securities have not been, and when issued, will not be registered under the Securities Act, the securities laws of any state of the United States or the securities laws of any other country;
(ii) in issuing and selling the Securities to such Non-U.S. person pursuant hereto, the Company is relying upon the “safe harbor” provided by Regulation S and/or on Section 4(a)(2) under the Securities Act;
(iii) it is a condition to the availability of the Regulation S “safe harbor” that the Securities not be offered or sold in the United States or to a U.S. person until the expiration of a one-year “distribution compliance period” (or a six-month “distribution compliance period,” if the issuer is a “reporting issuer,” as defined in Regulation S) following the date of issuance; and
(iv) notwithstanding the foregoing, prior to the expiration of the one-year “distribution compliance period” (or six-month “distribution compliance period,” if the issuer is a “reporting issuer,” as defined in Regulation S) after the date of issuance (the “Restricted Period”), the Securities may be offered and sold by the holder thereof only if such offer and sale is made in compliance with the terms of this Agreement and either: (A) if the offer or sale is within the United States or to or for the account of a U.S. person (as such terms are defined in Regulation S), the securities are offered and sold pursuant to an effective registration statement or pursuant to Rule 144 under the Securities Act or pursuant to an exemption from the registration requirements of the Securities Act; or (B) the offer and sale is outside the United States and to other than a U.S. person.
(c) As used herein, the term “United States” means the United States of America, its territories and possessions, any State of the United States, and the District of Columbia, and the term “U.S. person” (as defined in Regulation S) means:
(i) a natural person resident in the United States;
(ii) any partnership or corporation organized or incorporated under the laws of the United States;
(iii) any estate of which any executor or administrator is a U.S. person;
(iv) any trust of which any trustee is a U.S. person;
(v) any agency or branch of a foreign entity located in the United States;
(vi) any nondiscretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. person;
(vii) any discretionary account or similar account (other than an
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estate or trust) held by a dealer or other fiduciary organized, incorporated and (if an individual) resident in the United States; and
(viii) a corporation or partnership organized under the laws of any foreign jurisdiction and formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Rule 501(a) under the Securities Act) who are not natural persons, estates or trusts.
(d) As used herein, the term “Non-U.S. person” means any person who is not a U.S. person or is deemed not to be a U.S. person under Rule 902(k)(2) of the Securities Act.
(e) Such Non-U.S. person agrees that with respect to the Securities, until the expiration of the Restricted Period:
(i) such Non-U.S. person, its agents or its representatives have not and will not solicit offers to buy, offer for sale or sell any of the Securities, or any beneficial interest therein in the United States or to or for the account of a U.S. person; and
(ii) notwithstanding the foregoing, the Securities may be offered and sold by the holder thereof only if such offer and sale is made in compliance with the terms of this Agreement and either: (A) if the offer or sale is within the United States or to or for the account of a U.S. person (as such terms are defined in Regulation S), the securities are offered and sold pursuant to an effective registration statement or pursuant to Rule 144 under the Securities Act or pursuant to an exemption from the registration requirements of the Securities Act; or (B) the offer and sale is outside the United States and to other than a U.S. person; and
(iii) such Non-U.S. person shall not engage in hedging transactions with regard to the Securities unless in compliance with the Securities Act.
The foregoing restrictions are binding upon subsequent transferees of the Securities, except for transferees pursuant to an effective registration statement. Such Non-U.S. person agrees that after the Restricted Period, the Securities may be offered or sold within the United States or to or for the account of a U.S. person only pursuant to applicable securities laws.
(f) Such Non-U.S. person has not engaged, nor is it aware that any party has engaged, and such Non-U.S. person will not engage or cause any third party to engage, in any directed selling efforts (as such term is defined in Regulation S) in the United States with respect to the Securities.
(g) Such Non-U.S. person: (i) is domiciled and has its principal place of business outside the United States; (ii) certifies it is not a U.S. person and is not acquiring the Securities for the account or benefit of any U.S. person; and (iii) at the time of the date of the Closing, the Non-U.S. person or persons acting on Non-U.S. person’s behalf in connection therewith will be located outside the United States.
(h) At the time of offering to such Non-U.S. person and
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communication of such Non-U.S. person’s order to purchase the Securities, and at the time of such Non-U.S. Person’s execution of this Agreement, the Non-U.S. person or persons acting on Non-U.S. person’s behalf in connection therewith were located outside the United States.
(i) Such Non-U.S. person is not a “distributor” (as defined in Regulation S) or a “dealer” (as defined in the Securities Act).
(j) Such Non-U.S. person acknowledges that the Company shall make a notation in its stock books regarding the restrictions on transfer set forth in this Section 5.7 and shall transfer such Securities on the books of the Company only to the extent consistent therewith.
In particular, such Non-U.S. person acknowledges that the Company shall refuse to register any transfer of the Note not made in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an available exemption from registration.
6. Legends and Restrictions on Transfer.
“THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR REGISTERED OR QUALIFIED UNDER THE SECURITIES OR “BLUE SKY” LAWS OF ANY JURISDICTION. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE REGISTRATION PROVISIONS OF SAID ACT AND THE REGISTRATION, QUALIFICATION AND FILING REQUIREMENTS OF ALL APPLICABLE JURISDICTIONS HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF LEGAL COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR THAT THE PROPOSED TRANSACTION WILL BE EXEMPT FROM REGISTRATION, QUALIFICATION AND FILING IN ALL SUCH JURISDICTIONS.”
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Company is a party shall not be considered an assignment requiring consent for purposes of Section 6.2; provided, further, that the Company may assign the Notes without the consent of the other parties hereto to any individual or entity that acquires control of the stock, all or substantially all assets or business of the Company, or to the surviving entity of a merger to which the Company is a party or the entity that controls such surviving entity. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
7.4. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without reference to the conflicts of law provisions thereof. The Purchaser consents to service of process in any such action by certified or registered mail, return receipt requested. The Purchaser consents to the jurisdiction of such courts over the Purchaser, stipulates the convenience, efficiency and fairness of proceeding in such courts, and covenants not to allege or assert the inconvenience, inefficiency or unfairness of proceeding in such courts.
(a) If to the Company:
ZP Holdings, Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: President and CEO
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxx LLP
Seaport West
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
(b) If to a Purchaser, at the address set forth beneath the Purchaser’s name on Exhibit A attached hereto, or at such other address as may have been
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furnished in writing by such Purchaser to the Company.
Notices provided in accordance with this Section 7.5 shall be deemed delivered (i) upon personal delivery with signature required, (ii) one Business Day after they have been sent to the recipient by reputable overnight courier service (charges prepaid and signature required), (iii) upon confirmation of successful transmission of a facsimile message containing such notice if sent before 5 p.m., local time of the recipient, on any Business Day, and as of 9 a.m. local time of the recipient on the next Business Day if sent thereafter, or (iv) three Business Days after deposit in the United States mail. The term “Business Day” as used in this Section 7.5 shall mean any day other than Saturday, Sunday or a day on which banking institutions are not required to be open in the State of California or New York.
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[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Note Purchase Agreement as of the date first written above.
ZP HOLDINGS, INC. | ||||||||||||
By: | /s/ Xxxxxx Xxxxx | |||||||||||
Name: | Xxxxxx Xxxxx | |||||||||||
Title: | President and CEO | |||||||||||
PROQUEST MANAGEMENT LLC | PROQUEST INVESTMENTS IV, L.P. | |||||||||||
By: | /s/ Xxxxx Xxxxxxxxx | By: | /s/ Xxxxx Xxxxxxxxx | |||||||||
Name: | Xxxxx Xxxxxxxxx | Name: | Xxxxx Xxxxxxxxx | |||||||||
Title: | Managing Member | Title: | Managing Member | |||||||||
NEW ENTERPRISE ASSOCIATES 12, LIMITED PARTNERSHIP | ||||||||||||
By: | NEA Partners 12, Limited Partnership, | |||||||||||
its general partner | ||||||||||||
By: | /s/ Xxxxx X. Xxxxxx | |||||||||||
Name: | Xxxxx X. Xxxxxx | |||||||||||
Title: | Chief Legal Officer | |||||||||||
BMV DIRECT SO LP | BMV DIRECT SOTRS LP | |||||||||||
By: | BioMed Realty, L.P., | By: | BioMed Realty Holdings, Inc., | |||||||||
its general partner | its general partner | |||||||||||
By: | /s/ Xxxxx X. Xxxxxxxx | By: | /s/ Xxxxx X. Xxxxxxxx | |||||||||
Name: | Xxxxx X. Xxxxxxxx | Name: | Xxxxx X. Xxxxxxxx | |||||||||
Title: | VP, Real Estate Legal | Title: | VP, Real Estate Legal |
Signature Page to Note Purchase Agreement
EXHIBIT A
Schedule of Purchasers
Name and Address | Original Principal Amount | |||
BMV Direct SO LP 00000 Xxxxxxxx Xxxxxx Xxxxx Xxx Xxxxx, XX 00000 Attn: Corporate Legal Fax No.: (000) 000-0000 | $ | 303,372.00 | ||
BMV Direct SOTRS LP 00000 Xxxxxxxx Xxxxxx Xxxxx Xxx Xxxxx, XX 00000 Attn: Corporate Legal Fax No.: (000) 000-0000 | $ | 991,047.43 | ||
New Enterprise Associates 12, Limited Partnership c/o New Enterprise Associates 0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000 Xxxxxxxx, XX 00000 Attn: Xxxxx Xxxxxx, General Counsel Fax No.: (000) 000-0000 | $ | 1,159,532.21 | ||
ProQuest Investments IV, L.P. 00 Xxxxxx Xxxxxx, Xxxxx Xxxxx Xxxxxxxxx, XX 00000 Fax No.: (000) 000-0000 | $ | 579,766.10 | ||
ProQuest Management LLC 00 Xxxxxx Xxxxxx, Xxxxx Xxxxx Xxxxxxxxx, XX 00000 Fax No.: (000) 000-0000 | $ | 5.30 | ||
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| |||
Total: | $ | 3,033,723.04 | ||
|
|
EXHIBIT B
Form of Subordinated Convertible Promissory Note
[see attached]
EXHIBIT C
Stock Purchase Agreement
[see attached]
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the “Agreement”), dated as of September 9, 2013, is made and entered into by and among BMV Direct SO LP a Delaware limited partnership (“BMV SO”), New Enterprise Associates 12, Limited Partnership, a Delaware limited partnship (“NEA”), ProQuest Investments IV, L.P., a Delaware limited partnership (“ProQuest IV”), ProQuest Management LLC, a Delaware limited liability company (“ProQuest LLC,” and, together with BMV SO, NEA and ProQuest IV, the “Buyers”) and Nomura Phase4 Ventures L.P., a limited partnership registered in England (the “Seller”).
WHEREAS, the Buyers and the Seller (collectively, the “Major Holders”) hold significant amounts of shares of the common stock, par value $0.0001 per share (“Common Stock”) of ZP Holdings, Inc., a Delaware corporation (the “Company”);
WHEREAS, the Company requires additional capital for its operations and has requested that the Major Holders purchase unsecured, subordinated convertible promissory notes of the Company (collectively, “Bridge Notes”) pursuant to a Note Purchase Agreement, dated on or about the date hereof, among the Company and certain Major Holders (the “Note Purchase Agreement”);
WHEREAS, the Buyers desire to purchase Bridge Notes and have agreed to enter into the Note Purchase Agreement;
“Securities” means 864,000 shares of Common Stock currently held, beneficially and of record, by Seller.
“Purchase Price” means US$0.00011574 per share of Common Stock, payable by the Buyers to Seller as described in Section 2.1.
“Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations in effect from time to time thereunder.
2. Purchase and Sale of the Securities; Closing. The Buyers and the Seller agree as follows:
(i) | Seller transfers to BMV SO: 368,649 shares of Common Stock, in exchange for US$42.68; |
(ii) | Seller transfers to NEA: 330,233 shares of Common Stock, in exchange for US$38.23; |
(iii) | Seller transfers to ProQuest IV: 165,116 shares of Common Stock, in exchange for US$19.12; and |
(iv) | Seller transfers to ProQuest LLC: 2 shares of Common Stock, in exchange for US$0.01. |
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certificates representing the Securities and such other appropriate instruments of transfer and assignment (including duly executed stock powers), as the Buyers shall reasonably request prior to the Closing Date, in order to vest in the Buyers, as of the Closing Date, the Seller’s right, title and interest in, to and under the Securities in accordance with Section 2.1 of this Agreement; (b) the Seller shall deliver such other instruments as may be necessary or appropriate to evidence compliance by Seller with all of its representations, warranties, covenants and undertakings herein contained; and (c) the Buyers shall deliver or cause to be delivered to Seller the Purchase Price specified in Section 2.1 in immediately available funds (in accordance with instructions separately provided from Seller to the Buyers prior to the Closing Date).
3.1. the representations and warranties of the Seller made in this Agreement shall be true and correct in all respects, as of the date hereof and as of the Closing Date as though then made;
3.2. the Seller shall have delivered to the Buyers the documents and instruments contemplated by Section 2.2 above;
3.3. the Major Holders shall have obtained all consents and waivers necessary to effect the transactions contemplated in this Agreement (including, without limitation, all waivers with respect to Section 5 of the Stockholder Agreement); and
3.4. there shall be no pending or threatened claims, actions, litigation or administrative, regulatory or governmental investigations or proceedings against either Seller or the Buyers with respect to enjoining or preventing the Closing or which might otherwise restrain, prohibit or invalidate any portion of this Agreement.
4.1. the Buyers shall have purchased Bridge Notes pursuant to the Note Purchase Agreement;
4.2. the representations and warranties of the Buyers made in this Agreement shall be true and correct in all respects, as of the date hereof and as of the Closing Date as though then made;
4.3. the Buyers shall have delivered the Purchase Price to the Seller as contemplated by Section 2.2 above;
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4.4. the Major Holders shall have obtained all consents and waivers necessary to effect the transactions contemplated in this Agreement (including, without limitation, all waivers with respect to Section 5 of the Stockholder Agreement); and
4.5. there shall be no pending or threatened claims, actions, litigation or administrative, regulatory or governmental investigations or proceedings against either Seller or the Buyers with respect to enjoining or preventing the Closing or which might otherwise restrain, prohibit or invalidate any portion of this Agreement.
5.1. Each Buyer has all requisite power and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby. Each Buyer has duly and validly authorized, executed and delivered this Agreement.
5.2. This Agreement constitutes a valid and binding agreement of each Buyer, enforceable against each Buyer in accordance with its terms, except as enforceability may be limited by: (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to or affecting creditors’ rights generally; and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
5.3. Each Buyer is an “accredited investor,” as defined in Rule 501 of Regulation D promulgated under the Securities Act, and hereby confirms that any Common Stock to be received by such Buyer pursuant to this Agreement will be acquired for investment for such Buyer’s ’own account, not as a nominee or agent, and not with a view to the resale or distribution of any of the Securities, and that each Buyer has no present intention of selling, granting any participation in, or otherwise distributing the same. Each Buyer further represents that it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Securities acquired pursuant to Section 2.1 of this Agreement, except with respect to arrangements and agreements with a Buyer’s limited partners, shareholders and partners, as entered into in the ordinary course of Buyer and not with a view towards the transactions contemplated by this Agreement.
5.4. Each Buyer has such knowledge and experience in financial and business matters that the Buyer is capable of evaluating the merits and risks of its investment in the Securities, and can bear the economic risk of its investment (including the full loss of such investment). Each Buyer has carefully considered and, to the extent such Buyer believes appropriate, has discussed with such Buyer’s professional legal, tax and financial advisors, the suitability of an investment in the Securities with respect to the Buyer’s particular tax and financial situation. Each Buyer has determined that its investment in the Securities is suitable for such Buyer.
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6.1. The Seller has all requisite corporate power and authority to enter into and perform this Agreement and to consummate the transactions contemplated hereby. The Seller has duly and validly authorized, executed and delivered this Agreement.
6.2. This Agreement constitutes a valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by: (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to or affecting creditors’ rights generally; and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
6.3. No consent, approval, qualification, order or authorization of, or filing with, any local, state or federal governmental authority is required for the consummation by the Seller of the transactions contemplated hereby.
6.4. Neither the Seller nor its affiliates own any direct or indirect interest in any securities of the Company other than 4,014,092 shares of Common Stock. The Seller owns the Securities (and shall transfer the Securities such that they will be held following the Closing) free and clear of all claims, liens, security interests, charges or other encumbrances of any kind, including, but not limited to, any preemptive rights or rights of first refusal or other restrictions on transfer of any kind, except as set forth in the Stockholder Agreement. There are no restrictions on the transfer of the Securities other than restrictions arising under the Securities Act and as may be set forth in the Stockholder Agreement. No person or entity has any right to purchase the Securities or any portion thereof or interest therein.
7. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to principles of conflicts of law thereof.
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(a) | If to the Seller, to the Seller at the following address: |
Nomura Phase4 Ventures L.P.
x/x Xxxxxx Xxxxxxxxxxxxx
Xxx Xxxxx Xxxx
Xxxxxx
XX0X 0XX
Attn: Xxxxxxx Xxxxxxx
Fax: (00 00) 0000 0000
(b) | If to the Buyers, to each Buyer at the following address: |
BMV Direct SO LP
00000 Xxxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Corporate Legal
Fax No.: (000) 000-0000
New Enterprise Associates 12, Limited Partnership
c/o New Enterprise Associates
0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, General Counsel
Fax: (000) 000-0000
ProQuest Investments IV, L.P.
00 Xxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
ProQuest Management LLC
00 Xxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
with a copy to:
Xxxxxxx Law Group, PC, as counsel to
BMV Direct SO LP
0 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
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Attn: Xxxxxx Xxxxxxxx, Esq.
Fax: 000.000.0000
[signature page follows]
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BUYERS: | ||||||||
BMV DIRECT SO LP
| NEW ENTERPRISE ASSOCIATES 12, LIMITED PARTNERSHIP | |||||||
By: | BioMed Realty, L.P., | By: | NEA Partners 12, Limited Partnership, | |||||
its general partner | its general partner | |||||||
By: |
| By: |
| |||||
Name: | Name: | |||||||
Title: | Title: | |||||||
PROQUEST INVESTMENTS IV, LP | PROQUEST MANAGEMENT LLC | |||||||
By: |
| By: |
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Name: | Name: | |||||||
Title: | Title: | |||||||
SELLER: | ||||||||
NOMURA PHASE4 VENTURES L.P. | ||||||||
By: | Phase4 Ventures Limited, as manager on behalf of Nomura Phase4 Ventures L.P. | |||||||
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EXHIBIT D
Capitalization
Authorized shares of Common Stock: | 30,000,000 | |
Outstanding shares of Common Stock: | 20,424,620.078 as follows: |
Name of Stockholder | Number of Shares Owned | Percent Ownership | ||||||
ALZA Corporation | 7,052.067 | 0.035 | % | |||||
Xxxxxxx Xxxxx | 16.000 | 0.000 | % | |||||
Xxxxx Xxxxxxx | 22.000 | 0.000 | % | |||||
BMV Direct SO LP | 798,829.000 | 3.911 | % | |||||
BMV Direct SOTRS LP | 4,947,076.000 | 24.221 | % | |||||
Xxxxxx Xxxxx | 2.000 | 0.000 | % | |||||
Xxxxx Xxxxxxx | 1,275,151.000 | 6.243 | % | |||||
Xxxxxx Xxxx | 2.455 | 0.000 | % | |||||
Xxxxxx Xxxxx | 2,525,000.000 | 12.363 | % | |||||
Xxxxxx Xxx | 6.000 | 0.000 | % | |||||
Xxxxx Xxxxx | 1.000 | 0.000 | % | |||||
Xxx Xxxxxxx | 8.000 | 0.000 | % | |||||
NEA Ventures 2006, Limited Partnership | 19.836 | 0.000 | % | |||||
New Enterprise Associates 12, Limited Partnership | 5,147,122.904 | 25.201 | % | |||||
Nomura Phase4 Ventures L.P. | 3,150,091.946 | 15.423 | % | |||||
Xxxx Xxxxx | 17.000 | 0.000 | % | |||||
Xxxxxx Xxxxxx | 11.000 | 0.000 | % | |||||
ProQuest Investments IV, L.P. | 2,573,570.870 | 12.600 | % | |||||
ProQuest Management LLC | 24.000 | 0.000 | % | |||||
Xxxx Xxxxxxx | 30.000 | 0.000 | % | |||||
Samantha Xxxxxx Xxxxxxxxx | 1.000 | 0.000 | % | |||||
Xxxx Xxxxxxx | 467.000 | 0.002 | % | |||||
Xxxxxxxx xxx Xxxxx | 44.000 | 0.000 | % | |||||
Xxxxxx Xxxxxx | 5.000 | 0.000 | % | |||||
Xxxx Xxxxxxx | 50.000 | 0.000 | % |
The Company has reserved 2,264,108 shares of Common Stock for issuance pursuant to the terms of its 2012 Stock Incentive Plan. Options to purchase 2,075,600 of such shares have been granted and are outstanding.
Certain former stockholders of Zosano Pharma, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“Subsidiary”), have a right to receive an aggregate of 2,630.133 shares of Common Stock subject to their execution of certain documents in connection with the April 2012 reorganization of Subsidiary.