LEAK-OUT AGREEMENT
Exhibit 10.70
_______, 2022
This agreement (the “Leak-Out Agreement”) is being delivered to you in connection with an understanding by and between Nuwellis, Inc., a Delaware corporation
(the “Company”), and the person or persons named on the signature pages hereto (collectively, the “Holder”).
Reference is hereby made to (a) the Underwriting Agreement, dated ________, 2022, by and among the Company and Ladenburg Xxxxxxxx & Co. Inc. (“Ladenburg”),
as representative of the several underwriters named therein (the “Underwriting Agreement”) in connection with the follow-on public offering (the “Offering”) by the
Company, pursuant to which the Holder and certain other purchasers acquired (i) shares of voting common stock (“Common Stock”) of the Company (“Shares”), (ii) Series I
Convertible Preferred Stock of the Company (the “Preferred Shares”), and (iii) warrants of the Company to purchase Shares (the “Common Warrants,” and together with the
Shares and Preferred Shares, the “Securities”) and (b) the registration statement on Form S-1 (File No. 333-267368) (“Registration Statement”). Capitalized terms not
defined herein shall have the meaning as set forth in the Underwriting Agreement, unless otherwise set forth herein.
The Holder agrees solely with the Company that from the pricing date of the Offering that the Underwriting Agreement is entered into by and between the Company and Ladenburg and ending at 5:00 pm
(New York City time) on ________, 20221 (such period, the “Restricted Period”), neither the Holder, nor any affiliate of such
Holder which (x) had or has knowledge of the transactions contemplated by the Underwriting Agreement, (y) has or shares discretion relating to such Holder’s investments or trading or information concerning such Holder’s investments, including in
respect of the Securities, or (z) is subject to such Holder’s review or input concerning such affiliate’s investments or trading (together, the “Holder’s Trading Affiliates”), collectively, shall sell,
dispose or otherwise transfer, directly or indirectly, (including, without limitation, any sales, short sales, swaps or any derivative transactions that would be equivalent to any sales or short positions) on any Trading Day during the Restricted
Period (any such date, a “Date of Determination”), shares of Common Stock, or shares of Common Stock underlying any Common Stock Equivalents, as well as the shares of Common Stock issuable upon conversion of
the Preferred Shares and upon exercise of the Common Warrants, in an amount representing more than, when measured at any given point during the applicable Date of Determination, ___%2 of the cumulative trading volume of the Common Stock for such date (which cumulative trading volume shall include pre-market, market and post-market trading volume for such date) as reported by Bloomberg, LP (“Leak-Out Percentage”), provided that, for purposes of clarity, the Leak-Out Percentage of the cumulative trading volume of the Common Stock on the applicable Date of Determination applies at each moment during
such Date of Determination.
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Date that is ___ Trading Days following Effective Date
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Pro rata portion of 30% among investors executing Leak-Out Agreements, based on the aggregate amount to be paid by each such investor for the Class A Units and/or Class B Units
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Notwithstanding anything herein to the contrary, during the Restricted Period, the Holder may, directly or indirectly, sell or transfer all, or any part, of any “restricted securities” (as defined
in Rule 144) to any Person (an “Assignee”) in a transaction which does not need to be reported on the consolidated tape on the Company’s principal Trading Market, without complying with (or otherwise limited
by) the restrictions set forth in this Leak-Out Agreement; provided, that as a condition to any such sale or transfer an authorized signatory of the Company and such Assignee duly execute and deliver a leak-out agreement in the form of this
Leak-Out Agreement (an “Assignee Agreement”, and each such transfer a “Permitted Transfer”) and, subsequent to a Permitted Transfer, sales of the Holder and the
Holder’s Trading Affiliates and all Assignees (other than any such sales that constitute Permitted Transfers) shall be aggregated for all purposes of this Leak-Out Agreement and Assignee Agreements.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Leak-Out Agreement must be in writing and shall be given in accordance with the
terms of the Underwriting Agreement, provided that, with respect to any notices, consents, waivers or other communications to be made by the Company to the Holder, such notice, consent, waiver or other communication shall be delivered to the Holder
at the e-mail address on the signature page hereto.
This Leak-Out Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations, letters and understandings
relating to the subject matter hereof and are fully binding on the parties hereto.
This Leak-Out Agreement may be executed simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original, and all such counterparts shall constitute one and the same
instrument. This Leak-Out Agreement may be executed and accepted by facsimile or PDF signature and any such signature shall be of the same force and effect as an original signature.
The terms of this Leak-Out Agreement shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective successors and assigns.
This Leak-Out Agreement may not be amended or modified except in writing signed by each of the parties hereto.
All questions concerning the construction, validity, enforcement and interpretation of this Leak-Out Agreement shall be governed by Sections 7.7 and Section 7.13 of the Underwriting Agreement.
Each party hereto acknowledges that, in view of the uniqueness of the transactions contemplated by this Leak-Out Agreement, the other party or parties hereto may not have an adequate remedy at law
for money damages in the event that this Leak-Out Agreement has not been performed in accordance with its terms, and therefore agrees that such other party or parties shall be entitled to seek specific enforcement of the terms hereof in addition to
any other remedy it may seek, at law or in equity.
The obligations of the Holder under this Leak-Out Agreement are several and not joint with the obligations of any other holder of any of the Securities issued under the Underwriting Agreement
(each, an “Other Holder”) or any other holder of any of the Securities issued under the Registration Statement (each, a “Prospectus Purchaser Other Holder”) pursuant to
any other agreement, and the Holder shall not be responsible in any way for the performance of the obligations of any Other Holder or any Prospectus Purchaser Other Holder under any such other agreement. Nothing contained herein or in this
Leak-Out Agreement, and no action taken by the Holder pursuant hereto, shall be deemed to constitute the Holder and Other Holders or any Prospectus Purchaser Other Holder as a partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Holder and the Other Holders or any Prospectus Purchaser Other Holder are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Leak-Out
Agreement and the Company acknowledges that the Holder and the Other Holders or any Prospectus Purchaser Other Holder are not acting in concert or as a group with respect to such obligations or the transactions contemplated by this Leak-Out
Agreement or any other agreement. The Company and the Holder confirm that the Holder has independently participated in the negotiation of the transactions contemplated hereby with the advice of its own counsel and advisors. The Holder shall be
entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Leak-Out Agreement, and it shall not be necessary for any Other Holder or any Prospectus Purchaser Other Holder to be joined as
an additional party in any proceeding for such purpose.
The Company hereby represents and warrants as of
the date hereof and covenants and agrees from and after the date hereof that none of the terms offered to any Other Holder or any Prospectus Purchaser Other Holder with respect to any restrictions on the sale of Securities substantially in the form of this Leak-Out Agreement (or any amendment, modification, waiver or release thereof)
(each a “Settlement Document”), is or will be more favorable to such Other Holder than those of the Holder and this Leak-Out Agreement, and
the Company agrees to use reasonable best efforts to enforce the terms of any Settlement Document. If, and whenever on or after the date hereof, the Company enters into a Settlement Document with terms that are materially different from this
Leak-Out Agreement, then (i) the Company shall provide notice thereof to the Holder promptly following the occurrence thereof and (ii) the terms and conditions of this Leak-Out Agreement shall be,
without any further action by the Holder or the Company, automatically amended and modified in an economically and legally equivalent manner such that the Holder shall receive the benefit of the more favorable terms and/or conditions (as the
case may be) set forth in such Settlement Document, provided that upon written notice to the Company at any time the Holder may elect not to accept the benefit of any such amended or modified term or condition, in which event the term or
condition contained in this Leak-Out Agreement shall apply to the Holder as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with respect to the Holder. The provisions of
this paragraph shall apply similarly and equally to each Settlement Document.
This Leak-Out Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other Person.
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The parties hereto have executed this Leak-Out Agreement as of the date first set forth above.
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Sincerely,
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By:
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Name:
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Title:
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Agreed to and Accepted:
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“HOLDER”
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By:
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Name:
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Title:
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E-mail:
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