SECURITIES PURCHASE AGREEMENT
EXHIBIT 10.4
This
Securities Purchase Agreement (“Agreement”) is entered into as
of February 12, 2010 by and between AETHLON MEDICAL, INC., a corporation
organized under the laws of the State of Nevada (the “Company”), and the Person set
forth on the signature page hereto as the “Purchaser” hereunder (“Purchaser”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement, the Company
desires to issue and sell to the Purchaser, and the Purchaser desires to
purchase from the Company, securities of the Company in a PIPE Transaction as
set forth herein;
NOW
THEREFORE, in consideration of the foregoing premise and the covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchaser
agree as follows:
1. Incorporation
by Reference; Definitions.
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(a)
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Incorporation. This
Agreement incorporates by reference, as if set forth herein in its
entirety and including without limitation all terms, conditions and
provisions set forth therein, the PipeFund Services Organization Standard
Transaction Document labeled GTC 1-10 (General Terms and Conditions)
available and accessible at xxx.xxxxxxxx.xxx
(“PST Document
GTC”); provided,
however, that to the extent any of the terms, conditions or
provisions of this Agreement (without such incorporation) contradict or
conflict with the terms, conditions or provisions of PST Document GTC,
this Agreement shall control.
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(b)
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Defined
Terms. Each initially capitalized term used but not
defined in this Agreement (including PST Document GTC as incorporated
herein pursuant to the preceding Section), and each initially capitalized
term used but not defined in any other Transaction Document, shall have
the meaning ascribed thereto in the PipeFund Services Organization
Standard Transaction Document labeled 1-10 DEF (Definitions) available and
accessible at xxx.xxxxxxxx.xxx.
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(c)
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PipeFund Transaction
Code. This Securities Purchase Agreement shall be known
as “Securities Purchase Agreement
#AEMD-10-A”.
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2. Securities. The
Company agrees to issue and sell, and the Purchaser agrees to purchase, in
consideration for payment by the Purchaser of its Subscription Amount indicated
below and on the Purchaser’s signature page hereto, upon the terms and
conditions contained in this Securities Purchase Agreement, the following
Securities:
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(a)
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Note. Convertible
Promissory Note of the Company, in the form attached hereto as Exhibit A
(“Note”), with an
aggregate original principal amount equal to $660,000;
and
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(b)
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Warrant. 3-year
Warrant, in the form attached hereto as Exhibit B, to
purchase 660,000 Warrant Shares, having an initial exercise price equal to
$0.50.
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1
3. Purchase Price; Form of Payment;
Closing. The Subscription Amount for the Note and Warrant to
be purchased by the Purchaser hereunder shall be $600,000. At
Closing, the Purchaser shall pay the Subscription Amount (a) by wire transfer of
$300,000 in immediately available funds to the Company, and (b) by delivering to
the Company a Secured Promissory Note in the principal amount of $300,000 in the
form attached hereto as Exhibit C (the “Promissory
Note”). There shall be no Funds Escrow Agent or Documents
Escrow Agent for the Closing, provided that the original Note, Warrant and
Promissory Note shall be delivered to the Company’s counsel to be held in escrow
pending the Company’s receipt of the Purchaser’s wire
transfer. Notwithstanding anything to the contrary contained in
Section 2.3(a)(viii) of PST Document GTC, the Company shall not be required to
deliver a Legal Opinion, Officer’s Certificate or Secretary’s Certificate under
subsections (B), (C) and (D) thereof, provided that the Company shall furnish to
the Purchaser copies of the Company’s current Certificate of Incorporation and
Bylaws and Board resolutions authorizing the Transactions.
4. Expenses. On or
prior to the Closing, the Company shall pay the Purchaser a non-refundable,
non-accountable sum equal to $10,000 as and for the fees, costs and expenses
(including without limitation legal fees and disbursements expenses but
excluding the Origination Fee below) incurred by the Purchaser in connection
with the Purchaser’s negotiation, preparation and execution of the Transaction
Documents (“Expense
Amount”). In addition, the Company shall pay the Purchaser,
for making the loans evidenced by the Note, an origination fee equal to 3% of
the Purchaser’s Subscription Amount hereunder, payable as
follows: $9,000 upon the Closing (“Initial Origination Fee”) and 3% of
the amount of each cash principal payment made under the Promissory Note by the
Purchaser, which fee may be withheld and offset from such cash principal
payment. The Purchaser may withhold and offset the Expense Amount,
the Initial Origination Fee and the PipeFund expenses from the payment of the
Purchaser’s Subscription Amount otherwise payable hereunder at Closing, which
offset shall constitute partial payment of such Subscription Amount in an amount
equal to such offset.
5. Company
Address for Notices:
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Aethlon
Medical, Inc.
0000
Xxxxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000
Attn:
Xxxxx X. Xxxxx, CEO
Facsimile:
(000) 000-0000
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With a copy
to:
Law
Office of Xxxxxxxx X. Post
000
Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
Attn:
Xxxxxxxx X. Post, Esq.
Facsimile:
(800) 783–2983
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6. Modifications
and Additional Terms.
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(a)
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No Registration
Rights; Rule 144. Sections 6.1 through 6.5 of PST
Document GTC are hereby deleted such that the Purchaser shall not have any
registration rights. The Company acknowledges and agrees that,
for purposes of Rule 144, the holding period for the shares of Common
Stock issuable upon conversion or otherwise pursuant to the Note issued to
the Purchaser shall have commenced on the date of original issuance of the
Note. After six months following the Closing Date, any and all
shares of Common Stock issued upon conversion of the Note issued to the
Purchaser shall be issued free and clear of any and all legends and
restrictions thereon, provided that the Purchaser is not an Affiliate of
the Company at such time.
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(b)
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The
Bulletin Board shall be an Eligible
Market.
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(c)
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Negative
Covenants. So long as the Note is outstanding, without the consent
of the Purchaser, the Company will not, and will not permit any of its
Subsidiaries to, directly or
indirectly:
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2
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(i)
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amend
its Certificate of Incorporation or Bylaws so as to materially and
adversely affect any rights of the Purchaser (an increase in the amount of
authorized shares and an increase in the number of directors will not be
deemed adverse to the rights of the Purchaser);
or
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(ii)
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repay,
repurchase or offer to repay, repurchase or otherwise acquire or make any
dividend or distribution in respect of any of its Common Stock, preferred
stock, or other equity securities other than to the extent permitted or
required under the Transaction
Documents.
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[Signature Page
Follows]
3
IN WITNESS WHEREOF,
as of the
date first written above, the Parties hereto have duly executed, or caused their
authorized officers to duly execute, this Securities Purchase Agreement
#AEMD-10-A with file name “SPA -- AEMD v.2”.
COMPANY:
AETHLON
MEDICAL, INC.
By: /s/ Xxxxx X
Xxxxxx
Name: Xxxxx
X Xxxxxx
Title: Authorized
Signatory
PURCHASER:
1. Signature:
GEMINI
MASTER FUND, LTD.
By:
GEMINI STRATEGIES, LLC
By: /s/ Xxxxxx X.
Xxxxxxx _
Name:
Xxxxxx X. Xxxxxxx
Title:
President
2. Subscription
Amount: $600,000.00
3. Maximum Ownership
Percentage:
The Maximum
Ownership Percentage shall be 9.9% if no box is checked
below.
| x 4.9% | o 9.9% | o Other: ______% | o None |
[Purchaser Signature Page to Securities Xxxxxxxx
Xxxxxxxxx # XXXX-00-X P. 1/2]
PURCHASER:
_____________________________
(Print
Name)
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4. Address for
Notices:
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With
a copy to, if any:
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______________________________________________
(Name
or c/o Name)
______________________________________________
(Address)
______________________________________________
______________________________________________
(Contact
Name)
______________________________________________
(Facsimile)
______________________________________________
(Telephone)
______________________________________________
(Email
Address)
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______________________________________________
(Name)
______________________________________________
(Address)
______________________________________________
______________________________________________
(Contact
Name)
______________________________________________
(Facsimile)
______________________________________________
(Telephone)
______________________________________________
(Email
Address)
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5. Residence/Organization
and TIN:
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______________________________________________
(State/Jurisdiction
of Primary Residence (for individuals)
or
Organization (for entities))
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______________________________________________
(Social
Security or Employer/Tax Identification Number,
if
applicable)
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6. Special Instructions
Where Securities to Be Delivered:
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For
Common Stock:
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For
Other Securities:
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[Purchaser Signature Page to Securities Xxxxxxxx Xxxxxxxxx
# XXXX-00-X P. 2/2]
[Page 2 not intended to be publicly
disclosed]
Exhibit
A
FORM OF CONVERTIBLE
NOTE
A-1
Exhibit
B
FORM OF
WARRANT
B-1
Exhibit
C
FORM OF PROMISSORY
NOTE
C-1
