SECURITIES PURCHASE AGREEMENT
Exhibit 10.1
This Securities Purchase Agreement (this “Agreement”) is dated as of January 15, 2024, between Psyence Biomedical Ltd., a corporation existing under the laws of Ontario, Canada (the “Company”), Psyence Biomed II Corp., a corporation existing under the laws of Ontario, Canada (“Psyence”), the funds, accounts, and/other investment vehicles managed by [ ] signatory hereto (collectively, the “Purchaser” and collectively with the Company and Psyence, the “Parties”), and Newcourt SPAC Sponsor LLC (“Sponsor”).
WHEREAS, the Company has entered into that certain Amended and Restated Business Combination Agreement, dated as of July 31, 2023, (the “Business Combination Agreement,” and the transactions contemplated thereby, the “Business Combination”) with Newcourt Acquisition Corp. (the “SPAC”), Sponsor, Psyence Group Inc. (“Parent”), Psyence (Cayman) Merger Sub (“Merger Sub”), Psyence Biomed Corp., and Psyence;
WHEREAS, the Purchaser shall, at the First Tranche Closing, enter into a certain Call Option Agreement (the “Call Option Agreement”), with Tabula Rasa Ltd (“Tabula Rasa”) and Launchpad Capital Opportunities Fund LP (Series SPAC) (“Launchpad”); and
WHEREAS, in connection with the Business Combination and immediately prior to the closing thereof, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506 promulgated thereunder, the Company desires to issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Purchaser agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise defined herein have the meanings given to such terms in the Note (as defined herein), and (b) the following terms have the meanings set forth in this Section 1.1:
“Action” shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with such Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Board of Directors” means the board of directors of the Company.
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which commercial banking institutions in the State of New York are authorized or required by law or other governmental action to close.
“Closing” means each closing of the purchase and sale of the Securities pursuant to Section 2.1(a).
“Closing Date” means for each of closing the purchase and sale of the Securities pursuant to Section 2.1(a), as applicable, the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to the Company’s obligations to deliver the Securities to be issued and sold, in each case, have been satisfied or waived, but in no event later than the second Trading Day following the date on which the Company gives notice to the Purchaser that all conditions of such Closing have been met other than payment and delivery of the Closing deliverables required by this Agreement.
“Collateral” has the meaning given to such term in the Security Agreement.
“Commission” means the United States Securities and Exchange Commission.
“Common Shares” means the common shares of the Company, and any other class of securities into which such securities may hereafter be reclassified or changed.
“Conversion Price” shall have the meaning ascribed to such term in the Note.
“Daily Value Traded” means, for any date, the VWAP times the number of traded as reported by Bloomberg L.P. (based on a Trading Day from 9:30 am (New York City time) to 4:02 p.m. (New York City time). If the Common Shares are not then listed of quoted for trading on any Trading Market then the Daily Value Traded shall be zero.
“Disclosure Schedules” shall have the meaning ascribed to such term in Section 3.1.
“Environmental Laws” shall have the meaning ascribed to such term in Section 3.1(m).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance” means the issuance of securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into Common Shares issued and outstanding on the date of this Agreement (without regard to any vesting requirements), including warrants of the SPAC.
“First Tranche Closing” shall have the meaning ascribed to such term in Section 2.1(a).
“First Tranche Note” means up to $3,125,000 in principal Note issuable upon the First Tranche Closing.
“Fourth Tranche Closing” shall have the meaning ascribed to such term in Section 2.1(a).
“Fourth Tranche Note” means up to $3,125,000 in principal Note issuable upon the Fourth Tranche Closing, which can be purchased at the Purchaser’s discretion.
“Hazardous Materials” shall have the meaning ascribed to such term in Section 3.1(m).
“Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Indebtedness” means: (a) all obligations for borrowed money; (b) all obligations evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances, current swap agreements, interest rate hedging agreements, interest rate swaps, or other financial products; (c) all obligations or liabilities secured by a lien or encumbrance on any asset of the Company, irrespective of whether such obligation or liability is assumed; and (d) any obligation guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted or sold with recourse) any of the foregoing obligations of any other person.
“Legend Removal Date” shall have the meaning ascribed to such term in Section 4.1(c).
“Lien” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Market Value Traded” means two times the median of the Daily Value Traded of the Common Shares traded during the prior Thirty (30) Trading Days.
“Material Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Note or Notes” means, as applicable, the First Tranche Note and/or the Second Tranche Note or any Third Tranche Note or Fourth Tranche Note, if any, in the form of Exhibit A attached hereto.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.
“Purchaser Party” shall have the meaning ascribed to such term in Section 4.5.
“Registration Rights Agreement” means the Registration Rights Agreement, to be dated the date of the First Tranche Closing, between the Company and the Purchaser, in the form of Exhibit B attached hereto.
“Registration Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale of the Underlying Shares by the Purchaser as provided for in the Registration Rights Agreement.
“Required Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Required Minimum” means, as of any date, the maximum aggregate number of Common Shares then issued or potentially issuable in the future pursuant to the Transaction Documents, including any Underlying Shares issuable upon conversion in full of all Notes, ignoring any conversion limits set forth therein.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“SEC Reports” means the reports, schedules, forms, statements and other documents filed by the Company or the SPAC under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company or the SPAC was required by law or regulation to file such material), including the exhibits thereto and documents incorporated by reference therein.
“Second Tranche Closing” shall have the meaning ascribed to such term in Section 2.1(a).
“Second Tranche Note” means up to $3,125,000 in principal Note issuable upon the Second Tranche Closing.
“Securities” means the Notes, the Underlying Shares, and the Structuring Shares.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Security Agreement” means that certain Security Agreement, dated as of the First Tranche Closing by and between the Company and Purchaser.
“Subscription Amount” means the aggregate amount to be paid for each Note purchased hereunder as specified below in Section 2.1(b), in United States dollars and in immediately available funds.
“Third Tranche Closing” shall have the meaning ascribed to such term in Section 2.1(a).
“Third Tranche Note” means up to $3,125,000 in principal Note issuable upon the Third Tranche Closing, which can be purchased at the Purchaser’s discretion.
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Shares are listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange (or any successors to any of the foregoing).
“Transactions” mean the transactions contemplated by the Transaction Documents.
“Transaction Documents” means this Agreement, the Note, the Registration Rights Agreement, the Security Agreement and all exhibits and schedules thereto and hereto.
“Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, and any successor transfer agent of the Company.
“Underlying Shares” means the Common Shares issued and issuable pursuant to the terms of the Notes, without respect to any limitation or restriction on the conversion of the Note.
“Variable Rate Transaction” means any transaction entered into by the Company, including any (i) equity line, an at-the-market or similar agreement for an at-the-market offering, or similar agreement, (ii) issuance, or agreement to issue, any capital stock, floating or variable priced equity linked instruments or any other Indebtedness or equity security, in any case with price reset rights including protection against lower priced issuances or adjustments in the event of such issuances (not including adjustments for stock splits, distributions, dividends, recapitalizations and the like).
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Shares are then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Shares for such date (or the nearest preceding date) on the Trading Market on which the Common Shares are then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time); provided, however, that if the Common Shares are then listed or quoted on more than one Trading Market, then the Trading Market for purposes of any calculations to be made pursuant to the terms of this Note shall be the Trading Market selected by the Purchaser in its sole discretion), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Shares for such date (or the nearest preceding date) on OTCQB or OTCQX, as applicable, (c) if the Common Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Shares are then reported in the “Pink Sheets” published by OTC Markets Group, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Shares so reported, or (d) in all other cases, the fair market value of a Common Share as determined by an independent appraiser selected in good faith by the Purchaser of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the reasonable fees and expenses of which shall be paid by the Company.
ARTICLE II
PURCHASE AND SALE
2.1 Closing.
(a) Closing. The First Tranche Closing shall take place remotely via the exchange of documents and signatures immediately prior to the consummation of the Business Combination or at such other time and place as the Company and the Purchaser mutually agree upon orally or in writing (the closing for which is designated as the “First Tranche Closing”). The Second Tranche Closing shall take place remotely via the exchange of documents and signatures substantially concurrently with, and contingent upon, the effectiveness of the Registration Statement or at such other time and place as the Company and the Purchaser mutually agree upon orally or in writing (the closing for which is designated as the “Second Tranche Closing”). The Purchaser shall have the option, but not the obligation, to determine whether to effect a subsequent closing for the Third Tranche Note or Fourth Tranche Note. At its sole election, on or before the 30th day following the last portion of the Second Tranche Closing, the Purchaser may issue a commitment letter to the Company evidencing its binding commitment to fund Subscription Amounts for the Third Tranche Note. Any Third Tranche Closing may take place remotely via the exchange of documents and signatures on the later of (i) ten (10) days after the delivery of such commitment letter and (ii) the effectiveness of the Registration Statement registering the Underlying Shares for the Third Tranche Note or at such other time and place as the Company and the Purchaser mutually agree upon orally or in writing (the closing for which is designated as the “Third Tranche Closing”). At its sole election, on or before the 90th day following the last portion of the Second Tranche Closing, the Purchaser may issue a commitment letter to the Company evidencing its binding commitment to fund Subscription Amounts for the Fourth Tranche Note. Any Fourth Tranche Closing may take place remotely via the exchange of documents and signatures on the later of (i) ten (10) days after the delivery of such commitment letter and (ii) the effectiveness of the Registration Statement registering the Underlying Shares for the Fourth Tranche Note or at such other time and place as the Company and the Purchaser mutually agree upon orally or in writing (the closing for which is designated as the “Fourth Tranche Closing”) ( each a “Closing” and together, the “Closings”).
(b) Sale of Note. At the Closings, subject to the terms and conditions set forth herein, the Company agrees to sell, and the Purchaser agrees to purchase, the Notes for the aggregate amount of up to $10,000,000, in the individual amount set forth on Schedule I. The First Tranche Note shall be a total of $3,125,000 of principal in exchange for a total of $2,500,000 in Subscription Amounts. The Second Tranche Note shall be a total of $3,125,000 of principal in exchange for a total of $2,500,000 in Subscription Amounts; provided, however, that, in the event that the Market Value Traded as of the Second Tranche Closing is less than the full Subscription Amount of the Second Tranche Note, (A) Purchaser shall invest an amount equal to the Market Value Traded as of the Second Tranche Closing and (B) on the later of (i) each subsequent 30 day anniversary of the Second Tranche Closing or (ii) the effectiveness of the Registration Statement registering the Underlying Shares for such portion of the Second Tranche Note, Purchaser shall invest an amount equal to the Market Value Traded as of such date, until the Second Tranche Note is funded in full. Purchaser shall not be required to invest the Subscription Amounts with respect to any portion of the Second Tranche Note(s) if (A) the Company has received a deficiency notice from Nasdaq or any national exchange, (B) the Company or Purchaser is aware of circumstances which would lead to the issuance of a deficiency notice from Nasdaq or any national exchange, (C) a stop order or suspension of trading shall have been imposed by the SEC, Nasdaq or any other governmental or regulatory body with respect to public trading in the Common Shares of the Company, or (D) the Company has not filed all required reports under section 13 or 15(d) of the Exchange Act, as applicable, and submitted electronically every interactive data file during the prior 12 months (or for such shorter period that the Company was required to file such reports); provided that, the Purchaser shall promptly fund Subscription Amounts for the Second Tranche Note(s) (in an amount equal to the Market Value Traded as set forth above) in the event that the circumstances set forth in any of (A)-(D) have been cured within sixty (60) days of the effectiveness of the Registration Statement. The Third Tranche Note, if any, shall be a total of $3,125,000 of principal in exchange for a total of $2,500,000 in Subscription Amounts. The Fourth Tranche Note, if any, shall be a total of $3,125,000 of principal in exchange for a total of $2,500,000 in Subscription Amounts.
(c) Closing Procedures. With respect to the First Tranche Closing only, two business days prior to the First Tranche Closing, the Purchaser shall deliver into that escrow account (the “Escrow Account”) established by Continental Stock Transfer & Trust Company (the “Escrow Agent”) via wire transfer, the Subscription Amount in immediately available funds; the wire instructions for the aforementioned escrow account are set forth on Exhibit C. Upon the First Tranche Closing, the Subscription Amount for the First Tranche Closing will be released from the Escrow Account. The terms of the Notes delivered at each subsequent Closing shall be substantially similar to the terms set forth in the First Tranche Note except that (i) the Initial Conversion Price on the first Trading Day after the Closing with respect to such Note shall be equal to the existing Conversion Price for the First Tranche Note as of such date, (ii) the initial Conversion Floor for such Note shall be equal the Conversion Floor for the First Tranche Note as of such date. Upon each subsequent Closing, the Company shall deliver to the Purchaser the relevant Note, and the Company and the Purchaser shall deliver the other items set forth in Section 2.2 that are deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, each Closing shall occur by electronic exchange of documents and wiring of the Subscription Amounts by the Purchaser.
(d) Structuring Fee. Sponsor shall, prior to the First Tranche Closing, transfer an aggregate of Three Million Common Shares of the SPAC (the “Transferred Shares”), One Million Three Hundred Thousand of which Transferred Shares will be transferred to the Purchaser (in the individual amounts as designated by the Purchaser), as a portion of the of the structuring fee payable to the Purchaser with respect to the transactions contemplated in this Agreement, One Million Three Hundred Thousand of which Transferred Shares will be transferred to Tabula Rasa and Four Hundred Thousand of which Transferred Shares will be transferred to Launchpad. The Transferred Shares will automatically convert into Common Shares of the Company upon consummation of the Business Combination. Following the First Tranche Closing, instructions will be delivered to the Transfer Agent to electronically transfer to the account of the Purchaser (a) One Million Three Hundred Thousand of the Transferred Shares from Tabula Rasa and (b) Four Hundred Thousand of the Transferred Shares from Launchpad, which One Million Seven Hundred Thousand Transferred Shares shall be delivered to the account of the Purchaser no later than two (2) business days after the request of the Purchaser pursuant to the terms set forth in the Call Option Agreement. These additional Transferred Shares will represent the remaining portion of the structuring fee payable to the Purchaser and collectively with the One Million Three Hundred Thousand Transferred Shares previously delivered to the Purchaser shall be referred to as the “Structuring Shares.” Upon delivery to the Purchaser, the Structuring Shares will be (i) validly issued, (ii) fully paid and non-assessable, (ii) fully registered, (iii) free of all liens and encumbrances, (iv) free of pre-emptive and similar rights, and (v) freely tradeable without restriction.
(e) Beneficial Ownership Limitation. Notwithstanding any other provisions hereof, the Purchaser shall not have the right to acquire the full amount of the Structuring Shares hereunder and the Purchaser shall not be entitled to take delivery of Structuring Shares hereunder (in each case, whether in connection with the First Tranche Closing, Second Tranche Closing or otherwise) to the extent (but only to the extent) that, after receipt of the contemplated amount of Structuring Shares to be delivered hereunder the number of Common Shares owned by the Purchaser (including any Common Shares owned by the Purchaser upon conversion of the Notes) would exceed the Beneficial Ownership Limitation. Any purported delivery hereunder shall be void and have no effect to the extent (but only to the extent) that, after such delivery, the amount of Common Shares owned by the Purchaser would exceed the Beneficial Ownership Limitation. If any delivery owed to the Purchaser hereunder is not made, in whole or in part, as a result of this provision, the Company’s obligation to make such delivery shall not be extinguished and the Company shall make such delivery as promptly as practicable after, but in no event later than one Trading Day after, the Purchaser gives notice to the Company that, after such delivery, the Common Shares owned by the Purchaser would not exceed the Beneficial Ownership Limitation. The “Beneficial Ownership Limitation” shall be 9.9% of the number of the Common Shares outstanding immediately after giving effect to delivery of the portion of the Structuring Shares contemplated hereunder. Beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
2.2 Deliveries.
(a) On or prior to each Closing Date, the Company shall deliver or cause to be delivered to the Purchaser the following:
(i) with respect to the First Tranche Closing only, this Agreement, duly executed by the Company;
(ii) the Note, registered in the name of the Purchaser;
(iii) with respect to the First Tranche Closing only, the Security Agreement, duly executed by the Company;
(iv) in the case of the First Tranche Closing, the Registration Rights Agreement, duly executed by the Company;
(v) in the case of the First Tranche Closing, the Lockup Agreement which has been duly executed by the parties thereto;
(vi) in the case of the First Tranche Closing, the Call Option Agreement which has been duly executed by each of Tabula Rasa and Launchpad;
(vii) in the case of the First Tranche Closing, One Million Three Hundred Thousand (1,300,000) of the Structuring Shares or such other amount which complies with the Beneficial Ownership Limitation (delivered via DWAC transfer to the account of the Purchaser); and
(viii) a duly certified copy of a resolution or resolutions of the board of directors of the Company relating to the authority of the Company to execute and deliver and perform its obligations under the Transaction Documents and all other instruments, agreements, certificates and other documents provided for or contemplated by the said Transaction Documents and the manner in which and by whom the foregoing documents are to be executed and delivered, certified by a senior officer of the relevant entity.
(b) On or prior to each Closing Date, the Purchaser shall deliver or cause to be delivered to the Company the following:
(i) with respect to the First Tranche Closing only, this Agreement duly executed by the Purchaser;
(ii) the Purchaser’s Subscription Amount by wire transfer in accordance with the wire instructions specified on Exhibit C;
(iii) in the case of the First Tranche Closing, the Registration Rights Agreement duly executed by the Purchaser; and
(iv) in the case of the First Tranche Closing, the Call Option Agreement which has been duly executed by the Purchaser.
2.3 Closing Conditions.
(a) The obligations of the Company hereunder in connection with each Closing are subject to the following conditions being met or waived in writing by the Company:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Purchaser contained herein (unless as of a specific date therein, in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of the Purchaser required to be performed at or prior to the Closing Date shall have been performed in all material respects; and
(iii) the delivery by the Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The obligations of the Purchaser hereunder in connection with each Closing are subject to the following conditions being met or waived in writing by the Purchaser:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein, in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed in all material respects;
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) with respect to the First Tranche Closing only, all conditions precedent to the closing of the Business Combination set forth in the Business Combination Agreement shall have been satisfied (as determined solely by the parties to the Business Combination Agreement, and other than those conditions which, by their nature, are to be satisfied at the closing of the Business Combination, including to the extent that any such condition is waived by the party entitled to the benefit thereof under the Business Combination Agreement, and the closing of the Business Combination shall be scheduled to occur immediately following the Closing of the First Tranche Note) and shall close on such scheduled date, unless otherwise mutually agreed, in writing, by the Parties;
(v) the Company shall have filed with the Nasdaq an application for the listing of the Common Shares and the Common Shares shall have been approved for listing on Nasdaq, subject to official notice of issuance;
(vi) there shall have been no Material Adverse Effect with respect to the Company or Psyence since the date hereof;
(vii) the Business Combination Agreement shall not have been amended, in any manner which is adverse to the rights of the Purchaser hereunder, without the prior written consent of the Purchaser;
(viii) the SPAC shall not have permitted reversals of redemption requests if such reversals would cause in excess of 220,864 Class A ordinary shares, or such other number of Class A ordinary shares as may be agreed by the Parties in writing, to remain outstanding after giving effect to the redemption; and
(ix) Sponsor and Parent, shall have entered into a lock-up agreement, in the form attached as Exhibit D, pursuant to which, Sponsor and Parent have agreed not to offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares (the “Lock-Up Securities”), whether currently owned or acquired later by Sponsor or Parent, or enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities until one hundred eighty (180) days following the First Tranche Closing, or such later date pursuant to the terms set forth herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company and Psyence. Except as set forth in (i) the SEC Reports and (ii) the disclosure schedules of the Company and Psyence (the “Disclosure Schedules”), which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules, and any other section hereof to the extent that it is readily apparent from a reading of such disclosure that is also qualifies or applies to such other sections, the Company and Psyence hereby, individually and severally and not jointly with the other party, make the following representations and warranties to the Purchaser as of the Initial Closing and as of each subsequent Closing:
(a) Subsidiaries. All of the direct and indirect subsidiaries of the Company and Psyence, respectively, are set forth on Schedule 3.1(a). The Company and Psyence own, directly or indirectly, all of the capital stock or other equity interests of each of their respective subsidiaries free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each subsidiary are validly issued and are fully paid, non-assessable and free of pre-emptive and similar rights to subscribe for or purchase securities.
(b) Organization and Qualification. Each of the Company, Psyence and each of their respective subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (if a good standing concept exists for such form of entity in such jurisdiction), with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company, Psyence nor any of their respective subsidiaries is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company, Psyence and their respective subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property they owned make such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company, Psyence and their respective subsidiaries, taken as a whole, or (iii) a material adverse effect on either of the Company’s or Psyence’s ability to perform in any material respect on a timely basis their respective obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(c) Authorization; Enforcement. The Company and Psyence each have the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents, as applicable, and otherwise to carry out their respective obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents, as applicable, by the Company and Psyence and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and Psyence, and no further action is required by the Company or Psyence, the Board of Directors or the Company’s or Psyence’s shareholders in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which the Company and Psyence is a party, as applicable, has been (or upon delivery will have been) duly executed by the Company and Psyence and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company and Psyence enforceable against the Company and Psyence in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(d) No Conflicts. The execution, delivery and performance by the Company and Psyence of this Agreement and the other Transaction Documents to which they are a party, as applicable, the issuance and sale of the Securities and the consummation by the Company of the transactions contemplated hereby and thereby do not and will not: (i) conflict with or violate any provision of the Company’s, Psyence’s or any of their respective subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company, Psyence or any of their respective subsidiaries, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company, Psyence or subsidiary debt or otherwise) or other understanding to which the Company, Psyence or any of their respective subsidiaries is a party or by which any property or asset of the Company, Psyence or any of their respective subsidiaries is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company, Psyence or any of their respective subsidiaries is subject (including federal, state, and provincial securities laws and regulations), or by which any property or asset of the Company, Psyence or any of their respective subsidiaries is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings, Consents and Approvals. Neither the Company nor Psyence is required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local, provincial, or other governmental authority or other Person in connection with the execution, delivery and performance by the Company and Psyence of the Transaction Documents, other than, as applicable: (i) the filings required pursuant to Section 4.7 of this Agreement, (ii) the filing with the Commission pursuant to the Registration Rights Agreement, (iii) the filing of Form D with the Commission and such filings as are required to be made under applicable state securities laws, and (iv) the filing of a Form 72-503F – Report of Distributions Outside of Canada with the Ontario Securities Commission (collectively, the “Required Approvals”).
(f) Issuance of the Securities. Following consummation of the Business Combination, the Securities will be duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents. The Underlying Shares, when issued in accordance with the terms of the Transaction Documents, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents. Following consummation of the Business Combination, the Company shall have reserved from its duly authorized capital stock a number of Common Shares for issuance of the Underlying Shares at least equal to the Required Minimum on the date hereof.
(g) Capitalization. The capitalizations of the Company and Psyence as of the date hereof are as set forth on Schedule 3.1(g), which Schedule 3.1(g) shall also include the number of Common Shares owned beneficially, and of record, by Affiliates of the Company and Psyence as of the date hereof. Upon the closing of the Business Combination, Psyence will be a wholly owned Subsidiary of the Company. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result of the purchase and sale of the Securities or as set forth on Schedule 3.1(g), there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any Common Shares or the capital stock of any subsidiary of the Company or Psyence, or contracts, commitments, understandings or arrangements by which the Company, Psyence or any of their respective subsidiaries is or may become bound to issue additional Common Shares or Common Shares equivalents or capital stock of any subsidiary. The issuance and sale of the Securities will not obligate the Company, Psyence or any of their respective subsidiaries to Common Shares or other securities to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities or Psyence securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or instruments of the Company, Psyence or any of their respective subsidiaries that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company, Psyence or any of their respective subsidiaries is or may become bound to redeem a security of the Company, Psyence or such subsidiary. Neither the Company nor Psyence has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company and Psyence are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal, state, and provincial securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors of the Company or Psyence, Nasdaq or others is required for the issuance and sale of the Securities. Other than agreements that shall terminate, in accordance with their terms, at the closing of the Business Combination, there are no shareholders agreements, voting agreements or other similar agreements with respect to the Company’s or Psyence’s capital stock to which the Company is a party or, to the knowledge of the Company or Psyence, between or among any of the Company’s shareholders or Psyence’s shareholders, as applicable.
(h) The financial statements set forth on Schedule 3.1(h) fairly present in all material respects the financial condition and operating results of the Company and Psyence as of the dates, and for the periods, indicated therein. Except for the liabilities as set forth in such financial statements, neither the Company nor Psyence has any material liabilities or obligations, contingent or otherwise. The financial statements fairly present the consolidated financial position of the Company and Psyence in accordance with GAAP.
(i) Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, or as set forth on Schedule 3.1(i), (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) neither the Company nor Psyence has incurred any liabilities (contingent or otherwise) other than (A) liabilities and obligations incurred in the ordinary course of business consistent with past practice, (B) liabilities not required to be reflected in their respective financial statements pursuant to GAAP or disclosed in filings made with the Commission, and (C) liabilities that are executory obligations arising under contracts to which Psyence or the Company is a party, (iii) neither the Company nor Psyence has altered its method of accounting, (iv) neither the Company nor Psyence has declared or made any dividend or distribution of cash or other property to their respective shareholders or purchased, redeemed or made any agreements to purchase or redeem any shares of their capital stock and (v) neither the Company nor Psyence has issued any equity securities to any officer, director or Affiliate, except pursuant to existing the Company or Psyence stock option plans.
(j) Litigation. Except as disclosed in Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company or Psyence, as applicable, threatened against or affecting the Company or Psyence, any subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii) could, if there were an unfavourable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company, Psyence nor any of their respective subsidiaries, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal, state, or provincial securities laws or a claim of breach of fiduciary duty.
(k) Labor Relations. No labor dispute exists or, to the knowledge of the Company or Psyence, is imminent with respect to any of the employees of the Company or Psyence, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s, Xxxxxxx’s or any of their respective subsidiaries’ employees are a member of a union that relates to such employee’s relationship with the Company, Psyence or such subsidiary, and neither the Company, Psyence nor any of their respective subsidiaries are a party to a collective bargaining agreement, and the Company, Psyence and their respective subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company and Psyence, no executive officer of the Company, Psyence or any of their respective subsidiaries, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favour of any third party, and the continued employment of each such executive officer does not subject the Company or Psyence or any of their respective subsidiaries to any liability with respect to any of the foregoing matters. The Company, Psyence and their respective subsidiaries are in compliance with all federal, state, provincial, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l) Compliance. Neither the Company, Psyence nor any of their respective subsidiaries: (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company, Psyence or any of their subsidiaries under), nor have the Company, Psyence or any of their respective subsidiaries received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state, provincial, and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.
(m) Environmental Laws. The Company, Psyence and each of their respective subsidiaries (i) are in compliance with all federal, state, provincial, local and foreign laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(n) Regulatory Permits. The Company, Psyence and each of their respective subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, provincial, local or foreign regulatory authorities necessary to conduct their respective businesses, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company, Psyence nor any of their respective subsidiaries has received any notice of proceedings relating to the revocation or modification of any Material Permit.
(o) Title to Assets. The Company, Psyence and their respective subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company, Psyence and their respective subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company, Psyence and their respective subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company, Psyence and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company, Psyence and their respective subsidiaries are in compliance.
(p) Intellectual Property. The Company, Psyence and their respective subsidiaries have, or have rights to use, all intellectual property rights and similar rights necessary or required for use in connection with their respective businesses which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither the Company, Psyence nor any of their respective subsidiaries has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement. Neither the Company, Psyence nor any of their respective subsidiaries has received a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company and Psyence, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company, Psyence and their respective subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(q) Insurance. The Company, Psyence and their respective subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company, Psyence and their respective subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage. Neither the Company, Psyence nor any or their respective subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
(r) Transactions with Affiliates and Employees. Except as set forth on Schedule 3.1(r), none of the officers or directors of the Company, Psyence or any of their respective subsidiaries and, to the knowledge of the Company and Psyence, none of the employees of the Company, Psyence or any of their respective subsidiaries is presently a party to any transaction with the Company, Psyence or any of their respective subsidiaries (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from providing for the borrowing of money from or lending of money to, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company and Psyence, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company or Psyence, as applicable, and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company or Psyence, as applicable.
(s) Certain Fees. Except as set forth on Schedule 3.1(s), there are no brokerage or finder’s fees or commissions that are or will be payable by the Company, Psyence or any of their respective subsidiaries to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchaser shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
(t) Private Placement. Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.3, no registration under the Securities Act nor filing of a prospectus with any securities regulatory authority in Canada is required for the offer and sale of the Securities by the Company or Psyence to the Purchaser as contemplated hereby.
(u) Investment Company. The Company and Psyence are not, and are not an Affiliate of, and immediately after receipt of payment for the Securities, will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Companies Act of 1940, as amended. The Company and Psyence shall conduct their business in a manner so that they will not become an “investment company” subject to registration under the Investment Companies Act of 1940, as amended.
(v) Registration Rights. Except as set forth on Schedule 3.1(v) or as set forth in the SEC Reports, other than the Purchaser, no Person has any right to cause the Company, Psyence or any of their respective subsidiaries to effect the registration under the Securities Act of, nor the filing of a prospectus with any securities regulatory authority in Canada in respect of, any securities of the Company, Psyence or any of their respective subsidiaries.
(w) Disclosure. All of the disclosure furnished by or on behalf of the Company and Psyence to the Purchaser regarding the Company, Psyence and their respective subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, are true and correct and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Company and Psyence acknowledge and agree that the Purchaser does not make and has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.3 hereof.
(x) No Integrated Offering. Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.3, neither the Company, nor any of its Affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of (i) the Securities Act which would require the registration of any such securities under the Securities Act, or (ii) any applicable shareholder approval provisions of any Trading Market on which any of the securities of the Company are listed or designated.
(y) Solvency. Based on the consolidated financial condition of the Company and Psyence as of each Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s and Psyence’s assets exceed the amount that will be required to be paid on or in respect of the Company’s and Psyence’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s and Psyence’s assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company and Psyence, consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company and Psyence, together with the proceeds the Company and Psyence would receive, were they to liquidate all of their assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of their liabilities when such amounts are required to be paid. The Company and Psyence do not intend to incur debts beyond their ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company and Psyence have no knowledge of any facts or circumstances which lead them to believe that they will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. Neither the Company, Psyence nor any of their respective subsidiaries are in default with respect to any indebtedness for borrowed money or money due under any long-term leasing or factoring arrangement.
(z) Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, the Company, Psyence and their respective subsidiaries each (i) has made or filed all federal, state, provincial, and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations and (iii) has set aside on their books provision reasonably adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company, Psyence or of any of their respective subsidiaries know of no basis for any such claim.
(aa) No General Solicitation. Neither the Company, Psyence nor any Person acting on behalf of the Company or Psyence has offered or sold any of the Securities by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to the Purchaser and certain other “accredited investors” within the meaning of Rule 501 under the Securities Act.
(bb) Foreign Corrupt Practices. Neither the Company, Psyence nor any of their respective subsidiaries, nor to the knowledge of the Company, Psyence or any of their respective subsidiaries, any agent or other person acting on behalf of the Company, Psyence or any of their respective subsidiaries, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, or (iii) failed to disclose fully any contribution made by the Company, Psyence or any of their respective subsidiaries (or made by any person acting on its behalf of which the Company is aware) which is in violation of law.
3.2 Representations and Warranties of Sponsor. Sponsor hereby makes the following representations and warranties to the Purchaser as of the Initial Closing and as of each subsequent Closing:
(a) Sponsor has full corporate power, authority and capacity to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by Sponsor of this Agreement, and the compliance by Sponsor with the provisions of this Agreement, have been duly authorized by all requisite corporate or limited liability company action of Sponsor. No other corporate or limited liability company actions or proceedings are required to be taken by or on the part of Sponsor to authorize and permit the execution, delivery and performance by Sponsor of this Agreement. This Agreement has been duly executed and delivered by Xxxxxxx and (assuming due authorization, execution and delivery by each other party hereto and/or thereto) constitute a legal, valid and binding obligation, enforceable against Sponsor in accordance with its terms.
(b) Immediately prior to the transactions contemplated in this Agreement, Sponsor will be the sole legal and beneficial owner of all of the Structuring Shares, and no Person other than Sponsor has any claim, by contract or otherwise, of rights, title or legal or beneficial ownership in or to the Structuring Shares. Upon consummation of the transactions contemplated by this Agreement, the Purchaser shall own valid title to the Structuring Shares, free and clear of all encumbrances. None of the Structuring Shares were issued in violation of any contract, arrangement or commitment to which Sponsor is a party or are subject or in violation of any preemptive or similar rights of any Person.
(c) The execution, delivery and performance by Sponsor of this Agreement, and the consummation of the transactions contemplated hereby, do not and will not: (a) conflict with or result in a violation or breach of any provision of any applicable law, conflict with, result in a violation or breach of, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, result in the acceleration of or create in any party the right to accelerate, terminate, modify or cancel, any contract to which Sponsor is a party or by which Sponsor is bound or to which any of Sponsor’s properties or assets are subject, or any permit affecting the properties, assets or business of Sponsor, or (b) result in the creation or imposition of any encumbrance on any properties or assets of Sponsor. No consent, approval, permit or governmental order of, declaration or filing with or notice to, any governmental authority is required by or with respect to Sponsor in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. There are no Actions or Proceedings against or by that challenge or seek to prevent, enjoin or otherwise delay or could adversely affect any of Sponsor’s properties or assets or the transactions contemplated by this Agreement.
3.3 Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants as of the applicable Closing to the Company as follows (unless as of a specific date therein, in which case they shall be accurate as of such date):
(a) Organization; Authority. The Purchaser is an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of the Purchaser. Each Transaction Document to which it is a party has been duly executed by the Purchaser, and when delivered by the Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Purchaser, enforceable against it in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(b) Own Account. The Purchaser understands that, other than the Structuring Shares which will be fully registered), the Securities are “restricted securities” and have not been registered under the Securities Act or any applicable state or provincial securities law and is acquiring the Securities as principal for its own account and not with a view to or for distributing or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state or provincial securities law, has no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state or provincial securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities in violation of the Securities Act or any applicable state or provincial securities law (this representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with applicable federal, state, and provincial securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
(c) Purchaser Status. At the time the Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which it converts the Note it will be an “accredited investor” as defined in Rule 501(a) under the Securities Act.
(d) Experience of Such Purchaser. The Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.
(e) General Solicitation. The Purchaser is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to the knowledge of the Purchaser, any other general solicitation or general advertisement.
(f) Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. The Purchaser acknowledges and agrees that the Company and Psyence do not make and have not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.1 and Section 3.2 hereof.
(g) Residency. The Purchaser is not resident in any province or territory of Canada.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Transfer Restrictions.
(a) The Securities may only be disposed of in compliance with applicable state, federal, and provincial securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of the Purchaser or in connection with a pledge as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Securities under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and the Registration Rights Agreement and shall have the rights and obligations of the Purchaser under this Agreement and the Registration Rights Agreement.
(b) The Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of legend(s) on any of the Securities (other than the Structuring Shares) in the following forms:
“NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE OR CONVERTIBLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.”
and
“UNLESS PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE LATER OF (I) [INSERT THE DISTRIBUTION DATE], AND (II) THE DATE THE ISSUER BECAME A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY OF CANADA.”
(c) The Company shall remove, or cause to be removed, any legend (including the legend set forth in Section 4.1(b) hereof) from certificates evidencing the Underlying Shares: (i) while a registration statement (including the Registration Statement) covering the resale of such security is effective under the Securities Act, (ii) following any sale of such Underlying Shares pursuant to Rule 144, (iii) if such Underlying Shares are eligible for sale under Rule 144 or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) or applicable Canadian provincial securities laws. The Company shall request its counsel issue a legal opinion to the Transfer Agent or the Purchaser promptly if required by the Transfer Agent to effect the removal of any legends hereunder, or if requested by the Purchaser, respectively, without charge to such Purchaser. If all or any portion of a Note is converted at a time when there is an effective registration statement to cover the resale of the Underlying Shares, or if such Underlying Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Underlying Shares and without volume or manner-of-sale restrictions or if any such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) or applicable Canadian provincial securities laws then such Underlying Shares shall be issued free of all legends. The Company agrees that following such time as any such legend is no longer required under this Section 4.1(c), it will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the DWAC transfer by the Purchaser to the Company or the Transfer Agent of the Underlying Shares, as applicable, issued with a restrictive legend (such date, the “Legend Removal Date”), remove any legend from the Underlying Share held electronically by the Purchaser; provided that such Purchaser shall have previously delivered to the Company all documents required by the Company’s Transfer Agent and/or counsel to deliver Underlying Shares that are free of restrictive legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 4. The Underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of such Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Shares as in effect on the date of delivery of the Underlying Shares, as applicable, issued with a restrictive legend.
(d) In addition to such Purchaser’s other available remedies, the Company shall pay to the Purchaser, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of Underlying Shares (based on the VWAP of the Common Shares on the date such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend(s) and subject to Section 4.1(c) or for any Structuring Shares which have not been delivered to the Purchaser within the time frame set forth in Section 2.1(d), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date (or delivery date with respect to the Structuring Shares) until such electronic shares no longer contain any restrictive legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to the Purchaser by the Legend Removal Date (or the delivery date with respect to the Structuring Shares) the Securities that are free from all restrictive and other legends and (b) if after the Legend Removal Date the Purchaser purchases (in an open market transaction or otherwise) Common Shares to deliver in satisfaction of a sale by the Purchaser of all or any portion of the number of Common Shares, or a sale of a number of Common Shares equal to all or any portion of the number of Common Shares that the Purchaser anticipated receiving from the Company without any restrictive legend (including with respect to the Structuring Shares), then, an amount equal to the excess of the Purchaser’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the Common Shares so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Underlying Shares that the Company was required to deliver to the Purchaser by the Legend Removal Date (or the delivery date with respect to the Structuring Shares) multiplied by (B) the lowest closing sale price of the Common Shares on any Trading Day during the period commencing on the date of the delivery by the Purchaser to the Company of the applicable Underlying Shares or Structuring Shares (as the case may be) and ending on the date of such delivery and payment under this clause (ii).
(e) The Purchaser agrees with the Company that the Purchaser will sell any Securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Securities are sold pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend(s) from the Securities as set forth in this Section 4.1 is predicated upon the Company’s reliance upon this understanding.
4.2 Acknowledgment of Dilution. The Company acknowledges that the issuance of the Securities may result in dilution of the outstanding Common Shares, which dilution may be substantial under certain market conditions. The Company further acknowledges that its obligations under the Transaction Documents, including, without limitation, its obligation to issue the Underlying Shares and Structuring Shares pursuant to the Transaction Documents, are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the effect of any such dilution or any claim the Company may have against the Purchaser and regardless of the dilutive effect that such issuance may have on the ownership of the other shareholders of the Company.
4.3 Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would require the registration under the Securities Act of the sale of the Securities or that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.
4.4 Conversion Procedures. The form of Notice of Conversion included in the Note sets forth the totality of the procedures required of the Purchaser in order to convert the Note. Without limiting the preceding sentences, no ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required in order to convert the Note. No additional legal opinion, other information or instructions shall be required of the Purchaser to convert the Note. The Company shall honor conversions of the Note and shall deliver Underlying Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents.
4.5 Indemnification of the Purchaser. Subject to the provisions of this Section 4.5, the Company will indemnify and hold the Purchaser and the Purchaser’s directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls the Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any the Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company or Psyence in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any regulatory agency or stockholder of the Company who is not an Affiliate of the Purchaser Party, with respect to the Transactions or regulatory filings made by the Company in connection therewith (unless such action is solely based upon a material breach of the Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings the Purchaser Party may have with any such stockholder or any violations by the Purchaser Party of state or federal securities laws or any conduct by the Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought against the Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, the Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser under this Agreement (y) for any settlement by the Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to the Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by the Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.5 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of the Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
4.6 Reservation of Securities. The Company shall maintain a reserve of the Required Minimum from its duly authorized Common Shares for issuance pursuant to the Transaction Documents in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.
4.7 Disclosure. The Company shall provide to the Purchaser for review prior to filing with the Commission a draft of the Form 8-K disclosing the Purchaser’s purchase of the Securities and a summary of the Transaction Documents, and shall reasonably consult with the Purchaser regarding such disclosure, and such disclosure shall include all material non-public information provided by the Company or its representatives to the Purchaser prior to such date.
4.8 Subsequent Equity Sales. From the date hereof until sixty (60) days after the effective date of a Resale Registration Statement registering all of the Underlying Securities for the First Tranche Note and Second Tranche Note, 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 capital stock, capital stock equivalents pursuant to a Variable Rate Transaction or other registered or public offering (each an “Equity Issuance”); provided, however, that in the event that the Purchaser delays investment of the Subscription Amounts with respect to the Second Tranche Note due to the occurrence of an event outlined in Section 2.1(b) hereof, such period shall be extended by 60 days or such earlier date as the deficiency is resolved. Further, any subsequent Equity Issuance completed after that date but prior to the time that the Purchaser no longer holds any Securities shall contain provisions requiring that any equity issued thereunder be locked up until the later of sixty (60) days from the Equity Issuance or the registration of such equity (or qualification by prospectus in Canada); provided, however, that in the event that the Purchaser delays investment of the Subscription Amounts with respect to the Second Tranche Note due to the occurrence of an event outlined in Section 2.1(b) hereof, such period shall be extended by 60 days or such earlier date as the deficiency is resolved. Notwithstanding the foregoing, this Section 4.8 shall not apply in respect of any issuance of securities at the closing of the Business Combination, including, but not limited to, securities that may be issued to third parties in lieu of cash payable at the closing of the Business Combination, provided that any such third parties shall enter into lockup agreements on identical terms to the form of lock-up agreement attached as Exhibit D, or an Exempt Issuance.
4.9 No Hedging. The Purchaser, the Company and Sponsor each hereby agrees (and with respect to Sponsor shall cause each member of Sponsor to agree) that neither it, nor any person or entity acting on its behalf or pursuant to any understanding with it, shall execute any short sales (as such term is defined in Regulation SHO under the Exchange Act, 17 CFR 242.200) or engage in other hedging transactions of any kind directly with respect to any Common Shares of the Company during the period from the date of this Agreement through each Closing (or such earlier termination of this Agreement).
4.10 Liens. The Company and its subsidiaries shall not create or suffer to exist any Lien on or with respect to the Collateral of the Company or such subsidiary, whether now owned or hereafter acquire, other than any Lien created under the Transaction Documents or purchase money security interests created in the ordinary course of business where the collateral is limited to the specific assets involved in such transaction.
4.11 Dividends. The Company or its subsidiary, directly or indirectly, agrees not to prepay, repurchase or declare or pay any cash dividend or distribution on any of its capital stock without the prior written consent of the Purchaser.
4.12 Termination.
(a) If, prior to the Closing, any governmental authority, including the Commission, issues comments with respect to or challenges the enforceability of the Transactions in a manner that the Company believes in its sole discretion could result in a material delay in the Business Combination or material liability to the Company, the Company shall be permitted to immediately terminate the Transaction without liability; provided, however, that in the event of such a termination, the Company shall remain responsible for legal fees incurred in connection with the Transaction pursuant to Section 5.1 hereof and will in good-faith allow the Purchaser to review all comments received that informed the decision to the extent permitted by the governmental authority or applicable law.
(b) If, prior to the Closing, any governmental authority, including the Commission, issues comments with respect to or challenges the enforceability of the Transactions in a manner that the Purchaser believes in its sole discretion could result in material liability to the Purchaser, the Purchaser shall be permitted to immediately terminate the Transactions without liability; provided, that in the event of such termination, the Company shall remain responsible for legal fees incurred in connection with the Transactions pursuant to Section 5.1 hereof and will in good-faith allow the Company to review all comments received that informed the decision to the extent permitted by the governmental authority or applicable law.
ARTICLE V.
MISCELLANEOUS
5.1 Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement; provided, however, that the Company shall reimburse the Purchaser for expenses incurred in connection with the Transactions, in connection with the First Tranche Note, no later than two business days following each Closing, which amount will be netted from the Subscription Amount.. The Company shall pay all Transfer Agent and Conversion Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any conversion or exercise notice delivered by the Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchaser.
5.2 Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.3 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earlier of (a) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Business Day, (b) the next Business Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Business Day, (c) the second (2nd) Business Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
5.4 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchaser, or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any amendment effected in accordance with this Section 5.4 shall be binding upon the Purchaser and holder of Securities and the Company.
5.5 Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
5.6 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchaser (other than by merger). The Purchaser may assign any or all of its rights under this Agreement to any Person to whom the Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the Purchaser.
5.7 No Third-Party Beneficiaries. This 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.
5.8 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under this Agreement, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.
5.9 Survival. The representations and warranties contained herein shall survive each Closing and the delivery of the Securities.
5.10 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
5.11 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.12 Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.13 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchaser and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate.
5.14 Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled.
5.15 Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
5.16 Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and Common Shares in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Shares that occur after the date of this Agreement.
5.17 WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| PSYENCE BIOMEDICAL LTD. | ||
| By: | ||
| Name: | ||
| Title: | ||
| PSYENCE BIOMED II CORP. | ||
| By: | ||
| Name: | ||
| Title: | ||
| [ ], as Purchaser | ||
| By: | ||
| Name: | ||
| Title: | ||
| [ ], as Purchaser | ||
| By: | ||
| Name: | ||
| Title: | ||
| NEWCOURT SPAC SPONSOR LLC | ||
| By: | ||
| Name: | ||
| Title: |
EXHIBIT A
FORM OF NOTE
EXHIBIT B
FORM OF REGISTRATION RIGHTS AGREEMENT
EXHIBIT C
WIRE TRANSFER INSTRUCTIONS
EXHIBIT D
FORM OF LOCKUP AGREEMENT
Schedule I
Schedule of Investment Amounts
