JOINDER AGREEMENT
Exhibit 10.21
This Joinder Agreement (the “Joinder Agreement”) is made and dated as of June 3, 2014, and is entered into by and between ZP Holdings, Inc., a Delaware corporation (“ZP Holdings”), and Hercules Technology Growth Capital, Inc., a Maryland corporation, as a Lender.
RECITALS
A. ZP Holdings’s Affiliate, Zosano Pharma, Inc. (“Company”) has entered into that certain Loan and Security Agreement dated June 3, 2014 with Lender, as such agreement may be amended (the “Loan Agreement”), together with the other agreements executed and delivered in connection therewith;
B. ZP Holdings acknowledges and agrees that it will benefit both directly and indirectly from Company’s execution of the Loan Agreement, the Warrant and the other agreements executed and delivered in connection therewith;
AGREEMENT
NOW THEREFORE, ZP Holdings and Lender agree as follows:
| 1. | The recitals set forth above are incorporated into and made part of this Joinder Agreement. Capitalized terms not defined herein shall have the meaning provided in the Loan Agreement. |
| 2. | By signing this Joinder Agreement, ZP Holdings shall be bound by the terms and conditions of the Loan Agreement the same as if it were the Borrower (as defined in the Loan Agreement) under the Loan Agreement, mutatis mutandis, provided however, that (a) all exhibits and schedules referred to in Section 5 or 7 of the Agreement are replaced by the exhibits and schedules attached to this Joinder Agreement, and (b) Lender shall have no duties, responsibilities or obligations to ZP Holdings arising under or related to the Loan Agreement or the other agreements executed and delivered in connection therewith, and (c) that if ZP Holdings is covered by Company’s insurance, ZP Holdings shall not be required to maintain separate insurance or comply with the provisions of Sections 6.1 and 6.2 of the Loan Agreement, and (d) that as long as Company satisfies the requirements of Section 7.1 of the Loan Agreement, ZP Holdings shall not have to provide Lender separate Financial Statements. To the extent that Lender has any duties, responsibilities or obligations arising under or related to the Loan Agreement or the other agreements executed and delivered in connection therewith, those duties, responsibilities or obligations shall flow only to Company and not to ZP Holdings or any other person or entity. By way of example (and not an exclusive list): (a) Lender’s providing notice to Company in accordance with the Loan Agreement or as otherwise agreed between Company and Lender shall be deemed provided to ZP Holdings; (b) Lender’s providing an Advance to Company shall be deemed an Advance to ZP Holdings; and (c) ZP Holdings shall have no right to request an Advance or make any other demand on Lender. |
| 3. | ZP Holdings acknowledges that it benefits, both directly and indirectly, from the Loan Agreement and the delivery of the Warrant, and hereby waives, for itself and on behalf on any and all successors in interest (including without limitation any assignee for the benefit of creditors, receiver, bankruptcy trustee or itself as debtor-in-possession under any bankruptcy proceeding) to the fullest extent provided by law, any and all claims, rights or defenses to the enforcement of this Joinder Agreement or the Warrant on the basis that (i) it failed to receive adequate consideration for the execution and delivery of this Joinder Agreement or Warrant, or (ii) its obligations under this Joinder Agreement or Warrant are avoidable as a fraudulent conveyance. |
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Joinder Agreement - ZP Holdings
[SIGNATURE PAGE TO JOINDER AGREEMENT]
| ZP HOLDINGS, INC.: | ||||
| /s/ Xxxxxx Xxxxx |
. | |||
| By: | ||||
| Name: | Xxxxxx Xxxxx | |||
| Title: | CEO | |||
| Address: 00000 Xxxxxxxxx Xxxxx | ||
| Xxxxxxx, XX 00000 | ||
| Telephone: 000-000-0000 | ||
| Facsimile: 000-000-0000 | ||
| HERCULES TECHNOLOGY GROWTH CAPITAL, INC. a Maryland corporation | ||
| Signature: | /s/ Ben Bang | |
| Print Name: | Ben Bang | |
| Title: | Senior Counsel | |
| Address: | 000 Xxxxxxxx Xxx., Xxxxx 000 Xxxx Xxxx, XX 00000 Facsimile: 000-000-0000 | |
| Telephone: 000-000-0000 | ||
Joinder Agreement - ZP Holdings
EXHIBIT C
NAME, LOCATIONS, AND OTHER INFORMATION FOR ZP HOLDINGS
1. ZP Holdings represents and warrants to Lender that ZP Holdings’ current name and organizational status as of the Closing Date is as follows:
| Name: | ZP Holdings, Inc. | |
| Type of organization: | Corporation | |
| State of organization: | Delaware | |
| Organization file number: | 5101027 | |
2. ZP Holdings represents and warrants to Lender that for five (5) years prior to the Closing Date, ZP Holdings did not do business under any other name or organization or form except the following:
Name: none
Used during dates of: n/a
Type of Organization:
State of organization:
Organization file Number:
ZP Holdings’ fiscal year ends on December 31
ZP Holdings’ federal employer tax identification number is: 00-0000000
3. ZP Holdings represents and warrants to Lender that its chief executive office is located at 00000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000.
EXHIBIT D
ZP HOLDINGS PATENTS, REGISTERED TRADEMARKS, REGISTERED
COPYRIGHTS, APPLICATIONS FOR THE FOREGOING AND MATERIAL
LICENSES
None.
Schedule 1
Subsidiaries
Borrower (Zosano Pharma, Inc.), a Delaware corporation located at 00000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000.
Zosano, Inc. (formerly named Eco Planet Corp.), a Delaware corporation located at 00000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000.
ZP Holdings is the ultimate parent of ZP Group LLC, a Delaware limited liability company and wholly owned subsidiary of Borrower located at 00000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000.
Schedule 1A
Existing Permitted Indebtedness
Secured Promissory Note in the original principal amount of $8,556,533 issued to BioMed Realty Holdings, Inc. by ZP Holdings, Inc. (and subsequently assigned by BioMed Realty Holdings, Inc. to its affiliate BMV Direct SOTRS LP), which Secured Promissory Note is subordinated to the Secured Obligations pursuant to the Subordination Agreement. As of the Closing Date, the principal and interest outstanding under such note totals $10,065,540.00.
Convertible Promissory Note dated September 9, 2013 in the original principal amount of $303,372 issued to BMV Direct SO LP by ZP Holdings, Inc. As of the Closing Date, the principal and interest outstanding under such note totals $321,125.50.
Convertible Promissory Note dated September 9, 2013 in the original principal amount of $991,047.43 issued to BMV Direct SOTRS LP by ZP Holdings, Inc. As of the Closing Date, the principal and interest outstanding under such note totals $1,049,044.07.
Convertible Promissory Note dated September 9, 2013 in the original principal amount of $1,159,532.21 issued to New Enterprise Associates 12, Limited Partnership by ZP Holdings, Inc. As of the Closing Date, the principal and interest outstanding under such note totals $1,227,388.67.
Convertible Promissory Note dated September 9, 2013 in the original principal amount of $579,766.10 issued to ProQuest Investments IV, L.P. by ZP Holdings, Inc. As of the Closing Date, the principal and interest outstanding under such note totals $613,694.33.
Convertible Promissory Note dated September 9, 2013 in the original principal amount of $5.30 issued to ProQuest Management LLC by ZP Holdings, Inc. As of the Closing Date, the principal and interest outstanding under such note totals $5.61.
Convertible Promissory Note dated February 26, 2014 in the original principal amount of $249,000 issued to BMV Direct SO LP by ZP Holdings, Inc. As of the Closing Date, the principal and interest outstanding under such note totals $254,293.81.
Convertible Promissory Note dated February 26, 2014 in the original principal amount of $1,069,709.23 issued to BMV Direct SOTRS LP by ZP Holdings, Inc. As of the Closing Date, the principal and interest outstanding under such note totals $1,092,451.54.
Convertible Promissory Note dated February 26, 2014 in the original principal amount of $1,181,290.77 issued to New Enterprise Associates 12, Limited Partnership by ZP Holdings, Inc. As of the Closing Date, the principal and interest outstanding under such note totals $1,206,405.34.
Schedule 1B
Existing Permitted Investments
100% stock ownership of Borrower (Zosano Pharma, Inc.), a Delaware corporation located at 00000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000.
100% stock ownership of Zosano, Inc. (formerly named Eco Planet Corp.), a Delaware corporation located at 00000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000.
Borrower holds 100% of the membership interests in ZP Group LLC, a Delaware limited liability company located at 00000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000.
Schedule 1C
Existing Permitted Liens
Secured liens on all assets held by BioMed Realty Holdings, Inc. and BMV Direct SOTRS LP, which secured liens are subordinated to Lender’s Lien pursuant to the Subordination Agreement.
Schedule 5.14
Capitalization
ZP Holdings’ capitalization as of the Closing Date is as follows: 30,000,000 authorized shares of Common Stock, 20,427,250.579 of which are outstanding and held as follows:**
| Name of Stockholder |
No. of Shares | |||
| ALZA Corporation |
7,052.067 | |||
| Xxxxxxx Xxxxx |
16.000 | |||
| Xxxxxxxxx Xxxxx |
0.491 | |||
| Xxxxx Xxxxxxx |
22.000 | |||
| BMV Direct SO LP |
1,816,975.000 | |||
| BMV Direct SOTRS LP |
6,193,293.000 | |||
| Xxxxxx Xxxxx |
2.000 | |||
| Xxxxx Xxxxxxx |
1,275,151.000 | |||
| Xxxxxx Xxxx |
2.455 | |||
| HMB BioCapital (EUR) L.P. |
391.253 | |||
| HMB BioCapital (US) L.P. |
132.442 | |||
| HBM BioVentures (Cayman) Ltd. |
2,094.779 | |||
| Xxxxxxxx X. Xxxx |
0.931 | |||
| Xxxxxx Xxxxx |
2,525,000.000 | |||
| Xxxxxx Xxx |
6.000 | |||
| Xxxxx Xxxxx |
1.000 | |||
| Xxx Xxxxxxx |
8.000 | |||
| NEA Ventures 2006, Limited Partnership |
19.836 | |||
| New Enterprise Associates 12, Limited Partnership |
7,175,524.904 | |||
| Nomura Phase4 Ventures L.P. |
787,522.946 | |||
| Xxxx Xxxxx |
17.000 | |||
| Xxxxxx Xxxxxx |
11.000 | |||
| ProQuest Investments IV, L.P. |
643,392.870 | |||
| ProQuest Management LLC |
6.000 | |||
| Xxxx Xxxxxx |
10.605 | |||
| Xxxx Xxxxxxx |
30.000 | |||
| Samantha Xxxxxx Xxxxxxxxx |
1.000 | |||
| Xxxx Xxxxxxx |
467.000 | |||
| Xxxxxxxx xxx Xxxxx |
44.000 | |||
| Xxxxxx Xxxxxx |
5.000 | |||
| Xxxx Xxxxxxx |
50.000 | |||
| ** | On the Closing Date, ZP Holdings will issue an additional 125,000 shares of Common Stock to BMV Direct SOTRS LP pursuant to a Stock Purchase Agreement dated as of the Closing Date between ZP Holdings and BMV Direct SOTRS LP. |
ZP Holdings has reserved 2,264,108 shares of Common Stock for issuance pursuant to the terms of its 2012 Stock Incentive Plan. Options to purchase 2,171,396 of such shares have been granted and are outstanding.
Pursuant to that certain Note Purchase Agreement dated as of September 9, 2013 by and among ZP Holdings and the purchasers named therein, ZP Holdings issued (and there are currently outstanding) Convertible Promissory Notes dated September 9, 2013 in the aggregate original principal amount of $3,033,723.04 (as set forth on Schedule 1A), which Convertible Promissory Notes automatically convert into equity securities of ZP Holdings upon the closing of a Qualified Financing as more fully described in such Note Purchase Agreement.
Pursuant to that certain Note Purchase Agreement dated as of February 26, 2014 by and among ZP Holdings and the purchasers named therein, ZP Holdings issued (and there are currently outstanding) Convertible Promissory Notes dated February 26, 2014 (as set forth in Schedule 1A) in the aggregate original principal amount of $2,500,000, which Convertible Promissory Notes automatically convert into equity securities of ZP Holdings upon the closing of a Qualified Financing as more fully described in such Note Purchase Agreement.
See Schedule 1 for list of Subsidiaries of ZP Holdings.
Schedule 7.9
Licenses
None.
