CONSENT AGREEMENT
Exhibit 10.1
This Consent Agreement (this "Consent Agreement"), dated as of June 24, 2019, is by and among Xenetic Biosciences, Inc., a Nevada corporation (the “Company”), and each of the purchasers identified on the signature pages hereto (each, including its successors and assigns, a "Purchaser" and collectively, the "Purchasers").
Reference is made to that certain Securities Purchase Agreement (the “Agreement”) dated as of March 5, 2019, among the Company and the Purchasers.
WHEREAS, the Board of Directors of the Company (the “Board”) has determined to undertake a reverse stock split of the Company’s common stock in the range of 1-for-5 to 1-for-20 (the “Stock Split”), and
WHEREAS, the Agreement requires the prior written consent of Purchasers holding a majority in interest of the Shares before the Company undertakes the Stock Split.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenant contained in this Consent Agreement (the “Consent Agreement”), and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE
I.
DEFINITIONS
Terms not otherwise defined in this Consent Agreement shall have the meanings ascribed to them in the Agreement.
ARTICLE
II.
CONSENT AND COVENANTS
2.1 Consent. Purchasers hereby consent to the Stock Split (the “Consent”).
2.2 Consideration. In consideration of the Purchasers’ Consent, if the Company effects the Stock Split, on or prior to the seventh Trading Day immediately following the first Trading Day that the Company's common stock trades on a split-adjusted basis following the time on which the Stock Split is effected by the Company's filing of an amendment to its articles of incorporation with the State of Nevada (such first split-adjusted Trading Day, the "Reverse Stock Split Date"), the Company shall issue to each Purchaser a warrant substantially in the form attached as Exhibit A to this Consent Agreement (each a “Warrant” and together the “Warrants”) to purchase that number of shares of the Company’s Common Stock set forth beneath such Purchaser's name on the signature page of this Consent Agreement (the “Warrant Shares”), with such number of Warrant Shares to be adjusted to give effect to the Stock Split, with an exercise price per Warrant Share equal to 105% of the arithmetic average of the VWAPs of the Company's common stock calculated during the five Trading Day period beginning on, and including, the Reverse Stock Split Date.
2.3 Filing of Form 8-K. Prior to 9:00 am ET on June 25, 2019, the Company shall issue a Current Report on Form 8-K, reasonably acceptable to the Purchasers disclosing the material terms of the transactions contemplated hereby, which shall include this form of Consent Agreement (the “8-K Filing”). From and after the issuance of the 8-K Filing, the Company represents to the Purchasers that the Purchasers shall not be in possession of any material, nonpublic information received from the Company, any of its Subsidiaries (as defined below) or any of their respective officers, directors, employees or agents, that is not disclosed in the 8-K Filing. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, employees or agents, on the one hand, and the Purchasers or any of their Affiliates, on the other hand, shall terminate. As used herein, “Subsidiary” means any subsidiary of the Company, and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
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ARTICLE
III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. The Company hereby makes the representations and warranties set forth below to the Purchasers that as of the date of its execution of this Consent Agreement:
(a) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Consent Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Consent Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board or its stockholders in connection therewith other than in connection with (i) any filings required by this Consent Agreement, (ii) such applications for listing of the New Warrant Shares that are required to be filed with the Nasdaq Stock Market in the time and manner required thereby, and (iii) such filings as are required to be made under applicable state securities laws (the “Required Approvals”). This Consent Agreement has been duly executed by the Company and, when delivered in accordance with the terms hereof will constitute the valid and binding obligation of the Company enforceable against the Company 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) Organization. The Company is a duly organized and validly existing corporation in good standing under the laws of the State of Nevada.
(c) No Conflicts. The execution, delivery, and performance of this Consent Agreement by the Company and the consummation by the Company of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the Company’s certificate or articles of incorporation, bylaws, or other organizational or charter documents, or (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, or give to others any rights of termination, amendment, acceleration, or cancellation (with or without notice, lapse of time or both) of, any material agreement, credit facility, debt or other material instrument (evidencing Company debt or otherwise) or other material understanding to which the Company is a party or by which any property or asset of the Company 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 is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company is bound or affected, except in the case of each of clauses (ii) and (iii), such as would not have or reasonably be expected to result in (i) a material adverse effect on the legality, validity or enforceability of this Consent Agreement, (ii) a material adverse effect on the results of operations, assets, business or condition (financial or otherwise) of the Company and its subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this Consent Agreement (any of (i), (ii) or (iii), a “Material Adverse Effect”).
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(d) Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by this Consent Agreement, the Company confirms that neither it nor any other Person acting on its behalf has provided any Purchaser or their agents or counsel with any information that it believes constitutes or might constitute material, non-public information. The Company understands and confirms that Purchasers will rely on the foregoing representation in effecting transactions in securities of the Company. As of the date of this Consent Agreement, all of the disclosure when furnished by or on behalf of the Company to Purchasers regarding the Company and its Subsidiaries, their respective businesses, and the transactions contemplated hereby, including but not limited to the disclosure set forth in the SEC Reports, is true and correct in all material respects and does 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 light of the circumstances under which they were made, not misleading. As used herein, “SEC Reports” means all reports, schedules, forms, statements and other documents required to be filed by the Company as of the date of this Consent Agreement with the Commission pursuant to the reporting requirements of the 1934 Act, including all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein.
(e) Issuance of Securities. The issuance of the Warrants are duly authorized and, upon issuance in accordance with the terms of this Consent Agreement, the Warrants shall be validly issued and free from all preemptive or similar rights (except for those which have been validly waived prior to the date hereof), taxes, liens and charges and other encumbrances with respect to the issue thereof, other than restrictions on transfer under applicable state and federal securities laws and liens or encumbrances created by or imposed by the Purchaser. As of the issuance date of the Warrants, a number of shares of Common Stock shall have been duly authorized and reserved for issuance which equals or exceeds the maximum number of Shares issuable upon exercise of the Warrants (without taking into account any limitations on the exercise of the Warrants set forth therein). Upon exercise of the Warrants in accordance with the terms thereof, the Warrant Shares when issued will be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, taxes, liens, charges and other encumbrances with respect to the issue thereof, other than restrictions on transfer under applicable state and federal securities laws and liens or encumbrances created by or imposed by the Purchaser, with the Purchaser being entitled to all rights accorded to a Purchaser of Common Stock. Assuming the accuracy of each of the representations and warranties set forth in Section 3.2 of this Consent Agreement, the offer and issuance by the Company of the Warrants is exempt from registration under the 1933 Act.
(f) No General Solicitation. Neither the Company, nor any of its Subsidiaries or Affiliates, nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Warrants.
(g) No Integrated Offering. None of the Company, its Subsidiaries or any of their 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 require registration of the issuance of any of the Warrants or the Warrant Shares (collectively, the “Securities”) under the Securities Act, whether through integration with prior offerings or otherwise, or cause this offering of the Securities to require approval of shareholders of the Company for purposes of the Securities Act or any applicable shareholder approval provisions, including, without limitation, under the rules and regulations of the Nasdaq Stock Market. None of the Company, its Subsidiaries, their Affiliates nor any Person acting on their behalf will take any action or steps that would require registration of the issuance of any of the Securities under the Securities Act or cause the offering of any of the Securities to be integrated with other offerings for purposes of any such applicable shareholder approval provisions.
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(h) No Disqualification Events. With respect to Securities to be offered and sold hereunder in reliance on Rule 506(b) under the Securities Act (“Regulation D Securities”), none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Purchaser a copy of any disclosures provided thereunder.
3.2 Representations and Warranties of the Purchaser. Each Purchaser, severally and not jointly, hereby makes the representations and warranties set forth below to the Company that as of the date of its execution of this Consent Agreement:
(a) Organization; Due Authorization. The Purchaser is either an individual or 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 this Consent Agreement and otherwise to carry out its obligations hereunder. The Purchaser represents and warrants that (i) the execution and delivery of this Consent Agreement by it and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on its behalf and (ii) this Consent Agreement has been duly executed and delivered by the Purchaser and constitutes the valid and binding obligation of the Purchaser, enforceable against it in accordance with its terms.
(b) Understandings or Arrangements. The Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty not limiting the Purchaser’s right to sell the Securities pursuant to a registration statement or otherwise in compliance with applicable federal and state securities laws). The Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
(c) No Conflicts. The Purchaser represents and warrants that the execution, delivery and performance of this Consent Agreement by the Purchaser and the consummation by the Purchaser of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the Purchaser’s organizational or charter documents, or (ii) conflict with or result in a violation of any agreement, law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority which would interfere with the ability of the Purchaser to perform its obligations under this Consent Agreement.
(d) Access to Information. The Purchaser acknowledges that it has had the opportunity to review this Consent Agreement 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 merits and risks of investing in the Warrant Shares, the terms and conditions of the offering of the New 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.
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(e) Purchaser Status. The Purchaser represents and warrants that 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 exercises any Warrants, it was or will be an “accredited investor” as defined in Rule 501 under the Securities Act.
(f) Knowledge. 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 Warrants and the Warrant Shares, and has so evaluated the merits and risks of such investment. The Purchaser is able to bear the economic risk of an investment in the Warrants and the Warrant Shares and, at the present time, is able to afford a complete loss of such investment.
(g) Legends; Restricted Securities. (a) The Purchaser understands that the Warrants and the Warrant Shares are not, and may never be, registered under the Securities Act of 1933, as amended (the “Securities Act”), or the securities laws of any state and, accordingly, each certificate, if any, representing such securities shall bear a legend substantially similar to the following:
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE 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. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
ARTICLE
IV.
MISCELLANEOUS
4.1 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be made by email to the email address of the Company or each the Purchaser set forth on the applicable signature pages hereto.
4.2 Survival. All warranties and representations (as of the date such warranties and representations were made) made herein or in any certificate or other instrument delivered by it or on its behalf under this Consent shall be considered to have been relied upon by the parties hereto and shall survive the issuance of the Warrants. This Consent Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties; provided however that no party may assign this Consent or the obligations and rights of such party hereunder without the prior written consent of the other parties hereto.
4.3 Execution. This Consent 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 the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission, 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 signature page were an original thereof.
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4.4 Severability. If any provision of this Consent Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Consent Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Consent.
4.5 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Consent Agreement shall be determined pursuant to the Governing Law provision of the Warrants.
4.6 Entire Agreement. This Consent Agreement, together with the exhibits attached hereto, contain the entire understanding of the parties with respect to the subject matter hereof 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.
4.7 Construction. The headings herein are for convenience only, do not constitute a part of this Consent Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Consent Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.
4.8 Fees and Expenses. Except as expressly set forth herein, 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 Consent Agreement. The Company shall pay all transfer agent fees, stamp taxes and other taxes and duties levied in connection with the delivery of any Warrant Shares.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Consent Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| XENETIC BIOSCIENCES, INC. |
Address for Notice:
00 Xxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxxx, XX 00000 Attn: Xxx Xxxxxxx |
|
By: /s/ Xxx Xxxxxxx Name: Xxx Xxxxxxx Title: Chief Financial Officer With a copy to (which shall not constitute notice): |
E-Mail:x.xxxxxxx@xxxxxxxxxx.xxx Fax: (000) 000-0000 |
Akerman LLP
000 Xxxx Xxx Xxxx Xxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxxx and Xxxxxxx Xxxxxxx
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have caused this Consent Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: EMPERY ASSET MASTER, LTD.
Signature of Authorized Signatory of Purchaser: /s/ Xxxxx Director
Name of Authorized Signatory: Xxxxx Director
Title of Authorized Signatory: General Counsel of Empery Asset Management, LP, authorized agent of Purchaser
Email Address of Authorized Signatory: xxxxxxx@xxxxxxxx.xxx
Number of Warrants to be issued on a pre-Stock Split basis: 13,244
Address for Notice to Purchaser:
c/o Empery Asset Management, LP
0 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
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IN WITNESS WHEREOF, the undersigned have caused this Consent Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: EMPERY TAX EFFICIENT, LP
Signature of Authorized Signatory of Purchaser: /s/ Xxxxx Director
Name of Authorized Signatory: Xxxxx Director
Title of Authorized Signatory: General Counsel of Empery Asset Management, LP, authorized agent of Purchaser
Email Address of Authorized Signatory: xxxxxxx@xxxxxxxx.xxx
Number of Warrants to be issued on a pre-Stock Split basis: 4,711
Address for Notice to Purchaser:
c/o Empery Asset Management, LP
0 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
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IN WITNESS WHEREOF, the undersigned have caused this Consent Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: EMPERY TAX EFFICIENT II, LP
Signature of Authorized Signatory of Purchaser: /s/ Xxxxx Director
Name of Authorized Signatory: Xxxxx Director
Title of Authorized Signatory: General Counsel of Empery Asset Management, LP, authorized agent of Purchaser
Email Address of Authorized Signatory: xxxxxxx@xxxxxxxx.xxx
Number of Warrants to be issued on a pre-Stock Split basis: 82,045
Address for Notice to Purchaser:
c/o Empery Asset Management, LP
0 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
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