SECURITIES PURCHASE AGREEMENT
Exhibit 10.12
This
Securities Purchase Agreement (this “Agreement”), dated as of July 10,
2013, is by and between Enlight Biosciences, LLC, a Delaware
limited liability corporation (the “Seller”), and each purchaser
identified on Schedule
A hereto (each, including its successors and assigns, a
“Purchaser” and
collectively, the “Purchasers”).
RECITALS
A. Seller
owns 8,432,832 shares of Common Stock, $0.001 par value
(“Common
Stock”) (“Shares”), and a warrant to
purchase 8,432,832 shares of Common Stock, (“Warrant”), issued by Endra, Inc.
(the “Company”). The Shares and the
Warrant are collectively referred to herein as the
“Securities”);
B. Seller
desires to sell to the Purchasers such Securities, and Purchasers,
severally and not jointly, desire to purchase the Securities from
Seller, in each case upon the terms and subject to the conditions
set forth herein; and
C. Simultaneously
with the execution and delivery of this Agreement, the Purchasers
are purchasing from the Company certain senior promissory notes in
the aggregate principal amount of $115,000 (the “Notes”) (the “Note Financing”).
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, and other good and valuable
consideration, the receipt and sufficient of which are hereby
acknowledged, and intending to be legally bound hereby, the parties
agree as follows:
ARTICLE I - THE
SECURITIES
Section 1.1 Sale and Purchase of
the Securities. In reliance
upon the representations and warranties made herein, Seller agrees
to sell the Securities to Purchasers, and Purchasers agree,
severally and not jointly, to purchase the Securities from
Seller.
Section
1.2 Purchase
Price. The aggregate purchase
price for the Securities (the “Purchase
Price”) shall be $820.00,
which Purchase Price shall be allocated to the Purchasers as set
forth on Schedule A
hereto.
Section
1.3 Closing.
The closing of the purchase and sale of the Securities (the
“Closing”) shall be held concurrently with the
execution and delivery of this Agreement. At the Closing, Seller
will deliver to the Purchaser and the Company (i) the original
Warrant, together with a written assignment thereof assigning the
Warrant to Purchaser; (ii) irrevocable notice of the transfer
of the Securities from Seller to Purchasers; and
(iii) confirmation from the Company acknowledging the transfer
of the Securities, and Purchasers will deliver the Purchase Price
(in the amounts set forth on Schedule A
hereto, to Seller by wire transfer of
immediately available funds to the account specified by
Seller.
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ARTICLE II - REPRESENTATIONS AND WARRANTIES OF
SELLER
Seller
represents and warrants to Purchaser as follows:
Section
2.1 Title to
Securities. Seller holds record
and beneficial ownership of the Securities, free and clear of any
and all security interests, pledges, mortgages, liens, charges,
encumbrances, adverse claims, restrictions, or other burdens or
encumbrances of any kind (“Liens”), other than those restrictions arising
from applicable federal and state securities laws or the Articles
of Incorporation of the Company, and the delivery of the Securities
to Purchaser at the Closing pursuant to this Agreement will
transfer to Purchaser valid legal and beneficial ownership thereto
free and clear of all Liens, other than those restrictions arising
from applicable federal and state securities laws or otherwise
described in this Section 2.1.
Section
2.2 Power and Authority of
Seller. Seller has all
requisite power and authority to execute, deliver and perform this
Agreement and to execute and deliver the Shares, Warrants,
certificates or instruments to be executed and delivered pursuant
hereto by Seller and to consummate the transactions contemplated
hereby. This Agreement has been duly and validly authorized,
executed, and delivered by Seller and constitutes the valid and
binding obligation of Seller, enforceable against Seller in
accordance with its terms, except to the extent that such
enforceability (i) may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws relating to
creditors’ rights generally, and (ii) is subject to
general principles of equity.
Section
2.3 Absence of Conflicting
Agreements. The execution,
delivery, and performance of this Agreement and the consummation of
the transactions contemplated hereby do not with or without the
giving of notice, the lapse of time, or both: (i) contravene or
conflict with, or constitute a violation of, any judgment,
injunction, order, or decree binding upon or applicable to Seller,
(ii) require any consent, approval, or other action by any third
party, (iii) contravene or conflict with, or constitute a violation
of, any agreement to which Seller is a party or by which Seller is
bound, or (iv) result in the creation or imposition of any Lien on
the Securities.
Section
2.4 Broker’s
Fees. Seller does not have any
liability or obligation to pay any fees or commissions to any
broker, finder or agent with respect to the transactions
contemplated hereby, or based in any way upon arrangements,
agreements, or understandings made by or on behalf of Seller
hereunder.
Section
2.5 Ownership.
The Securities represent the only securities issued by the Company
that are beneficially owned, controlled or under common control of
Seller. Seller owns no securities issued by the Company that may be
converted into, exercisable for, or otherwise exchanged for Common
Stock or other securities of the Company. Notwithstanding the
foregoing, Purchasers acknowledge that Seller owns a membership
interest in Endra Holdings, LLC (“Endra
Holdings”), and that Endra Holdings owns 4,528,594 shares of
Common Stock in the Company, which shares are subject to an
irrevocable proxy issued to Purchaser or a representative
thereof.
Section
2.6 Absence of Certain
Information. To the best of
Seller’s knowledge, no contract or other agreement to which
the Company is a party or by which the Company is bound would be
triggered or otherwise affected as a result of consummation of the
transactions contemplated by this Agreement, or the Note Financing.
Notwithstanding the generality of the foregoing, to the best of
Seller’s knowledge, no party has the right to accelerate
performance by the Company, or terminate any agreement to which the
Company is a party, as a result of the consummation of the
transactions contemplated by this Agreement or the Note
Financing.
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ARTICLE III -
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchasers
represent and warrant, severally and not jointly, to Seller as
follows:
Section
3.1 Accredited Investor
and investment Purpose.
Purchaser is an “accredited investor” as that term is
defined in Rule 50l(a) of the Securities Act. The Securities will
be acquired for investment for Purchaser’s own account. not
as a nominee or agent, and not with a view to the resale or
distribution or any part thereof in violation of the Securities
Act, and Purchaser has no present intention of selling, granting
any participation in, or otherwise distributing the same in
violation of the Securities Act.
Section
3.2 Power and
Authority. Purchaser has all
requisite power and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly and validly authorized, executed and
delivered by Purchaser and constitutes the valid and binding
obligation of Purchaser, enforceable in accordance with its terms,
except to the extent that such enforceability (i) may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditors’ rights generally and (ii) is
subject to general principles or equity.
Section
3.3 Broker’s
Fees. Purchaser does not have
any liability or obligation to pay any fees or commissions to any
broker, finder or agent with respect to the transactions
contemplated hereby or based in any way upon agreements,
arrangements or understandings made by or on behalf or Purchaser
hereunder.
Section
3.4 Absence of Conflicting
Agreements. The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, do not, with
or without the giving of notice, the lapse of lime or both: (i)
contravene or conflict with, or constitute a violation of, any
judgment, injunction, order or decree binding upon or applicable to
Purchaser; (ii) require any consent, approval or other action by
any third party; or (iii) contravene or conflict with, or
constitute a violation of, any agreement to which Purchaser is a
party or by which Purchaser is bound.
Section
3.5 Purchaser
(i) is a sophisticated investor and has such knowledge and
experience in financial and business matters as to be capable of
evaluating independently the merits, risks and suitability of
entering into this Agreement and the transactions contemplated
hereby; (ii) has conducted its own analysis and due diligence and
independently obtained such information as it deems necessary in
order to make an informed investment decision with respect to the
Securities; (iii) is able to hear the risks attendant to the
transactions contemplated hereby; and (iv) acknowledges that (a) no
public market exists for the Securities, (b) the Securities are
being sold hereunder in a private transaction, and (c) the
Purchase Price was negotiated privately between the parties
hereto.
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ARTICLE IV - COVENANTS OF
THE PARTIES
Section
4.1 Subsequent
Financings. In the event on or
before two (2) years from the date of this Agreement the Company
enters into a securities purchase agreement or similar agreement to
issue securities to any Purchaser in a financing, or series of
financings, Seller shall have the right, but not the obligation, to
purchase up to 20% of the securities proposed to be issued to such
Purchaser under the same terms and conditions as offered to
Purchasers (“Purchase
Right”). In the event any
Purchaser is obligated to offer the Purchase Right to Seller
hereunder, such Purchaser shall provide written notice of such
Purchase Right to Seller setting forth the terms and conditions of
the Purchase Right (“Option
Notice”). Seller shall
have three (3) business days following receipt of the Option Notice
to notify the Purchaser, in writing, of Seller’s election to
exercise the Purchase Right. In the event Seller exercises the
Purchase Right by delivering written notice of such election to the
Purchaser with three (3) business days following receipt of the
Option Notice, Purchaser shall assign its right to acquire the
securities to Seller or otherwise assign the Purchase Right to the
Seller, consistent with the terms and conditions set forth in this
Section 4.1. In the event the Purchaser does not receive written
notice from Seller of its election to exercise the Purchase Right,
the Purchaser shall have the right to consummate the purchase of
the securities from the Company, in whole or in part on
substantially the terms and conditions set forth in the Option
Notice. In the event the Purchaser fails to provide Seller with the
Option Notice, Seller’s sole remedy shall be to provide
written notice to the Purchaser of such Purchaser’s failure
to provide the required Option Notice, and to immediately tender
payment for such purchase to the Purchaser. Failure to pay the
purchase price for the exercise of the Purchase Right within five
(5) business days following Seller’s receipt of actual or
constructive notice of the financing or series of financings giving
rise to the Purchase Right shall constitute a waiver of
Seller’s right to exercise the Purchase Right. The Purchasers
agree and covenant not to enter into any agreement with the Company
to purchase securities unless such agreement is assignable to
Seller and/or such agreement includes reference to the Purchase
Right granted to Seller hereunder.
Section
4.2 Liquidity
Event.
(a) In
the event (i) the Company files a registration statement with the
Securities and Exchange Commission (“Commission”), which registration statement registers
any of the Securities for sale to the public under the Securities
Act of 1933, as amended, and such registration statement is
declared effective by the Commission (an “IPO”) and any Purchaser sells any or part of
the Securities in the public market; (ii) the Purchasers sell any
or part of their Securities to a subsequent purchaser in a private
transaction (a “Covered
Sale”); or (iii) the
Company is acquired by, combines or merges with another company in
which (A) the Company is not the surviving entity, and (B) such
transaction results in the Purchasers receiving cash or other
consideration for its interest in the Securities; and/or (C) the
Purchasers are required or elect to tender their Securities for or
in consideration for cash or other consideration (each of the
events described in Section 4.2(a)(i) through (iii) are
“Covered
Transactions”), such
Purchaser shall pay to Seller, within ten (10) business days
following consummation of the Covered Transaction, an amount equal
to six percent (6%) of the cash amount or other consideration
actually received by such Purchaser in connection with such Covered
Transaction. The parties agree and acknowledge that (i) the Shares
shall bear a legend referencing the terms and conditions set forth
in this Section 4.2, and prohibiting their transfer except in
compliance with the terms and conditions hereof; and (ii) the term
“Covered
Sale” shall not include
any transfer of the Securities to a party or person controlling,
controlled by, or under common control of, Purchaser. The parties
further agree and acknowledge that Seller has no other right to
receive any cash or other consideration from a Purchaser, or any
rights to any capital stock in the Company (or voting or other
rights therein) in the event of the consummation of a Covered
Transaction other than as specifically set forth in this Section
4.2 or as a result of the exercise of Seller’s Purchase Right
set forth in Section 4.1.
(b) The
parties agree and acknowledge that the Seller is entering into the
transaction contemplated by this Agreement with the understanding
that the Purchaser will exercise its rights as a shareholder of the
Company to increase shareholder value for all shareholders. Without
limiting the generality of the foregoing, and while no assurances
can be given and without any obligation whatsoever to directly or
indirectly provide financing or otherwise engage directly or
indirectly in a financing or other transaction, assuming Purchaser
owns in excess of fifty percent (50%) of the issued and outstanding
voting securities of the Company, Purchaser will use its reasonable
efforts to obtain from third party sources capital necessary to
fund the Company’s continued operations.
Section
4.3 Inspection
Rights. So long as Purchasers
own at least fifty percent (50%) of the Shares, and provided such
access is not in violation of the laws of the Company’s state
of incorporation or any agreement by and between the Purchaser and
the Company, Purchaser shall provide Seller with quarterly
financial information and other business or other summaries made
available to Purchaser by the Company (“Confidential
Data”). The parties agree
and acknowledge that, as a condition to making the Confidential
Data available to Seller, Seller shall execute a confidentiality
agreement restricting the disclosure or use of the Confidential
Data of the Company by Seller.
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Section
4.4 Further
Assurances. At any time or from
time to time after the Closing, each of Seller and Purchaser shall,
at the reasonable request and expense of the other party or its
counsel (unless such request is occasioned by the breach of a
representation, warranty or covenant of the other party, in which
case it shall be at the expense of such breaching party), execute
and deliver any further instruments or documents and take all such
further action in order to evidence or otherwise facilitate the
consummation of the transactions contemplated
hereby.
Section
4.5 No Other
Representations or Warranties.
Except as set forth in this Agreement, no party is making, or is
relying on, any express or implied representations or warranties
relating to any party or to the consummation of the transactions
contemplated hereby. Each party is making its decision to
consummate the purchase and sale of the Securities described herein
on the basis of its due diligence investigation of the Company and
not on any representation warranty, statement or information made
or communicated (orally or in writing) to by the other party or any
affiliate, representative or agent thereof, other than as set forth
in this Agreement. The representations and warranties made by
Seller and Purchaser in Articles II and III, respectively, shall
survive the Closing and the delivery of the
Securities.
ARTICLE V --
MISCELLANEOUS
Section
5.1 Expenses.
Each party hereto shall pay its own expenses in connection with the
transactions contemplated hereby, whether or not such transactions
shall be consummated.
Section
5.2 Notices.
All notices, requests, demands, waivers and other communications
required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been duly given if (i)
delivered personally; (ii) mailed, certified or registered mail
with postage prepaid; or (iii) sent by next-day or overnight mail
or delivery or sent by telecopy or electronic mail to the address
listed below each party’s name on the signature page hereto
or at such other address as may be specified in writing to the
other parties hereto. All such notices, requests, demands, waivers
and other communications shall be deemed to have been received (i)
if by personal delivery on the day after such delivery,
(ii) if by certified or registered mail, on the fifth business
day after the mailing thereof, (iii) if by next-day or overnight
mail or delivery, on the day delivered and (iv) if by telecopy or
electronic mail on the next day following the day on which such
telecopy was sent, provided that a copy is also sent by certified
or registered mail.
Section
5.3 Governing
Law. This Agreement shall be
construed in accordance with and governed by the laws of the State
of California applicable to agreements made and to be performed
wholly within such jurisdiction.
Section
5.4 Binding Effect;
Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. No
party hereto may assign either this Agreement or any of its rights,
interests or obligations hereunder without the prior written
approval or each or the other parties hereto.
Section
5.5 No Third Party
Beneficiaries. Nothing
in this Agreement shall confer any rights upon any person or entity
other than the parties hereto and their respective successors and
permitted assigns.
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Section
5.6 Amendment; Waivers;
Etc. No amendment, modification
or discharge of this Agreement, and no waiver hereunder, shall be
valid or binding unless set forth in writing and duly executed by
the party against whom enforcement of the amendment, modification,
discharge or waiver is sought. Any such waiver shall constitute a
waiver only with respect to the specific matter described in such
writing and shall in no way impair the rights of the party granting
such waiver in any other respect or at any other time. Neither the
waiver by any of the parties hereto of a breach of or a default
under any of the provisions of this Agreement, nor the failure by
any of the parties. on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right or privilege
hereunder, shall be construed as a waiver of any other breach or
default of a similar nature, or as a waiver of any of such
provisions, rights or privileges hereunder.
Section
5.7 Entire Agreement;
Confidentiality. This Agreement
constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof. Each of
Purchaser and Seller shall maintain the confidentiality of the
terms of the transaction described herein unless otherwise required
by law or regulatory authority, or other legal process, except that
the parties may disclose the terms of the transaction to their
respective affiliates, attorneys, accountants and other
professionals and in connection with the enforcement of the parties
respective rights and obligations hereunder.
Section
5.8 Counterparts;
Facsimile. This Agreement may
be executed in several counterparts, each of which shall be deemed
an original and all of which shall together constitute one and the
same instrument. The reproduction of signatures by means of
telecopying or electronic device shall be treated as though such
reproductions arc executed originals.
[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK
[SIGNATURE PAGE FOR
SELLER FOLLOWS]
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IN
WITNESS WHEREOF, the undersigned have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
SELLER:
By:
Name:
Title:
Number
of Shares of Common Stock
Sold:
Number
of Warrants
Sold:
Purchase
Price:
[SIGNATURE
PAGES FOR PURCHASERS FOLLOWS]
IN
WITNESS WHEREOF, the undersigned have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
Name of
Purchaser:
Signature of Authorized Signatory of
Purchaser:
Name of
Authorized Signatory:
Title
of Authorized
Signatory:
Email
Address of Authorized
Signatory:
Facsimile Number of
Authorized
Signatory:
Address
for Notice to Purchaser:
Address
for Delivery of Securities to Purchaser (if not same as address for
notice):
[PURCHASER
SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
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