Exhibit 4.1
THIS CONVERTIBLE PROMISSORY NOTE AND THE
SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE
BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION
MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
CONVERTIBLE PROMISSORY NOTE
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$ XXX,XXX
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March 29, 2013
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Rockville, Maryland
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For value received,
RegeneRx Biopharmaceuticals, Inc., a Delaware corporation (the “
Company
”), promises to pay to
_________
(the “
Holder
”), the principal sum of
$XXX,XXX
. Interest shall accrue from the date of this Convertible
Promissory Note (this “
Note
”) on the unpaid principal amount at a rate equal to five percent (5%) per annum.
This Note is one of a series of Convertible Promissory Notes containing substantially identical terms and conditions issued
pursuant to that certain Convertible Note Purchase Agreement dated as of March 29, 2013. Such Notes are referred to herein as the
“
Notes
” and the holders thereof are referred to herein as the “
Holders
”. This Note is subject
to the following terms and conditions.
1.
Maturity
.
Unless converted or repaid pursuant to Section 2 or Section 3, the entire unpaid principal sum of this Note, together with accrued
and unpaid interest thereon, will be payable upon the written demand of the Holder at any time after March 29, 2018 (the “
Maturity
Date
”). Subject to Section 3, interest shall accrue on this Note but shall not be due and payable until the written demand
of the Holder on or after the Maturity Date.
Notwithstanding the foregoing, the entire unpaid principal sum of this Note,
together with accrued and unpaid interest thereon, shall become immediately due and payable upon the commission of any act of bankruptcy
by the Company, the execution by the Company of a general assignment for the benefit of creditors, the filing by or against the
Company of a petition in bankruptcy or any petition for relief under the federal bankruptcy act or the continuation of such petition
without dismissal for a period of ninety (90) days or more, or the appointment of a receiver or trustee to take possession of the
property or assets of the Company.
2.
Conversion
.
(a)
Optional
Conversion
.
At any time prior to repayment of this Note, the outstanding principal amount of this Note and accrued but
unpaid interest on this Note (the “
Conversion Amount
”) may, at the option of the Holder, be voluntarily converted
into shares of common stock, $0.001 par value per share (the “
Common Stock
”) of the Company or such other securities
or property for which this Note may become convertible as a result of any adjustment described in Section 2(b). The number of shares
of Common Stock to be issued upon such conversion shall be equal to (i) the Conversion Amount divided by (ii) the Conversion Price
(as defined below). The Conversion Price shall initially be equal to $0.06 per share.
(b)
Adjustment
.
(i) So
long as this Note is outstanding, if the Company shall issue any Common Stock prior to the complete conversion or payment of this
Note, for a consideration per share that is less than the Conversion Price that would be in effect at the time of such issue, then,
and thereafter successively upon each such issuance, the Conversion Price shall be reduced to such other lower issue price. For
purposes of this adjustment, the issuance of any security or debt instrument of the Company carrying the right to convert such
security or debt instrument into Common Stock shall result in an adjustment to the Conversion Price upon the issuance of the above-described
security if such issuance is at a price lower than the then applicable Conversion Price.
(ii) In the event
of changes in the outstanding Common Stock of the Company by reason of stock dividends, split-ups, recapitalizations, reclassifications,
combinations or exchanges of shares, separations, reorganizations, liquidations, consolidation, acquisition of the Company, or
the like, the number, class and type of shares available upon conversion of this Note and the Conversion Price shall be correspondingly
adjusted to give the Holder of the Note, on conversion for the same aggregate Conversion Amount, the total number, class, and type
of shares or other property as the Holder would have owned had the Note been converted prior to the event and had the Holder continued
to hold such shares until the event requiring adjustment. The form of this Note need not be changed because of any such adjustment.
(iii) If at any time
following delivery by Holder to the Company of a Notice of Conversion but prior to issuance of the applicable shares upon conversion,
the holders of Common Stock of the Company (or any shares of stock or other securities at the time receivable upon the conversion
of this Note) shall have received or become entitled to receive, without payment therefor:
(A) Common
Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable
for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend
or other distribution (other than a dividend or distribution covered in Section 2(b)(i) above),
(B) any
cash paid or payable otherwise than as a cash dividend, or
(C) Common
Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination
of shares or similar corporate rearrangement (other than shares of Common Stock pursuant to Section 2(b)(i) above),
then and in each such case, the Holder
hereof will be entitled to receive, in addition to the number of shares of Common Stock receivable pursuant to the Notice of Conversion,
and without payment of any additional consideration therefor, the amount of stock and other securities and property (including
cash in the cases referred to in clauses (B) and (C) above) which such Holder would hold on the date of such exercise had such
Holder been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled
to receive such shares or all other additional stock and other securities and property.
(iv) Upon
the occurrence of each adjustment pursuant to this Section 2(b), the Company at its expense will, at the written request of the
Holder, promptly compute such adjustment in accordance with the terms of this Note and prepare a certificate setting forth such
adjustment, including a statement of the adjusted Conversion Price and adjusted number or type of shares or other securities issuable
upon conversion of this Note (as applicable), describing the transactions giving rise to such adjustments and showing in detail
the facts upon which such adjustment is based. Upon written request, the Company will promptly deliver a copy of each such certificate
to the Holder.
(c)
Mechanics
and Effect of Conversion
.
No fractional shares of the Company’s Common Stock will be issued upon conversion of this
Note. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company will pay to the Holder in cash
the amount of the unconverted principal and interest balance of this Note that would otherwise be converted into such fractional
share. Upon conversion of this Note pursuant to this Section 2, the Holder shall surrender this Note at the principal offices of
the Company, along with a duly executed Conversion Notice in the form attached as Appendix A hereto. At its expense, the Company
will, as soon as practicable thereafter, cause to be issued and delivered to such Holder a certificate or certificates for the
number of shares to which such Holder is entitled upon such conversion, together with a check payable to the Holder for any cash
amounts payable as described herein. Upon conversion of this Note, the Company will be forever released from all of its obligations
and liabilities under this Note with regard to that portion of the principal amount and accrued interest being converted including
without limitation the obligation to pay such portion of the principal amount and accrued interest.
3.
Payment
Terms
. All payments shall be made in lawful money of the United States of America at such place as the Holder hereof may
from time to time designate in writing to the Company. Payment shall be credited first to the accrued interest then due and payable
and the remainder applied to principal. Prepayment of this Note may be made only upon the written consent of a Majority in Interest
(as defined below);
provided
, that all of the Notes shall be prepaid on a
pro rata
basis.
4.
Transfer;
Successors and Assigns
.
The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Notwithstanding the foregoing, the Holder may not assign, pledge, or otherwise transfer
this Note without the prior written consent of the Company, except for transfers to affiliates. Subject to the preceding sentence,
this Note may be transferred only upon surrender of the original Note for registration of transfer, duly endorsed, or accompanied
by a duly executed written instrument of transfer in form satisfactory to the Company. Thereupon, a new convertible promissory
note for the same principal amount and interest will be issued to, and registered in the name of, the transferee. Interest and
principal are payable only to the registered holder of this Note.
5.
Governing
Law
.
This Note and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall
be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles
of conflicts of law.
6.
Notices
.
Any notice required or permitted by this Note shall be in writing and shall be deemed sufficient upon receipt, when delivered personally
or by courier, overnight delivery service or confirmed facsimile or e-mail, or forty-eight (48) hours after being deposited in
the U.S. mail as certified or registered mail with postage prepaid, if such notice is addressed to the party to be notified at
such party’s address, facsimile number or e-mail
as set forth below or as subsequently modified by written notice.
7.
Amendments
and Waivers
.
Any term of this Note may be amended or waived only with the written consent of the Company and the holders
of a majority of the aggregate principal amount of the Notes then outstanding (a “
Majority in Interest
”).
Any amendment or waiver effected in accordance with this Section 7 shall be binding upon the Company, the Holder and each
transferee of this Note.
8.
Stockholders,
Officers and Directors Not Liable
.
In no event shall any stockholder, officer or director of the Company be liable for
any amounts due or payable pursuant to this Note.
9.
Counterparts
.
This Note may be executed in two or more counterparts, all of which together shall constitute one and the same instrument. This
Note may also be executed and delivered by facsimile or other electronic delivery of signature.
10.
Titles
and Subtitles
.
The titles and subtitles used in this Note are used for convenience only and are not to be considered
in construing or interpreting this Note.
[Signature Page Follows]
This Note is executed
and delivered as of the date first set forth above.
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COMPANY:
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REGENERX BIOPHARMACEUTICALS, INC.
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By:
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J.J. Finkelstein
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Chief Executive Officer
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Address:
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AGREED TO AND ACCEPTED:
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(signature)
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Address:
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Appendix
A
Conversion
Notice
To convert this Note in accordance with Section 2(a), check
this box:
o
If you want the stock certificate made out in another person’s
name fill in the form below:
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Print or type other person’s name, address and zip code:
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Date:
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Your signature:
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(Sign exactly as your name appears on the Note)
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Deliver this Notice with the original Note to the offices of
the Company in accordance with Section 2(c) of the Note.
Exhibit 10.1
REGENERX BIOPHARMACEUTICALS, INC.
______________________________
CONVERTIBLE NOTE PURCHASE AGREEMENT
March 29, 2013
Table of Contents
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Page
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SECTION 1.
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DEFINITIONS
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1
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SECTION 2.
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ISSUANCE AND SALE OF THE SECURITIES
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3
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SECTION 3.
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THE CLOSING
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3
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3.1
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Closing
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3
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3.2
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Deliveries by the Company
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3
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3.3
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Deliveries by the Investor
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4
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SECTION 4.
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REPRESENTATIONS, WARRANTIES AND COVENANTS
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4
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4.1
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Representations and Warranties of the Company
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4
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4.2
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Representations and Warranties of the Investor
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6
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SECTION 5.
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CONDITIONS TO CLOSING
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8
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5.1
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Conditions to Closing by the Investor
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8
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5.2
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Conditions to Closing by the Company
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8
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SECTION 6.
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MISCELLANEOUS
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9
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6.1
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Waivers and Amendments
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9
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6.2
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Costs and Expenses
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9
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6.3
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Remedies Cumulative
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9
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6.4
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Remedies Not Waived
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9
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6.5
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Entire Agreement
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9
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6.6
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Specific Performance
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9
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6.7
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Governing Law
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10
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6.8
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Notices
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10
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6.9
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Counterparts
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11
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6.10
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Successors and Assigns
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11
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6.11
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Third Parties
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11
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6.12
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Schedules and Exhibits
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11
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6.13
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Headings
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11
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CONVERTIBLE NOTE PURCHASE AGREEMENT
THIS
CONVERTIBLE NOTE PURCHASE AGREEMENT
(this “
Agreement
”), dated as of March 29, 2013, is entered into
by and between RegeneRx Biopharmaceuticals, Inc., a Delaware corporation (the “
Company
”), and
_______________
(the “
Investor
”)
.
RECITALS
Whereas
,
the Company has authorized the sale and issuance of convertible promissory notes in the form attached hereto as
Exhibit
A
the aggregate principal amount of $225,000 (the “
Notes
”) (the securities issuable on conversion
of the Notes, the “
Conversion Shares
” and, along with the Notes, the “
Securities
”)
for an aggregate purchase amount of $225,000, pursuant to the terms of a series of Agreements on substantially identical terms
to this Agreement;
Whereas
,
the Investor desires to purchase the Securities on the terms and conditions set forth herein; and
Whereas
,
the Company desires to issue and sell the Securities to the Investor on the terms and conditions set forth herein.
Agreement
Now,
Therefore
, in consideration of the foregoing recitals and the mutual promises, representations, warranties, and covenants
hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
SECTION
1.
DEFINITIONS
The following terms
when used in this Agreement shall have the following respective meanings:
“
Applicable
Laws
” has the meaning set forth in Section 4.1(f) hereof.
“
Board
of Directors
” means the Board of Directors of the Company.
“
Capital
Stock
” means (i) with respect to any Person that is a corporation, any and all shares, interests or equivalents in
capital stock (whether voting or nonvoting and whether common or preferred) of such corporation and (ii) with respect to any Person
that is not a corporation, any and all partnership, membership, limited liability company or other equity interests of such Person;
and in each case, any and all warrants, rights or options to purchase any of the foregoing.
“
Certificate
of Incorporation
” means the Certificate of Incorporation of the Company, as in effect and on file with the Secretary
of State of the State of Delaware on the date of this Agreement.
“
Closing
”
has the meaning set forth in Section 3.1 hereof.
“
Closing
Date
” has the meaning set forth in Section 3.1 hereof.
“
Common
Stock
” means the Common Stock of the Company,
par value $0.001 per share
.
“
Conversion
Shares
” has the meaning set forth in the Preamble.
“
Exchange
Act
” means the Securities Exchange Act of 1934, as amended.
“
Governmental
Authority
” means the United States, any state, county or municipality, the government of any foreign country, any
subdivision of any of the foregoing or any authority, department, commission, board, bureau, agency, court or instrumentality of
any of the foregoing.
“
Knowledge
of the Company
,” including the terms “
Know
,” “
Known
” and other
derivatives thereof, means, with respect to the Company, the actual knowledge, after reasonable investigation, of any Responsible
Officer.
“
Lien
”
means any mortgage, lien, pledge, security interest, easement, conditional sale or other title retention agreement or other encumbrance
of any kind except for liens relating to taxes that have accrued but are not yet payable which do not have a Material Adverse Effect.
“
Material
Adverse Effect
” means a material adverse effect upon (i) the condition (financial or otherwise), operations, business,
properties or assets of the Company, (ii) the ability of the Company to perform its obligations under this Agreement or any of
the other agreements or documents contemplated hereby to which it is a party or (iii) the legality, validity or enforceability
of this Agreement or any of the other agreements or documents contemplated hereby or the rights and remedies of the Investor and
the other parties hereunder and thereunder.
“
Material
Agreements
” has the meaning set forth in Section 4.1(e) hereof.
“
Notes
”
has the meaning set forth in the Preamble.
“
Parties
”
refers collectively to the Company and the Investor.
“
Person
”
means an individual, corporation, partnership, joint venture, trust, unincorporated organization, or Governmental Authority.
“
Purchase
Price
” has the meaning set forth in Section 2 hereof.
“
Regulation
D
” has the meaning set forth in Section 4.2(c) hereof.
“
Responsible
Officer
” means, with respect to the Company, the President and Chief Executive Officer, the Vice President of Clinical
and Regulatory Affairs or the Chairman of the Board of Directors.
“
Returns
”
has the meaning set forth in Section 4.1(i) hereof.
“
SEC
”
means the U.S. Securities and Exchange Commission.
“
SEC Reports
”
has the meaning set forth in Section 4.1(h)(i) hereof.
“
Securities
”
has the meaning set forth in the Preamble
.
“
Securities
Act
” means the Securities Act of 1933, as amended.
“
Stockholders
”
has the meaning set forth in Section 4.1(b) hereof.
“
Tax
”
or “
Taxes
” refers to any and all federal, state, national, local, foreign and other taxes, assessments
and other governmental charges, duties, levies, impositions and liabilities relating to taxes, including taxes based upon or measured
by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll,
recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such
amounts and any obligations under any agreements or arrangements with any other person with respect to such amounts and including
any liability for taxes of a predecessor entity.
SECTION
2.
ISSUANCE AND SALE OF THE SECURITIES
At the Closing, the
Company shall issue and sell to the Investor, and such Investor shall purchase, for an aggregate purchase price of $ XXX,XXX (the
“
Purchase Price
”), from the Company, a Note in the principal amount of $ XXX,XXX.
SECTION
3.
THE CLOSING
3.1
Closing
The
closing of the issuance and sale of the Securities pursuant to Section 2 hereof and certain of the other transactions contemplated
hereby (the “
Closing
”) shall take place at the offices of Cooley LLP,
One Freedom Square, Reston
Town Center, 11951 Freedom Drive, Reston, Virginia 20190
, within one business day following the satisfaction
of the conditions specified in Section 8 below, or at such other time or place as the Parties shall mutually agree (the actual
date being referred to herein as the “
Closing Date
”). The Parties agree that the Closing may occur by
facsimile signature and delivery and that the Parties need not appear in person at the Closing.
3.2
Deliveries
by the Company
At or prior to the
Closing, the Company shall deliver or cause to be delivered to the Investor the following items:
(a) The
Note purchased by the Investor hereunder, registered in the name of the Investor and subject to the legends and other restrictions
set forth herein;
(b) a
certificate of the Secretary or Assistant Secretary of the Company, in form and substance satisfactory to counsel for the Investor,
certifying that attached thereto are true and correct copies of (i) the bylaws of the Company, and (ii) resolutions duly and validly
adopted by the Board of Directors authorizing the allotment and issuance of the Securities to the Investor, execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby; and
(c) a
counterpart of this Agreement duly executed by the Company.
3.3
Deliveries
by the Investor
At or prior to the
Closing, the Investor shall deliver or cause to be delivered to the Company the following items:
(a) payment
of the Purchase Price in immediately available funds by wire transfer to an account designated in writing by the Company prior
to the Closing Date;
(b) a
fully completed and duly executed Accredited Investor Certification in the form attached hereto as
Exhibit
B
;
and
(c) a
counterpart of this Agreement duly executed by the Investor.
SECTION
4.
REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1
Representations
and Warranties of the Company
In order to induce the Investor to purchase
the Securities it is purchasing hereunder, the Company represents and warrants to the Investor as of the date hereof that:
(a)
Organization
and Standing
. The Company is duly incorporated and validly existing under the laws of the State of Delaware and has all requisite
corporate power and authority to own or lease its properties and assets and to conduct its business as it is presently being conducted.
(b)
Capitalization
.
Immediately subsequent to the consummation of the transactions contemplated by this Agreement, the authorized Capital Stock of
the Company shall be as set forth on
Schedule 4.1(b)
hereto. The outstanding shares of Capital Stock are all duly and validly
authorized and issued, fully paid and nonassessable, and based in part on the representations of the stockholders of the Company
(the “
Stockholders
”) made in connection with the issuance thereof, were issued in compliance with all
applicable federal and state securities laws.
(c)
Capacity
of the Company; Consents; Execution of Agreements
. The Company has all requisite power, authority and capacity to enter into
this Agreement and to perform the transactions and obligations to be performed by it hereunder. The execution and delivery of this
Agreement and any agreements contemplated hereby by the Company, and the performance by the Company of the transactions and obligations
contemplated hereby and thereby, including, without limitation, the issuance and delivery of the Securities to the Investor, has
been duly authorized by all requisite action of the Company and Stockholders. This Agreement has been duly executed and delivered
by a duly authorized officer of the Company and constitutes a valid and legally binding agreement of the Company, enforceable in
accordance with its respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws of the United States (both state and federal), affecting the enforcement of creditors’ rights or remedies
in general and general equity principles.
(d)
Status
of the Conversion Shares; Reservation of Common Stock
. The Conversion Shares to be issued and purchased hereunder, when issued
by the Company to the Investor and paid for by the Investor pursuant to the terms of this Agreement and the Note will (i) be duly
authorized, validly issued, fully paid and nonassessable, (ii) based on the Investor’s representations in Section 4.2, have
been issued in compliance with all applicable United States federal and state securities laws and (iii) be free and clear of all
Liens. The Company has available sufficient shares of Common Stock for issuance pursuant to the terms of this Agreement.
(e)
Conflicts;
Defaults
. The execution and delivery of this Agreement by the Company and the performance by the Company of the transactions
and obligations contemplated hereby to be performed by it will not (i) materially violate, conflict with, or constitute a default
under any of the terms or provisions of, the Certificate of Incorporation, the bylaws, or any provisions of, or result in the acceleration
of any obligation under, any material contract, note, debt instrument, security agreement, or other instrument to which the Company
is a party or by which the Company, or any of their assets is bound (collectively, the “
Material Agreements
”);
(ii) result in the creation or imposition of any Liens or claims upon the Company’s assets or upon the Company’s Common
Stock; (iii) assuming the accuracy of the Investor’s representations in Section 4.2, constitute a material violation of any
law, statute, judgment, decree, order, rule, or regulation of a Governmental Authority applicable to the Company; or (iv) constitute
an event which, after notice or lapse of time or both, would result in any of the foregoing. The Company is not presently in violation
of its Certificate of Incorporation or bylaws.
(f)
Compliance
with Laws
. The Company is not in violation of, nor do any of its respective operations violate in any respect, any statute,
law, or regulation of any Governmental Authority applicable to the Company (“
Applicable Laws
”), which
violation would have a Material Adverse Effect.
(g)
Litigation
.
As of the date hereof: (i) the Company is not subject to any order of, or written agreement or memorandum of understanding with,
any Governmental Authority which would have a Material Adverse Effect; (ii) there are no material actions, suits, claims, investigations,
or proceedings pending at law or in equity or before or by any Governmental Authority, or, to the Knowledge of the Company, threatened,
against the Company or any of its assets or properties or the transactions contemplated by this Agreement, and to the Knowledge
of the Company, there exist no facts or circumstances which reasonably could be anticipated to result in any such action, suit,
claim, investigation, or proceeding; and (iii) no Person has asserted, and, to the Knowledge of the Company, no Person has a valid
basis upon which to assert, any claims against the Company that would materially adversely affect the transactions contemplated
by this Agreement or result in or form the basis of any such action, suit, claim, investigation or proceeding. There is no material
action, suit, proceeding or investigation by the Company currently pending or which the Company intends to initiate.
(h)
Securities
Laws
.
(i) The
Company has filed all forms, reports and documents with the SEC required to be filed by it pursuant to the federal securities laws
and the SEC rules and regulations thereunder, all of which complied in all material respects with all applicable requirements of
the Securities Act and the Exchange Act (collectively, the “
SEC Reports
”). None of the SEC Reports, including,
without limitation, any financial statements or schedules included therein, at the time filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing) contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light
of circumstances under which they were made, not misleading.
(ii) Based
on the Investor’s representations in Section 4.2, no consent, authorization, approval, permit, or order of or filing with
any Governmental Authority is required in order for the Company to execute and deliver this Agreement or in order for the Company
to offer, issue, sell, or deliver the Securities. Based in part on the representations of the Investor and under the circumstances
contemplated hereby and under current laws and regulations, the offer, issuance, sale and delivery of the Securities to the Investor
is exempt from the registration requirements of the Securities Act.
(i)
Taxes
.
The Company has timely filed or caused to be filed with the appropriate taxing authority all federal, state, national, local and
foreign returns, estimates, information statements and reports (“
Returns
”) relating to Taxes required
to be filed by the Company on or prior to the Closing Date. The Returns have accurately reflected in all material respects and
will accurately reflect in all material respects all liability for Taxes of the Company for the periods covered thereby.
4.2
Representations
and Warranties of the Investor
The Investor hereby represents and warrants
to the Company that as of the date hereof:
(a)
Investment
Intent
. The Securities to be purchased by the Investor hereunder are being purchased for its own account and not with the view
to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act. The
Investor understands that the Securities have not been registered under the Securities Act by reason of their issuance in transactions
exempt from the registration and prospectus delivery requirements of the Securities Act pursuant to Section 4(a)(2) thereof. The
Investor further understands that the certificates representing the Conversion Shares that may be issued pursuant to the conversion
of the Note will bear the following legend and the Investor agrees that it will hold such shares subject thereto:
“THESE SECURITIES HAVE NOT
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”
), OR ANY APPLICABLE STATE
SECURITIES LAWS 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 COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS.”
(b)
Capacity
of the Investor; Execution of Agreement
. The Investor has all requisite power, authority and capacity to enter into this Agreement,
deliver the Purchase Price, and to perform the transactions and obligations to be performed by it hereunder. This Agreement has
been duly authorized, executed and delivered by them and constitutes its valid and legally binding obligation, enforceable in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws, both state and federal, affecting the enforcement of creditors’ rights or remedies in general from time to time in
effect and the exercise by courts of equity powers or their application of principles of public policy.
(c)
Accredited
Investor
. The Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under
the Securities Act (“
Regulation D
”).
(d)
Suitability
and Sophistication
. (i) The Investor has such knowledge and experience in financial and business matters that it is capable
of independently evaluating the risks and merits of purchasing the Securities; (ii) the Investor has independently evaluated the
risks and merits of purchasing the Securities and has independently determined that the Securities are a suitable investment for
it; and (iii) the Investor has sufficient financial resources to bear the loss of their entire investment in the Securities.
(e)
Receipt
of Information
. The Investor believes, after due inquiry and investigation, that it has received all of the information that
it considers necessary or appropriate for deciding whether to purchase the Securities. The Investor further represents that it
has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering
of the Securities and the business, properties, prospects and financial condition of the Company and to obtain additional information
(to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to
verify the accuracy of any information furnished to the Investor. The foregoing, however, does not limit or modify the representations
and warranties of the Company in Section 4 of this Agreement or the right of the Investor to rely thereon.
(f)
Independent
Existence
. The Investor was not formed for the specific purpose of purchasing the Securities.
SECTION
5.
CONDITIONS TO CLOSING
5.1
Conditions
to Closing by the Investor
The obligations of
the Investor to consummate the purchase of the Securities pursuant to Section 2 hereof and certain of the transactions contemplated
by this Agreement are subject to the satisfaction on or prior to the Closing Date of the following conditions, any of which may
be waived in whole or in part in writing by the Investor:
(a) all
representations and warranties of the Company contained in this Agreement shall be true and correct as of the date of this Agreement
and as of the Closing Date as though made anew as of such date (unless another date is specified);
(b) the
Company shall have delivered to the Investor the items required by Section 3.2 of this Agreement;
(c) the
Company shall have performed and complied with all agreements and conditions required by this Agreement to be performed and complied
with by it prior to or as of the Closing Date; and
(d)
all
pre-issuance registrations, qualifications, permits and approvals required, if any, under applicable state securities laws or stock
exchange listing rules for the lawful execution and delivery of this Agreement and the offer, sale, issuance and delivery of the
Securities shall have been obtained.
5.2
Conditions
to Closing by the Company
The obligations of
the Company to consummate the issuance and sale of the Securities pursuant to Section 2 hereof and certain of the transactions
contemplated by this Agreement are subject to the satisfaction on or prior to the Closing Date of the following conditions, any
of which may be waived in whole or in part in writing by the Company:
(a) all
representations and warranties of the Investor contained in this Agreement shall be true and correct as of the date of this Agreement
and as of the Closing Date as though made anew as of such date;
(b) the
Investor shall have delivered to the Company the items required by Section 3.3 of this Agreement;
(c) all
pre-issuance registrations, qualifications, permits and approvals required, if any, under applicable state securities laws or stock
exchange listing rules for the lawful execution and delivery of this Agreement and the offer, sale, issuance and delivery of the
Securities shall have been obtained; and
(d) the
Investor shall have performed and complied with all agreements and conditions required by this Agreement to be performed and complied
with by it prior to or as of the Closing Date.
SECTION
6.
MISCELLANEOUS
6.1
Waivers
and Amendments
This Agreement may
be amended or modified in whole or in part only by a writing which makes reference to this Agreement that is executed by the Investor
and the Company. The obligations of any Party hereunder may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the party claimed to have given the waiver; provided, however,
that any waiver by any party of any violation of, breach of, or default under any provision of this Agreement or any other agreement
provided for herein shall not be construed as, or constitute, a continuing waiver of such provision, or waiver of any other violation
of, breach of or default under any other provision of this Agreement or any other agreement provided for herein.
6.2
Costs
and Expenses
Each party agrees to
pay its own costs and expenses in connection with the preparation, execution and delivery of this Agreement and other instruments
and documents to be delivered hereunder and thereunder.
6.3
Remedies
Cumulative
No specific right,
power, or remedy conferred by this Agreement shall be exclusive, and each such right, power, or remedy shall be cumulative and
in addition to every other right, power, or remedy, whether conferred hereby or by any security of the Company or now or hereafter
available, at law or in equity, by statute or otherwise.
6.4
Remedies
Not Waived
No course of dealing
between the Company and the Investor, and no delay in exercising any right, power, or remedy conferred hereby or by any security
issued by the Company, or now or hereafter available at law or in equity, by statute or otherwise, shall operate as a waiver of
or otherwise prejudice any such right, power, or remedy.
6.5
Entire
Agreement
This Agreement and
the other agreements and instruments expressly provided for herein, together set forth the entire understanding of the parties
hereto and supersede in their entirety all prior contracts, agreements, arrangements, communications, discussions, representations
and warranties, whether oral or written, among the parties with respect to the subject matter hereof.
6.6
Specific
Performance
The Company and the
Investor acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were
not performed in accordance with the specific terms hereof or were otherwise breached. It is accordingly agreed that, to the fullest
extent permitted by law or equity, each of the parties shall be entitled to an injunction or injunctions to prevent or cure breaches
of the provisions of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any
other remedy to which the parties may be entitled by law or equity.
6.7
Governing
Law
This Agreement shall
in all respects be governed by and construed in accordance with the internal substantive laws of the State of Delaware without
giving effect to the principles of conflicts of law thereof.
6.8
Notices
Any notice, request
or other communication required or permitted hereunder shall be in writing and be deemed to have been duly given (a) when personally
delivered or sent by facsimile transmission (the receipt of which is confirmed in writing), (b) one business day after being sent
by a nationally recognized overnight courier service or (c) three business days after being sent by registered or certified mail,
return receipt requested, postage prepaid, to the parties at their respective addresses set forth below.
If to the Company:
RegeneRx Biopharmaceuticals, Inc.
15245 Shady Grove Road
Suite 470
Rockville, MD 20850
Attention: J.J. Finkelstein
Facsimile: 301-208-9194
With a copy, which shall not constitute
notice, to:
Cooley LLP
One Freedom Square, Reston Town Center
11951 Freedom Drive
Reston, VA 20190
Attention: Darren K. DeStefano, Esq.
Facsimile: 703-456-8100
If to the Investor:
To the address set forth below the
Investor’s name on the signature page of this Agreement
Any party by written notice to the others
may change the address or the persons to whom notices or copies thereof shall be directed.
6.9
Counterparts
This Agreement may
be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and
the same instrument.
6.10
Successors
and Assigns
This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
6.11
Third
Parties
Nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon or give any Person other than the parties hereto any
rights or remedies under or by reason of this Agreement.
6.12
Schedules
and Exhibits
The schedules and exhibits
attached to this Agreement are incorporated herein and shall be part of this Agreement for all purposes.
6.13
Headings
The headings in this
Agreement are solely for convenience of reference and shall not be given any effect in the construction or interpretation of this
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF
,
the parties have duly executed, or have caused their duly authorized officer or representative to execute, this Securities Purchase
Agreement as of the date first above written.
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REGENERX BIOPHARMACEUTICALS, INC.
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By:
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Name:
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J.J. Finkelstein
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Title:
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President and Chief Executive Officer
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IN WITNESS WHEREOF
,
the parties have duly executed, or have caused their duly authorized officer or representative to execute, this Securities Purchase
Agreement as of the date first above written.
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 of Purchaser:
___________________________________________
Address for Delivery of Securities for Purchaser (if not same
as address for notice):
____________________________________________
Exhibit
A
FORM OF NOTE
See Exhibit 4.1
Exhibit
B
ACCREDITED INVESTOR CERTIFICATION
The undersigned represents and warrants
to RegeneRx Biopharmaceuticals, Inc. (the “
Company
”) that the undersigned fits within each category marked
below, and that for any category marked, he, she or it has truthfully set forth any description required as provided for below.
ALL INFORMATION WILL BE KEPT STRICTLY CONFIDENTIAL. The undersigned agrees to furnish any additional information that the Company
deems necessary in order to verify the answers set forth below.
(PLEASE MARK EACH CATEGORY APPLICABLE TO YOU)
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The undersigned is an individual (not a partnership, corporation,
etc.) whose individual net worth, or joint net worth with his or her spouse, presently exceeds $1,000,000.
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Explanation.
In calculating net worth you may include equity in personal property and real
estate, including your principal residence, cash, short-term investments, stock and securities. Equity in personal property and
real estate should be based on the fair market value of such property minus debt secured by such property.
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¨
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The undersigned is an individual (not a partnership, corporation,
etc.) who had an income in excess of $200,000 in each of the two most recent years, or joint income with his or her spouse in excess
of $300,000 in each of those years (in each case, including foreign income, tax exempt income and full amount of capital gains
and losses, but excluding any income of other family members and any unrealized capital appreciation), and has a reasonable expectation
of reaching the same income level in the current year.
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¨
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The undersigned is a director or executive officer of the Company.
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¨
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The undersigned is either: (a) a bank as defined in Section 3(a)(2)
of the Securities Act of 1933, as amended (the “
Act
”); (b) a savings and loan association or other institution
as defined in Section 3(a)(5)(A) of the Act, whether acting in its individual or fiduciary capacity; (c) a broker dealer registered
pursuant to Section 15 of the Securities Exchange Act of 1934; (d) an insurance company as defined in Section 2(13) of the Act;
(e) an investment company registered under the Investment Company Act of 1940 or a business development company as defined in Section
2(a)(48) of the Act; (f) a small business investment company licensed by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958; (g) a plan established and maintained by a state, its political subdivisions,
or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such a plan has
total assets in excess of $5,000,000; or (h) an employee benefit plan within the meaning of the Employee Retirement Income Security
Act of 1974 (“
ERISA
”), if the investment decision is made by a plan fiduciary, as defined in Section
3(21) of ERISA, which is either a bank, savings and loan association, insurance company or registered investment advisor, or if
the employee benefit plan has total assets in excess of $5,000,000, or, if a self-directed plan, with investment decisions made
solely by persons that are accredited investors, as defined in Rule (501)(a) promulgated under the Act.
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(describe entity)
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The undersigned is a private business development company as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940.
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(describe entity)
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x
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The undersigned is an organization within the meaning of Section
501(c)(3) of the Internal Revenue Code, a corporation, a business trust, or a partnership, not formed for the specific purpose
of acquiring the Securities, with total assets in excess of $5,000,000.
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(describe entity)
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The undersigned is a trust with total assets in excess of $5,000,000,
not formed for the specific purpose of acquiring the Securities, whose investments are directed by a “
sophisticated
person
” as described in Rule 506(b)(2)(ii) promulgated under the Act.
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¨
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The undersigned is an entity, all the equity owners of which are
“
accredited investors
” within one or more of the above categories.
If relying upon this category alone,
each equity owner must complete a separate copy of this Certificate.
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(describe entity)
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¨
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The undersigned does not meet the criteria of any of the categories listed above.
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THE UNDERSIGNED UNDERSTANDS THAT THE COMPANY
WILL RELY ON THE FOREGOING REPRESENTATIONS TO, AMONG OTHER THINGS, MAINTAIN THE EXEMPTION FOR THE ISSUANCE OF THE SECURITIES FROM
THE REQUIREMENT TO REGISTER SUCH SECURITIES UNDER THE ACT.
The answers to the
foregoing questions are correctly stated to the best of my knowledge, information and belief. I hereby agree to notify the Company
promptly of any changes in the foregoing information.
Dated: ________________
Name of Purchaser:
__________________________________
Signature of Authorized Signatory of
Purchaser
: _________________________________
Name of Authorized Signatory: ____________________
Title of Authorized Signatory: ________
