THIS WARRANT AND THE UNDERLYING
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES
ACT”) OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. THE SECURITIES MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER APPLICABLE SECURITIES LAWS OR UNLESS OFFERED,
SOLD, PLEDGED, HYPOTHECATED OR TRANSFERRED PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS. THE
COMPANY SHALL BE ENTITLED TO REQUIRE AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
TO THE EXTENT THAT AN OPINION IS REQUIRED PURSUANT TO THE AGREEMENT
UNDER WHICH THE SECURITIES WERE ISSUED.
ENDRA LIFE SCIENCES
INC.
COMMON STOCK WARRANT
December 11,
2019
Void After December 11, 2024
THIS CERTIFIES
THAT, for value received and
subject to the terms and conditions set forth below, [__________],
or assigns (the “Holder”),
is entitled to subscribe for and purchase at the Exercise Price
(defined below) from ENDRA Life Sciences Inc., a Delaware
corporation (the “Company”),
[________]1 fully-paid and non-assessable shares
of Company Common Stock. This Warrant is being issued
pursuant to that certain Securities Purchase Agreement, by and
between the Company and Holder and the other Buyers party thereto
(the “Buyers”),
dated as of December 5, 2019 (the “Agreement”).
1. DEFINITIONS.
As used herein, the following terms
shall have the following respective meanings:
(a) “Closing
Price”
means, for any date, the price determined by the first of the
following clauses that applies: (a) if the Common Stock
is then listed or quoted on the NASDAQ Capital Market or any other
national securities exchange, the closing price per share of the
Common Stock for such date (or the nearest preceding date) on the
primary eligible market or exchange on which the Common Stock is
then listed or quoted; (b) if prices for the Common Stock are then
quoted on the OTC Bulletin Board or any tier of the OTC Markets,
the closing bid price per share of the Common Stock for such date
(or the nearest preceding date) so quoted; or (c) if prices for the
Common Stock are then reported in the “Pink Sheets”
published by the National Quotation Bureau Incorporated (or a
similar organization or agency succeeding to its functions of
reporting prices), the most recent closing bid price per share of
the Common Stock so reported.
(b) “Common
Stock” shall mean Company’s Common Stock, par
value $0.0001 per share.
(c) “Daily
VWAP” means for each trading day, the per share
volume-weighted average price of the Common Stock as displayed
under the heading “Bloomberg VWAP” on Bloomberg page
“NDRA <equity> AQR” (or its equivalent successor
if such page is not available) in respect of the period from the
scheduled open of trading until the scheduled close of trading of
the primary trading session on such trading day (or if such
volume-weighted average price is unavailable, the market value of
one share of the Common Stock on such trading day determined, using
a volume-weighted average method, by a nationally recognized
independent investment banking firm retained for this purpose by
the Company). The “Daily VWAP” will be determined
without regard to after-hours trading or any other trading outside
of the regular trading session trading hours.
(d) “Exercise
Period” shall mean the period commencing the date of
issuance and ending five years after the date of issuance on
December 11, 2024, unless sooner terminated as provided
below.
(e) “Exercise
Price” shall mean
$0.87.
(f) “Sale
of the Company” shall
mean (i) a transaction or series of related transactions
with one or more non-affiliates, pursuant to which such
non-affiliate(s) acquires capital stock of the Company or the
surviving entity possessing the voting power to elect a majority of
the board of directors or a majority of the outstanding capital
stock of the Company or the surviving entity (whether by merger,
consolidation, sale or transfer of the Company’s outstanding
capital stock or otherwise); or (ii) the sale, lease or other
disposition (including exclusive license) of all or substantially
all of the Company’s assets or any other transaction
resulting in all or substantially all of the Company’s assets
being converted into securities of any other entity or cash;
provided, however, that the sale by the Company of capital stock
for the purpose of financing its business shall not be deemed to be
a Sale of the Company.
(g) “Warrant
Shares” shall mean the
shares of the Company’s Common Stock issuable upon exercise
of this Warrant, subject to adjustment pursuant to the terms
herein, including but not limited to adjustment pursuant to
Section 5
below.
___________________________
2. EXERCISE
OF WARRANT.
(a) Method
of Exercise. The rights
represented by this Warrant may be exercised in whole or in part at
any time during the Exercise Period, by delivery of the following
to the Company:
(i) An
executed Notice of Exercise in the form attached
hereto;
(ii) This
Warrant; and
(iii) Payment
of the then applicable Exercise Price per share multiplied by the
number of Warrant Shares being purchased upon exercise of the
Warrant (such amount, the “Aggregate
Exercise Price”) made in
the form of cash, or by certified check, bank draft or money order
payable in lawful money of the United States of America or in the
form of a Cashless Exercise to the extent permitted in Section 2(c)
below.
(b) Mandatory
Exercise. If, during the
Exercise Period, (x) the simple average of the Daily VWAP for ten
(10) consecutive trading days is greater than $1.74 and (y) there
is an effective registration statement registering under the
Securities Act the resale of the Warrant Shares, then following
receipt of notice thereof from the Company the Holder shall have
thirty (30) days to exercise the Warrant (the
“Mandatory
Exercise Period”). After
the 30-day Mandatory Exercise Period terminates, any unexercised
portion of the Warrant will be forfeited, and the Holder shall lose
any and all rights to such unexercised Warrant. The
dollar amount set forth in this Section 2(b)
shall be subject to adjustment in the
same manner as the Exercise Price pursuant to Section 5
below.
(c) Cashless
Exercise. If
at any time during the term of this Warrant there is no effective
registration statement registering under the Securities Act, or no
current prospectus available for, the issuance or resale of the
Warrant Shares by the registered holder, the Holder may exercise
this Warrant only by means of a “cashless” or
“net-issue” exercise (a “Cashless
Exercise”) by delivering to the
Company (i) the Notice of Exercise and (ii) the original Warrant,
pursuant to which the Holder shall surrender the right to receive
upon exercise of this Warrant, a number of Warrant Shares having a
value (as determined below) equal to the Aggregate Exercise Price,
in which case, the number of Warrant Shares to be issued to the
Holder upon such exercise shall be calculated using the following
formula:
X = Y * (A -
B)
A
with:
X
=
the
number of Warrant Shares to be issued to the Holder
Y =
the
number of Warrant Shares with respect to which the Warrant is being
exercised
A =
the
fair value per share of Common Stock on the date of exercise of
this Warrant
B =
the
then-current Exercise Price of the Warrant
Solely for the purposes of this paragraph,
“fair
value” per share of
Common Stock shall mean the average Closing Price (as defined
below) per share of Common Stock for the twenty (20) trading days
immediately preceding the date on which the Notice of Exercise is
deemed to have been sent to the Company. If the Common Stock is not
publicly traded as set forth above, the “fair value”
per share of Common Stock shall be reasonably and in good faith
determined by the Board of Directors of the Company as of the date
which the Notice of Exercise is deemed to have been sent to the
Company.
For purposes of Rule 144 promulgated under the
Securities Act, it is intended, understood and acknowledged that
the Warrant Shares issued in a cashless exercise transaction shall
be deemed to have been acquired by the Holder, and the holding
period for such shares shall be deemed to have commenced, on the
Effective Date of this Warrant. Notwithstanding anything herein to the contrary,
the Company shall not be required to make any cash payments or net
cash settlement to the Holder in lieu of delivery of the Warrant
Shares.
(d) Partial
Exercise. If this Warrant is
exercised in part only, the Company shall, upon surrender of this
Warrant, execute and deliver, within 10 days of the date of
exercise, a new Warrant evidencing the rights of the Holder, or
such other person as shall be designated in the Notice of Exercise,
to purchase the balance of the Warrant Shares purchasable
hereunder. If the Holder exercises this Warrant or attempts to
exercise this Warrant before the Company shall have delivered to
the Holder a new Warrant as contemplated above, then the Holder
shall be deemed to have validly exercised this Warrant pursuant to
this Section 2
without having complied with the
requirements of Section 2(a)(ii)
or 2(b)(ii),
as applicable. In no event shall this Warrant be exercised for a
fractional Warrant Share, and the Company shall not distribute a
Warrant exercisable for a fractional Warrant Share. Fractional
Warrant Shares shall be treated as provided in Section 7
hereof.
(e) Effect
of Exercise. Upon the exercise
of the rights represented by this Warrant, shares of Common Stock
shall be issued for the Warrant Shares so purchased, and shall be
registered in the name of the Holder or persons affiliated with the
Holder, if the Holder so designates, on or before the third
(3rd) business
day after the rights represented by this Warrant shall have been so
exercised and shall be issued in certificate form and delivered to
the Holder, if so requested. The person in whose name any Warrant
Shares are to be issued upon exercise of this Warrant shall be
deemed to have become the holder of record of such shares on the
date on which this Warrant was surrendered and payment of the
Exercise Price was made, irrespective of the date of issuance of
the shares of Common Stock, except that, if the date of such
surrender and payment is a date when the stock transfer books of
the Company are closed, such person shall be deemed to have become
the holder of such shares at the close of business on the next
succeeding date on which the stock transfer books are
open.
(f) Holder’s
Exercise Limitations. The Company shall not effect any
exercise of this Warrant, and Holder shall not have the right to
exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the
extent that after giving effect to such issuance after exercise,
the Holder (together with the Holder’s Affiliates (as defined
below), and any other persons acting as a group together with the
Holder or any of the Holder’s Affiliates), would beneficially
own in excess of the Beneficial Ownership Limitation (as defined
below). For purposes of the foregoing sentence, the number of
shares of Common Stock beneficially owned by the Holder and its
Affiliates shall include the number of shares of Common Stock
issuable upon exercise of this Warrant with respect to which such
determination is being made, but shall exclude the number of shares
of Common Stock which would be issuable upon (i) exercise of the
remaining, nonexercised portion of this Warrant beneficially owned
by the Holder or any of its Affiliates and (ii) exercise or
conversion of the unexercised or nonconverted portion of any other
securities of the Company (including, without limitation, any other
common stock equivalents) subject to a limitation on conversion or
exercise analogous to the limitation contained herein beneficially
owned by the Holder or any of its Affiliates. Except as set
forth in the preceding sentence, for purposes of this Section 2(e), beneficial
ownership shall be calculated in accordance with Section 13(d) of
the Securities Exchange Act of 1934 (the “Exchange
Act”) and the rules and regulations promulgated thereunder.
To the extent that the limitation contained in this Section 2(e) applies, the
determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any
Affiliates) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission
of a notice of exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any
Affiliates) and of which portion of this Warrant is exercisable, in
each case subject to the Beneficial Ownership Limitation, and the
Company shall have no obligation to verify or confirm the accuracy
of such determination. In addition, a determination as to any group
status as contemplated above shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. For purposes of this Section 2(e), in determining
the number of outstanding shares of Common Stock, Holder may rely
on the number of outstanding shares of Common Stock as reflected in
(A) the Company’s most recent periodic or annual report filed
with the U.S. Securities and Exchange Commission (the
“SEC”), as the case may be, (B) a more recent public
announcement by the Company or (C) a more recent written notice by
the Company or the Company’s transfer agent setting forth the
number of shares of Common Stock outstanding. In any case,
the number of outstanding shares of Common Stock shall be
determined after giving effect to the conversion or exercise of
securities of the Company, including this Warrant, by the Holder or
its Affiliates since the date as of which such number of
outstanding shares of Common Stock was reported. The
“Beneficial Ownership Limitation” shall be 9.99% of the
number of shares of the Common Stock outstanding immediately after
giving effect to the issuance of shares of Common Stock issuable
upon exercise of this Warrant. The Holder, upon not less than 61
days’ prior notice to the Company, may increase the
Beneficial Ownership Limitation provisions of this Section 2(e). Any such increase
will not be effective until the 61st day after such notice is
delivered to the Company. The provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict
conformity with the terms of this Section 2(e) to correct this
paragraph which may be defective or inconsistent with the intended
Beneficial Ownership Limitation herein contained or to make changes
or supplements necessary or desirable to properly give effect to
such limitation. The limitations contained in this paragraph shall
apply to a successor holder of this Warrant.
“Affiliate” means any person that, directly or
indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a person as such
terms are used in and construed under Rule 405 under the Securities
Act.
3. COVENANTS
OF THE COMPANY.
(a) Covenants
as to Warrant Shares. If at any
time the number of authorized but unissued shares of Company Stock
shall not be sufficient to permit exercise of this Warrant, the
Company will take such corporate action as may, in the opinion of
its counsel, be necessary to increase its authorized but unissued
shares of Company Stock (or other securities as provided herein) to
such number of shares as shall be sufficient for such
purposes.
(b) No
Impairment. Except and to the
extent as waived or consented to by the Holder or otherwise in
accordance with Section 2
hereof, the Company will not, by
amendment of its Certificate of Incorporation (as such may be
amended from time to time), or through any means, avoid or seek to
avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the
provisions of this Warrant and in the taking of all such action as
may be necessary or appropriate in order to protect the exercise
rights of the Holder against impairment.
(c) Notices
of Record Date. In the event of
any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof
who are entitled to receive any dividend (other than a cash
dividend which is the same as cash dividends paid in previous
quarters) or other distribution, the Company shall mail to the
Holder, at least ten (10) days prior to the date specified
herein, a notice specifying the date on which any such record is to
be taken for the purpose of such dividend or
distribution.
4. REPRESENTATIONS
OF HOLDER.
(a) Acquisition
of Warrant for Personal Account. The Holder represents and warrants that it is
acquiring the Warrant and the Warrant Shares solely for its account
for investment and not with a present view toward the public
distribution of said Warrant or Warrant Shares or any part thereof
and has no intention of selling or distributing said Warrant or
Warrant Shares or any arrangement or understanding with any other
persons regarding the sale or distribution of said Warrant, except
as would not result in a violation of the Securities Act. The
Holder will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) the Warrant
except in accordance with the Securities Act and will not, directly
or indirectly, offer, sell, pledge, transfer or otherwise dispose
of (or solicit any offers to buy, purchase or otherwise acquire or
take a pledge of) the Warrant Shares except in accordance with the
provisions of the Securities Act.
(b) Securities
Are Not Registered.
(i) The
Holder understands that the offer and sale of the Warrant or the
Warrant Shares have not been registered under the Securities Act on
the basis that no distribution or public offering of the stock of
the Company is to be effected. The Holder realizes that the basis
for the exemption may not be present if, notwithstanding its
representations, the Holder has a present intention of acquiring
the securities for a fixed or determinable period in the future,
selling (in connection with a distribution or otherwise), granting
any participation in, or otherwise distributing the securities. The
Holder has no such present intention.
(ii) The
Holder recognizes that the Warrant and the Warrant Shares may have
to be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is
available. Except as provided in a separate registration rights
agreement between the Holder and the Company, the Holder recognizes
that the Company has no obligation to register the Warrant or the
Warrant Shares, or to comply with any exemption from such
registration.
(iii) The
Holder is aware that neither the Warrant nor the Warrant Shares may
be sold pursuant to Rule 144 adopted under the Securities Act
unless certain conditions are met, including, among other things,
the existence of a public market for the shares, the availability
of certain current public information about the Company, the resale
following the required holding period under Rule 144 and the number
of shares being sold during any three-month period not exceeding
specified limitations. Holder is aware that any such sale made in
reliance on Rule 144, if Rule 144 is available, may be made only in
accordance with the terms of Rule 144.
(c) Disposition
of Warrant and Warrant Shares.
The Holder understands and agrees that all certificates evidencing
the Warrant Shares to be issued to the Holder may bear a legend in
substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 OR ANY APPLICABLE STATE SECURITIES LAWS. THEY MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A OF SUCH
ACT.
5. CHANGES
IN OUTSTANDING SHARES. In the
event of changes in the outstanding Common Stock by reason of stock
dividends, split-ups, recapitalizations, reclassifications,
combinations or exchanges of shares, separations, reorganizations,
liquidations, or the like, the number and class of shares available
under the Warrant in the aggregate and the Exercise Price shall be
correspondingly adjusted to give the Holder of the Warrant, on
exercise for the same aggregate Exercise Price, the total number,
class, and kind of shares as the Holder would have owned had the
Warrant been exercised prior to the event and had the Holder
continued to hold such shares until after the event requiring
adjustment. The form of this Warrant need not be changed because of
any adjustment in the number, class, and kind of shares subject to
this Warrant. The Company shall promptly provide a certificate from
an authorized officer notifying the Holder in writing of any
adjustment in the Exercise Price and/or the total number, class,
and kind of shares issuable upon exercise of this Warrant, which
certificate shall specify the Exercise Price and number, class and
kind of shares under this Warrant after giving effect to such
adjustment.
6. SALE
OF THE COMPANY. In the event of
a Sale of the Company, then the Company shall ensure that lawful
and adequate provision shall be made whereby the Holder shall
thereafter have the right to purchase and receive upon the basis
and upon the terms and conditions herein specified and in lieu of
the Warrant Shares immediately theretofore issuable upon exercise
of this Warrant, such shares of stock, securities or assets
(including cash) as would have been issuable or payable with
respect to or in exchange for a number of Warrant Shares equal to
the number of Warrant Shares immediately theretofore issuable upon
exercise of this Warrant, had such Sale of the Company not taken
place, and in any such case appropriate provision shall be made
with respect to the rights and interests of the Holder to the end
that the provisions hereof (including, without limitation,
provision for adjustment of the Exercise Price) shall thereafter be
applicable, as nearly equivalent as may be practicable in relation
to any share of stock, securities or assets (including cash)
thereafter deliverable upon the exercise thereof. The Company shall
not affect any Sale of the Company unless prior to or
simultaneously with the consummation thereof the successor entity
(if other than the Company) resulting from such Sale of the
Company, or the entity purchasing or otherwise acquiring such
assets or other appropriate corporation or entity shall assume the
obligation to deliver to the Holder, at the last address of the
Holder appearing on the books of the Company, such shares of stock,
securities or assets (including cash) as, in accordance with the
foregoing provisions, the Holder may be entitled to purchase, and
the other obligations under this Warrant. The provisions of
this Section 6
shall similarly apply to successive
Sales of the Company.
7. FRACTIONAL
SHARES, ADJUSTMENT OF EXERCISE PRICE. No fractional shares shall be issued upon the
exercise of this Warrant as a consequence of any adjustment
pursuant hereto. All Warrant Shares (including fractions) issuable
upon exercise of this Warrant may be aggregated for purposes of
determining whether the exercise would result in the issuance of
any fractional share. If, after aggregation, the exercise would
result in the issuance of a fractional share, the Company shall, in
lieu of issuance of any fractional share, round up or down, as
applicable, to the nearest whole number the number of Warrant
Shares to be issued the Holder upon exercise of this Warrant. No
adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least
$0.0001; provided, however, that any adjustments which by reason of
this Section 7
are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 7
shall be made to the $0.0001 or to the
nearest 1/100th of a share, as the case may be.
8. NO
STOCKHOLDER RIGHTS. This
Warrant in and of itself shall not entitle the Holder to any voting
rights or, except as otherwise set forth herein, other rights as a
stockholder of the Company.
9. RESERVATION
OF SHARES. The Company shall at all times reserve and keep
available out of its authorized but unissued shares Common Stock,
solely for the purpose of effecting the conversion of the Note, no
less than 100% of the maximum number of shares issuable on
conversion of the Warrant.
10. TRANSFER
OF WARRANT. Subject to
applicable laws and compliance with Section 4(c)
hereof, this Warrant and all rights
hereunder are transferable, by the Holder in person or by duly
authorized attorney, upon delivery of this Warrant and the form of
assignment attached hereto to any transferee designated by
Holder.
11. LOST,
STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen, mutilated or
destroyed, the Company may, on such terms as to indemnity or
otherwise as it may reasonably impose (which shall, in the case of
a mutilated Warrant, include the surrender thereof), issue a new
Warrant of like denomination and tenor as the Warrant so lost,
stolen, mutilated or destroyed. Any such new Warrant shall
constitute an original contractual obligation of the Company,
whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be at any time enforceable by
anyone.
12. MODIFICATIONS
AND WAIVER. Provisions of this Warrant may be
amended, modified, or a provision or requirement hereof waived only
(a) with the written consent of the Company and the Holder or, (b)
if this Warrant and each other Warrant issued pursuant to the
Agreement then outstanding (collectively with this Warrant, the
“Warrants”) is
similarly amended, modified or waived, with the written consent of
the Company and the holders of a majority of the total number of
such outstanding Warrants (determined by reference to the number of
Warrant Shares acquirable upon the exercise thereof). If this
Warrant (along with the Other Warrants then outstanding) is amended
pursuant to clause (b) of this Section 12, such amendment shall be
binding on the Holder and each holder of each other Warrant whether
or not the Holder or such holder of such other Warrant consents
thereto.
13. NOTICES,
ETC. All notices required or
permitted hereunder shall be in writing and shall be deemed
effectively given as specified in the
Agreement.
14. ACCEPTANCE.
Receipt of this Warrant by the Holder
shall constitute acceptance of and agreement to all of the terms
and conditions contained herein.
15. GOVERNING
LAW. This Warrant shall be
construed and enforced in accordance with, and all questions
concerning the construction, validity, interpretation and
performance of this Warrant shall be governed by, the internal laws
of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of
New York or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State
of New York. The Company hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in
The City of New York, Borough of Manhattan, for the adjudication of
any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Nothing contained
herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. In the event that any
provision of this Warrant is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be
deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable
under any law shall not affect the validity or enforceability of
any other provision of this Warrant. Nothing contained herein shall
be deemed or operate to preclude the Holder from bringing suit or
taking other legal action against the Company in any other
jurisdiction to collect on the Company’s obligations to the
Holder, to realize on any collateral or any other security for such
obligations, or to enforce a judgment or other court ruling in
favor of the Holder. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS NOTE OR ANY TRANSACTION
CONTEMPLATED HEREBY.
16. DESCRIPTIVE
HEADINGS. The descriptive
headings of the several paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. The
language in this Warrant shall be construed as to its fair meaning
without regard to which party drafted this
Warrant.
17. SEVERABILITY.
The invalidity or unenforceability of
any provision of this Warrant in any jurisdiction shall not affect
the validity or enforceability of such provision in any other
jurisdiction, or affect any other provision of this Warrant, which
shall remain in full force and effect.
18. ENTIRE
AGREEMENT. This Warrant, the
Registration Rights Agreement and the Securities Purchase Agreement
between the Holder and the Company dated December 5, 2019
constitute the entire agreement between the parties pertaining to
the subject matter contained in it and supersede all prior and
contemporaneous agreements, representations, and undertakings of
the parties, whether oral or written, with respect to such subject
matter.
[Signature Page Follows]
IN WITNESS
WHEREOF, the Company has caused
this Warrant to be executed by its duly authorized officer as of
December 11, 2019.
ENDRA LIFE SCIENCES INC.
Name:
David Wells
Title:
Chief Financial Officer
Address for
Notice:
ENDRA
Life Sciences Inc.
3600
Green Court, Suite 350
Ann
Arbor, MI 48105
Attention:
Chief Executive Officer
NOTICE OF EXERCISE
TO:
ENDRA LIFE SCIENCES
INC.
(1) The undersigned hereby
irrevocably elects to exercise this Warrant and to purchase
thereunder, ___________________ full shares of ENDRA Life
Sciences Inc. Common Stock issuable
upon exercise of the Warrant and delivery of:
●
$_________
(in cash as provided for in the foregoing Warrant) and any
applicable taxes payable by the undersigned pursuant to such
Warrant; and
●
__________ shares of Common Stock (pursuant to a
Cashless Exercise in accordance with Section 2(b)
of the Warrant) (check here if the
undersigned desires to deliver an unspecified number of shares
equal the number sufficient to effect a Cashless Exercise
[___]).
(2) Please issue a
certificate or certificates representing said shares of Common
Stock in the name of the undersigned or in such other name as is
specified below:
(Name)
(Address)
(3) If the shares issuable upon
this exercise of the Warrant are not all of the Warrant Shares
which the Holder is entitled to acquire upon the exercise of the
Warrant, the undersigned requests that a new Warrant evidencing the
rights not so exercised be issued in the name of and delivered
to:
(Name)
(Address and social security or federal employer identification
number (if applicable))
(4) The undersigned represents
that (i) the aforesaid shares of Company Stock are being
acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution
thereof and that the undersigned has no present intention of
distributing or reselling such shares in violation of the
Securities Act of 1933, as amended (the “Securities
Act”); (ii) the
undersigned is aware of the Company’s business affairs and
financial condition and has acquired sufficient information about
the Company to reach an informed and knowledgeable decision
regarding its investment in the Company; (iii) the undersigned
is experienced in making investments of this type and has such
knowledge and background in financial and business matters that the
undersigned is capable of evaluating the merits and risks of this
investment and protecting the undersigned’s own interests;
(iv) the undersigned understands that the shares of Company
Stock issuable upon exercise of this Warrant have not been
registered under the Securities Act, by reason of a specific
exemption from the registration provisions of the Securities Act,
which exemption depends upon, among other things, the bona fide
nature of the investment intent as expressed herein, and, because
such securities have not been registered under the Securities Act,
they must be held indefinitely unless subsequently registered under
the Securities Act or an exemption from such registration is
available; (v) the undersigned is aware that the aforesaid
shares of Company Stock may not be sold pursuant to Rule 144
adopted under the Securities Act unless certain conditions are met
and until the undersigned has held the shares for the time period
prescribed by Rule 144, that among the conditions for use of Rule
144 is the availability of current information to the public about
the Company; and (vi) the undersigned agrees not to make any
disposition of all or any part of the aforesaid shares of Company
Stock unless and until there is then in effect a registration
statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with said
registration statement, or the undersigned has furnished the
Company with an opinion of counsel, reasonably satisfactory to the
Company, to the effect that such disposition is not required to be
registered pursuant to the Securities Act or any applicable state
securities laws; provided, that no opinion shall be required for any
disposition made or to be made in accordance with the provisions of
Rule 144.
Date:____________________
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Signature:_______________________
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Print
Name:______________________
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ASSIGNMENT FORM
(To assign the foregoing Warrant, subject to compliance with
Section
4(c) hereof, execute this form
and supply required information. Do not use this form to purchase
shares.)
FOR VALUE RECEIVED, the
foregoing Warrant and all rights evidenced thereby are hereby
assigned to:
(Name)
(Address)
Dated: ________________, 20___
Holder’s Name:
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______________________
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Holder’s Signature:
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______________________
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Holder’s Address:
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______________________
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______________________
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______________________
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NOTE: The signature to this
Assignment Form must correspond with the name as it appears on the
face of the Warrant, without alteration or enlargement or any
change whatever. Officers of corporations and those acting in a
fiduciary or other representative capacity should file proper
evidence of authority to assign the foregoing
Warrant.
SECURITIES PURCHASE AGREEMENT
This
SECURITIES PURCHASE AGREEMENT (the “Agreement”) is dated as of the 5th
day of December 2019, by and between ENDRA Life Sciences Inc., a
Delaware corporation (the “Company”), and each individual or entity named on the
Schedule of Buyers attached hereto (each such individual or
entity, individually, a “Buyer” and all of such individuals
or entities, collectively, the “Buyers”).
RECITALS
Subject
to the terms and conditions set forth in this Agreement and
pursuant to Section 4(a)(2) of the Securities Act of 1933, as
amended (the “Securities
Act”), and Rule 506(b) promulgated thereunder, the
Company desires to issue and sell to each Buyer, and each Buyer,
severally and not jointly, desires to purchase from the Company,
securities of the Company as more fully described in this
Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants of the parties hereinafter expressed and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, each intending to be
legally bound, agree as follows:
ARTICLE
I
RECITALS, EXHIBITS, SCHEDULES
The
foregoing recitals are true and correct and, together with the
Schedules and Exhibits referred to hereafter, are hereby
incorporated into this Agreement by this reference.
ARTICLE
II
DEFINITIONS
For
purposes of this Agreement, except as otherwise expressly provided
or otherwise defined elsewhere in this Agreement, or unless the
context otherwise requires, the capitalized terms in this Agreement
shall have the meanings assigned to them in this Article as
follows:
2.1 “Affiliate” means any Person that,
directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person as
such terms are used in and construed under Rule 405 under the
Securities Act.
2.2 “Assets” means all of the
properties and assets of the Company and its Operating Subs,
whether real, personal or mixed, tangible or intangible, wherever
located, whether now owned or hereafter acquired.
2.3 “Buyer’s Purchase Price”
shall mean, with respect to any Buyer, the “Purchase
Price” opposite such Buyer’s name on the Schedule of
Buyers.
2.4 “Claims” means any Proceedings,
Judgments, Obligations, known threats, losses, damages,
deficiencies, settlements, assessments, charges, costs and expenses
of any nature or kind.
2.5 “Common Stock” means the
Company’s common stock, $0.0001 par value per
share.
2.6 “Consent” means any consent,
approval, order or authorization of, or any declaration, filing or
registration with, or any application or report to, or any waiver
by, or any other action (whether similar or dissimilar to any of
the foregoing) of, by or with, any Person, which is necessary in
order to take a specified action or actions, in a specified manner
and/or to achieve a specific result.
2.7 “Contract”
means any written contract, agreement, order or commitment of any
nature whatsoever, including, any sales order, purchase order,
lease, sublease, license agreement, services agreement, loan
agreement, mortgage, security agreement, guarantee, management
contract, employment agreement, consulting agreement, partnership
agreement, shareholders agreement, buy-sell agreement, option,
warrant, debenture, subscription, call or put.
2.8 “Conversion
Price” means $0.87 per
share of the Company’s Common Stock.
2.9 “Conversion
Shares” means the shares
of Common Stock underlying the Preferred Stock together with the
Closing Date Conversion Shares.
2.10 “Encumbrance”
means any lien, security interest, pledge, mortgage, easement,
leasehold, assessment, tax, covenant, restriction, reservation,
conditional sale, prior assignment, or any other encumbrance,
claim, burden or charge of any nature whatsoever.
2.11 “Environmental
Requirements” means all Laws and requirements relating
to human, health, safety or protection of the environment or to
emissions, discharges, releases or threatened releases of
pollutants, contaminants, or Hazardous Materials in the environment
(including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), or otherwise relating to
the treatment, storage, disposal, transport or handling of any
Hazardous Materials.
2.12 “Exchange
Act” shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated
thereunder.
2.13 “GAAP”
means generally accepted accounting principles, methods and
practices set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants, and statements and pronouncements of the
Financial Accounting Standards Board, the SEC or of such other
Person as may be approved by a significant segment of the U.S.
accounting profession, in each case as of the date or period at
issue, and as applied in the U.S. to U.S. companies.
2.14 “Governmental
Authority” means any foreign, federal, state or local
government, or any political subdivision thereof, or any court,
agency or other body, organization, group, stock market or exchange
exercising any executive, legislative, judicial, quasi-judicial,
regulatory or administrative function of government.
2.15 “Hazardous
Materials” means: (i) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or
could become friable, urea formaldehyde foam insulation and
transformers or other equipment that contain dielectric fluid
containing levels of polychlorinated biphenyls (PCB’s); (ii)
any chemicals, materials, substances or wastes which are now or
hereafter become defined as or included in the definition of
“hazardous substances,” “hazardous wastes,”
“hazardous materials,” “extremely hazardous
wastes,” “restricted hazardous wastes,”
“toxic substances,” “toxic pollutants” or
words of similar import, under any Law; and (iii) any other
chemical, material, substance, or waste, exposure to which is now
or hereafter prohibited, limited or regulated by any Governmental
Authority.
2.16 “Judgment”
means any final order, writ, injunction, fine, citation, award,
decree, or any other judgment of any nature whatsoever of any
Governmental Authority.
2.17 “Law”
means any provision of any law, statute, ordinance, code,
constitution, charter, treaty, rule or regulation of any
Governmental Authority applicable to the Company.
2.18 “Leases”
means all leases for real or personal property.
2.19 “Material
Adverse Effect” means with respect to the event, item
or question at issue, that such event, item or question would not
have or reasonably be expected to result in: (i) a material adverse
effect on the legality, validity or enforceability of this
Agreement or any of the Transaction Documents; (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 or its subsidiaries’ ability to
perform, on a timely basis, its or their respective Obligations
under this Agreement or any Transaction Documents.
2.20 “Material
Contract” means any Contract to which the Company is a
party or by which it is bound which has been filed as an exhibit to
the SEC Documents pursuant to Item 601(b)(4) or Item 601(b)(10) of
Regulation S-K promulgated by the SEC.
2.21 “Obligation”
means any debt, liability or obligation of any nature whatsoever,
whether secured, unsecured, recourse, nonrecourse, liquidated,
unliquidated, accrued, absolute, fixed, contingent, ascertained,
unascertained, known, unknown or obligations under executory
Contracts.
2.22 “Ordinary
Course of Business” means the ordinary course of
business consistent with past custom and practice (including with
respect to quantity, quality and frequency).
2.23 “Permit”
means any license, permit, approval, waiver, order, authorization,
right or privilege of any nature whatsoever, granted, issued,
approved or allowed by any Governmental Authority.
2.24 “Person”
means any individual, sole proprietorship, joint venture,
partnership, company, corporation, association, cooperation, trust,
estate, Governmental Authority, or any other entity of any nature
whatsoever.
2.25 “Placement
Agent” means Lake Street Capital Markets,
LLC.
2.26 “Preferred
Stock” means the Company’s Series A Convertible
Preferred Stock, par value $0.0001 per share, having the rights,
preferences and privileges as set forth in the Series A Convertible
Preferred Stock Certificate of Designations, in substantially the
form attached hereto as Exhibit A.
2.27 “Preferred
Stock Issue Price” means $1,000 for each share of
Preferred Stock.
2.28 “Principal
Trading Market” shall mean the Nasdaq Global Select
Market, the Nasdaq Global Market, the Nasdaq Capital Market, the
OTC Markets, including the Bulletin Board and Pink Sheets, the NYSE
Euronext or the New York Stock Exchange, whichever is at the time
the principal trading exchange or market for the Common
Stock.
2.29 “Proceeding”
means any demand, claim, suit, action, litigation, investigation,
audit, study, arbitration, administrative hearing, or any other
proceeding of any nature whatsoever.
2.30 “Real
Property” means any real estate, land, building,
structure, improvement, fixture or other real property of any
nature whatsoever, including, but not limited to, fee and leasehold
interests.
2.31 “Registration
Rights Agreement” means the Registration Rights
Agreement, dated the date hereof, among the Company and the Buyers,
in the form of Exhibit
B attached hereto.
2.32 “SEC”
means the United States Securities and Exchange
Commission.
2.33 “Securities”
means collectively, the Preferred Stock, Conversion Shares,
Warrants and the Warrant Shares, and where applicable the Placement
Agent Warrant.
2.34 “Securities
Act” means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
2.35 “Tax”
means (i) any foreign, federal, state or local income, profits,
gross receipts, franchise, sales, use, occupancy, general property,
real property, personal property, intangible property, transfer,
fuel, excise, accumulated earnings, personal holding company,
unemployment compensation, social security, withholding taxes,
payroll taxes, or any other tax of any nature whatsoever, (ii) any
foreign, federal, state or local organization fee, qualification
fee, annual report fee, filing fee, occupation fee, assessment,
rent, or any other fee or charge of any nature whatsoever, or (iii)
any deficiency, interest or penalty imposed with respect to any of
the foregoing.
2.36 “Tax
Return” means any tax return, filing, declaration,
information statement or other form or document required to be
filed in connection with or with respect to any Tax.
2.37 “Transaction
Documents” means this Agreement, the Warrants, the
Placement Agent Agreement, the Placement Agent Warrant and the
Registration Rights Agreement executed in connection with the
transactions contemplated hereunder.
2.38 “Warrants”
means the Warrants, dated the date hereof, issued by the Company to
each Buyer, in the form of Exhibit C attached hereto,
which will be exercisable commencing the Closing Date until the
fifth anniversary of the Closing Date, at an exercise price per
share of the Company’s Common Stock equal to the Conversion
Price.
2.39 “Warrant
Shares” means the shares of Common Stock underlying
the Warrants.
ARTICLE
III
INTERPRETATION
In this
Agreement, unless the express context otherwise requires: (i) the
words “herein,” “hereof” and
“hereunder” and words of similar import refer to this
Agreement as a whole and not to any particular provision of this
Agreement; (ii) references to the words “Article” or
“Section” refer to the respective Articles and Sections
of this Agreement, and references to “Exhibit” or
“Schedule” refer to the respective Exhibits and
Schedules annexed hereto; (iii) references to a “party”
mean a party to this Agreement and include references to such
party’s permitted successors and permitted assigns; (iv)
references to a “third party” mean a Person not a party
to this Agreement; (v) the terms “dollars” and
“$” means U.S. dollars; (vi) wherever the word
“include,” “includes” or
“including” is used in this Agreement, it will be
deemed to be followed by the words “without
limitation.”
ARTICLE
IV
PURCHASE AND SALE
4.1 Sale and Issuance of Preferred Stock
and Warrants. Subject to the terms and conditions of this
Agreement, each Buyer agrees, severally and not jointly, to
purchase, and the Company agrees to sell and issue to each Buyer,
shares of Preferred Stock and Warrants at an aggregate purchase
price equal to the amount set forth on such Buyer’s signature
page to this Agreement (the “Purchase Price”); provided, if so
elected as indicated on a Buyer’s signature page, in lieu of
the Preferred Stock otherwise deliverable a Buyer may elect to
purchase a number of Conversion Shares (the “Closing Date Conversion Shares”)
equal to the number of shares of Common Stock into which such
shares of Preferred Stock would have been convertible on the
Closing Date (the “Common
Stock Purchase Election”). The number of shares of
Preferred Stock purchased by each Buyer shall equal (a) the
Buyer’s Purchase Price, divided by (b) (i) the Preferred
Stock Issue Price, plus (ii) the number of shares of Common Stock
into which a share of Preferred Stock is initially convertible
times $0.125; provided a Buyer who makes the Common Stock Purchase
Election shall acquire Closing Date Conversion Shares in lieu of
the shares of Preferred Stock otherwise purchasable by such Buyer.
Each Buyer shall also receive Warrants exercisable for a number of
Warrant Shares equal to the number of shares of Common Stock into
which such Buyer’s shares of Preferred Stock are initially
convertible; provided a Buyer who makes the Common Stock Purchase
Election shall receive Warrants exercisable for a number of Warrant
Shares equal to the number of Closing Date Conversion Shares
purchased by such Buyer. The aggregate Purchase Price of the
Preferred Stock, Closing Date Conversion Shares and Warrants sold
hereunder shall be not less than $4,000,000 and not more than
$10,000,000, unless otherwise agreed by the Company and the
Placement Agent. The Company’s agreement with each Buyer is a
separate agreement, and the sale and issuance of the shares of
Preferred Stock, Closing Date Conversion Shares and Warrants to
each Buyer is a separate sale and issuance.
4.2 Closing. The purchase, sale and
issuance of the shares of Preferred Stock, Closing Date Conversion
Shares and the Warrants hereunder (the “Closing”) shall take place at the
offices of K&L Gates LLP, 214 N. Tryon St., 47th Floor,
Charlotte, North Carolina 28202, or such other location as the
parties shall mutually agree, no later than the second business day
following the satisfaction or waiver of the conditions provided in
Articles VIII and IX of this Agreement (other than conditions that,
by their terms, are intended to be satisfied at the Closing, but
subject to the satisfaction or waiver of those conditions) (the
“Closing Date”),
but in no event later than the Outside Closing Date. The Company
and the Buyers agree that the Closing may occur via delivery of
facsimiles or photocopies of the applicable documents.
4.3 Form of Payment; Delivery. At
the Closing, each Buyer shall deliver to the Company the
Buyer’s Purchase Price. Promptly following the Closing, the
Company shall cause (1) the issuance of the shares of Preferred
Stock and Closing Date Conversion Shares by book entry with
Corporate Stock Transfer, Inc., the Company’s transfer agent
and (2) the issuance and delivery to the Buyers of the
Warrants.
ARTICLE
V
BUYERS’ REPRESENTATIONS AND WARRANTIES
Each
Buyer represents and warrants to the Company, that:
5.1 Investment Purpose. Each Buyer
is acquiring the Securities for its own account for investment only
and not with a view towards, or for resale in connection with, the
public sale or distribution thereof, except pursuant to sales
registered or exempted under the Securities Act; provided, however,
that by making the representations herein, each Buyer reserves the
right to dispose of the Securities at any time in accordance with
or pursuant to an effective registration statement covering such
Securities or an available exemption under the Securities Act. The
Buyer acknowledges that a legend will be placed on the certificates
and book entries representing the Securities in the following
form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND ARE
“RESTRICTED SECURITIES” AS THAT TERM IS DEFINED IN RULE
144 UNDER THE SECURITIES ACT. SUCH SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND THE
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION THEREUNDER, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE REASONABLE SATISFACTION OF COUNSEL TO THE
ISSUER.
5.2 Accredited Investor Status.
Each Buyer is an “accredited investor” as that term is
defined in Rule 501(a) of Regulation D, as promulgated under the
Securities Act.
5.3 Reliance on Exemptions. Each
Buyer understands that the Securities are being offered and sold to
it in reliance on specific exemptions from the registration
requirements of United States federal and state securities Laws and
that the Company is relying in part upon the truth and accuracy of,
and each Buyer’s compliance with, the representations,
warranties, agreements, acknowledgments and understandings of each
Buyer set forth herein in order to determine the availability of
such exemptions and the eligibility of each Buyer to acquire the
Securities.
5.4 Information. Each Buyer and its
advisors, if any, have been furnished with all materials relating
to the business, finances and operations of the Company and other
information each Buyer deemed material to making an informed
investment decision regarding its purchase of Preferred Stock and
Warrants hereunder, which have been requested by such Buyer. Each
Buyer acknowledges that it has received and reviewed a copy of the
SEC Documents, which are available on the SEC’s website
(www.sec.gov) at
no charge to Buyers. Buyers acknowledge that each of them may
retrieve all SEC Documents from such website and each Buyer’s
access to such SEC Documents through such website shall constitute
delivery of the SEC Documents to Buyers. Each Buyer and its
advisors, if any, have been afforded the opportunity to ask
questions of the Company and its management. Each Buyer understands
that its investment in the Securities involves a high degree of
risk. Each Buyer is in a position regarding the Company, which,
based upon employment, family relationship or economic bargaining
power, enabled and enables such Buyer to obtain information from
the Company in order to evaluate the merits and risks of this
investment. Each Buyer has sought such accounting, legal and tax
advice as it has considered necessary to make an informed
investment decision with respect to its acquisition of the
Securities. Without limiting the foregoing, each Buyer has
carefully considered the potential risks relating to the Company
and a purchase of Preferred Stock and Warrants hereunder, and fully
understands that the Securities are a speculative investment that
involves a high degree of risk of loss of the Buyer’s entire
investment. Among other things, each Buyer has carefully considered
each of the risks described under the heading “Risk
Factors” in the Company’s Form 10-K filed with the SEC
on March 11, 2019 (the “Form
10-K”).
5.5 Minimum Offering. Each Buyer
understands that the Company may accept such Buyer’s purchase
hereunder at any time once the Company shall have received an
aggregate Purchase Price in the amount of at least $4,000,000 or
such other amount as may be agreed by the Company and the Placement
Agent. Any officer or director of the Company or the Placement
Agent, or any of such parties’ affiliates, may participate in
this offering and their investment, if any, will count towards the
foregoing minimum amount. As such, Buyer understands that the
Company may not receive proceeds hereunder in any amount greater
than $4,000,000, which may limit the Company’s ability to
execute upon its intended business plan.
5.6 No Governmental Review. Each
Buyer understands that no United States federal or state
Governmental Authority has passed on or made any recommendation or
endorsement of the Securities, or the fairness or suitability of
the investment in the Securities, nor have such Governmental
Authorities passed upon or endorsed the merits of the offering of
the Securities.
5.7 Authorization, Enforcement.
This Agreement has been duly and validly authorized, executed and
delivered on behalf of each Buyer and is a valid and binding
agreement of each Buyer, enforceable in accordance with its terms,
except as such enforceability may be limited by general principles
of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors’
rights and remedies.
5.8 No General Solicitation. No
Buyer is purchasing any Securities as a result of any
advertisement, article, notice or other communication published in
any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or any other
general solicitation or general advertisement. Each Buyer
represents that it has a relationship with the Placement Agent or
the Company preceding the offering of the Preferred Stock and
Warrants hereunder.
5.9 Placement Agent. Such Buyer
understands that the Placement Agent has acted solely as the agent
of the Company in the placement of the Securities, and that the
Placement Agent makes no representation or warranty with regard to
the merits of this transaction or as to the accuracy of any
information such Buyer may have received in connection therewith.
Such Buyer acknowledges that it has not relied on any information
or advice furnished by or on behalf of the Placement
Agent.
ARTICLE
VI
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except
as set forth and disclosed in the Company’s SEC Documents (as
defined below), the Company hereby makes the following
representations and warranties to the Buyer. The Disclosure
Schedules shall be arranged in sections corresponding to the
numbered and lettered sections and subsections contained in this
Article VI and
certain other sections of this Agreement, and the disclosures in
any section or subsection of the Disclosure Schedules shall qualify
other sections and subsections in this Article VI only to the extent
it is readily apparent from a reading of the disclosure that such
disclosure is applicable to such other sections and
subsections.
6.1 Subsidiaries. Except for those
subsidiaries set forth on Exhibit 21.1 of the Form 10-K (each, an
“Operating
Sub”), the Company has no subsidiaries and the Company
does not own, directly or indirectly, any outstanding voting
securities of or other interests in, or have any control over, any
other Person. The Company wholly-owns each Operating Sub. Each
representation and warranty contained in this Article VI or
otherwise set forth in this Agreement shall be deemed to mean and
be construed to include the Company and each of its subsidiaries,
as applicable, regardless of whether each of such representations
and warranties in Article VI specifically refers to the
Company’s subsidiaries or not.
6.2 Organization. The Company and
its subsidiaries are corporations, duly organized, validly existing
and in good standing under the Laws of the respective jurisdictions
in which they are incorporated. The Company has the full corporate
power and authority and all necessary certificates, licenses,
approvals and Permits to: (i) enter into and execute this Agreement
and each of the Transaction Documents and to perform all of its
Obligations hereunder and thereunder; and (ii) own and operate its
Assets and properties and to conduct and carry on its business as
and to the extent now conducted. The Company and each subsidiary is
duly qualified to transact business and is in good standing as a
foreign corporation in each jurisdiction where the character of its
business or the ownership or use and operation of its Assets or
properties requires such qualification, except to the extent that
failure to so qualify will not result in a Material Adverse
Effect.
6.3 Authority and Approval of Agreement;
Binding Effect. The execution and delivery by the Company of
this Agreement and the Transaction Documents to which it is a
party, and the performance by the Company of all of its Obligations
hereunder and thereunder, including the issuance of the Preferred
Stock, Warrants, Conversion Shares, Warrant Shares and the shares
of Common Stock underlying the Placement Agent Warrant, have been
duly and validly authorized and approved by the Company and its
board of directors pursuant to all applicable Laws and no other
corporate action or Consent on the part of the Company, its board
of directors, stockholders or any other Person is necessary or
required by the Company to execute this Agreement and the
Transaction Documents, consummate the transactions contemplated
herein and therein, perform all of Company’s Obligations
hereunder and thereunder, or to issue the Securities. This
Agreement and each of the Transaction Documents have been duly and
validly executed by the Company (and the officer executing this
Agreement and all such other Transaction Documents is duly
authorized to act and execute same on behalf of the Company) and
constitute the valid and legally binding agreements of the Company,
enforceable against the Company in accordance with their respective
terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies.
6.4 Capitalization. Immediately
prior to the Closing, the authorized capital stock of the Company
will consist of 50,000,000 shares of Common Stock and 10,000,000
shares of preferred stock, of which, as of the date hereof,
7,516,875 shares of Common Stock are issued and outstanding and no
shares of preferred stock are issued and outstanding. On the date
hereof, 4,583,567 shares of Common Stock are issuable upon exercise
of outstanding warrants, including 1,932,000 shares of Common Stock
issuable upon the exercise of outstanding warrants listing on the
Nasdaq Capital Market under the symbol “NDRAW,” at an
exercise price of $6.25 per share. All of such outstanding shares
have been validly issued and are fully paid and nonassessable. The
Common Stock is currently quoted on the Nasdaq Capital Market under
the trading symbol “NDRA.” Other than as described in the SEC Documents, the
Company has received no notice, either oral or written, with
respect to the continued eligibility of the Common Stock for
quotation on the Principal Trading Market, and, other than as
described in the SEC Documents, the Company has maintained all
requirements on its part for the continuation of such
quotation. Except as described in the SEC Documents
(as defined below), no shares of Common Stock are subject to
preemptive rights or any other similar rights or any Encumbrances
suffered or permitted by the Company. Except as described in
the SEC Documents or issuable under any equity incentive plan
described in the SEC Documents, as of the date hereof:
(i) there are no outstanding options, warrants, scrip, rights
to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares
of capital stock of the Company or any of its subsidiaries, or
Contracts, commitments, understandings or arrangements by which the
Company or any of its subsidiaries is or may become bound to issue
additional Shares of capital stock of the Company or any of its
subsidiaries, or options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock
of the Company or any of its subsidiaries; (collectively,
“Derivative
Securities”); (ii) there are no outstanding debt
securities, notes, credit agreements, credit facilities or other
Contracts or instruments evidencing indebtedness of the Company or
any of its subsidiaries, or by which the Company or any of its
subsidiaries is or may become bound; (iii) there are no
outstanding registration statements with respect to the Company or
any of its securities (other than registration statements on Form
S-3 or Form S-8); (iv) there are no agreements or arrangements
under which the Company or any of its subsidiaries is obligated to
register the sale of any of their securities under the Securities
Act (except pursuant to the Transaction Documents); (v) there are
no financing statements securing obligations filed in connection
with the Company or any of its Assets that have not been
terminated; (vi) there are no securities or instruments
containing anti-dilution or similar provisions that will be
triggered by this Agreement or any related agreement or the
consummation of the transactions described herein or therein; and
(vii) there are no outstanding securities or instruments of the
Company which contain any redemption or similar provisions, and
there are no Contracts by which the Company is or may become bound
to redeem a security of the Company. Except as described in the SEC
Documents, there are no stockholders agreements, voting agreements
or other similar agreements with respect to the Company’s
capital stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s
stockholders.
6.5 No Conflicts; Consents and
Approvals. The execution, delivery and performance of this
Agreement and the Transaction Documents, and the consummation of
the transactions contemplated hereby and thereby, will not: (i)
constitute a violation of or conflict with any provision of the
Company’s or any Operating Sub’s certificate or
articles of incorporation, bylaws or other organizational or
charter documents; (ii) constitute a violation of, or a default or
breach under (either immediately, upon notice, upon lapse of time,
or both), or conflict with, or give to any other Person any rights
of termination, amendment, acceleration or cancellation of, any
provision of any Material Contract; (iii) constitute a violation
of, or a default or breach under (either immediately, upon notice,
upon lapse of time, or both), or conflict with, any Judgment; (iv)
assuming the accuracy of the
representations and warranties of the Buyers set forth in Article V
above, constitute a violation of, or conflict with, any Law
(including United States federal and state securities Laws and the
rules and regulations of any market or exchange on which the Common
Stock is quoted); or (v) result in the loss or adverse modification
of, or the imposition of any fine, penalty or other Encumbrance
with respect to, any Permit granted or issued to, or otherwise held
by or for the use of, Company or any of Company’s Assets. The
Company is not in violation of its articles of incorporation,
bylaws or other organizational or governing documents and the
Company is not in default or breach (and no event has occurred
which with notice or lapse of time or both could put the Company in
default or breach) under, and the Company has not taken any action
or failed to take any action that would give to any other Person
any rights of termination, amendment, acceleration or cancellation
of, any Material Contract. Except as specifically contemplated by
this Agreement, the Company is not required to obtain any Consent
of, from, or with any Governmental Authority, or any other Person,
in order for it to execute, deliver or perform any of its
Obligations under this Agreement or the Transaction Documents in
accordance with the terms hereof or thereof, or to issue and sell
the Shares in accordance with the terms hereof. All Consents which
the Company is required to obtain pursuant to the immediately
preceding sentence have been obtained or effected on or prior to
the date hereof.
6.6 Issuance of Securities. The
Conversion Shares, the Warrant Shares and the Shares of Common
Stock underlying the Placement Agent Warrants are duly authorized
and, upon issuance in accordance with the terms hereof or the
governing instrument, as the case may be, shall be duly issued,
fully paid and non-assessable, and free from all Encumbrances with
respect to the issue thereof, and, assuming the accuracy of the representations and
warranties of the Buyers set forth in Article V above, will
be issued in compliance with all applicable United States federal
and state securities Laws. Assuming
the accuracy of the representations and warranties of the Buyers
set forth in Article V above, the offer and sale by the Company of
the Securities is exempt from: (i) the registration and prospectus
delivery requirements of the Securities Act; and (ii) the
registration and/or qualification provisions of all applicable
state and provincial securities and “blue sky”
laws.
6.7 SEC Documents; Financial
Statements. The Common Stock is registered pursuant to
Section 12 of the Exchange Act and the Company has timely filed all
reports, schedules, forms, statements and other documents required
to be filed by it with the SEC under the Exchange Act (all of the
foregoing filed within the two (2) years preceding the date hereof
or amended after the date hereof and all exhibits included therein
and financial statements and schedules thereto and documents
incorporated by reference therein, being hereinafter referred to as
the “SEC
Documents”). The Company is current with its filing
obligations under the Exchange Act and all SEC Documents have been
filed on a timely basis or the Company has received a valid
extension of such time of filing and has filed any such SEC
Document prior to the expiration of any such extension. The Company
represents and warrants that true and complete copies of the SEC
Documents are available on the SEC’s website (www.sec.gov) at
no charge to Buyers, and Buyers acknowledge that each of them may
retrieve all SEC Documents from such website and each Buyer’s
access to such SEC Documents through such website shall constitute
delivery of the SEC Documents to Buyers. As of their respective
dates, the SEC Documents complied in all material respects with the
requirements of the Exchange Act, and none of the SEC Documents, at
the time they were filed with the SEC, 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 the circumstances under which they
were made, not misleading. None of the statements made in any such
SEC Document is, or has been, required to be amended or updated
under applicable Law (except as such statements have been amended
or updated in subsequent filings prior to the date hereof, which
amendments or updates are also part of the SEC Documents). As of
their respective dates, the financial statements of the Company
included in the SEC Documents (“Financial Statements”) complied in
all material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect thereto
(except as such Financial Statements have been amended or updated
in subsequent filings prior to the date hereof, which amendments or
updates are also part of the SEC Documents). All of the Financial
Statements have been prepared in accordance with GAAP, consistently
applied, during the periods involved (except: (i) as may be
otherwise indicated in such Financial Statements or the notes
thereto; or (ii) in the case of unaudited interim statements, to
the extent they may exclude footnotes or may be condensed or
summary statements), and fairly present in all material respects
the consolidated financial position of the Company as of the dates
thereof and the consolidated results of its operations and cash
flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments). To the knowledge
of the Company and its officers, no other information provided by
or on behalf of the Company to the Buyers which is not included in
the SEC Documents contains any untrue statement of a material fact
or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstance under which
they are or were made, not misleading.
6.8 Absence of Certain Changes.
Since the date the last of the SEC Documents was filed with the
SEC, none of the following have occurred:
(a) There has been no
event or circumstance of any nature whatsoever that has resulted
in, or could reasonably be expected to result in, a Material
Adverse Effect; or
(b) Except for this
Agreement and the other Transaction Documents, there has been no
transaction, event, action, development, payment, or other matter
of any nature whatsoever entered into by the Company that requires
disclosure in an SEC Document which has not been so
disclosed.
6.9 Absence of Litigation or Adverse
Matters. Except as disclosed in the SEC Documents: (i) there
is no Proceeding before or by any Governmental Authority or any
other Person, pending, or the best of Company’s knowledge,
threatened or contemplated by, against or affecting the Company,
its business or Assets; (ii) there is no outstanding Judgment
against or affecting the Company, its business or Assets; and (iii)
the Company is not in breach or violation of any Material
Contract.
6.10 Liabilities
of the Company. The Company does not have any Obligations of
a nature required by GAAP to be disclosed on a consolidated balance
sheet of the Company, except: (i) as disclosed in the Financial
Statements; or (ii) incurred in the Ordinary Course of Business
since the date of the last Financial Statements filed by the
Company with the SEC that have not had, and would not reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect.
6.11 Title
to Assets. The Company has good and marketable title to, or
a valid license or leasehold interest in, all of its Assets which
are material to the business and operations of the Company as
presently conducted, free and clear of all Encumbrances or
restrictions on the transfer or use of same, other than
restrictions on transfer or use arising under a license or Lease
with respect to such Assets that, individually or in the aggregate,
would not have, or be reasonably expected to, materially interfere
with the purposes for which they are currently used and for the
purposes for which they are proposed to be used. Except as would
not have a Material Adverse Effect, the Company’s Assets are
in good operating condition and repair, ordinary wear and tear
excepted, and are free of any latent or patent defects which might
impair their usefulness, and are suitable for the purposes for
which they are currently used and for the purposes for which they
are proposed to be used.
6.12 Real
Estate.
(a) Real Property Ownership. The
Company does not own any Real Property.
(b) Real Property Leases. Except
pursuant to the Leases described in the SEC Documents (the
“Company
Leases”), the Company does not lease any Real
Property. With respect to each of the Company Leases, except as
disclosed in the SEC Documents, (i) the Company has been in
peaceful possession of the property leased thereunder and neither
the Company nor, to the Company’s knowledge, the landlord is
in default thereunder; (ii) no waiver, indulgence or postponement
of any of the Obligations thereunder has been granted by the
Company or landlord thereunder; and (iii) there exists no event,
occurrence, condition or act known to the Company which, upon
notice or lapse of time or both, would be or could become a default
thereunder or which could result in the termination of the Company
Leases, or any of them, or have a Material Adverse Effect on the
business of the Company, its Assets or its operations or financial
results. The Company has not violated nor breached any provision of
any such Company Leases, and all Obligations required to be
performed by the Company under any of such Company Leases have been
fully, timely and properly performed. If requested by any of the
Buyers, the Company has delivered to such Buyers true, correct and
complete copies of all Company Leases, including all modifications
and amendments thereto, whether in writing or otherwise. The
Company has not received any written or oral notice to the effect
that any of the Company Leases will not be renewed at the
termination of the term of such Company Leases, or that any of such
Company Leases will be renewed only at higher rents.
6.13 Material
Contracts. An accurate, current and complete copy of each of
the Material Contracts has been furnished to Buyers and/or is
readily available as part of the SEC Documents, and each of the
Material Contracts constitutes the entire agreement of the
respective parties thereto relating to the subject matter thereof.
Each of the Material Contracts is in full force and effect and is a
valid and binding Obligation of the parties thereto in accordance
with the terms and conditions thereof. To the knowledge of the
Company and its officers, all Obligations required to be performed
under the terms of each of the Material Contracts by any party
thereto on or prior to the date hereof have been fully performed by
all parties thereto, and no party to any Material Contracts is in
default with respect to any term or condition thereof, nor has any
event occurred which, through the passage of time or the giving of
notice, or both, would constitute a default thereunder or would
cause the acceleration or modification of any Obligation of any
party thereto or the creation of any Encumbrance upon any of the
Assets of the Company. Further, the Company has received no notice,
nor does the Company have any knowledge, of any pending or
contemplated termination of any of the Material Contracts and, no
such termination is proposed or has been threatened, whether in
writing or orally.
6.14 Compliance
with Laws. Except as would not have a Material Adverse
Effect, the Company is and at all times has been in material
compliance with all Laws. The Company has not received any notice
that it is in violation of, has violated, or is under investigation
with respect to, or has been threatened to be charged with, any
violation of any Law.
6.15 Intellectual
Property. To the Company’s knowledge, the Company owns
or possesses adequate and legally enforceable rights or licenses to
use all material trademarks, trade names, service marks, service
mark registrations, service names, patents, patent rights,
copyrights, inventions, licenses, approvals, governmental
authorizations, trade secrets and all other material intellectual
property rights necessary to conduct its business as now conducted.
The Company does not have any knowledge of any infringement by the
Company of trademark, trade name rights, patents, patent rights,
copyrights, inventions, licenses, service names, service marks,
service mark registrations, trade secret or other intellectual
property rights of others, and, to the knowledge of the Company,
there is no Claim being made or brought against, or to the
Company’s knowledge, being threatened against, the Company
regarding trademark, trade name, patents, patent rights, invention,
copyright, license, service names, service marks, service mark
registrations, trade secret or other intellectual property
infringement; and the Company is unaware of any facts or
circumstances which might give rise to any of the
foregoing.
6.16 Labor
and Employment Matters. The Company is not involved in any
labor dispute or, to the knowledge of the Company, is any such
dispute threatened. To the knowledge of the Company and its
officers, none of the Company’s employees is a member of a
union and the Company believes that its relations with its
employees are good. To the knowledge of the Company and its
officers, the Company has complied in all material respects with
all Laws relating to employment matters, civil rights and equal
employment opportunities.
6.17 Employee
Benefit Plans. The Company is in compliance in all material
respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder
(“ERISA”); no
“reportable event” (as defined in ERISA) has occurred
with respect to any “pension plan” (as defined in
ERISA) for which the Company would have any liability; the Company
has not incurred and does not expect to incur liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal
from, any “pension plan” or (ii) Sections 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the
“Code”); and
each “pension plan” for which the Company would have
any liability that is intended to be qualified under Section 401(a)
of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would
cause the loss of such qualification. To the Company’s
knowledge, the Company has promptly paid and discharged all
Obligations arising under ERISA of a character which if unpaid or
unperformed might result in the imposition of an Encumbrance
against any of its Assets or otherwise have a Material Adverse
Effect.
6.18 Tax
Matters. The Company has made and timely filed all Tax
Returns required by any jurisdiction to which it is subject, and
each such Tax Return has been prepared in compliance with all
applicable Laws, and all such Tax Returns are true and accurate in
all respects. Except and only to the extent that the Company has
set aside on its books provisions reasonably adequate for the
payment of all unpaid and unreported Taxes, the Company has timely
paid all Taxes shown or determined to be due on such Tax Returns,
except those being contested in good faith, and the Company has set
aside on its books provision reasonably adequate for the payment of
all Taxes for periods subsequent to the periods to which such Tax
Returns apply. There are no unpaid Taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and
the officers of the Company know of no basis for any such claim.
The Company has withheld and paid all Taxes to the appropriate
Governmental Authority required to have been withheld and paid in
connection with amounts paid or owing to any Person. There is no
Proceeding or Claim for refund now in progress, pending or, to the
Company’s knowledge, threatened against or with respect to
the Company regarding Taxes.
6.19 Insurance.
The Company is covered by policies of insurance which were issued
to it by reputable insurers of recognized financial responsibility,
covering its properties, Assets and businesses against losses and
risks normally insured against by other corporations or entities in
the same or similar lines of businesses as the Company is engaged
and in coverage amounts which are prudent and typically and
reasonably carried by such other corporations or entities (the
“Insurance
Policies”). Such Insurance Policies are in full force
and effect, and all premiums due thereon have been paid. None of
the Insurance Policies will lapse or terminate as a result of the
transactions contemplated by this Agreement. The Company has
complied with the provisions of such Insurance Policies. The
Company has not been refused any insurance coverage sought or
applied for and the Company does not have any reason to believe
that it will not be able to renew its existing Insurance Policies
as and when such Insurance Policies expire or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not materially and adversely affect
the condition, financial or otherwise, or the earnings, business or
operations of the Company.
6.20 Permits.
The Company possesses all Permits necessary to conduct its business
as currently conducted, and the Company has not received any notice
of, or is otherwise involved in any Proceedings relating to, the
revocation or modification of any such Permits. All such Permits
are valid and in full force and effect and the Company is in
material compliance with the respective requirements of all such
Permits.
6.21 Business
Location. The Company has no office or place of business
other than as identified in the SEC Documents and the
Company’s principal executive offices are located in Ann
Arbor, Michigan. All books and records of the Company and other
material Assets of the Company are held or located at the offices
and places of business identified in the SEC
Documents.
6.22 Environmental
Laws. The Company is and has at all times been in compliance
in all material respects with any and all applicable Environmental
Requirements, and there are no pending Claims against the Company
relating to any Environmental Requirements, nor to the knowledge of
the Company, is there any basis for any such Claims.
6.23 Illegal
Payments. Neither the Company, nor any director, officer,
agent, employee or other Person acting on behalf of the Company
has, in the course of his actions for, or on behalf of, the
Company: (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses
relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended; or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment to any foreign or domestic
government official or employee.
6.24 Related
Party Transactions. Except as disclosed in the SEC
Documents, and except for arm’s length transactions pursuant
to which the Company makes payments in the Ordinary Course of
Business upon terms no less favorable than the Company could obtain
from third parties, none of the officers, directors or employees of
the Company, nor any stockholders who own, legally or beneficially,
five percent (5%) or more of the issued and outstanding shares of
any class of the Company’s capital stock (each a
“Material
Shareholder”), is presently a party to any transaction
with the Company (other than for services as employees, officers
and directors), including any Contract providing for the furnishing
of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from,
any officer, director or such employee or Material Shareholder or,
to the best knowledge of the Company, any other Person in which any
officer, director, or any such employee or Material Shareholder has
a substantial or material interest in or of which any officer,
director or employee of the Company or Material Shareholder is an
officer, director, trustee or partner. There are no Claims or
disputes of any nature or kind between the Company and any officer,
director or employee of the Company or any Material Shareholder,
or, to the Company’s knowledge, between any of them, relating
to the Company and its business.
6.25 Internal
Accounting Controls. Except as set forth in the SEC
Documents, the Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that: (i) transactions are executed in
accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP
and to maintain asset accountability; (iii) access to Assets
is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability
for Assets is compared with the existing Assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
6.26 Acknowledgment
Regarding Buyers’ Purchase of the Shares. The Company
acknowledges and agrees that each Buyer is acting solely in the
capacity of an arm’s length purchaser with respect to this
Agreement and the transactions contemplated hereby. The Company
further acknowledges that no Buyer is acting as a financial advisor
or fiduciary of the Company (or in any similar capacity) with
respect to this Agreement and the transactions contemplated hereby
and any advice given by any Buyer or any of its representatives or
agents in connection with this Agreement and the transactions
contemplated hereby is merely incidental to such Buyer’s
purchase of the Shares. The Company further represents to each
Buyer that the Company’s decision to enter into this
Agreement has been based solely on the independent evaluation by
the Company and its representatives.
6.27 Listing
and Maintenance Requirements. The Company’s Common
Stock is registered pursuant to Section 12 of the Exchange Act, and
the Company has taken no action designed to, or which to its
knowledge is likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act, nor has
the Company received any notification that the SEC is contemplating
terminating such registration.
6.28 Bad
Actor. No “bad actor” disqualifying event
described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a
“Disqualification
Event”) is applicable to the Company or, to the
Company’s knowledge, any Company Covered Person. As used in
this Section 6.28, the term “Company Covered Person” means,
with respect to the Company as an “issuer” for purposes
of Rule 506 promulgated under the Securities Act, any Person listed
in the first paragraph of Rule 506(d)(1).
6.29 Brokerage
Fees. Except for the Placement Agent and National Securities
Corporation, there is no Person acting on behalf of the Company who
is entitled to or has any claim for any financial advisory,
brokerage or finder’s fee or commission in connection with
the execution of this Agreement or the consummation of the
transactions contemplated hereby. The Company has agreed to pay the
Placement Agent a cash amount equal to 8.0% of the gross proceeds
from the sale of Preferred Stock and Warrants hereunder and issue
to the Placement Agent a warrant to purchase a number of shares of
Common Stock equal to 8.0% of the Conversion Shares. Such warrant
will have an exercise price equal to the Conversion Price and be
exercisable, commencing the Closing Date, for a period of three
years after the Closing Date. The shares issuable upon exercise of
the warrant issued to the Placement Agent will have registration
rights. The Company has also agreed to reimburse the Placement
Agent up to $25,000 for its legal fees and up to $10,000 for other
expenses in connection with the sale of the Preferred Stock and the
Warrants hereunder.
ARTICLE
VII
COVENANTS
7.1 Best Efforts. Each party shall
use its best efforts to timely satisfy each of the conditions to be
satisfied by it as provided in Articles VIII and IX of this
Agreement.
7.2 Form D. If required by
applicable Law, the Company agrees to file a Form D with respect to
the offering of Preferred Stock and the Warrants as required under
Regulation D of the Securities Act and to provide a copy thereof to
the Placement Agent. The Company shall, on or before the Closing
Date, take such action as the Company shall reasonably determine is
necessary to qualify the Preferred Stock and the Warrants, or
obtain an exemption for the Preferred Stock and the Warrants for
sale to each of the Buyers at Closing pursuant to this Agreement
under applicable securities or “Blue Sky” Laws of the
states of the United States, and shall provide evidence of any such
action so taken to the Placement Agent on or prior to the Closing
Date.
7.3 Affirmative
Covenants.
(a) Reporting Status; Listing.
Until the earlier of three (3) years from the date hereof or when
the shares of Preferred Stock issued hereunder, Conversion Shares,
Warrants and Warrant Shares are no longer registered in the names
of the Buyers on the books and records of the Company, the Company
shall: (i) file in a timely manner all reports required to be filed
under the Securities Act, the Exchange
Act or any securities Laws and regulations thereof applicable to
the Company of any state of the United States, or by the rules and
regulations of the Principal Trading Market, and, if not otherwise
publicly available, to provide a copy thereof to a Buyer upon
request; (ii) not terminate its status as an issuer
required to file reports under the Exchange Act even if the
Exchange Act or the rules and regulations thereunder would
otherwise permit such termination unless in connection with a Sale
Event (as defined below); (iii) if required by the rules and
regulations of the Principal Trading Market, promptly secure the
listing of any of the Conversion Shares or Warrant Shares upon the
Principal Trading Market (subject to official notice of issuance)
and, take all reasonable action under
its control to maintain the continued listing, quotation and
trading of its Common Stock on the Principal Trading Market,
and the Company shall comply in all respects with the
Company’s reporting, filing and other Obligations under the
bylaws or rules of the Principal Trading Market, the Financial
Industry Regulatory Authority, Inc. and such other Governmental
Authorities, as applicable.
(b) Rule 144. With a view to making
available to each Buyer the benefits of Rule 144 under the
Securities Act (“Rule
144”), or any similar rule or regulation of the SEC
that may at any time permit Buyers to sell any of the Conversion
Shares or Warrant Shares to the public without registration, the
Company represents and warrants that: (i) the Company is, and has
been for a period of at least ninety (90) days immediately
preceding the date hereof, subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act; (ii) the Company has filed
all required reports under Section 13 or 15(d) of the Exchange Act,
as applicable, during the twelve (12) months preceding the Closing
Date (or for such shorter period that the Company was required to
file such reports); (iii) the Company is not an issuer defined as a
“Shell Company” (as hereinafter defined); and (iv) if
the Company has, at any time, been an issuer defined as a Shell
Company, the Company has: (A) not been an issuer defined as a Shell
Company for at least six (6) months prior to the Closing Date; and
(B) has satisfied the requirements of Rule 144(i) (including,
without limitation, the proper filing of “Form 10
information” at least six (6) months prior to the Closing
Date). For the purposes hereof, the term “Shell Company” shall mean an
issuer that meets the description set forth under Rule
144(i)(1)(i). In addition, until the earliest of (x) three (3)
years from the date hereof, (y) when the Conversion Shares and
Warrant Shares no longer bear a restrictive legend, or (z) the sale
of all or substantially all the assets of the Company; any merger,
consolidation or acquisition involving the Company with, by or into
another corporation, entity or person; or any change in the
ownership of more than fifty percent (50%) of the voting capital
stock of the Company in one or more related transactions (such
transactions described in this clause (z), a “Sale Event”), the Company shall,
at its sole expense:
(i)
make, keep and
ensure that adequate current public information with respect to the Company, as required in
accordance with Rule 144, is publicly
available.
(ii)
furnish
to each Buyer, promptly upon reasonable request: (A) a written
statement by the Company that it has complied with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act;
and (B) such other information as may be reasonably requested by
each Buyer to permit each Buyer to sell any of the shares of
Preferred Stock issued hereunder or Warrants pursuant to Rule 144
without limitation or restriction; and
(iii)
promptly at the request of each Buyer, upon the
Buyer’s providing customary supporting documentation, give
the Company’s transfer agent instructions to the effect that,
upon the transfer agent’s receipt from any Buyer of a
certificate (a “Rule 144
Certificate”) certifying
that such Buyer’s holding period (as determined in accordance
with the provisions of Rule 144) for any portion of the Conversion
Shares or Warrant Shares which such Buyer proposes to sell (the
“Securities Being
Sold”) is not less than
six (6) months and such sale otherwise complies with the
requirements of Rule 144, and receipt by the transfer agent of the
“Rule 144 Opinion” (as hereinafter defined) from the
Company or its counsel (or from such Buyer and its counsel as
permitted below), the transfer agent is to effect the transfer of
the Securities Being Sold and issue to such Buyer or transferee(s)
thereof one or more stock certificates representing the transferred
Securities Being Sold without any restrictive legend and without
recording any restrictions on the transferability of such
Securities Being Sold on the transfer agent’s books and
records or, at the Buyer’s option, the Securities Being Sold
shall be transmitted by the transfer agent to the Buyer by
crediting the account of the Buyer’s or its designee’s
balance account with The Depository Trust Company through its
Deposit or Withdrawal at Custodian system if the transfer agent is
then a participant in such system. In this regard, upon each
Buyer’s request, the Company shall have an affirmative
obligation at its expense to cause its counsel to promptly issue to
the transfer agent a legal opinion providing that, based on the
Rule 144 Certificate, the Securities Being Sold were or may be
sold, as applicable, pursuant to the provisions of Rule 144, even
in the absence of an effective registration statement (the
“Rule
144 Opinion”). If the
transfer agent requires any additional documentation in connection
with any proposed transfer by any Buyer of any Securities Being
Sold, the Company shall promptly deliver or cause to be delivered
to the transfer agent or to any other Person, all such additional
documentation as may be necessary to effectuate the transfer of the
Securities Being Sold and the issuance of an unlegended certificate
to any transferee thereof, all at the Company’s
expense.
(c) Matters With Respect to Shares and
Transfer Agent.
(i) Removal of Restrictive Legends.
In the event that any Buyer has any Conversion Shares or Warrant
Shares bearing any restrictive legends, and such Buyer, through its
counsel or other representatives, submits to the Company’s
transfer agent (“Transfer
Agent”) any such shares for the removal of the
restrictive legends thereon, whether in connection with a sale of
such shares pursuant to any
exemption to the registration requirements under the Securities
Act, or otherwise, and the Company and or its counsel refuses or
fails for any reason (except to the extent that such refusal or
failure is based solely on applicable Law, including SEC
interpretive guidance, that would prevent the removal of such
restrictive legends) to render an opinion of counsel or any other
documents or certificates required for the removal of the
restrictive legends, then the Company hereby agrees and
acknowledges that such Buyer is hereby irrevocably and expressly
authorized to have counsel to such Buyer render any and all
opinions and other certificates or instruments which may be
required for purposes of removing such restrictive legends, and the
Company hereby irrevocably authorizes and directs the Transfer
Agent to, without any further confirmation or instructions from the
Company, issue any such shares without restrictive legends as
instructed by such Buyer, and, unless such shares are issued by
book entry, surrender to a common carrier for overnight delivery to
the address as specified by such Buyer, certificates, registered in
the name of such Buyer or its designees, representing the shares of
Common Stock to which such Buyer is entitled, without any
restrictive legends and otherwise freely transferable on the books
and records of the Company. Notwithstanding the foregoing, it is
acknowledged and agreed that the Company shall not be required to
comply with a request to remove any restrictive legend for any
Buyer who at the time of the request is an Affiliate of the Company
other than in connection with the sale of the shares underlying the
applicable certificate(s) in accordance with Rule 144.
(ii) Authorized
Agent of the Company. The Company hereby irrevocably
appoints each Buyer and each Buyer’s counsel and its
representatives, each as the Company’s duly authorized agent
and attorney-in-fact for the Company solely for the purposes of
authorizing and instructing the Transfer Agent to process
issuances, transfers and legend removals upon instructions from
each Buyer, or any counsel or representatives of each Buyer, in
strict compliance with this Section 7.3(c). The
authorization and power of attorney granted hereby is coupled with
an interest and is irrevocable so long as any Buyer owns or has the
right to receive, any shares of the Company’s Common Stock
hereunder. In this regard, the Company hereby confirms to the
Transfer Agent and each Buyer that it can NOT and will NOT give instructions,
including stop orders or otherwise, inconsistent with the terms of
this Section 7.3(c)
with regard to the matters contemplated herein, and that each Buyer
shall have the absolute right to provide a copy of this Agreement
to the Transfer Agent as evidence of the Company’s
irrevocable authority for each Buyer and Transfer Agent to process
issuances, transfers and legend removals upon instructions from
each Buyer, or any counsel or representatives of each Buyer, in
each case as specifically contemplated in this Section 7.3(c), without any
further instructions, orders or confirmations from the
Company.
(iii) Injunction
and Specific Performance. The Company specifically
acknowledges and agrees that in the event of a breach or threatened
breach by the Company of any provision of this Section 7.3(c), each Buyer will
be irreparably damaged and that damages at law would be an
inadequate remedy if this Agreement were not specifically
enforced. Therefore, in the event of a breach or threatened
breach of any provision of this Section 7.3(c) by the Company,
each Buyer shall be entitled to seek, in addition to all other
rights or remedies such Buyer may have, at law or in equity, an
injunction restraining such breach, without being required to show
any actual damage or to post any bond or other security, and/or to
a decree for specific performance of the provisions of this
Section
7.3(c).
7.4 Use of Proceeds. The Company
shall use the net proceeds from the sale of the Preferred Stock and
the Warrants for working capital and general corporate purposes,
repayment of its outstanding senior secured convertible promissory
notes issued in July 2019, and payment of the fees and expenses of
this offering.
7.5 Fees and Expenses. The Company
agrees to pay to each Buyer (or any designee or agent of the
Buyers), upon demand, or to otherwise be responsible for the
payment of, any and all costs, fees, charges and expenses,
including the reasonable fees, costs, expenses and disbursements of
counsel for any Buyer, and of any experts and agents, which any
Buyer may incur or which may otherwise be due and payable in
connection with: (i) any documentary stamp taxes, intangibles
taxes, recording fees, filing fees, or other similar taxes, fees or
charges imposed by or due to any Governmental Authority in
connection with this Agreement or any other Transaction Documents;
(ii) the exercise or enforcement of any of the rights of any
Buyer under this Agreement or the Transaction Documents; or
(iii) the failure by the Company to perform or observe any of
the provisions of this Agreement or any of the Transaction
Documents. The provisions of this Subsection shall survive the
termination of this Agreement.
7.6 Public Disclosure of Buyers.
The Company shall not publicly disclose the name of any Buyer, or
include the name of any Buyer in any filing with the SEC or any
regulatory agency or Principal Trading Market, without the prior
written consent of such Buyer except: (a) as required by federal
securities law in connection with any registration statement
contemplated by the Registration Rights Agreement or (b) to the
extent such disclosure is required by Law or Principal Trading
Market regulations, in which case the Company shall provide Buyers
with prior written notice of such disclosure permitted under this
clause (b).
ARTICLE
VIII
CONDITIONS PRECEDENT TO THE COMPANY’S OBLIGATIONS TO
SELL
The
obligation of the Company hereunder to issue and sell the Preferred
Stock and the Warrants to a Buyer at the Closing is subject to the
satisfaction, at or before the Closing Date, of each of the
following conditions, provided that these conditions are for the
Company’s sole benefit and may be waived by the Company at
any time in its sole discretion:
8.1 The Buyer shall
have executed the Transaction Documents that require the
Buyer’s execution, and delivered them to the
Company.
8.2 The Company shall
have received the Buyer’s Purchase Price to the Company,
which payment may be made by the Payment Agent’s release of
its control over a bank account of the Company.
8.3 The Buyer’s
representations and warranties shall be true and correct in all
material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations and
warranties that speak as of a specific date), and the Buyer shall
have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Buyer
at or prior to the Closing Date.
8.4 The Company shall
have obtained all governmental, regulatory or third party consents
and approvals necessary for the sale of the Preferred Stock and the
Warrants.
8.5 No statute, rule,
regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or
governmental authority of competent jurisdiction that prohibits the
consummation of any of the transactions contemplated by the
Transaction Documents.
8.6 Since the date of
execution of this Agreement, no event or series of events shall
have occurred that resulted, or could reasonably be expected to
result, in a Material Adverse Effect.
8.7 Trading in the
Common Stock shall not have been suspended by the SEC or any
Principal Trading Market (except for any suspensions of trading of
not more than one trading day solely to permit dissemination of
material information regarding the Company) at any time since the
date of execution of this Agreement.
8.8 The Company shall
have received an aggregate Purchase Price in the amount of not less
than $4,000,000 and no more than $10,000,000. Any officer or
director of the Company or the Placement Agent, or any of such
parties affiliates, may participate in this offering and their
investment, if any, will count towards the foregoing
amount.
ARTICLE
IX
CONDITIONS PRECEDENT TO A BUYER’S OBLIGATIONS TO
PURCHASE
The
obligation of a Buyer hereunder to purchase the Preferred Stock,
Closing Date Conversion Shares and the Warrants at the Closing is
subject to the satisfaction, at or before the Closing Date, of each
of the following conditions (in addition to any other conditions
precedent elsewhere in this Agreement), provided that these
conditions are for the Buyer’s sole benefit and may be waived
by the Buyer at any time in its sole discretion:
9.1 The Company shall
have executed and delivered the Transaction Documents and delivered
the same to the Placement Agent.
9.2 The representations
and warranties of the Company shall be true and correct in all
material respects (except to the extent that any of such
representations and warranties are already qualified as to
materiality in Article VI above, in which case, such
representations and warranties shall be true and correct in all
respects without further qualification) as of the date when made
and as of the Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date)
and the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the Closing Date. The Placement
Agent shall have received a certificate, executed by the Chief
Executive Officer or Chief Financial Officer of the Company, dated
as of the Closing Date, to the foregoing effect.
9.3 The Company shall
have delivered to the Placement Agent a certificate evidencing the
formation and good standing of the Company in its jurisdiction of
formation issued by the Secretary of State (or comparable office)
of such jurisdiction of formation as of a date within ten (10) days
of the Closing Date.
9.4 The Company shall
have delivered to the Placement Agent a certificate or other
reasonably acceptable evidence evidencing the Company’s
qualification as a foreign corporation and good standing issued by
the Secretary of State (or comparable office) of each jurisdiction
in which the Company conducts business and is required to so
qualify, as of a date within twenty (20) days of the Closing
Date.
9.5 The Company shall
have delivered to the Placement Agent a certificate, in the form
acceptable to the Placement Agent, executed by the Secretary of the
Company dated as of the Closing Date, as to (i) the resolutions
consistent with Section
6.3 as adopted by the Company’s board of directors,
(ii) the Certificate of Incorporation of the Company and (iii) the
Bylaws of the Company as in effect at the Closing.
9.6 The Company shall
have delivered to the Placement Agent an opinion of counsel to the
Company, as of the Closing Date, in a form reasonably satisfactory
to the Placement Agent and its counsel.
9.7 No event shall have
occurred which could reasonably be expected to have a Material
Adverse Effect.
ARTICLE
X
INDEMNIFICATION
10.1 Company’s
Obligation to Indemnify. In consideration of the
Buyers’ execution and delivery of this Agreement, and in
addition to all of the Company’s other obligations under this
Agreement, the Company hereby agrees to defend and indemnify each
Buyer and each Buyer’s Affiliates and subsidiaries, and their
respective directors, officers, employees, agents and
representatives, and the successors and assigns of each of them
(collectively, the “Buyer
Indemnified Parties”) and the Company hereby agrees to
hold the Buyer Indemnified Parties harmless, from and against any
and all Claims made, brought or asserted against the Buyer
Indemnified Parties, or any one of them, and the Company hereby
agrees to pay or reimburse the Buyer Indemnified Parties for any
and all Claims payable by any of the Buyer Indemnified Parties to
any Person, including reasonable attorneys’ and
paralegals’ fees and expenses, court costs, settlement
amounts, costs of investigation and interest thereon from the time
such amounts are due at the highest non-usurious rate of interest
permitted by applicable Law, through all negotiations, mediations,
arbitrations, trial and appellate levels, as a result of, or
arising out of, or relating to: (i) any misrepresentation or breach
of any representation or warranty made by the Company in this
Agreement, the Transaction Documents or any other certificate,
instrument or document contemplated hereby or thereby; (ii) any
breach of any covenant, agreement or Obligation of the Company
contained in this Agreement, the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby;
or (iii) any Claims brought or made against the Buyer Indemnified
Parties, or any one of them, by any Person and arising out of or
resulting from the execution, delivery, performance or enforcement
of this Agreement, the Transaction Documents or any other
instrument, document or agreement executed pursuant hereto or
thereto. To the extent that the foregoing undertaking by the
Company may be unenforceable for any reason, the Company shall make
the maximum contribution to the payment and satisfaction of each of
the Claims covered hereby, which is permissible under applicable
Law. The Company will not be liable to any Buyer under this
indemnity: (i) for any settlement by a Buyer in connection with any
Claim effected without the Company’s prior written consent,
which consent shall not be unreasonably withheld, conditioned or
delayed; or (ii) to the extent, but only to the extent, that a
Claim is attributable to any Buyer’s breach of any of the
representations, warranties, covenants or agreements made by such
Buyer in this Agreement or in the other Transaction
Documents.
ARTICLE
XI
MATTERS RELATING TO THE BUYERS
11.1 Independent
Nature of Buyers’ Obligations and Rights. The
obligations of each Buyer under this Agreement and the Transaction
Documents are several and not joint with the obligations of any
other Buyer, and no Buyer shall be responsible in any way for the
performance of the obligations of any other Buyer under any one or
more of the Transaction Documents. The decision of each Buyer to
purchase the Preferred Stock and the Warrants pursuant to the
Transaction Documents has been made by each such Buyer
independently of any other Buyer and independently of any
information, materials, statements or opinions as to the business,
affairs, operations, assets, properties, liabilities, results of
operations, condition (financial or otherwise) or prospects of the
Company or of its subsidiaries, if any, which may have been made or
given by any other Buyer or any of their respective officers,
directors, principals, employees, agents, counsel or
representatives (collectively, including the Buyer in question, the
“Buyer
Representatives”). No Buyer Representative shall have
any liability to any other Buyer or the Company relating to or
arising from any such information, materials, statements or
opinions, if any. Each Buyer acknowledges that no other Buyer has
acted as agent for such Buyer in connection with making its
investment hereunder and that no Buyer will be acting as agent of
such other Buyer in connection with monitoring its investment in
the Securities or enforcing its rights under the Transaction
Documents. Each Buyer shall be entitled to independently protect
and enforce its rights, including, without limitation, the rights
arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Buyer to be
joined as an additional party in any Proceeding for such purpose.
The Company and each of the Buyers acknowledge that, for reasons of
administrative convenience the Company has elected to provide each
of the Buyers with the same Transaction Documents for the purpose
of closing a transaction with multiple Buyers and not because it
was required or requested to do so by any Buyer. In furtherance of
the foregoing, and not in limitation thereof, the Company and the
Buyers acknowledge that nothing contained in this Agreement or in
any Transaction Document, and no action taken by any Buyer pursuant
thereto, shall be deemed to constitute any two or more Buyers as a
partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Buyers are in any way
acting in concert or as a group with respect to such obligations or
the transactions contemplated by the Transaction
Documents.
11.2 Equal
Treatment of Buyers. No consideration shall be offered or
paid to any Buyer to amend or consent to a waiver or modification
of any provision of any of the Transaction Documents, unless the
same consideration is also offered to all of the other Buyers
parties to the Transaction Documents.
ARTICLE
XII
TERMINATION
12.1 Termination.
This Agreement may be terminated prior to Closing (i) by written
agreement of the Buyers and the Company, or (ii) by either the
Company or a Buyer (as to itself but no other Buyer) upon written
notice to the other, if the Closing shall not have taken place by
December 6, 2019 (the “Termination Date”), provided that
(x) the Termination Date may be extended until December 31, 2019
upon the mutual consent of the Placement Agent and the Company and
(y) in the event that there shall have occurred any material
adverse change in the financial markets of the United States, any
outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which is such to
make it, in the judgment of the Placement Agent, impracticable to
market the securities offered hereby or enforce contracts for the
sale of those securities, the Termination Date may be unilaterally
extended by the Placement Agent for a period not to exceed ninety
(90) days from the later of December 6, 2019 or such later date as
may have been previously extended by the Placement Agent and the
Company pursuant to clause (x) above (the “Outside Closing
Date”).
12.2 Consequences
of Termination. No termination of this Agreement shall
release any party from any liability for breach by such party of
the terms and provisions of this Agreement or the other Transaction
Documents.
ARTICLE
XIII
MISCELLANEOUS
13.1 Notices.
All notices of request, demand and other communications hereunder
shall be addressed to the parties as follows:
If
to the Company:
|
ENDRA Life Sciences
Inc.
3600
Green Court, Suite 350
Ann
Arbor, MI 48105-1570
Attention:
François Michelon, CEO
Email:
fmichelon@endrainc.com
|
With a copy
to:
|
K&L Gates
LLP
214
North Tryon Street, 47th Floor
Charlotte,
NC 28202
Attention:
Mark R. Busch
Email:
mark.busch@klgates.com
|
If
to the Buyers:
|
To each
Buyer based
on the information set forth in the Schedule of Buyers attached
hereto
|
unless
the address is changed by the party by like notice given to the
other parties. Notice shall be in writing and shall be deemed
delivered: (i) if mailed by certified mail, return receipt
requested, postage prepaid and properly addressed to the address
below, then three (3) business days after deposit of same in a
regularly maintained U.S. Mail receptacle; or (ii) if mailed by
Federal Express, UPS or other nationally recognized overnight
courier service, next business morning delivery, then one (1)
business day after deposit of same in a regularly maintained
receptacle of such overnight courier; or (iii) if hand delivered,
then upon hand delivery thereof to the address indicated on or
prior to 5:00 p.m., New York time, on a business day. Any notice
hand delivered after 5:00 p.m., New York time, shall be deemed
delivered on the following business day. Notwithstanding the
foregoing, notice, consents, waivers or other communications
referred to in this Agreement may be sent by facsimile, e-mail, or
other method of delivery, but shall be deemed to have been
delivered only when the sending party has confirmed (by reply
e-mail or some other form of written confirmation from the
receiving party) that the notice has been received by the other
party.
13.2 Entire
Agreement. This Agreement, including the Exhibits and
Schedules attached hereto and the documents delivered pursuant
hereto, including the Transaction Documents, set forth all the
promises, covenants, agreements, conditions and understandings
between the parties hereto with respect to the subject matter
hereof and thereof, and supersede all prior and contemporaneous
agreements, understandings, inducements or conditions, expressed or
implied, oral or written, except as contained herein and in the
Transaction Documents; provided, however, except as explicitly
stated herein, nothing contained in this Agreement or any other
Transaction Document shall (or shall be deemed to) (i) have any
effect on any agreements any Buyer has entered into with, or any
instruments any Buyer has received from, the Company prior to the
date hereof with respect to any prior investment made by such Buyer
in the Company or (ii) waive, alter, modify or amend in any respect
any obligations of the Company, or any rights of or benefits to any
Buyer or any other Person, in any agreement entered into prior to
the date hereof between or among the Company and any Buyer, or any
instruments any Buyer received from the Company prior to the date
hereof, and all such agreements and instruments shall continue in
full force and effect..
13.3 Successors
and Assigns. This Agreement, and any and all rights, duties
and obligations hereunder, shall not be assigned, transferred,
delegated or sublicensed by the Company without the prior written
consent of each Buyer. Subject to the foregoing and except as
otherwise provided herein, the provisions of this Agreement shall
inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties
hereto.
13.4 Binding
Effect. This Agreement shall be binding upon the parties
hereto, their respective successors and permitted
assigns.
13.5 Amendment.
Except as specifically set forth herein, neither the Company nor
any Buyer makes any representation, warranty, covenant or
undertaking with respect to such matters. For clarification
purposes, the Recitals are part of this Agreement. No provision of
this Agreement may be amended other than by an instrument in
writing signed by the Company and the Required Buyers. Any
amendment to any provision of this Agreement made in conformity
with the provisions of this Section 13.5 shall be binding on all
Buyers and holders of Securities, as applicable, provided that no
such amendment shall be effective to the extent that it (1) applies
to less than all of the holders of the Securities then outstanding
or (2) imposes any obligation or liability on any Buyer without
such Buyer’s prior written consent (which may be granted or
withheld in such Buyer’s sole discretion). No waiver shall be
effective unless it is in writing and signed by an authorized
representative of the waiving party, provided that the Required
Buyers may waive any provision of this Agreement, and any waiver of
any provision of this Agreement made in conformity with the
provisions of this Section 13.5 shall be binding on all Buyers and
holders of Securities, as applicable, provided that no such waiver
shall be effective to the extent that it (1) applies to less than
all of the holders of the Securities then outstanding (unless a
party gives a waiver as to itself only) or (2) imposes any
obligation or liability on any Buyer without such Buyer’s
prior written consent (which may be granted or withheld in such
Buyer’s sole discretion). No consideration shall be offered
or paid to any Person to amend or consent to a waiver or
modification of any provision of any of the Transaction Documents
unless the same consideration also is offered to all of the parties
to the Transaction Documents who are holders of Securities. The
Company has not, directly or indirectly, made any agreements with
any Buyers relating to the terms or conditions of the transactions
contemplated by the Transaction Documents except as set forth in
the Transaction Documents. Without limiting the foregoing, the
Company confirms that, except as set forth in this Agreement, no
Buyer has made any commitment or promise or has any other
obligation to provide any financing to the Company or otherwise.
As a material
inducement for each Buyer to enter into this Agreement, the Company
expressly acknowledges and agrees that no due diligence or other
investigation or inquiry conducted by a Buyer, any of its advisors
or any of its representatives shall affect such Buyer’s right
to rely on, or shall modify or qualify in any manner or be an
exception to any of, the Company’s representations and
warranties contained in this Agreement or any other Transaction
Document. “Required
Buyers” means Buyers holding a majority of the Closing
Date Conversion Shares and the shares of Common Stock underlying
the Preferred Stock sold pursuant to this Agreement (with the
number of shares underlying such Preferred Stock being measured as
of the Closing Date).
13.6 Gender
and Use of Singular and Plural. All pronouns shall be deemed
to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the party or parties or their personal
representatives, successors and assigns may require.
13.7 Execution.
This Agreement may be executed in one or more counterparts, all of
which taken together shall be deemed and considered one and the
same Agreement, and same shall become effective when counterparts
have been signed by each party and each party has delivered its
signed counterpart to the other party. A digital reproduction,
portable document format (“.pdf”) or other reproduction
of this Agreement may be executed by one or more parties hereto and
delivered by such party by electronic signature (including
signature via DocuSign or
similar services), electronic mail or any similar electronic
transmission device pursuant to which the signature of or on behalf
of such party can be seen. Such execution and delivery shall be
considered valid, binding and effective for all
purposes.
13.8 Headings.
The article and section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of the Agreement.
13.9 Governing
Law. This Agreement shall be construed and enforced in
accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Agreement shall be
governed by, the internal laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or
rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions
other than the State of New York. The Company hereby irrevocably
submits to the exclusive jurisdiction of the state and federal
courts sitting in The City of New York, Borough of Manhattan, for
the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper. Nothing
contained herein shall be deemed to limit in any way any right to
serve process in any manner permitted by law. In the event that any
provision of this Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be
deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable
under any law shall not affect the validity or enforceability of
any other provision of this Agreement. Nothing contained herein
shall be deemed or operate to preclude the Holder from bringing
suit or taking other legal action against the Company in any other
jurisdiction to collect on the Company’s obligations to the
Holder, to realize on any collateral or any other security for such
obligations, or to enforce a judgment or other court ruling in
favor of the Holder. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
13.10 Further
Assurances. The parties hereto will execute and deliver such
further instruments and do such further acts and things as may be
reasonably required to carry out the intent and purposes of this
Agreement.
13.11 Survival.
The representations and warranties contained herein shall survive
the Closing. Each Buyer shall be responsible only for its own
representations, warranties and covenants hereunder.
13.12 Joint
Preparation. The preparation of this Agreement has been a
joint effort of the parties and the resulting documents shall not,
solely as a matter of judicial construction, be construed more
severely against one of the parties than the other.
13.13 Severability.
If any one of the provisions contained in this Agreement, for any
reason, shall be held invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement, and this Agreement
shall remain in full force and effect and be construed as if the
invalid, illegal or unenforceable provision had never been
contained herein.
13.14 No
Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
13.15 WAIVER
OF JURY TRIAL. THE BUYERS AND THE COMPANY, AFTER CONSULTING
OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, EACH
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, IRREVOCABLY, THE
RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR ANY OTHER AGREEMENT
EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS
AGREEMENT, OR ANY COURSE OF CONDUCT OR COURSE OF DEALING IN WHICH
THE BUYERS AND THE COMPANY ARE ADVERSE PARTIES. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE BUYERS TO PURCHASE THE PREFERRED STOCK
AND THE WARRANTS.
[SIGNATURES
ON THE FOLLOWING PAGE]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date and year set forth above.
“COMPANY”
ENDRA
LIFE SCIENCES INC.,
a
Delaware corporation
By:_____________________
|
Francois
Michelon
|
Chief Executive
Officer
|
BUYERS:
See
Signature pages for each Buyer attached
Company
Signature Page to Securities Purchase Agreement
BUYER SIGNATURE PAGE FOR
SECURITIES PURCHASE AGREEMENT
WITH ENDRA LIFE SCIENCES INC.
By its
execution below, the undersigned Buyer hereby acknowledges and
agrees to the terms set forth in the Securities Purchase Agreement
to which this signature page is attached.
FOR ENTITY
INVESTORS:
|
FOR INDIVIDUAL
INVESTORS:
|
|
|
_____________________________
|
|
[Name of
Entity]
|
Signature:_____________________
|
|
Name:________________________
|
By:__________________________
|
|
Name:_______________________
|
|
Title:________________________
|
Signature:______________________
|
|
Name:_________________________
|
|
|
WORK
ADDRESS:
|
HOME
ADDRESS:
|
|
|
_____________________________
|
_____________________________
|
_____________________________
|
_____________________________
|
|
|
Attention:
_____________________________
|
Phone:
_____________________________
|
Phone:
_____________________________
|
SSN:
_____________________________
|
Fax:
_____________________________
|
|
E-mail:
_____________________________
|
|
Taxpayer ID#:
_____________________________
|
|
|
|
Aggregate
Purchase Price for Buyer’s Securities:
$_________________
Common
Stock Purchase Election ☐
Number
of Closing Date Conversion Shares included in Buyer’s
Securities:____________________
Buyer Signature Page to Securities Purchase
Agreement
BUYER
ADDENDUM RE DEPOSIT
(this information is
required)
(Print
Name of Buyer)
By
signing the Securities Purchase Agreement, the above named Buyer
hereby certifies and confirms that: In the event that the
Buyer’s Purchase Price is returned to the Buyer, which may or
may not occur, the Buyer hereby confirms that such disbursement is
to be made by wire transfer using the following wire transfer
instructions. The the Company and the Placement Agent can rely on
this confirmation and the Buyer will not revoke this confirmation
unless the Buyer confirms to the Company on this form, replacement
wire transfer instructions at least two (2) Business Days before
revoking this confirmation. The Company may withhold any such
disbursement until the Company is reasonably satisfied with the
instructions and procedures for making such
disbursement.
Bank
Name: ____________________
Bank
Address: ____________________
ABA
Number: ____________________
Account
Number: ____________________
Account
Name: ____________________
Reference:
____________________
REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (the “Agreement”) is made and
entered into as of this 11th day of December 2019 (the
“Closing
Date”) by and among ENDRA Life Sciences Inc., a
Delaware corporation (the “Company”), the
“Buyers” named in that certain Securities Purchase
Agreement by and among the Company and the Buyers (the
“Purchase Agreement”) and Lake Street Capital Markets,
LLC (“Lake Street”) (together, the Buyers and Lake
Street are referred to as the “Holders”). Capitalized
terms used herein have the respective meanings ascribed thereto in
the Purchase Agreement unless otherwise defined
herein.
The
parties hereby agree as follows:
As used
in this Agreement, the following terms shall have the following
meanings:
“Common Stock” means the
common stock, $.0001 par value, of the Company.
“Holders” means the
Buyers, together with Lake Street and any Affiliate or permitted
transferee of Lake Street who is a subsequent holder of any
Registrable Securities.
“Buyers” means the Buyer
identified in the Purchase Agreement and any Affiliate or permitted
transferee of any Buyer who is a subsequent holder of any
Registrable Securities.
“Placement Agent Warrants”
means the warrants to purchase shares of Common Stock issued to
Lake Street as the Placement Agent under the terms of the Purchase
Agreement and a Placement Agent Agreement, in connection with the
offering of securities under the Purchase Agreement.
“Prospectus” means (i) any
prospectus (preliminary or final) included in any Registration
Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement and
by all other amendments and supplements to the prospectus,
including post-effective amendments and all material incorporated
by reference in such prospectus, and (ii) any “issuer free
writing prospectus” as defined in Rule 433 under the 1933
Act.
“Register,”
“registered” and
“registration” refer to a
registration made by preparing and filing a Registration Statement
or similar document in compliance with the 1933 Act (as defined
below), and the declaration or ordering of effectiveness of such
Registration Statement or document.
“Registrable Securities”
means (i) Closing Date Conversion Shares, (ii) the shares of Common
Stock that are issuable upon the conversion of the Preferred Stock
issued pursuant to the Purchase Agreement and upon exercise of the
Warrants and the Placement Agent Warrants, and (iii) any other
securities issued or issuable with respect to or in exchange for
such shares, whether by merger, charter amendment, or otherwise;
provided, that, (1) in no event will any share of Common Stock
acquired upon conversion of such Preferred Stock or exercise of the
Warrants or Placement Agent Warrants prior to the effectiveness of
the Initial Registration Statement be deemed a Registrable Security
and (2) a security shall cease to be a Registrable Security upon
(A) sale pursuant to a Registration Statement or Rule 144 under the
1933 Act, or (B) such security becoming eligible for sale without
restriction by a Holder pursuant to Rule 144.
“Registration Statement”
means any registration statement of the Company filed under the
1933 Act that covers the resale of any of the Registrable
Securities pursuant to the provisions of this Agreement, amendments
and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material
incorporated by reference in such Registration
Statement.
“Required Holders” means
the Holders beneficially owning a majority of the then Registrable
Securities.
“SEC” means the U.S.
Securities and Exchange Commission.
“1933 Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“1934 Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
(a) Registration
Statements.
(i) Initial
Registration Statement. On or
before the 30th
day after the Closing Date of the
offering of Preferred Stock and Warrants under the Purchase
Agreement and related Transaction Documents (the
“Filing
Deadline”), the Company
shall prepare and file with the SEC one Registration Statement on
Form S-3 (or, if Form S-3 is not then available to the Company, on
such form of registration statement as is then available to effect
a registration for resale of the Registrable Securities) (the
“Initial Registration
Statement”), covering the
resale of the Registrable Securities. Subject to any SEC comments,
such Registration Statement shall include the plan of distribution
attached hereto as Exhibit
A; provided, however, that no
Holder shall be named as an “underwriter” in the
Registration Statement without the Holder’s prior written
consent, provided, further, any Holder who unreasonably refuses to
be named as an underwriter in the Registration Statement shall be
excluded as a selling shareholder from the Registration Statement.
Such Registration Statement also shall cover, to the extent
allowable under the 1933 Act and the rules promulgated thereunder
(including Rule 416), such indeterminate number of additional
shares of Common Stock resulting from stock splits, stock dividends
or similar transactions with respect to the Registrable Securities.
Such Registration Statement shall not include any shares of Common
Stock or other securities of the Company for the account of any
other person without the prior written consent of the Required
Holders. The Registration Statement (and each amendment or
supplement thereto, and each request for acceleration of
effectiveness thereof) shall be provided by the Placement Agent to
the Holders in accordance with Section 3(c) prior to its filing or
other submission. If a Registration Statement covering the
Registrable Securities is not filed with the SEC on or prior to the
Filing Deadline, the Company will make pro rata payments to each
Holder, as liquidated damages and not as a penalty, in an amount
equal to 1.0% of the aggregate amount invested by the Holder
pursuant to the Purchase Agreement for each 30-day period or pro
rata for any portion thereof following the Filing Deadline for
which no Registration Statement is filed with respect to the
Registrable Securities. Such payments shall constitute the
Holders’ exclusive monetary remedy for such events, but shall
not affect the right of the Holders to seek injunctive relief. Such
payments shall be made to each Holder in cash no later than three
(3) Business Days after the end of each 30-day
period.
(b) Expenses.
The Company will pay all expenses associated with effecting the
registration of the Registrable Securities, including filing and
printing fees, the Company’s counsel and accounting fees and
expenses, costs associated with clearing the Registrable Securities
for sale under applicable state securities laws, listing fees and
the Holders’ other reasonable expenses in connection with the
registration, but excluding discounts, commissions, fees of
underwriters, selling brokers, dealer managers or similar
securities industry professionals with respect to the Registrable
Securities being sold and excluding the fees and disbursements of
counsel to any Holder.
(c) Effectiveness.
(i) The
Company shall use commercially reasonable efforts to have any
Registration Statement declared effective as soon as practicable.
The Company shall notify the Holders by facsimile or e-mail as
promptly as practicable, and in any event, within twenty-four (24)
hours, after any Registration Statement is declared effective and
shall simultaneously provide the Holders with copies of any related
Prospectus to be used in connection with the sale or other
disposition of the securities covered thereby.
(ii) For
not more than forty (40) consecutive days or for a total of not
more than sixty (60) days in any twelve (12) month period, the
Company may suspend the use of any Prospectus included in any
Registration Statement contemplated by this Section in the event
that the Company determines in good faith that such suspension is
necessary to (A) delay the disclosure of material non-public
information concerning the Company, the disclosure of which at the
time is not, in the good faith opinion of the Company, in the best
interests of the Company or (B) amend or supplement the affected
Registration Statement or the related Prospectus so that such
Registration Statement or Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the case of the Prospectus in light of the
circumstances under which they were made, not misleading (an
“Allowed
Delay”); provided, that
the Company shall promptly (a) notify each Holder in writing of the
commencement of an Allowed Delay, but shall not (without the prior
written consent of an Holder) disclose to such Holder any material
non-public information giving rise to an Allowed Delay, (b) advise
the Holders in writing to cease all sales under the Registration
Statement until the end of the Allowed Delay, and (c) use
commercially reasonable efforts to terminate an Allowed Delay as
promptly as practicable.
(d) Rule
415; Cutback If at any time the
SEC takes the position that the offering of some or all of the
Registrable Securities in a Registration Statement is not eligible
to be made on a delayed or continuous basis under the provisions of
Rule 415 under the 1933 Act or requires any Holder to be named as
an “underwriter”, the Company shall use its commercial
best efforts to persuade the SEC that the offering contemplated by
a Registration Statement is a bona fide secondary offering and not
an offering “by or on behalf of the issuer” as defined
in Rule 415 and that none of the Holders is an
“underwriter”. In the event that, despite the
Company’s commercial best efforts and compliance with the
terms of this Section
2(d), the SEC refuses to alter
its position, the Company shall (i) remove from the Registration
Statement such portion of the Registrable Securities (the
“Cut Back
Shares”) and/or (ii)
agree to such restrictions and limitations on the registration and
resale of the Registrable Securities as the SEC may require to
assure the Company’s compliance with the requirements of Rule
415 (collectively, the “SEC
Restrictions”). Any
cut-back imposed pursuant to this Section 2(d)
shall be allocated among the Holders
on a pro rata basis, unless the SEC Restrictions otherwise require
or provide or the Holders otherwise agree. Any cut-back imposed
pursuant to a SEC comment shall be applied, first,
to securities of the Company that are registered pursuant to an
agreement subsequent to the date of this Agreement and,
second,
to the Registrable Securities on a pro rata basis taken together.
No liquidated damages shall accrue as to any Cut Back Shares until
such date as the Company is able to effect the registration of such
Cut Back Shares in accordance with any SEC Restrictions (such date,
the “Restriction
Termination Date” of such
Cut Back Shares). From and after the Restriction Termination Date
applicable to any Cut Back Shares, all of the provisions of
this Section 2
(including the liquidated damages
provisions) shall again be applicable to such Cut Back Shares;
provided, however, that (i) the Filing Deadline for the
Registration Statement including such Cut Back Shares shall be ten
(10) Business Days after such Restriction Termination Date, and
(ii) the date by which the Company is required to obtain
effectiveness with respect to such Cut Back Shares under
Section
2(c) shall be the
60th
day immediately after the Restriction
Termination Date.
(e) Right
to Piggyback Registration.
(i) If
at any time following the date of this Agreement that any
Registrable Securities remain outstanding and are not freely
tradable under Rule 144 (A) there is not one or more effective
Registration Statements covering all of the Registrable Securities
and (B) the Company proposes for any reason to register any shares
of Common Stock under the 1933 Act (other than pursuant to a
registration statement on Form S-4 or Form S-8 (or a similar or
successor form) or a shelf registration statement on Form S-3) with
respect to an offering of Common Stock by the Company for its own
account or for the account of any of its stockholders, it shall at
each such time promptly give written notice to the holders of the
Registrable Securities of its intention to do so (but in no event
less than thirty (30) days before the anticipated filing date) and,
to the extent permitted under the provisions of Rule 415 under the
1933 Act, include in such registration all Registrable Securities
with respect to which the Company has received written requests for
inclusion therein within fifteen (15) days after receipt of the
Company’s notice (a “Piggyback
Registration”).
(ii) Notwithstanding
the foregoing, (A) if such registration involves an underwritten
public offering, the Holders must sell their Registrable Securities
to, if applicable, the underwriter(s) at the same price and subject
to the same underwriting discounts and commissions that apply to
the other securities sold in such offering (it being acknowledged
that the Company shall be responsible for other expenses as set
forth in Section
2(b)) and subject to the
Holders entering into customary underwriting documentation for
selling stockholders in an underwritten public offering, and (B)
if, at any time after giving written notice of its intention to
register any Registrable Securities pursuant to Section 2(e)(i)
and prior to the effective date of the
registration statement filed in connection with such registration,
the Company shall determine for any reason not to cause such
registration statement to become effective under the 1933 Act, the
Company shall deliver written notice to the Holders and, thereupon,
shall be relieved of its obligation to register any Registrable
Securities in connection with such registration; provided, however,
that nothing contained in this Section 2(e)(ii) shall limit the
Company’s liabilities and/or obligations under this
Agreement, including, without limitation, the obligation to pay
liquidated damages under this Section
2.
3.
Company
Obligations. The Company will
use commercially reasonable efforts to effect the registration of
the Registrable Securities in accordance with the terms hereof, and
pursuant thereto the Company will, as expeditiously as
possible:
(a) use
commercially reasonable efforts to cause such Registration
Statement to become effective and to remain continuously effective
for a period that will terminate upon the earlier of (i) the date
on which all Registrable Securities covered by such Registration
Statement as amended from time to time, have been sold, or (ii) the
date on which all Registrable Securities covered by such
Registration Statement may be sold without restriction pursuant to
Rule 144 (the “Effectiveness
Period”) and advise a
Holder in writing when the Effectiveness Period has expired as to
their respective Registrable Securities;
(b) prepare
and file with the SEC such amendments and post-effective amendments
to the Registration Statement and the Prospectus as may be
necessary to keep the Registration Statement effective for the
Effectiveness Period and to comply with the provisions of the 1933
Act and the 1934 Act with respect to the distribution of all of the
Registrable Securities covered thereby;
(c) provide
copies to the Placement Agent for distribution to the Holders to
review each Registration Statement and all amendments and
supplements thereto no fewer than seven (7) days prior to their
filing with the SEC and not file any document to which a Holder
reasonably objects;
(d) use
commercially reasonable efforts to (i) prevent the issuance of any
stop order or other suspension of effectiveness and, (ii) if such
order is issued, obtain the withdrawal of any such order at the
earliest possible moment;
(e) prior to any public offering of Registrable
Securities, if the Common Stock is not traded on a national
securities exchange (as defined by the SEC) use commercially
reasonable efforts to register or qualify or cooperate with the
Holders in connection with the registration or qualification of
such Registrable Securities for offer and sale under the securities
or blue sky laws of such U.S. jurisdictions requested by the
Holders and do any and all other commercially reasonable acts or
things necessary or advisable to enable the distribution in such
U.S. jurisdictions of the Registrable Securities covered by the
Registration Statement; provided, however, that the Company shall
not be required in connection therewith or as a condition thereto
to (i) qualify to do business in any U.S. jurisdiction where it
would not otherwise be required to qualify but for this
Section
3(e), (ii) subject itself to
general taxation in any jurisdiction where it would not otherwise
be so subject but for this Section
3(e), or (iii) file a general
consent to service of process in any such
jurisdiction;
(f) use
commercially reasonable efforts to cause all Registrable Securities
covered by a Registration Statement to be listed on each securities
exchange, interdealer quotation system or other market on which
similar securities issued by the Company are then
listed;
(g) immediately
notify the Holders, at any time prior to the end of the
Effectiveness Period, upon discovery that, or upon the happening of
any event as a result of which, the Prospectus includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing,
and promptly prepare, file with the SEC and furnish to such holder
a supplement to or an amendment of such Prospectus as may be
necessary so that such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing;
(h) otherwise
use commercially reasonable efforts to comply with all applicable
rules and regulations of the SEC under the 1933 Act and the 1934
Act, including, without limitation, Rule 172 under the 1933 Act,
file any final Prospectus, including any supplement or amendment
thereof, with the SEC pursuant to Rule 424 under the 1933 Act,
promptly inform the Holders in writing if, at any time during the
Effectiveness Period, the Company does not satisfy the conditions
specified in Rule 172 and, as a result thereof, the Holders are
required to deliver a Prospectus in connection with any disposition
of Registrable Securities and take such other actions as may be
reasonably necessary to facilitate the registration of the
Registrable Securities hereunder; and make available to its
security holders, as soon as reasonably practicable, but not later
than the Availability Date (as defined below), an earnings
statement covering a period of at least twelve (12) months,
beginning after the effective date of each Registration Statement,
which earnings statement shall satisfy the provisions of Section
11(a) of the 1933 Act, including Rule 158 promulgated thereunder
(for the purpose of this subsection 3(h),
“Availability
Date” means the 45th day
following the end of the fourth fiscal quarter that includes the
effective date of such Registration Statement, except that, if such
fourth fiscal quarter is the last quarter of the Company’s
fiscal year, “Availability
Date” means the 90th day
after the end of such fourth fiscal quarter);
and
(i) With
a view to making available to the Holders the benefits of Rule 144
(or its successor rule) and any other rule or regulation of the SEC
that may at any time permit the Holders to sell shares of Common
Stock to the public without registration, the Company covenants and
agrees to: (i) make and keep public information available, as those
terms are understood and defined in Rule 144, until such date as
all of the Registrable Securities shall have been resold pursuant
to a Registration Statement, Rule 144 or otherwise in a transaction
in which the transferee receives freely tradable shares; (ii) file
with the SEC in a timely manner all reports and other documents
required of the Company under the 1934 Act; and (iii) furnish to
each Holder upon request, as long as such Holder owns any
Registrable Securities, (A) a written statement by the Company that
it has complied with the reporting requirements of the 1934 Act,
(B) a copy of the Company’s most recent Annual Report on Form
10-K or Quarterly Report on Form 10-Q, and (C) such other
information as may be reasonably requested in order to avail the
Holder of any rule or regulation of the SEC that permits the
selling of any such Registrable Securities without registration. In
the event that the Company fails to comply with the requirements of
this Section 3(i)
after the 90th day after the Closing
Date, the Company will make pro rata payments to each Holder, as
liquidated damages and not as a penalty, in an amount equal to 1.0%
of the aggregate amount invested by the Holder pursuant to the
Purchase Agreement for each 30-day period or pro rata for any
portion thereof until such failure is cured; provided, however,
that such liquidated damages shall be payable only to a Holder only
to the extent the Holder continues to hold Registrable Securities
prior to such failure. Such payments shall constitute the
Holders’ exclusive monetary remedy for such events, but shall
not affect the right of the Holders to seek injunctive relief. Such
payments shall be made to each Holder in cash no later than three
(3) Business Days after the end of each 30-day
period.
4.
Obligations of the
Holders.
(a) Each
Holder shall furnish in writing to the Company such information
regarding itself, the Registrable Securities held by it, and the
intended method of disposition of the Registrable Securities held
by it if substantially different from Exhibit
A, as shall be reasonably
required to effect the registration of such Registrable Securities
and shall execute such documents in connection with such
registration as the Company may reasonably request. At least five
(5) Business Days prior to the first anticipated filing date of any
Registration Statement, the Company shall notify each Holder of the
information the Company requires from the Holder if it elects to
have any of its Registrable Securities included in the Registration
Statement which such notice may be provided through Lake Street as
Placement Agent. A Holder shall provide the information to the
Company at least two (2) Business Days prior to the first
anticipated filing date of such Registration Statement if the
Holder elects to have any of the Registrable Securities included in
the Registration Statement. In the event that a Holder does not
provide such information on a timely basis, the Company shall
provide prompt written notice to the Holder that the Registrable
Securities attributable to that Holder will be excluded from the
Registration Statement unless the Holder provides the required
information within one (1) Business Day after its receipt of such
notice. If the Holder does not provide the required information to
the Company by the end of the next Business Day after its receipt
of such notice, the Company shall have the right to exclude the
Registrable Securities attributable to that Holder from the
Registration Statement and the Holder shall not be entitled to
receive any liquidated damages pursuant to the provisions of this
Agreement with respect to such Registration Statement.
Notwithstanding anything in this Agreement to the contrary, any
Holder that elects not to have any of its Registrable Securities
included in the Registration Statement, shall not be entitled to
receive any liquidated damages pursuant to the provisions of this
Agreement with respect to such Registration
Statement.
(b) Each
Holder, by its acceptance of the Registrable Securities agrees to
cooperate with the Company as reasonably requested by the Company
in connection with the preparation and filing of a Registration
Statement hereunder, unless the Holder has notified the Company in
writing of its election to exclude all of its Registrable
Securities from such Registration Statement.
(c) Each
Holder agrees that, upon receipt of any notice from the Company of
either (i) the commencement of an Allowed Delay pursuant to
Section
2(c)(ii) or (ii)
the happening of an event pursuant
to Section 3(h)
hereof, the Holder will immediately
discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities, until
the Holder is advised by the Company that such dispositions may
again be made.
(a) Indemnification
by the Company. The Company
will indemnify and hold harmless each Holder, including without
limitation Lake Street and its respective officers, directors,
members, managers, partners, trustees, employees and agents and
other representatives, successors and assigns, and each other
person, if any, who controls such Holder within the meaning of the
1933 Act, against any losses, claims, damages or liabilities, joint
or several, to which they may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon: (i)
any untrue statement or alleged untrue statement or omission or
alleged omission of any material fact contained in any Registration
Statement, any Prospectus, or any amendment or supplement thereof;
(ii) any blue sky application or other document executed by the
Company specifically for that purpose or based upon written
information furnished by the Company filed in any state or other
jurisdiction in order to qualify any or all of the Registrable
Securities under the securities laws thereof (any such application,
document or information herein called a “Blue Sky
Application”); (iii) the omission or alleged omission to
state in a Blue Sky Application a material fact required to be
stated therein or necessary to make the statements therein not
misleading; (iv) any violation by the Company or its agents of any
rule or regulation promulgated under the 1933 Act applicable to the
Company or its agents and relating to action or inaction required
of the Company in connection with such registration; or (v) any
failure to register or qualify the Registrable Securities included
in any such Registration Statement in any state where the Company
or its agents has affirmatively undertaken or agreed in writing
that the Company will undertake such registration or qualification
on a Holder’s behalf and will reimburse such Holder, and each
such officer, director, shareholder or member and each such
controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided,
however,
that the Company will not be liable in any such case if and to the
extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information
furnished by the Holder or any such controlling person in writing
specifically for use in such Registration Statement or
Prospectus.
(b) Indemnification
by the Holders. Each Holder
agrees, severally but not jointly, to indemnify and hold harmless,
to the fullest extent permitted by law, the Company, its directors,
officers, employees, stockholders and each person who controls the
Company (within the meaning of the 1933 Act) against any losses,
claims, damages, liabilities and expense (including reasonable
attorney fees) resulting from any untrue statement of a material
fact or any omission of a material fact required to be stated in
the Registration Statement or Prospectus or amendment or supplement
thereto or necessary to make the statements therein not misleading,
to the extent, but only to the extent that such untrue statement or
omission is contained in any information furnished in writing by
the Holder to the Company specifically for inclusion in such
Registration Statement or Prospectus or amendment or supplement
thereto. In no event shall the liability of a Holder be greater in
amount than the dollar amount of the proceeds (net of all expenses
paid by the Holder in connection with any claim relating to this
Section 5 and the amount of any damages the Holder has otherwise
been required to pay by reason of such untrue statement or
omission) received by the Holder upon the sale of the Registrable
Securities included in the Registration Statement giving rise to
such indemnification obligation.
(c) Conduct
of Indemnification Proceedings.
Any person entitled to indemnification hereunder shall (i) give
prompt notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) permit such indemnifying
party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided
that any person entitled to
indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such
person unless (a) the indemnifying party has agreed to pay such
fees or expenses, or (b) the indemnifying party shall have failed
to assume the defense of such claim and employ counsel reasonably
satisfactory to such person or (c) in the reasonable judgment of
any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the
indemnifying party with respect to such claims (in which case, if
the person notifies the indemnifying party in writing that such
person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right
to assume the defense of such claim on behalf of such person);
and provided,
further,
that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its
obligations hereunder, except to the extent that such failure to
give notice shall materially adversely affect the indemnifying
party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection
with any proceeding in the same jurisdiction, be liable for fees or
expenses of more than one separate firm of attorneys at any time
for all such indemnified parties. No indemnifying party will,
except with the consent of the indemnified party, consent to entry
of any judgment or enter into any settlement that does not include
as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability
in respect of such claim or litigation. The indemnifying party
shall not be liable hereunder for any settlements entered into by
an indemnified party without the indemnifying party’s prior
written consent, which shall not be unreasonably withheld,
conditioned or delayed.
(d) Contribution.
If for any reason the indemnification provided for in the preceding
paragraphs (a) and (b) is unavailable to an indemnified party or
insufficient to hold it harmless, other than as expressly specified
therein, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable
considerations. No person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be
entitled to contribution from any person not guilty of such
fraudulent misrepresentation. In no event shall the contribution
obligation of a holder of Registrable Securities be greater in
amount than the dollar amount of the proceeds (net of all expenses
paid by such holder in connection with any claim relating to
this Section 5
and the amount of any damages such
holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission)
received by it upon the sale of the Registrable Securities giving
rise to such contribution obligation.
(a) Amendments
and Waivers. Any term of this
Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the
written consent of the Company and the Required
Holders.
(b) Notices.
All notices and other communications provided for or permitted
hereunder shall be made as set forth in Section 13.1 of the
Purchase Agreement.
(c) Maximum
Liquidated Damages. The maximum
amount of liquidated damages due to a Holder will be 20% of the
aggregate amount invested by the Holder pursuant to the Purchase
Agreement.
(d) Assignments
and Transfers by Holders. The
provisions of this Agreement shall be binding upon and inure to the
benefit of the Holders and their respective successors and assigns.
A Holder may transfer or assign, in whole or from time to time in
part, to one or more persons its rights hereunder in connection
with the transfer of Registrable Securities by the Holder to such
person, provided that the Holder complies with all laws applicable
thereto and provides written notice of assignment to the Company
promptly after such assignment is effected.
(e) Assignments
and Transfers by the Company.
This Agreement may not be assigned by the Company (whether by
operation of law or otherwise) without the prior written consent of
the Required Holders; provided,
however, that in the event that
the Company is a party to a merger, consolidation, share exchange
or similar business combination transaction in which the Common
Stock is converted into the equity securities of another Person,
from and after the effective time of such transaction, such Person
shall, by virtue of such transaction, be deemed to have assumed the
obligations of the Company hereunder. The term
“Company” shall be deemed to refer to such Person and
the term “Registrable Securities” shall be deemed to
include the securities received by the Holders in connection with
such transaction unless such securities are otherwise freely
tradable by the Holders after giving effect to such
transaction.
(f) Benefits
of the Agreement. The terms and
conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and permitted assigns of the
parties. Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their
respective successors and permitted assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
(g) Counterparts;
Faxes. This Agreement may be
executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the
same instrument. This Agreement may be delivered via facsimile or
other form of electronic communication, which shall be deemed an
original.
(h) Titles
and Subtitles. The titles and
subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
(i) Severability.
Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the
maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the
parties hereby waive any provision of law which renders any
provisions hereof prohibited or unenforceable in any
respect.
(j) Further
Assurances. The parties shall
execute and deliver all such further instruments and documents and
take all such other actions as may reasonably be required to carry
out the transactions contemplated hereby and to evidence the
fulfillment of the agreements herein contained.
(k) Entire
Agreement. This Agreement is
intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the
subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with
respect to such subject matter.
(l) Governing
Law; Consent to Jurisdiction; Waiver of Jury
Trial. This Agreement shall be
construed and enforced in accordance with, and all questions
concerning the construction, validity, interpretation and
performance of this Agreement shall be governed by, the internal
laws of the State of New York, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State
of New York or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State
of New York. The Company hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in
The City of New York, Borough of Manhattan, for the adjudication of
any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Nothing contained
herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. In the event that any
provision of this Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be
deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable
under any law shall not affect the validity or enforceability of
any other provision of this Agreement. Nothing contained herein
shall be deemed or operate to preclude the Holder from bringing
suit or taking other legal action against the Company in any other
jurisdiction to collect on the Company’s obligations to the
Holder, to realize on any collateral or any other security for such
obligations, or to enforce a judgment or other court ruling in
favor of the Holder. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
IN
WITNESS WHEREOF, the parties have executed this Agreement or caused
their duly authorized officers to execute this Agreement as of the
date first above written.
|
ENDRA LIFE SCIENCES
INC.
|
The
Company:
|
|
|
|
|
By:_________________________
|
|
Francois
Michelon
|
|
President and
CEO
|
_________________________________
(Name
of Holder)
By:_______________________________
Name:
Title:
|
LAKE STREET CAPITAL
MARKETS, LLC
|
|
By:_______________________________
|
|
Name:
____________________________
|
|
Title:
_____________________________
|
Exhibit A
Plan of Distribution
The
selling stockholders, which as used herein includes donees,
pledgees, transferees or other successors-in-interest selling
shares of common stock or interests in shares of common stock
received after the date of this prospectus from a selling
stockholder as a gift, pledge, partnership distribution or other
transfer, may, from time to time, sell, transfer or otherwise
dispose of any or all of their shares of common stock or interests
in shares of common stock on any stock exchange, market or trading
facility on which the shares are traded or in private transactions.
These dispositions may be at fixed prices, at prevailing market
prices at the time of sale, at prices related to the prevailing
market price, at varying prices determined at the time of sale, or
at negotiated prices.
The
selling stockholders may use any one or more of the following
methods when disposing of shares or interests therein:
–
ordinary brokerage
transactions and transactions in which the broker-dealer solicits
purchasers;
–
block trades in
which the broker-dealer will attempt to sell the shares as agent,
but may position and resell a portion of the block as principal to
facilitate the transaction;
–
purchases by a
broker-dealer as principal and resale by the broker-dealer for its
account;
–
an exchange
distribution in accordance with the rules of the applicable
exchange;
–
privately
negotiated transactions;
–
short sales
effected after the date the registration statement of which this
Prospectus is a part is declared effective by the SEC;
–
through the writing
or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
–
broker-dealers may
agree with the selling stockholders to sell a specified number of
such shares at a stipulated price per share;
–
a combination of
any such methods of sale; and
–
any other method
permitted by applicable law.
The
selling stockholders may, from time to time, pledge or grant a
security interest in some or all of the shares of common stock
owned by them and, if they default in the performance of their
secured obligations, the pledgees or secured parties may offer and
sell the shares of common stock, from time to time, under this
prospectus, or under an amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act
amending the list of selling stockholders to include the pledgee,
transferee or other successors in interest as selling stockholders
under this prospectus. The selling stockholders also may transfer
the shares of common stock in other circumstances, in which case
the transferees, pledgees or other successors in interest will be
the selling beneficial owners for purposes of this
prospectus.
In
connection with the sale of our common stock or interests therein,
the selling stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the common stock in the course of hedging
the positions they assume. The selling stockholders may also sell
shares of our common stock short and deliver these securities to
close out their short positions, or loan or pledge the common stock
to broker-dealers that in turn may sell these securities. The
selling stockholders may also enter into option or other
transactions with broker-dealers or other financial institutions or
the creation of one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of
shares offered by this prospectus, which shares such broker-dealer
or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
aggregate proceeds to the selling stockholders from the sale of the
common stock offered by them will be the purchase price of the
common stock less discounts or commissions, if any. Each of the
selling stockholders reserves the right to accept and, together
with their agents from time to time, to reject, in whole or in
part, any proposed purchase of common stock to be made directly or
through agents. We will not receive any of the proceeds from this
offering.
The
selling stockholders also may resell all or a portion of the shares
in open market transactions in reliance upon Rule 144 under the
Securities Act of 1933, provided that they meet the criteria and
conform to the requirements of that rule.
The
selling stockholders and any underwriters, broker-dealers or agents
that participate in the sale of the common stock or interests
therein may be "underwriters" within the meaning of Section 2(11)
of the Securities Act. Any discounts, commissions, concessions or
profit they earn on any resale of the shares may be underwriting
discounts and commissions under the Securities Act. Selling
stockholders who are "underwriters" within the meaning of Section
2(11) of the Securities Act will be subject to the prospectus
delivery requirements of the Securities Act.
To the
extent required, the shares of our common stock to be sold, the
names of the selling stockholders, the respective purchase prices
and public offering prices, the names of any agents, dealer or
underwriter, any applicable commissions or discounts with respect
to a particular offer will be set forth in an accompanying
prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this
prospectus.
In
order to comply with the securities laws of some states, if
applicable, the common stock may be sold in these jurisdictions
only through registered or licensed brokers or dealers. In
addition, in some states the common stock may not be sold unless it
has been registered or qualified for sale or an exemption from
registration or qualification requirements is available and is
complied with.
We have
advised the selling stockholders that the anti-manipulation rules
of Regulation M under the Exchange Act may apply to sales of shares
in the market and to the activities of the selling stockholders and
their affiliates. In addition, to the extent applicable we will
make copies of this prospectus (as it may be supplemented or
amended from time to time) available to the selling stockholders
for the purpose of satisfying the prospectus delivery requirements
of the Securities Act. The selling stockholders may indemnify any
broker-dealer that participates in transactions involving the sale
of the shares against certain liabilities, including liabilities
arising under the Securities Act.
We have
agreed to indemnify the selling stockholders against liabilities,
including liabilities under the Securities Act and state securities
laws, relating to the registration of the shares offered by this
prospectus.
We have
agreed with the selling stockholders to keep the registration
statement of which this prospectus constitutes a part effective
until the earlier of (1) such time as all of the shares covered by
this prospectus have been disposed of pursuant to and in accordance
with the registration statement or (2) the date on which all of the
shares may be sold without restriction pursuant to Rule 144 of the
Securities Act.