Attached files
| file | filename |
|---|---|
| 8-K - Statera Biopharma, Inc. | v206740_8k.htm |
| EX-5.1 - Statera Biopharma, Inc. | v206740_ex5-1.htm |
| EX-10.1 - Statera Biopharma, Inc. | v206740_ex10-1.htm |
| EX-10.2 - Statera Biopharma, Inc. | v206740_ex10-2.htm |
| EX-99.1 - Statera Biopharma, Inc. | v206740_ex99-1.htm |
EXHIBIT
10.3
FORM
OF AMENDMENT TO SECURITIES PURCHASE AGREEMENT
This Amendment to Securities Purchase
Agreement (the “Amendment”), dated as
of December 23, 2010, is entered into by and among Cleveland BioLabs, Inc., a
Delaware corporation (the “Company”), and each
person identified on the signature pages hereto (such persons, the “Amending
Purchasers”). This Amendment amends certain provisions under that certain
Securities Purchase Agreement, dated as of February 25, 2010 (the “Securities Purchase
Agreement”), between the Company and each Purchaser (as defined
therein). Capitalized terms used in this Amendment not otherwise
defined herein shall have the meanings ascribed to such terms in the Securities
Purchase Agreement.
RECITALS:
WHEREAS, the Company is contemplating
issuing shares of its Common Stock to certain investors (such issuance, the
“Common Stock
Transaction”) and the Company has delivered to each of the Purchasers all
required notices pursuant to Section 4.11 of the Securities Purchase Agreement
in respect of the Common Stock Transaction;
WHEREAS, Section 5.5 of the Securities
Purchase Agreement provides that the Securities Purchase Agreement may be
amended pursuant to a written instrument signed by the Company and Purchasers
having original Subscription Amounts totaling at least 75% of the aggregate
original Subscription Amounts at Closing (the “Requisite Subscription
Amount”); and
WHEREAS, the Amending Purchasers,
representing at least the Requisite Subscription Amount, desire to amend the
Securities Purchase Agreement in accordance with this Amendment.
AGREEMENT:
NOW, THEREFORE, in consideration of the
foregoing and the promises and covenants contained herein, and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto agree to amend the Securities Purchase Agreement as
follows:
1. Amendment to Section 4.11 of
Securities Purchase Agreement. Section 4.11 to the Securities
Purchase Agreement is hereby deleted in its entirety and replaced with the
following text:
4.11 Participation in Future
Financing.
(a) From
the Common Stock Transaction Effective Time (as defined in Section 2 of the
Amendment to Securities Purchase Agreement dated as of December 23, 2010)
through the earlier of (i) the first (1st)
Trading Day immediately following the date on which the Company consummates a
Subsequent Financing (as defined below) or a series of Subsequent Financings
pursuant to which the Company receives via wire transfer gross proceeds in
excess of $15,000,000 in the aggregate and (ii) December 31, 2011 (4:00 p.m. New
York time on such earlier day is referred to herein as the “Termination Time”),
upon any issuance, directly or indirectly, by the Company or any of its
Subsidiaries of any securities (including, without limitation, Common Stock or
Common Stock Equivalents), Indebtedness or any combination thereof (each a
“Subsequent
Financing”), each Purchaser, or its designated assignees, shall have the
right to participate, in accordance with the terms of this Section 4.11, in up
to an amount of the Subsequent Financing equal to 100% of the Subsequent
Financing (the “Participation
Maximum”) on the same terms, conditions and price provided for in the
Subsequent Financing.
(b) At
least five (5) Trading Days prior to the closing of the Subsequent Financing,
the Company shall deliver to each Purchaser a written notice of its intention to
effect a Subsequent Financing (a “Pre-Notice”), which
Pre-Notice shall not contain any information other than: (i) a statement that
the Company is considering a Subsequent Financing, and (ii) a statement
informing such Purchaser that it is entitled to receive a Subsequent Financing
Notice (as defined below) with respect to such Subsequent Financing upon its
written request. Upon the written request of a Purchaser within three (3)
Trading Days after the delivery of such Pre-Notice, and only upon a written
request by such Purchaser, the Company shall promptly, but no later than one (1)
Trading Day after such request, deliver to such Purchaser an irrevocable written
notice (a “Subsequent
Financing Notice”) of such Subsequent Financing, which shall describe in
reasonable detail the proposed terms of such Subsequent Financing, the amount of
proceeds intended to be raised thereunder and the Person or Persons through or
with whom such Subsequent Financing is proposed to be effected and shall include
a term sheet or similar document relating thereto as an
attachment. Upon a Purchaser’s receipt of a requested Subsequent
Financing Notice, such Purchaser shall keep the existence and terms of the
Subsequent Financing so described in such requested Subsequent Financing Notice
confidential (except that such Purchaser may disclose both the existence and
terms of such Subsequent Financing to its representatives (including without
limitation, legal counsel and brokers)) and shall not use such information
except in connection with its evaluations of such Subsequent Financing and/or
such Purchaser’s participation therein, in each case, until the earlier to occur
of (i) the public disclosure of such Subsequent Financing or (ii) the fifth
(5th)
Business Day after such Purchaser’s receipt of such requested Subsequent
Financing Notice (it being expressly understood and agreed that on such earlier
date such confidentiality obligation of such Purchaser shall become null and
void and such Purchaser shall be free to use all such information for any
purpose).
(c) Any
Purchaser desiring to participate in such Subsequent Financing must provide
written notice to the Company by not later than 5:30 p.m. (New York City time)
on the third (3rd)
Trading Day after such Purchaser has received such Subsequent Financing Notice
that the Purchaser is willing to participate in such Subsequent Financing, the
amount of the Purchaser’s participation, and representing and warranting that
the Purchaser has such funds ready, willing, and available for investment on the
terms set forth in such Subsequent Financing Notice. If the Company receives no
such notice from a Purchaser as of such fifth (5th)
Trading Day, such Purchaser shall be deemed to have notified the Company that it
does not elect to participate.
(d) If
by 5:30 p.m. (New York City time) on the fifth (5th)
Trading Day after all of the Purchasers requesting a Subsequent Financing Notice
have received such Subsequent Financing Notices, notifications by the Purchasers
of their willingness to participate in the Subsequent Financing (or to cause
their designees to participate) is, in the aggregate, less than the total amount
of the Subsequent Financing, then the Company may effect the remaining portion
of such Subsequent Financing on the terms and with the Persons set forth in the
Subsequent Financing Notice.
(e) If
by 5:30 p.m. (New York City time) on the fifth (5th)
Trading Day after all of the Purchasers requesting a Subsequent Financing Notice
have received such Subsequent Financing Notices, the Company receives responses
to Subsequent Financing Notices from Purchasers seeking to purchase more than
the aggregate amount of the Participation Maximum, each such Purchaser shall
have the right to purchase its Pro Rata Portion (as defined below) of the
Participation Maximum. “Pro Rata Portion”
means the ratio of (x) the Subscription Amount of Securities purchased on the
Closing Date by a Purchaser participating under this Section 4.11 and (y) the
sum of the aggregate Subscription Amounts of Securities purchased on the Closing
Date by all Purchasers participating under this Section 4.11.
2
(f)
The Company must provide the Purchasers with a second
Subsequent Financing Notice, and the Purchasers will again have the right of
participation set forth above in this Section 4.11, if the Subsequent Financing
subject to the initial Subsequent Financing Notice is not consummated for any
reason on the terms set forth in such Subsequent Financing Notice within thirty
(30) Trading Days after the date of the initial Subsequent Financing Notice. The
Company shall not be permitted to deliver more than two Subsequent Financing
Notices to any Purchaser in any sixty (60) day period.
(h)
Notwithstanding the foregoing, this Section 4.11 shall
not apply in respect of an Exempt Issuance. The Company acknowledges and agrees
that the right set forth in this Section 4.11 is a right granted by the Company,
separately, to each Purchaser.”
2. Effective
Time. This Amendment shall become effective as of time at
which the shares of Common Stock to be issued pursuant to the Common Stock
Transaction have been issued and all consideration in respect of such issuance
has been paid (such date and time, the “Common Stock Transaction
Effective Time”).
3. Termination. If
this Amendment has not become effective pursuant to Section 2 hereof on or prior
to January 31, 2011, this Amendment shall automatically terminate and be without
effect, without further action by the parties.
4. Effect of
Amendment. Except as expressly modified by this Amendment, the
Securities Purchase Agreement shall remain unmodified and in full force and
effect.
5. Governing
Law. This Amendment shall be governed by and construed under
the laws of the State of New York.
6. Severability. If any
provision of this Amendment shall be or shall be held or deemed by a final order
by a competent authority to be invalid, inoperative or unenforceable, such
circumstance shall not have the effect of rendering any other provision or
provisions herein contained invalid, inoperative or unenforceable, but this
Amendment shall be construed as if such invalid, inoperative or unenforceable
provision had never been contained herein so as to give full force and effect to
the remaining such terms and provisions.
7. Counterparts. This
Amendment may be executed in any number of counterparts and signatures delivered
by facsimile, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
[Signature Pages
Follow]
3
[Company Signature
Page]
IN WITNESS HEREOF, the parties hereto
have executed this Amendment as of the date first written above.
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COMPANY:
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CLEVELAND
BIOLABS, INC.
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By:
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Name: John
A. Marhofer, Jr.
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Title: Chief
Financial Officer
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[Amending
Purchaser Signature Pages Follow]
[Amending Purchaser Signature Page]
AMENDING
PURCHASER:
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Name
of Amending Purchaser:
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Signature of
Authorized Signatory of Amending
Purchaser:
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Name
of Authorized Signatory:
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Email
Address of Authorized Signatory:
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Facsimile
Number of Authorized Signatory:
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Address
for Notice of Amending Purchaser:
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Subscription
Amount: $ ______________________