Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”) is dated as of April 28, 2023, between Eledon Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”).
WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to an exemption from the registration requirements contained in Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and/or Rule 506 promulgated thereunder, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
DEFINITIONS
“Acquiring Person” shall have the meaning ascribed to such term in Section 4.5.
“Action” shall have the meaning ascribed to such term in Section 3.1(j).
“Additional Pre-Funded Warrant Shares” means the shares of Common Stock issuable upon exercise of the Additional Pre-Funded Warrants.
“Additional Pre-Funded Warrants” means, collectively, the pre-funded Common Stock purchase warrants delivered to the Purchasers at the applicable Closings in accordance with Sections 2.1(b) and (c) hereof, which Additional Pre-Funded Warrants shall be exercisable immediately and shall expire when exercised in full, in the form of Exhibit B attached hereto.
“Additional Securities” means the Additional Shares, the Additional Pre-Funded Warrants and the Additional Pre-Funded Warrant Shares.
“Additional Shares” means the shares of Common Stock issued or issuable to each Purchaser in connection with the applicable Closings pursuant to Sections 2.1(b) and (c) of this Agreement, but excluding the Additional Pre-Funded Warrant Shares.
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“Additional Subscription Amount” means, as to each Purchaser, the Second Closing Subscription Amount and/or the Third Closing Subscription Amount, as applicable.
“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.
“Beneficial Ownership Limitation” means 4.99% (or, at the election of the Purchaser at the Closing, such other beneficial ownership limitation as set forth on the signature page hereto and including such Purchaser’s Affiliates, and any Person acting as a group together with such Purchaser or any of such Purchaser’s Affiliates) of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of the Securities on the Closing Date. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company.
“Board of Directors” means the board of directors of the Company.
“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
“Closing” means the Initial Closing, the Second Closing and/or the Third Closing, as applicable.
“Closing Date” means the Initial Closing Date, the Second Closing Date and/or the Third Closing Date, as applicable.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Common Stock Warrant Shares” means the shares of Common Stock issuable upon exercise of the Common Stock Warrants.
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“Common Stock Warrants” means, collectively, the Tranche A Warrants to Purchase Common Stock or Pre-Funded Warrants delivered to the Purchasers at the Initial Closing in accordance with Section 2.2(a) hereof, in the form of Exhibit C attached hereto, which shall be exercisable immediately and have a term of exercise equal to five (5) years.
“Company Counsel” means O’Melveny & Myers LLP, with offices located at 610 Newport Center Drive, 17th Floor, Newport Beach, CA 92660.
“Disclosure Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“Effective Date” means the earliest of the date that (a) the initial Registration Statement filed pursuant to this Agreement has been declared effective by the Commission, (b) all of the Shares and Warrant Shares have been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 and without volume or manner-of-sale restrictions, or (c) all of the Shares and Warrant Shares may be sold pursuant to an exemption from registration under Section 4(a)(1) of the Securities Act without volume or manner-of-sale restrictions and Company Counsel has delivered to such holders a standing written unqualified opinion that resales may then be made by such holders of the Shares and Warrant Shares pursuant to such exemption which opinion shall be in form and substance reasonably acceptable to such holders.
“Evaluation Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such
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securities (other than in connection with stock splits or combinations or as otherwise required by the terms of such securities in effect as of the date of this Agreement) or to extend the term of such securities, and (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period in Section 4.12(a) herein, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.
“FDA” shall have the meaning ascribed to such term in Section 3.1(jj).
“FDCA” shall have the meaning ascribed to such term in Section 3.1(jj).
“GAAP” shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness” shall have the meaning ascribed to such term in Section 3.1(bb).
“Initial Closing” means the initial closing of the purchase and sale of the Initial Securities pursuant to Section 2.1(a).
“Initial Closing Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Initial Subscription Amount and (ii) the Company’s obligations to deliver the Initial Securities, in each case, have been satisfied or waived.
“Initial Pre-Funded Warrant Shares” means the shares of Common Stock issuable upon exercise of the Initial Pre-Funded Warrants.
“Initial Pre-Funded Warrants” means, collectively, the pre-funded Common Stock purchase warrants delivered to the Purchasers at the Initial Closing in accordance with Section 2.2(a) hereof, which Initial Pre-Funded Warrants shall be exercisable immediately and shall expire when exercised in full, in the form of Exhibit B attached hereto.
“Initial Securities” means the Initial Shares, the Initial Pre-Funded Warrants, the Initial Pre-Funded Warrant Shares, the Common Stock Warrants and the Common Stock Warrant Shares.
“Initial Shares” means the shares of Common Stock issued or issuable to each Purchaser on the Initial Closing pursuant to Section 2.1(a) of this Agreement, but excluding the Initial Pre-Funded Warrant Shares and Common Stock Warrant Shares.
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“Initial Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for the Initial Securities purchased hereunder as specified opposite such Purchaser’s name on Schedule 1 attached hereto under the heading “Aggregate Purchase Price at Initial Closing,” in United States dollars and in immediately available funds.
“Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Legend Removal Date” shall have the meaning ascribed to such term in Section 4.1(c).
“Liens” means a material lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up Agreement” means the Lock-Up Agreement, dated as of the date hereof, by and among the Company and its directors and executive officers, in the form of Exhibit D attached hereto.
“Material Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Per Share Purchase Price” equals $2.31 (less $0.001 for each Pre-Funded Warrant, as applicable), in each case subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement and prior to the applicable Closing Date.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Pharmaceutical Product” shall have the meaning ascribed to such term in Section 3.1(jj).
“Placement Agent” means SVB Securities LLC and Noble Capital Markets, Inc.
“Pre-Funded Warrants” means, collectively, the Initial Pre-Funded Warrants and the Additional Pre-Funded Warrants.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.
“Purchaser Party” shall have the meaning ascribed to such term in Section 4.8.
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“Registration Rights Agreement” means the Registration Rights Agreement, dated on or about the date hereof, among the Company and the Purchasers, in the form of Exhibit A attached hereto.
“Registration Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale by the Purchasers of the Shares and the Warrant Shares.
“Required Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“SEC Reports” shall have the meaning ascribed to such term in Section 3.1(h).
“Second Closing” shall have the meaning ascribed to such term in Section 2.1(b).
“Second Closing Date” means the Trading Day on which all conditions precedent to (i) the Purchasers’ obligations to pay the Second Closing Subscription Amount and (ii) the Company’s obligations to deliver Additional Securities in connection with the Second Closing, in each case, have been satisfied or waived; provided, that the Second Closing Date shall be a date that is not more than five (5) Trading Days following the date on which all such conditions have been satisfied or waived.
“Second Closing Milestone” shall have the meaning ascribed to such term in Section 4.18(a).
“Second Closing Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for Additional Shares and/or Additional Pre-Funded Warrants purchased hereunder in connection with the Second Closing, as specified opposite such Purchaser’s name on Schedule 1 attached hereto under the heading “Second Closing Subscription Amount,” in United States dollars and in immediately available funds.
“Second Closing Trigger Date” shall have the meaning ascribed to such term in Section 2.4(b)(i).
“Securities” means the Initial Securities and the Additional Securities.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
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“Shares” means, collectively, the Initial Shares and the Additional Shares.
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include locating and/or borrowing shares of Common Stock).
“Subscription Amount” means, as to each Purchaser, the Initial Subscription Amount, the Second Closing Subscription Amount and/or the Third Closing Subscription Amount, as applicable.
“Subsidiary” means any subsidiary of the Company as set forth in the SEC Reports and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Third Closing” shall have the meaning ascribed to such term in Section 2.1(c).
“Third Closing Date” means the Trading Day on which all conditions precedent to (i) the Purchasers’ obligations to pay the Third Closing Subscription Amount and (ii) the Company’s obligations to deliver Additional Securities in connection with the Third Closing, in each case, have been satisfied or waived; provided, that the Third Closing Date shall be a date that is not more than five (5) Trading Days following the date on which all such conditions have been satisfied or waived.
“Third Closing Milestone” shall have the meaning ascribed to such term in Section 4.18(b).
“Third Closing Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for Additional Shares and/or Additional Pre-Funded Warrants purchased hereunder in connection with the Third Closing as specified opposite such Purchaser’s name on Schedule 1 attached hereto under the heading “Third Closing Subscription Amount,” in United States dollars and in immediately available funds.
“Third Closing Trigger Date” shall have the meaning ascribed to such term in Section 2.4(b)(ii).
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or any successors to any of the foregoing).
“Transaction Documents” means this Agreement, the Warrants, the Registration Rights Agreement, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
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“Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing address of 1 State Street, 30th Floor, New York, New York, 10004, and any successor transfer agent of the Company.
“Variable Rate Transaction” shall have the meaning ascribed to such term in Section 4.12(b).
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Shares are then listed or quoted on the Nasdaq Capital Market or any other national securities exchange, the daily volume weighted average price of the Common Shares for such date (or the nearest preceding date) on the Nasdaq Capital Market or other national securities exchange, as applicable, on which the Common Shares are then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Shares are then reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Shares so reported, or (d) in all other cases, the fair market value of a share of Common Shares as determined by an independent appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrant Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
“Warrants” means, collectively, the Pre-Funded Warrants and the Common Stock Warrants.
PURCHASE AND SALE
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REPRESENTATIONS AND WARRANTIES
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The Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
OTHER AGREEMENTS OF THE PARTIES
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[NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE] [HAS NOT BEEN] REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
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MISCELLANEOUS
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(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
ELEDON PHARMACEUTICALS, INC. Address for Notice:
By: /s/ David-Alexandre C. Gros, M.D. Fax:
Name: David-Alexandre C. Gros, M.D. Email:
Title: Chief Executive Officer
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SIGNATURE PAGE FOR PURCHASER FOLLOWS]
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Biotechnology Value Fund, L.P.
Signature of Authorized Signatory of Purchaser: /s/ Mark Lampert
Name of Authorized Signatory: Mark Lampert
Title of Authorized Signatory: Chief Executive Officer of BVF I GP LLC, General Partner of Biotechnology Value Fund, L.P.
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker ☐ 4.99% or 9.99% or ☐ 19.99%
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Biotechnology Value Fund II, L.P.
Signature of Authorized Signatory of Purchaser: /s/ Mark Lampert
Name of Authorized Signatory: Mark Lampert
Title of Authorized Signatory: Chief Executive Officer of BVF II GP LLC, General Partner of Biotechnology Value Fund II, L.P.
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker ☐ 4.99% or 9.99% or ☐ 19.99%
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Biotechnology Value Trading Fund OS LP
Signature of Authorized Signatory of Purchaser: /s/ Mark Lampert
Name of Authorized Signatory: Mark Lampert
Title of Authorized Signatory: President of BVF Inc., General Partner of BVF Partners L.P., Sole Member of BVF Partners OS Ltd., General Partner of Biotechnology Value Trading Fund OS LP
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker ☐ 4.99% or 9.99% or ☐ 19.99%
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: MSI BVF SPV, LLC
Signature of Authorized Signatory of Purchaser: /s/ Mark Lampert
Name of Authorized Signatory: Mark Lampert
Title of Authorized Signatory: President of BVF Inc., General Partner of BVF Partners L.P., Attorney in Fact MSI BVF SPV, LLC
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker ☐ 4.99% or 9.99% or ☐ 19.99%
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Armistice Capital Master Fund Ltd.
Signature of Authorized Signatory of Purchaser: /s/ Steven Boyd
Name of Authorized Signatory: Steven Boyd
Title of Authorized Signatory: CIO of Armistice Capital, LLC, the Investment Manager
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker ☐ 4.99% or 9.99% or ☐ 19.99%
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: JDRF T1D Fund LLC
Signature of Authorized Signatory of Purchaser: /s/ Steven St. Peter
Name of Authorized Signatory: Steven St. Peter
Title of Authorized Signatory: Managing Director
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Sanofi Research Invest LLC
Signature of Authorized Signatory of Purchaser: /s/ Jamie Haney
Name of Authorized Signatory: Jamie Haney
Title of Authorized Signatory: Vice President
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker ☐ 4.99% or 9.99% or ☐ 19.99%
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Steven Zakharyayev
Signature of Authorized Signatory of Purchaser: /s/ Steven Zakharyayev
Name of Authorized Signatory: Steven Zakharyayev
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Adam J. Kent
Signature of Authorized Signatory of Purchaser: /s/ Adam J. Kent
Name of Authorized Signatory: Adam J. Kent
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: JMAG 2602 LLC
Signature of Authorized Signatory of Purchaser: /s/ Andres Garcia
Name of Authorized Signatory: Andres Garcia
Title of Authorized Signatory: Manager
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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[PURCHASER SIGNATURE PAGES TO ELDN SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Deschutes I, LP
Signature of Authorized Signatory of Purchaser: /s/ Robert J. Levitt
Name of Authorized Signatory: Robert J. Levitt
Title of Authorized Signatory: Manager
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: The Cornelis F. Wit Revocable Living Trust, Cornelis F Wit, Trustee
Signature of Authorized Signatory of Purchaser: /s/ Cornelis Frans Wit
Name of Authorized Signatory: Cornelis Frans Wit
Title of Authorized Signatory: Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Chris Warren
Signature of Authorized Signatory of Purchaser: /s/ Chris Warren
Name of Authorized Signatory: Chris Warren
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Diana Fernandez
Signature of Authorized Signatory of Purchaser: /s/ Diana Fernandez
Name of Authorized Signatory: Diana Fernandez
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Erica Kent
Signature of Authorized Signatory of Purchaser: /s/ Erica Kent
Name of Authorized Signatory: Erica Kent
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: The Rohlinger Family Living Trust 2/14/2008
Signature of Authorized Signatory of Purchaser: /s/ George Rohlinger
Name of Authorized Signatory: George Rohlinger
Title of Authorized Signatory: Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Hans J.J. Bos
Signature of Authorized Signatory of Purchaser: /s/ Hans J.J. Bos
Name of Authorized Signatory: Hans J.J. Bos
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Marcia Kent Spousal Lifetime Access TR DTD 12/24/12
Signature of Authorized Signatory of Purchaser: /s/ Howard Kent
Name of Authorized Signatory: Howard Kent
Title of Authorized Signatory: Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Ivonne Maria Letschert Declaration of Revocable Living Trust of Ivonne Letschert
Signature of Authorized Signatory of Purchaser: /s/ Ivonne Letschert
Name of Authorized Signatory: Ivonne Letschert
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Shaf QIC, LLC
Signature of Authorized Signatory of Purchaser: /s/ Jonathan Shafmaster
Name of Authorized Signatory: Jonathan Shafmaster
Title of Authorized Signatory: Manager
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: District 2 Capital Fund LP
Signature of Authorized Signatory of Purchaser: /s/ Michael Bigger
Name of Authorized Signatory: Michael Bigger
Title of Authorized Signatory: Managing Member of the GP
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Nathan Snyder
Signature of Authorized Signatory of Purchaser: /s/ Nathan Snyder
Name of Authorized Signatory: Nathan Snyder
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Nathan Cali
Signature of Authorized Signatory of Purchaser: /s/ Nathan Cali
Name of Authorized Signatory: Nathan Cali
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Nico P. Pronk
Signature of Authorized Signatory of Purchaser: /s/ Nico P. Pronk
Name of Authorized Signatory: Nico P. Pronk
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Richard Friedman 2008 Revocable Trust
Signature of Authorized Signatory of Purchaser: /s/ Richard Friedman
Name of Authorized Signatory: Richard Friedman
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Riverside investments group LLC
Signature of Authorized Signatory of Purchaser: /s/ Shalom Auerbach
Name of Authorized Signatory: Shalom Auerbach
Title of Authorized Signatory: Presidey
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Newco DE 22 Inc.
Signature of Authorized Signatory of Purchaser: /s/ Shalom Auerbach
Name of Authorized Signatory: Shalom Auerbach
Title of Authorized Signatory: Principal
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: PASE Trust
Signature of Authorized Signatory of Purchaser: /s/ Steven Berger
Name of Authorized Signatory: Steven Berger
Title of Authorized Signatory: Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: PEAS Trust, dtd 12/27/2012
Signature of Authorized Signatory of Purchaser: /s/ Steven Berger
Name of Authorized Signatory: Steven Berger
Title of Authorized Signatory: Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: SEAS Trust, dtd 12/27/2012
Signature of Authorized Signatory of Purchaser: /s/ Steven Berger
Name of Authorized Signatory: Steven Berger
Title of Authorized Signatory: Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Tomsat Investment & Trading
Signature of Authorized Signatory of Purchaser: /s/ Thomas Satterfield
Name of Authorized Signatory: Thomas Satterfield
Title of Authorized Signatory: President
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Thomas A. Satterfield Rev Trust
Signature of Authorized Signatory of Purchaser: /s/ Thomas Satterfield
Name of Authorized Signatory: Thomas Satterfield
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: AG Family LP
Signature of Authorized Signatory of Purchaser: /s/ Thomas Satterfield
Name of Authorized Signatory: Thomas Satterfield
Title of Authorized Signatory: President of General Partner
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: TJ Brown Living Trust
Signature of Authorized Signatory of Purchaser: /s/ T.J. Brown
Name of Authorized Signatory: T.J. Brown
Title of Authorized Signatory: Sole Trustee
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Surfside Angels LLC
Signature of Authorized Signatory of Purchaser: /s/ Zalmi Ducman
Name of Authorized Signatory: Zalmi Ducman
Title of Authorized Signatory: President
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Blu-B Nevada Par Equity LLC aka BBN Investing 1
Signature of Authorized Signatory of Purchaser: /s/ Shlomo Boehm
Name of Authorized Signatory: Shlomo Boehm
Title of Authorized Signatory: Auth. Rep.
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Blu-G Nevada Par Equity LLC dba BGN Investing 1
Signature of Authorized Signatory of Purchaser: /s/ Charles-Edward Gros
Name of Authorized Signatory: Charles-Edward Gros
Title of Authorized Signatory: Auth. Rep.
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: Bigger Capital Fund, LP
Signature of Authorized Signatory of Purchaser: /s/ Michael Bigger
Name of Authorized Signatory: Michael Bigger
Title of Authorized Signatory: Managing Member of the GP
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Beneficial Ownership Blocker 4.99% or ☐ 9.99% or ☐ 19.99%
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Omitted Exhibits and Schedules:
Exhibit A: Registration Rights Agreement
Exhibit B: Pre-Funded Warrant
Exhibit C: Common Stock Warrant
Exhibit D: Lock-Up Agreement
Schedule 1: Purchaser Allocations
Schedule 3.1(a): Subsidiaries
Schedule 3.1(g): Capitalization
Schedule 3.1(i): Material Changes; Undisclosed Events, Liabilities or Developments
Schedule 3.1(t): Certain Fees
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