Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this “Agreement”) is made and entered into as of April 28, 2023, by and between Eledon Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and each of the several purchasers signatory hereto (each such purchaser, a “Purchaser” and, collectively, the “Purchasers”).
This Agreement is made pursuant to the Securities Purchase Agreement, dated as of the date hereof, between the Company and each Purchaser (the “Purchase Agreement”).
The Company and each Purchaser hereby agrees as follows:
Capitalized terms used and not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given such terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings:
“Advice” shall have the meaning set forth in Section 6(d).
“Effectiveness Date” means, with respect to the Initial Registration Statement required to be filed hereunder, the 60th calendar day following the date hereof (or, in the event of a “full review” by the Commission, the 90th calendar day following the date hereof) and with respect to any additional Registration Statements which may be required pursuant to Section 2(c) or Section 3(c), the 60th calendar day following the date on which an additional Registration Statement is required to be filed hereunder (or, in the event of a “full review” by the Commission, the 90th calendar day following the date such additional Registration Statement is required to be filed hereunder); provided, however, that in the event the Company is notified by the Commission that one or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments, the Effectiveness Date as to such Registration Statement shall be the fifth Trading Day following the date on which the Company is so notified if such date precedes the dates otherwise required above, provided, further, if such Effectiveness Date falls on a day that is not a Trading Day, then the Effectiveness Date shall be the next succeeding Trading Day.
“Effectiveness Period” shall have the meaning set forth in Section 2(a).
“Event” shall have the meaning set forth in Section 2(d).
“Event Date” shall have the meaning set forth in Section 2(d).
“Filing Date” means, with respect to the Initial Registration Statement required hereunder, the 20th calendar day following the date hereof and, with respect to any additional Registration Statements which may be required pursuant to Section 2(c) or Section 3(c), the earliest practical date on which the Company is permitted by SEC
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Guidance to file such additional Registration Statement related to the Registrable Securities.
“Holder” or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities.
“Indemnified Party” shall have the meaning set forth in Section 5(c).
“Indemnifying Party” shall have the meaning set forth in Section 5(c).
“Initial Registration Statement” means the initial Registration Statement filed pursuant to this Agreement.
“Losses” shall have the meaning set forth in Section 5(a).
“Plan of Distribution” shall have the meaning set forth in Section 2(a).
“Prospectus” means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated by the Commission pursuant to the Securities Act), 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 a Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
“Registrable Securities” means, as of any date of determination, (a) all Shares, (b) all Warrant Shares then issued and issuable upon exercise of the Warrants (assuming on such date the Warrants are exercised in full without regard to any exercise limitations therein) and (c) any securities issued or then issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing; provided, however, that any such Registrable Securities shall cease to be Registrable Securities (and the Company shall not be required to maintain the effectiveness of any, or file another, Registration Statement hereunder with respect thereto) for so long as (a) a Registration Statement with respect to the sale of such Registrable Securities is declared effective by the Commission under the Securities Act and such Registrable Securities have been disposed of by the Holder in accordance with such effective Registration Statement, (b) such Registrable Securities have been previously sold in accordance with Rule 144, or (c) such securities become eligible for resale without volume or manner-of-sale restrictions and without current public information pursuant to Rule 144 as set forth in a written opinion letter to such effect, addressed, delivered and acceptable to the Transfer Agent and the affected Holders (assuming that such securities and any securities issuable upon exercise, conversion or exchange of which, or as a dividend upon which, such securities were issued or are issuable, were at no time held by any Affiliate of the Company, and all Warrants are exercised by “cashless exercise” as provided in Section 2(c) of each of the Warrants), as reasonably determined by the Company, upon the advice of counsel to the Company.
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“Registration Statement” means any registration statement required to be filed hereunder pursuant to Section 2(a) and any additional registration statements contemplated by Section 2(c) or Section 3(c), including (in each case) the Prospectus, amendments and supplements to any such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in any such registration statement.
“Rule 415” means Rule 415 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.
“Selling Stockholder Questionnaire” shall have the meaning set forth in Section 3(a).
“SEC Guidance” means (i) any publicly-available written or oral guidance of the Commission staff, or any comments, requirements or requests of the Commission staff and (ii) the Securities Act.
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In the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days prior written notice along with the calculations as to such Holder’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its reasonable best efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
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In connection with the Company’s registration obligations hereunder, the Company shall:
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An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding, or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the Indemnified Party shall reasonably believe that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
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Subject to the terms of this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party, provided that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) not to be entitled to indemnification hereunder.
The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. 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.
The indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties.
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(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.
ELEDON PHARMACEUTICALS, INC.
By: /s/ David-Alexandre C. Gros. M.D.
Name: David-Alexandre C. Gros, M.D.
Title: Chief Executive Officer
[SIGNATURE PAGE OF HOLDERS FOLLOWS]
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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.
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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.
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Steven Zakharyayev
Signature of Authorized Signatory of Purchaser: /s/ Steven Zakharyayev
Name of Authorized Signatory: Steven Zakharyayev
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Chris Warren
Signature of Authorized Signatory of Purchaser: /s/ Chris Warren
Name of Authorized Signatory: Chris Warren
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Diana Fernandez
Signature of Authorized Signatory of Purchaser: /s/ Diana Fernandez
Name of Authorized Signatory: Diana Fernandez
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Erica Kent
Signature of Authorized Signatory of Purchaser: /s/ Erica Kent
Name of Authorized Signatory: Erica Kent
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Nathan Snyder
Signature of Authorized Signatory of Purchaser: /s/ Nathan Snyder
Name of Authorized Signatory: Nathan Snyder
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Nathan Cali
Signature of Authorized Signatory of Purchaser: /s/ Nathan Cali
Name of Authorized Signatory: Nathan Cali
Title of Authorized Signatory:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
Name of Purchaser: Riverside investment group LLC
Signature of Authorized Signatory of Purchaser: /s/ Shalom Auerbach
Name of Authorized Signatory: Shalom Auerbach
Title of Authorized Signatory: Presidey
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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:
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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.
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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.
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[SIGNATURE PAGE OF HOLDERS TO ELDN RRA]
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
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Annex A
Plan of Distribution
Each Selling Stockholder (the “Selling Stockholders”) of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered hereby on the principal Trading Market or any other stock exchange, market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling Stockholder may use any one or more of the following methods when selling securities:
The Selling Stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”), if available, rather than under this prospectus.
Broker dealers engaged by the Selling Stockholders may arrange for other brokers dealers to participate in sales. Broker dealers may receive commissions or discounts from the Selling Stockholders (or, if any broker dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or markdown in compliance with FINRA IM-2440.
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In connection with the sale of the securities 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 securities in the course of hedging the positions they assume. The Selling Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities 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 create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.
The Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock by the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
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Annex B
SELLING STOCKHOLDERS
The common stock being offered by the selling stockholders are those previously issued to the selling stockholders, and those issuable to the selling stockholders, upon exercise of the warrants. For additional information regarding the issuances of those shares of common stock and warrants, see “Private Placement of Shares of Common Stock and Warrants” above. We are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time. Except for the ownership of the shares of common stock and the warrants [and as otherwise described under “Certain Relationships with the Selling Stockholders,” the selling stockholders have not had any material relationship with us within the past three years.]
The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling stockholders. The second column lists the number of shares of common stock beneficially owned by each selling stockholder, based on its ownership of the shares of common stock and warrants, as of ________, 2023, assuming exercise of the warrants held by the selling stockholders on that date, without regard to any limitations on exercises.
The third column lists the shares of common stock being offered by this prospectus by the selling stockholders.
In accordance with the terms of a registration rights agreement with the selling stockholders, this prospectus generally covers the resale of the sum of (i) the number of shares of common stock issued to the selling stockholders in the “Private Placement of Shares of Common Stock and Warrants” described above and (ii) the maximum number of shares of common stock issuable upon exercise of the related warrants, determined as if the outstanding warrants were exercised in full as of the trading day immediately preceding the date this registration statement was initially filed with the SEC, each as of the trading day immediately preceding the applicable date of determination and all subject to adjustment as provided in the registration right agreement, without regard to any limitations on the exercise of the warrants. The fourth column assumes the sale of all of the shares offered by the selling stockholders pursuant to this prospectus.
Under the terms of the warrants, a selling stockholder may not exercise the warrants to the extent such exercise would cause such selling stockholder, together with its affiliates and attribution parties, to beneficially own a number of shares of common stock which would exceed [4.99%/9.99%][or, in limited circumstances, 19.99%] of our then outstanding common stock following such exercise, excluding for purposes of such determination shares of common stock issuable upon exercise of the warrants which have not been exercised. The number of shares in the second column does not reflect this limitation. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
Name of Selling Stockholder | Number of shares of Common Stock Owned Prior to Offering | Maximum Number of shares of Common Stock to be Sold Pursuant to this Prospectus | Number of shares of Common Stock Owned After Offering |
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Annex C
ELEDON PHARMACEUTICALS, INC.
Selling Stockholder Notice and Questionnaire
The undersigned beneficial owner of common stock (the “Registrable Securities”) of Eledon Pharmaceuticals, Inc., a Delaware corporation (the “Company”), understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “Commission”) a registration statement (the “Registration Statement”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement (the “Registration Rights Agreement”) to which this document is annexed. A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.
Certain legal consequences arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling stockholder in the Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the “Selling Stockholder”) of Registrable Securities hereby elects to include the Registrable Securities owned by it in the Registration Statement. The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate:
QUESTIONNAIRE
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Telephone:
Fax:
Contact Person:
Yes No
Yes No
Note: If “no” to Section 3(b), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.
Yes No
Yes No
Note: If “no” to Section 3(d), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.
Except as set forth below in this Item 4, the undersigned is not the beneficial or registered owner of any securities of the Company other than the securities issuable pursuant to the Purchase Agreement.
Stockholder:
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Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
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The undersigned agrees to promptly notify the Company of any material inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof at any time while the Registration Statement remains effective; provided, that the undersigned shall not be required to notify the Company of any changes to the number of securities held or owned by the undersigned or its affiliates.
By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through 5 and the inclusion of such information in the Registration Statement and the related prospectus and any amendments or supplements thereto. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related prospectus and any amendments or supplements thereto.
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IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.
Date:
Beneficial Owner:
By:
Name:
Title:
PLEASE FAX A COPY (OR EMAIL A .PDF COPY) OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
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Schedule 6(b)
Piggyback on Registrations
None.
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