Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
BY AND AMONG
PYXIS ONCOLOGY, INC.,
AND
THE PURCHASERS
AS SET FORTH HEREIN
FEBRUARY 26, 2024
TABLE OF CONTENTS
1. | Definitions | 1 | |
2. | Purchase and Sale of Securities | 6 | |
| 2.1 | Purchase and Sale | 6 |
| 2.2 | Closing | 7 |
3. | Representations and Warranties of the Company | 7 | |
| 3.1 | Organization and Power | 7 |
| 3.2 | Capitalization | 8 |
| 3.3 | Registration Rights | 8 |
| 3.4 | Authorization | 8 |
| 3.5 | Valid Issuance | 9 |
| 3.6 | No Conflict | 9 |
| 3.7 | Consents | 10 |
| 3.8 | SEC Filings; Financial Statements | 10 |
| 3.9 | Absence of Changes | 11 |
| 3.10 | Absence of Litigation | 11 |
| 3.11 | Compliance with Law; Permits | 12 |
| 3.12 | Intellectual Property | 12 |
| 3.13 | Employee Benefits | 13 |
| 3.14 | Taxes | 13 |
| 3.15 | Environmental Laws | 13 |
| 3.16 | Title | 14 |
| 3.17 | Insurance | 14 |
| 3.18 | Nasdaq Stock Market | 14 |
| 3.19 | Sarbanes-Oxley Act | 15 |
| 3.20 | Clinical Data and Regulatory Compliance | 15 |
| 3.21 | Compliance with Health Care Laws | 15 |
| 3.22 | Accounting Controls and Disclosure Controls and Procedures | 16 |
| 3.23 | Price Stabilization of Common Stock | 17 |
| 3.24 | Investment Company Act | 17 |
| 3.25 | General Solicitation; No Integration or Aggregation | 17 |
| 3.26 | Brokers and Finders | 17 |
| 3.27 | Reliance by the Purchasers | 17 |
| 3.28 | No Disqualification Events | 17 |
| 3.29 | No Additional Agreements | 18 |
| 3.30 | Anti-Bribery and Anti-Money Laundering Laws | 18 |
| 3.31 | Cybersecurity | 18 |
| 3.32 | Compliance with Data Privacy Laws | 19 |
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| 3.33 | Transactions with Affiliates and Employees | 19 |
| 3.34 | Reliance | 19 |
| 3.35 | Acknowledgment Regarding Purchaser’s Trading Activity | 19 |
| 3.36 | No Fiduciary Duty | 20 |
4. | Representations and Warranties of Each Purchaser | 20 | |
| 4.1 | Organization | 20 |
| 4.2 | Authorization | 20 |
| 4.3 | No Conflicts | 20 |
| 4.4 | Residency | 21 |
| 4.5 | Brokers and Finders | 21 |
| 4.6 | Investment Representations and Warranties | 21 |
| 4.7 | Intent | 21 |
| 4.8 | Investment Experience; Ability to Protect Its Own Interests and Bear Economic Risks | 22 |
| 4.9 | Independent Investment Decision | 22 |
| 4.10 | Securities Not Registered; Legends | 22 |
| 4.11 | Placement Agents | 23 |
| 4.12 | No General Solicitation | 24 |
| 4.13 | Access to Information | 24 |
| 4.14 | Certain Trading Activities | 25 |
| 4.15 | Disqualification Event | 25 |
5. | Covenants | 26 | |
| 5.1 | Listing | 26 |
| 5.2 | Disclosure of Transactions | 26 |
| 5.3 | Integration | 26 |
| 5.4 | Use of Proceeds | 26 |
| 5.5 | Removal of Legends | 27 |
| 5.6 | Withholding Taxes | 28 |
| 5.7 | Fees and Taxes | 29 |
| 5.8 | No Conflicting Agreements | 29 |
| 5.9 | Reporting Status | 29 |
| 5.10 | Indemnification | 29 |
| 5.11 | Subsequent Equity Sales | 30 |
| 5.12 | Equal Treatment of Purchasers | 30 |
6. | Conditions of Closing | 31 | |
| 6.1 | Conditions to the Obligation of the Purchasers | 31 |
| 6.2 | Conditions to the Obligation of the Company | 32 |
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7. | Termination | 33 | |
| 7.1 | Termination | 33 |
| 7.2 | Notice | 33 |
8. | Miscellaneous Provisions | 34 | |
| 8.1 | Public Statements or Releases | 34 |
| 8.2 | Interpretation | 34 |
| 8.3 | Notices | 34 |
| 8.4 | Severability | 35 |
| 8.5 | Governing Law; Submission to Jurisdiction; Venue; Waiver of Trial by Jury | 35 |
| 8.6 | Waiver | 36 |
| 8.7 | Expenses | 37 |
| 8.8 | Assignment | 37 |
| 8.9 | Confidential Information | 37 |
| 8.10 | Concerning the Placement Agents | 38 |
| 8.11 | Third Parties | 39 |
| 8.12 | Independent Nature of Purchasers’ Obligations and Right | 39 |
| 8.13 | Counterparts | 39 |
| 8.14 | Entire Agreement; Amendments | 40 |
| 8.15 | Survival | 40 |
| 8.16 | Mutual Drafting | 40 |
| 8.17 | Additional Matters | 40 |
| 8.18 | Further Assurances | 40 |
Exhibits
Exhibit A – Purchasers |
Exhibit B – Form of Pre-Funded Warrant |
Exhibit C – Form of Registration Rights Agreement |
Exhibit D – Procedures for Exempt Issuance |
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This SECURITIES PURCHASE AGREEMENT (this “Agreement”) is dated as of February 26, 2024, by and among Pyxis Oncology, Inc., a Delaware corporation (the “Company”), and each of the entities listed on Exhibit A attached to this Agreement (each, a “Purchaser” and together, the “Purchasers”).
WHEREAS, the Company and the Purchasers are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”);
WHEREAS, the Company desires to sell to the Purchasers, and each Purchaser desires to purchase from the Company, severally and not jointly, upon the terms and subject to the conditions stated in this Agreement, (A) shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”) and (B) the pre-funded warrants to purchase Common Stock (the “Pre-Funded Warrants”) substantially in the form attached hereto as Exhibit B;
WHEREAS, contemporaneously with the sale of the Shares and the Pre-Funded Warrants, the parties hereto will execute and deliver a Registration Rights Agreement, substantially in the form attached hereto as Exhibit C, pursuant to which the Company will agree to provide certain registration rights in respect of the Shares and the Pre-Funded Warrant Shares (as defined below) under the Securities Act and applicable state securities laws
NOW THEREFORE, in consideration of the mutual agreements, representations, warranties and covenants herein contained, the Company and each Purchaser, severally and not jointly, agree as follows:
“2023 SEC Reports” shall mean (a) the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, (b) any Quarterly Reports on Form 10-Q or any Current Reports on Form 8-K filed or furnished (as applicable) by the Company with the SEC after December 31, 2022 and prior to the Business Day immediately preceding the date hereof, and (c) the Company’s Registration Statement on Form S-4 (File No. 333-272510) (in the form originally declared effective by the SEC on June 30, 2023), together in each case with any documents incorporated by reference therein or exhibits thereto.
“Affiliate” shall mean, with respect to any Person, any other Person that, directly or indirectly through one or more intermediates, controls, is controlled by or is under common control with such Person.
“Agreement” has the meaning set forth in the recitals hereof.
“Amended and Restated Certificate of Incorporation” shall mean the Certificate of Incorporation of the Company, as currently in effect.
“Amended and Restated Bylaws” shall mean the Bylaws of the Company, as currently in effect.
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“Benefit Plan” or “Benefit Plans” shall mean employee benefit plans as defined in Section 3(3) of ERISA and all other employee benefit practices or arrangements, including, without limitation, any such practices or arrangements providing severance pay, sick leave, vacation pay, salary continuation for disability, retirement benefits, deferred compensation, bonus pay, incentive pay, stock options or other stock-based compensation, hospitalization insurance, medical insurance, life insurance, scholarships or tuition reimbursements, maintained by the Company or to which the Company or any of its Subsidiaries is obligated to contribute for employees or former employees of the Company and its Subsidiaries.
“Board of Directors” means the board of directors of the Company.
“Buy-In Price” has the meaning set forth in Section 5.5(d) hereof.
“Closing” has the meaning set forth in Section 2.2 hereof.
“Closing Date” shall mean February 29, 2024.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Common Stock” has the meaning set forth in the recitals hereof.
“Common Stock Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company” has the meaning set forth in the recitals hereof.
“Confidential Data” has the meaning set forth in Section 3 hereof.
“Drug Regulatory Agency” shall mean the United States Federal Drug Administration (“FDA”) or other foreign, state, local or comparable governmental authority responsible for regulation of the research, development, testing, manufacturing, processing, storage, labeling, sale, marketing, advertising, distribution and importation or exportation of drug or biological products and drug or biological product candidates.
“Effective Date” means the earliest of the date that (a) the Initial Registration Statement has been declared effective by the SEC, (b) all of the Securities 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, (c) following the one year anniversary of the Closing Date provided that a holder of Securities is not an Affiliate of the Company, or (d) all of the Securities 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 counsel to the Company has delivered to such holders a standing written unqualified opinion that resales may then be made by such holders of the Securities pursuant to such exemption which opinion shall be in form and substance reasonably acceptable to such holders.
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“Environmental Laws” has the meaning set forth in Section 3.15 hereof.
“ERISA” shall mean the U.S. Employee Retirement Income Security Act of 1974, as amended.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and all of the rules and regulations promulgated thereunder.
“Exempt Issuance” means the issuance of (a) securities with aggregate gross proceeds of up to $25,000,000 at an effective per share price of not less than $4.78 (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 5.11(a)) in accordance with the provisions of Exhibit D (the “Exempt Financing”), (b) 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, (c) securities upon the exercise or exchange of or conversion of any 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 securities (other than in connection with stock splits or combinations) or to extend the term of such securities, and (d) 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 5.11(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.
“Financial Statements” has the meaning set forth in Section 3.8(b) hereof.
“GAAP” has the meaning set forth in Section 3.8(b) hereof.
“GDPR” has the meaning set forth in Section 3.32 hereof.
“Governmental Authorizations” has the meaning set forth in Section 3.11 hereof.
“Governmental Entity” means any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or its Subsidiaries or any of their respective properties, assets or operations.
“Health Care Laws” has the meaning set forth in Section 3.21 hereof.
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“HIPAA” has the meaning set forth in Section 3.1 hereof.
“Intellectual Property” has the meaning set forth in Section 3.12 hereof.
“IT Systems” has the meaning set forth in Section 3.1 hereof.
“Legend Removal Date” has the meaning set forth in Section 5.5(c) hereof.
“Material Adverse Effect” shall mean any change, event, circumstance, development, condition, occurrence or effect that, individually or in the aggregate, (a) was, is, or would reasonably be expected to be, materially adverse to the business, prospects, financial condition, properties, assets, liabilities, stockholders’ equity or results of operations of the Company and its Subsidiaries, taken as a whole, or (b) materially delays or materially impairs the ability of the Company to comply, or prevents the Company from complying, with its obligations under this Agreement, the other Transaction Agreements, or with respect to the Closing or would reasonably be expected to do so.
“National Exchange” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question, together with any successor thereto: the NYSE American, The New York Stock Exchange, the Nasdaq Global Market, the Nasdaq Global Select Market and the Nasdaq Capital Market.
“Nasdaq” means the Nasdaq Stock Market LLC.
“Person” shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or any other entity or organization.
“Personal Data” has the meaning set forth in Section 3.1 hereof.
“Placement Agents” means Leerink Partners LLC and LifeSci Capital LLC.
“Pre-Funded Warrants” has the meaning set forth in the recitals hereof.
“Pre-Funded Warrant Shares” has the meaning set forth in Section 3.4.
“Privacy Laws” has the meaning set forth in Section 3.32 hereof.
“Privacy Statements” has the meaning set forth in Section 3.32 hereof.
“Process” or “Processing” has the meaning set forth in Section 3.32 hereof.
“Purchaser” and “Purchasers” have the meanings set forth in the recitals hereof.
“Purchaser Party” has the meaning set forth in Section 5.10 hereof.
“Registration Rights Agreement” has the meaning set forth in Section 6.1(j) hereof.
“Regulatory Agencies” has the meaning set forth in Section 3.20 hereof.
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“Request Date” has the meaning set forth in Section 5.5(c) hereof.
“Rule 144” means Rule 144 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as such Rule.
“SEC” means the United States Securities and Exchange Commission.
“SEC Reports” has the meaning set forth in Section 3.8(a) hereof.
“Securities” has the meaning set forth in Section 2.1hereof.
“Securities Act” has the meaning set forth in the recitals hereof.
“Shares” has the meaning set forth in the recitals hereof.
“Short Sales” include, without limitation, (i) all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and (ii) sales and other transactions through non-U.S. broker dealers or non-U.S. regulated brokers (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
“Subsidiaries” has the meaning set forth in Section 3.1 hereof.
“Tax Returns” shall mean returns, reports, information statements and other documentation (including any additional or supporting material) filed or maintained, or required to be filed or maintained, in connection with the calculation, determination, assessment or collection of any Tax and shall include any amended returns required as a result of examination adjustments made by the Internal Revenue Service or other Tax authority.
“Tax” or “Taxes” shall mean any and all federal, state, local, foreign and other taxes, levies, fees, imposts, duties and charges of whatever kind (including any interest, penalties or additions to the tax imposed in connection therewith or with respect thereto), whether or not imposed on the Company, including, without limitation, taxes imposed on, or measured by, income, franchise, profits or gross receipts, and also ad valorem, value added, sales, use, service, real or personal property, capital stock, license, payroll, withholding, employment, social security, workers’ compensation, unemployment compensation, utility, severance, production, excise, stamp, occupation, premium, windfall profits, transfer and gains taxes and customs duties.
“Trading Day” means a day on which the National Exchange is open for trading.
“Transaction Agreements” shall mean this Agreement and the Registration Rights Agreement.
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“Transfer Agent” shall mean, with respect to the Common Stock, Broadridge Corporate Issuer Solutions, Inc., or such other financial institution that provides transfer agent services as the Company may engage from time to time.
“Transfer Taxes” shall mean all real property transfer, sales, use, value added, stamp, documentary, recording, registration, conveyance, stock transfer, intangible property transfer, personal property transfer, gross receipts, registration, duty, securities transactions or similar fees or Taxes (together with any interest, penalty, or addition thereto) incurred in connection with the transactions contemplated by this Agreement.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a National Exchange, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the National Exchange on which the Common Stock is 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 the Common Stock is then listed or quoted on the OTCQB or OTCQX, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on 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 Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock 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.
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Each Purchaser understands that the Shares and the Pre-Funded Warrant Shares may bear one or more legends in substantially the following form and substance:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER SECURITIES ACT OF 1933. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FOR THESE SECURITIES UNDER THE SECURITIES ACT OF 1933, (B) IN ACCORDANCE WITH RULE 144, OR (C) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM REGISTRATION AS SET FORTH IN AN OPINION OF THE COMPANY’S COUNSEL. 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.”
In addition, the Securities may contain a legend regarding affiliate status of the Purchaser, if applicable.
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Pyxis Oncology, Inc. 321 Harrison Avenue 11th Floor, Suite 1 Boston, MA 02118 |
Attention: Lara S. Sullivan, MD Email: [________] |
with a copy (which shall not constitute notice):
Sidley Austin LLP. 555 California Street, Suite 2000 San Francisco, CA 94104 USA |
Attention: Asher Rubin, Frank F. Rahmani Email: [_______], [_________] |
Any Person may change the address to which notices and communications to it are to be addressed by notification as provided for herein.
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[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
COMPANY: | |
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PYXIS ONCOLOGY, INC. | |
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By: | /s/ Pamela Connealy |
| Name: Pamela Connealy |
| Title: Chief Financial Officer and Chief Operating Officer |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
PURCHASER: | |
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[NAME] | |
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By: |
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EXHIBIT A
PURCHASERS
EXHIBIT B
FORM OF PRE-FUNDED WARRANT
[Filed Separately]
EXHIBIT C
FORM OF REGISTRATION RIGHTS AGREEMENT
[Filed Separately]
EXHIBIT D - Exempt Financing