Exhibit 99.3
Exhibit 99.3
SECURITIES PURCHASE AGREEMENT
(American Depositary Shares)
This Securities Purchase Agreement (this “Agreement”) is dated as of February 7, 2023 (the “Effective Date”), by and among Renalytix plc, a public limited company incorporated under the laws of England and Wales (the “Company”), and each purchaser identified on the signature pages hereto (each a “Purchaser” and collectively 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”), solely to prospective investors in the United States.
Whereas, each Purchaser wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, American Depositary Shares (“ADSs”), each representing two ordinary shares, nominal value £0.0025 per share (the “Ordinary Shares”), in the numbers set forth opposite such Purchaser’s name on Exhibit A hereto (the “Purchased ADSs”). The Purchased ADSs and the Ordinary Shares represented thereby are together referred to as the “Securities.”
Whereas, in connection with the offering and sale of the Securities, Stifel Nicolaus Europe Limited are acting as placement agent (“Placement Agent”).
References in this Agreement to (1) the Company issuing and selling ADSs to the Purchasers, and similar or analogous expressions, shall be understood to include references to the Company allotting and issuing the new Ordinary Shares underlying those ADSs to Citibank, N.A., as depositary (the “Depositary”) or its nominee and procuring the issue of ADSs representing such Ordinary Shares by the Depositary or its nominee to the Purchasers; and (2) the purchase of, or payment for, any ADSs, and similar or analogous expressions, shall be understood to refer to the subscription for the Ordinary Shares underlying those ADSs, as well as deposit of the Ordinary Shares for ADSs representing such Ordinary Shares, and the payment of the subscription moneys in respect of such Ordinary Shares.
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, severally and not jointly, agree as follows:
“AIM” means AIM, a market operated by London Stock Exchange.
1
2264853.02-NYCSR03A - MSW
{4741746; 3; 62887-001}
“AIM Rules for Companies” means the AIM Rules for Companies published by the London Stock Exchange, as in force from time to time.
“Closing” means the closing of the purchase and sale of the Securities on the Closing Date pursuant to Section 2.1 of this Agreement.
“Closing Date” means February 9, 2023.
“Commission” means the United States Securities and Exchange Commission.
“Companies Act” means the Companies Act 2006 in force in England and Wales as may be amended or updated from time to time.
“DTRs” means the Disclosure Guidance and Transparency Rules of the FCA.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“FCA” means the UK Financial Conduct Authority.
“FSMA” means the UK Financial Services and Markets Act 2000.
“GAAP” means U.S. generally accepted accounting principles consistently applied.
“JRC Registration Rights Agreement” means the Registration Rights Agreement, dated as of February 6, 2023, by and between the Company and The Hamilton E. James 2003 Childrens Trust.
“London Stock Exchange” means London Stock Exchange plc.
“MAR” means the Market Abuse Regulation (EU) No. 596/2014 as it forms part of domestic law in the United Kingdom by virtue of the European Union (Withdrawal) Act 2018
“Material Adverse Effect” means a circumstance that (i) would reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) would reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, business, prospects, management, shareholders’ equity or properties of the Company and its subsidiaries taken as a whole.
“Mount Sinai Registration Rights Agreement” means the Registration Rights Agreement, dated as of June 24, 2020, by and between Icahn School of Medicine at Mount Sinai and the Company (formerly, Renalytix AI plc).
“Nasdaq” means The Nasdaq Global Market.
“Purchase Price” means $2.17 per ADS.
2
“Registration Statement” means a registration statement or registration statements of the Company filed under the Securities Act.
“Rule 144” means Rule 144 promulgated by the Commission 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 Commission having substantially the same effect as such Rule.
“SEC Reports” means collectively all reports, schedules, forms, statements and other documents required to be filed by the Company under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, since July 21, 2020 (including the exhibits thereto and documents incorporated by reference therein).
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO of the Exchange Act, but shall be deemed to not include the location and/or reservation of borrowable Ordinary Shares or ADSs.
“Trading Day” means a day on which the Ordinary Shares are traded on AIM or the ADSs are traded on Nasdaq.
“Transaction Documents” means this Agreement and any other documents or agreements executed and delivered to the Purchasers in connection with the transactions contemplated hereunder.
“UK Published Information” means all announcements released by the Company via a regulatory information service and all documents uploaded to the website of the Company maintained for the purposes of Rule 26 of the AIM Rules for Companies.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR IN ANY OTHER JURISDICTION. THE SECURITIES REPRESENTED HEREBY MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS UNLESS OFFERED, SOLD OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS.”
23
24
25
26
27
If at any time the staff of the Commission (“Staff”) takes the position that the offering of some or all of the Registrable Shares in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act or requires any Purchaser to be named as an “underwriter,” the Company shall (in consultation with legal counsel to the lead Purchaser) use its commercially reasonable efforts to persuade the Commission that the offering contemplated by the Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that none of the Purchasers is an “underwriter.” In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 4.3, the Staff refuses to alter its position, the Company shall (i) remove from the Registration Statement such portion of the Registrable Shares (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Shares as the Staff may require to assure the Company’s compliance with the requirements of Rule 415 (collectively, the “SEC Restrictions”); provided, however, that the Company shall not agree to name any Purchaser as an “underwriter” in such Registration Statement without the prior written consent of such Purchaser. Any cutback imposed on the Purchasers pursuant to this Section 4.3 shall be allocated among the Purchasers on a pro rata basis, unless the SEC Restrictions otherwise require or provide or the Purchasers holding a majority of the Registrable Shares otherwise agree. No liquidated damages shall accrue as to any Cut Back Shares until such date as the Company is able to effect the registration of such Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date” of such Cut Back Shares). From and after the Restriction Termination Date applicable to any Cut Back Shares, all of the provisions of this Section 4 shall again be applicable to such Cut Back Shares; provided, however, that (x) the Filing Deadline for the Registration Statement including such Cut Back Shares shall be ten (10) Trading Days after such Restriction Termination Date, and (y) the Effectiveness Deadline with respect to such Cut Back Shares shall be the 90th day immediately after the Restriction Termination Date or the 120th day if the Staff reviews such Registration Statement (but in any event no later than three (3) Trading Days from the Staff indicating it has no further comments on such Registration Statement).
28
29
30
31
[4.10 Lockup Agreement.
(b) Stop Transfer Instructions. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to the Ordinary Shares or ADSs of such Purchaser (and transferees and assignees thereof) until the end of the Lock-Up Period.
(c) No More Favorable Terms. The Company agrees that if (i) any Purchaser is granted more favorable terms than the terms set forth in this Section 4.10, the terms hereof shall
32
be automatically amended to reflect such more favorable terms, and (ii) any Purchaser is released from any or all of the lock-up restrictions with respect to the Securities, each of the other Purchasers shall automatically and contemporaneously be released from the lock-up restrictions hereunder, and in each case the Company shall provide prompt notice thereof to such Purchasers.
(d) Director and Executive Officer Lock-Up Agreements. This Section 4.10 shall not be binding on any Purchaser until each director and executive officer of the Company has agreed to transfer restrictions with respect to their individual current and future direct holdings in the Company on substantially the same terms.]
33
34
35
36
[Remainder of page intentionally left blank.]
37
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.
RENALYTIX PLC
/s/ James McCullough
Name: James McCullough
Title: CEO
Address for Notice:
Email:
Attention:
With copies to (which shall not constitute notice):
Cooley (UK) LLP
Address: 22 Bishopsgate
London, UK EC2N 4BQ
Email:
Attention: Claire Keast-Butler
Cooley LLP
Address: 500 Boylston Street, 14th Floor
Boston, Massachusetts 02116-3736
Email:
Attention: Marc A. Recht
38
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.
PURCHASERS:
The Hamilton E. James 2003 Childrens Trust
By: Hamilton E. James, as Trustee
By:
Name: David Campbell
Title: Attorney-in-Fact
Address:
Shares Beneficially Owned Prior to Closing:
Ordinary Shares:
ADSs: 119,174 (held by affiliate)
Shares Being Purchased:
Ordinary Shares: 0
ADSs: 4,147,466
Contact: Daniel Forman
Email: dforman@jrivercapital.com
39
PURCHASERS:
ICAHN SCHOOL OF MEDICINE AT MOUNT SINAI
By:
Name: Stephen Harvey
Title: Chief Financial Officer
Address: One Gustave L. Levy Place Box 4500
New York, NY 10029
Shares Beneficially Owned Prior to Closing:
Ordinary Shares: 9,956,874
ADSs: 0
Shares Being Purchased:
Ordinary Shares: 0
ADSs: 1,382,489
EIN:
Contact: Stephen Harvey
Email:
40
PURCHASERS:
HHGG WISSENSCHAFT UND KULTUR GEMEINNUTZIGE GMBH
By:
Name: Michael J. Balmann
Title: Vice President and Treasurer of Atlas Capital Holding LLC, General Partner of Pinnacle Management Partners LP, Investment Advisor
Address: c/o Pinnacle Management Services, LLC
343 Thornall St., Suite 600
Edison, NJ 08837
accountingstaff@pinnllc.com
Shares Beneficially Owned Prior to Closing:
Ordinary Shares: 0
ADSs: 0
Shares Being Purchased:
Ordinary Shares: 0
ADSs: 414,746
EIN:
Contact: Michael J. Balmann
Email:
41
PURCHASERS:
Kariba LLC
By:
Name: Michael J. Balmann
Title: Vice President
Address: c/o Pinnacle Management Services, LLC
343 Thornall St., Suite 600
Edison, NJ 08837
accountingstaff@pinnllc.com
Shares Beneficially Owned Prior to Closing:
Ordinary Shares: 0
ADSs: 0
Shares Being Purchased:
Ordinary Shares: 0
ADSs: 207,374
EIN:
Contact: Michael J. Balmann
Email:
42
PURCHASERS:
Rugu-S LLC
By:
Name: Michael J. Balmann
Title: Vice President and Chief Financial Officer
Address: c/o Pinnacle Management Services, LLC
343 Thornall St., Suite 600
Edison, NJ 08837
accountingstaff@pinnllc.com
Shares Beneficially Owned Prior to Closing:
Ordinary Shares: 0
ADSs: 0
Shares Being Purchased:
Ordinary Shares: 0
ADSs: 207,374
EIN:
Contact: Michael J. Balmann
Email:
43
PURCHASERS:
PINNACLE ASSOCIATES, LTD.
By:
Name: John Passios
Title: EVP
Address: 286 Madison Ave., 20th Floor, New York, NY 10017
Shares Beneficially Owned Prior to Closing: 200,115
Shares Being Purchased:
Ordinary Shares: 0
ADSs: 230,416
EIN:
Contact: Joseph Shea
Email:
44
PURCHASERS:
NRH Holdings Limited
By:
Name: Julia Church
Title: Director
Address: Trafalgar Court, Admiral Park, St. Peter’s Park, Guernsey
Shares Beneficially Owned Prior to Closing:
Ordinary Shares: 0
ADSs: 252,423
Shares Being Purchased:
Ordinary Shares: 0
ADSs: 921,660
EIN:
Contact: Julia Church
Email:
45
EXHIBIT A
CLOSING SCHEDULE
American Depositary Shares
|
|
|
|
|
|
|
|
|
|
|
| |
Purchaser |
| Number of |
|
|
|
| Total Purchase |
| ||||
Hamilton E. James 2003 Children’s Trust UAD 12/19/03 |
| 4,147,466 |
|
|
|
| $9,000,001.22 |
|
|
|
| |
Icahn School of Medicine at Mount Sinai |
| 1,382,489 |
|
|
|
| $3,000,001.13 |
|
|
|
| |
NRH Holdings Limited |
| 921,660 |
|
|
|
| $2,000,002.20 |
|
|
|
| |
HHgG Wissenschaft und Kultur Gemeinnutzige GmbH |
| 414,746 |
|
|
|
| $899,998.82 |
|
|
|
| |
Kariba LLC |
| 207,374 |
|
|
|
| $450,001.58 |
|
|
|
| |
RUGU-S LLC |
| 207,374 |
|
|
|
| $450,001.58 |
|
|
|
| |
Pinnacle Associates, Ltd. |
| 230,416 |
|
|
|
| $500,002.72 |
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
| |
Total |
| 7,511,525 |
|
|
|
| $16,300,009.25 |
|
|
|
|
46