Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of December 6, 2022 (the “Effective Date”) by and among SAB Biotherapeutics, Inc., a Delaware corporation (the “Company”), and the Investors identified on Exhibit A attached hereto (each an “Investor” and collectively, the “Investors”).
Recitals
In consideration of the mutual promises made herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
“1933 Act” means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“1934 Act” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“Affiliate” means, with respect to any Person, any other Person which directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with, such Person.
“Agreement” has the meaning set forth in the Preamble.
“Anti-Money Laundering Laws” has the meaning set forth in Section 4.9.
“BCM” has the meaning set forth in Section 4.19.
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“BCM Investor” has the meaning set forth in Section 4.19.
“Business Day” means a day, other than a Saturday or Sunday, on which banks in New York City are open for the general transaction of business.
“Bylaws” means the Company’s Amended and Restated Bylaws, as may be amended and/or restated from time to time.
“Certificate of Incorporation” means the Company’s Amended and Restated Certificate of Incorporation, as may be amended and/or restated from time to time.
“Cleansing Release” has the meaning set forth in Section 9.7.
“Closing” has the meaning set forth in Section 3.1.
“Closing Date” has the meaning set forth in Section 3.1.
“Common Stock” has the meaning set forth in the Recitals.
“Company” has the meaning set forth in the Preamble.
“Company’s Knowledge” means the actual knowledge of the executive officers (as defined in Rule 405 under the 1933 Act) of the Company.
“Control” (including the terms “controlling”, “controlled by” or “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“EDGAR system” means the Electronic Data Gathering, Analysis, and Retrieval system.
“Effective Date” has the meaning set forth in the Preamble.
“Environmental Laws” has the meaning set forth in Section 4.15.
“Evaluation Date” has the meaning set forth in Section 4.22.
“FDA” has the meaning set forth in Section 4.24.
“GAAP” has the meaning set forth in Section 4.17.
“Health Care Laws” means the Federal Food, Drug, and Cosmetic Act (21 U.S.C. §§ 301 et seq.), the regulations promulgated by other similar local, state or federal law and regulations.
“Indemnified Party” has the meaning set forth in Section 8.4.
“Indemnifying Party” has the meaning set forth in Section 8.4.
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“Intellectual Property” means all patents, patent applications, trademarks, trademark applications, service marks, trade names, copyrights, trade secrets, licenses, domain names, information and proprietary rights and processes.
“Intellectual Property Rights” has the meaning set forth in Section 4.14.
“Investor” has the meaning set forth in the Preamble.
“Investor Indemnified Party” has the meaning set forth in Section 8.2.
“Investor Questionnaire” has the meaning set forth in Section 3.1.
“Investors” has the meaning set forth in the Preamble.
“Irrevocable Transfer Agent Instructions” has the meaning set forth in Section 7.3.
“Legend Removal Date” has the meaning set forth in Section 7.2.
“Majority Investors” has the meaning set forth in Section 6.3(a)(i).
“Material Adverse Effect” means a material adverse effect on (i) the assets, liabilities, results of operations, financial condition or business of the Company and the Subsidiaries taken as a whole, (ii) the legality or enforceability of any of the Transaction Documents or (iii) the ability of the Company to perform its obligations under the Transaction Documents; provided, however, that in no event shall any of the following occurring after the date hereof, alone or in combination, be deemed to constitute, or be taken into account in determining whether, a Material Adverse Effect has occurred: any effect caused by the announcement or pendency of the transactions contemplated by the Transaction Documents, or the identity of any Investor or any of its Affiliates as the purchaser in connection with the transactions contemplated by this Agreement or any change in the market price of the Common Stock.
“Material Contract” means any contract, instrument or other agreement to which the Company is a party or by which it is bound which is material to the business of the Company, including those that have been filed as an exhibit to the SEC Filings pursuant to Item 601(b)(10) of Regulation S-K.
“Nasdaq” means The Nasdaq Stock Market.
“Person” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein.
“Placement Agent Fee” has the meaning set forth in Section 4.19.
“Registrable Securities” means (i) the Shares, (ii) and the Warrant Shares and (iii) any other securities issued 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
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effectiveness of any, or file another, registration statement hereunder with respect thereto) upon the first to occur of (A) a registration statement with respect to the sale of such Registrable Securities being declared effective by the SEC under the 1933 Act and such Registrable Securities having been disposed of or transferred by the holder thereof in accordance with such effective Registration Statement, (B) such Registrable Securities having been previously sold or transferred in accordance with Rule 144 (or another exemption from the registration requirements of the 1933 Act), and (C) such securities becoming eligible for resale without volume or manner-of-sale restrictions and without current public information requirements pursuant to Rule 144.
“Regulation D” means Regulation D as promulgated by the SEC under the 1933 Act.
“Rule 144” means Rule 144 promulgated under the 1933 Act (or any successor rule).
“Sanctions” has the meaning set forth in Section 4.27.
“SEC” means the United States Securities and Exchange Commission.
“SEC Filings” has the meaning set forth in Section 4.7.
“Securities” has the meaning set forth in the Recitals.
“Shares” has the meaning set forth in the Recitals.
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the 1934 Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
“Subscription Amount” means, as to an Investor, the aggregate amount to be paid for the Shares purchased hereunder as specified opposite such Investor’s name on Exhibit A attached hereto, under the column entitled “Aggregate Purchase Price of Shares,” in U.S. Dollars and in immediately available funds.
“Subsidiary” means any corporation, company or partnership in which more than fifty percent (50%) of the stock or other units of ownership which by the terms thereof has the ordinary voting power to elect the board of directors, managers or trustees of the entity, at the time as of which any determination is being made, is owned by the Company.
“Trading Day” means a day on which Nasdaq is open for trading.
“Transaction Documents” means this Agreement, including the exhibits attached hereto, the Warrants, the Irrevocable Transfer Agent Instructions and any other documents or agreements executed and delivered by the Company and the Investors in connection with the transactions contemplated hereunder.
“Transfer Agent” has the meaning set forth in Section 7.2.
“Warrant Shares” has the meaning set forth in the Recitals.
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“Warrants” has the meaning set forth in the Recitals.
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“The securities represented hereby have 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, and, accordingly, may not be transferred unless (i) such securities have been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities may be sold pursuant to Rule 144, or (iii) the Company has received an opinion of counsel reasonably satisfactory to it that such transfer may lawfully be made without registration under the Securities Act of 1933, as amended. These securities are subject to transfer and other restrictions set forth in a Securities Purchase Agreement, dated December [●], 2022, copies of which are on file with the Company. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
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If to the Company:
SAB Biotherapeutics, Inc.
2100 East 54th Street North
Sioux Falls, South Dakota, 57104
Attention: Eddie Sullivan
Email: eddie@sab.bio
With a copy (which will not constitute notice) to:
Dentons US LLP
Ilan Katz
101 John F Kennedy Pkwy.
Short Hills, NJ 07078
Email: Ilan.Katz@Dentons.com
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If to the Investors:
to the contact information set forth on the signature pages hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
COMPANY:
SAB BIOTHERAPEUTICS, INC.
By:
Name: Eddie Sullivan
Title: Chief Executive Officer
Signature Page
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
INVESTOR:
FOR ENTITY:
_____________________________________
Name of Entity Above
By:
(Signature)
Name: __________________________
Title:____________________________
INVESTOR:
FOR INDIVIDUAL
_____________________________________
(Signature)
Name:
Signature Page
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EXHIBIT A
Schedule of Investors
Investor Name, Address and Email | Number of Shares | Number of Warrant Shares | Aggregate Purchase Price of Shares |
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Exhibit A
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APPENDIX I
Form of Investor Questionnaire
INVESTOR QUESTIONNAIRE
To: SAB Biotherapeutics, Inc.,
This Investor Questionnaire (“Questionnaire”) must be completed by each potential investor in connection with the offer and sale of (i) shares (the “Shares”) of common stock, par value $0.01 per share (“Common Stock”), of SAB Biotherapeutics, Inc., a Delaware corporation (the “Corporation”) and (ii) warrants to acquire additional shares of Common Stock (with the Shares, the “Securities”). The Securities are being offered and sold by the Corporation without registration under the Securities Act of 1933, as amended (the “Securities Act”), and the securities laws of certain states, in reliance on the exemptions contained in Section 4(a)(2) of the Securities Act and on Regulation D promulgated thereunder and in reliance on similar exemptions under applicable state laws. The Corporation must determine that a potential investor meets certain suitability requirements before offering or selling the Securities to such investor. The purpose of this Questionnaire is to assure the Corporation that each investor will meet the applicable suitability requirements. The information supplied by you will be used in determining whether you meet such criteria, and reliance upon the private offering exemptions from registration is based in part on the information herein supplied.
This Questionnaire does not constitute an offer to sell or a solicitation of an offer to buy any security. By signing this Questionnaire, you will be authorizing the Corporation to provide a completed copy of this Questionnaire to such parties as the Corporation deems appropriate in order to ensure that the offer and sale of the Securities will not result in a violation of the Securities Act or the securities laws of any state and that you otherwise satisfy the suitability standards applicable to purchasers of the Securities. All potential investors must answer all applicable questions and complete, date and sign this Questionnaire. Please print or type your responses and attach additional sheets of paper if necessary to complete your answers to any item.
PART A. BACKGROUND INFORMATION
Name of Beneficial Owner of the Securities:
Business Address:__________________________________________________________
(Number and Street)
City: _________________ State: ___________ Zip Code: ___________
Telephone Number: _______________________
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If a corporation, partnership, limited liability company, trust or other entity:
Type of entity: _________________________
State of formation: _____________________
Approximate Date of formation: __________________
Were you formed for the purpose of investing in the Securities being offered?
Yes No
If an individual:
Residence Address: _____________________________________________________
(Number and Street)
City: _________________ State: _________ Zip Code: ___________
Telephone Number: _______________________
Age: __________ Citizenship: _________
Where registered to vote: _______
Set forth in the space provided below the state(s), if any, in the United States in which you maintained your residence during the past two years and the dates during which you resided in each state:
__________________________________________________
__________________________________________________
Are you a director or executive officer of the Corporation? Yes No
Social Security or Taxpayer Identification No.: ________________
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PART B. ACCREDITED INVESTOR QUESTIONNAIRE
In order for the Corporation to offer and sell the Securities in conformance with state and federal securities laws, the following information must be obtained regarding your investor status. Please initial each category applicable to you as a purchaser of Securities of the Corporation.
(1) A bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary capacity;
(2) A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
(3) An insurance company as defined in Section 2(a)(13) of the Securities Act;
(4) An investment company registered under the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that act;
(5) A Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958;
(6) A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000;
(7) An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such act, which is either a bank, savings and loan association, insurance company or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors;
(8) A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940;
(9) An organization described in Section 501(c)(3) of the Internal Revenue Code, a corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the Securities, with total assets in excess of $5,000,000;
(10) A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Securities, whose purchase is directed by a sophisticated person who has such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of investing in the Corporation;
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(11) A natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his purchase exceeds $1,000,000 (exclusive of the value of that person’s primary residence);
(12) A natural person who had an individual income in excess of $200,000 in each of the two most recent years, or joint income with that person’s spouse in excess of $300,000, in each of those years, and has a reasonable expectation of reaching the same income level in the current year;
(13) An executive officer or director of the Corporation;
(14) An entity in which all of the equity owners qualify under any of the above subparagraphs. If the undersigned belongs to this investor category only, list the equity owners of the undersigned, and the investor category which each such equity owner satisfies.
PART C. BAD ACTOR QUESTIONNAIRE
1. During the past ten years, have you been convicted of any felony or misdemeanor that is related to any securities matter?
Yes (If yes, please continue to Question 1.a)
No (If no, please continue to Question 2)
a) If your answer to Question 1 was “yes”, was the conviction related to: (i) the purchase or sale of any security; (ii) the making of any false filing with the Securities and Exchange Commission (the “SEC”); or (iii) the conduct of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities?
Yes No
2. Are you subject to any court injunction or restraining order entered during the past five years that is related to any securities matter?
Yes (If yes, please continue to Question 2.a)
No (If no, please continue to Question 3)
a) If your answer to Question 2 was “yes”, does the court injunction or restraining order currently restrain or enjoin you from engaging or continuing to engage in any conduct or practice related to: (i) the purchase or sale of any security; (ii) the making of any false filing with the SEC; or (iii) the conduct of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities?
Yes No
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3. Are you subject to any final order of any governmental commission, authority, agency or officer(2) related to any securities, insurance or banking matter?
Yes (If yes, please continue to Question 3.a)
No (If no, please continue to Question 4)
a)If your answer to Question 3 was “yes”:
i) Does the order currently bar you from: (i) associating with an entity regulated by such commission, authority, agency or officer; (ii) engaging in the business of securities, insurance or banking; or (iii) engaging in savings association or credit union activities?
Yes No
ii) Was the order (i) entered within the past ten years and (ii) based on a violation of any law or regulation that prohibits fraudulent, manipulative or deceptive conduct?
Yes No
4. Are you subject to any SEC disciplinary order?(3)
Yes (If yes, please continue to Question 4.a)
No (If no, please continue to Question 5)
a) If your answer to Question 4 was “yes”, does the order currently: (i) suspend or revoke your registration as a broker, dealer, municipal securities dealer or investment adviser; (ii) place limitations on your activities, functions or operations; or (iii) bar you from being associated with any particular entity or class of entities or from participating in the offering of any penny stock?
5. Are you subject to any SEC cease and desist order entered within the past five years?
Yes (If yes, please continue to Question 5.a)
No (If no, please continue to Question 6)
a) If your answer to Question 5 was “yes”, does the order currently require you to cease and desist from committing or causing a violation or future violation of (i) any knowledge-based anti-fraud provision of the U.S. federal securities laws or (ii) Section 5 of the Securities Act?
Yes No
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6. Have you been suspended or expelled from membership in, or suspended or barred from association with a member of, a registered national securities exchange or a registered national or affiliated securities association?
Yes (If yes, please describe the basis of any such suspension or expulsion and any related details in the space provided under Question 10 below)
No (If no, please continue to Question 7)
7. Have you registered a securities offering with the SEC, made an offering under Regulation A or been named as an underwriter in any registration statement or Regulation A offering statement filed with the SEC?
Yes (If yes, please continue to Question 7.a)
No (If no, please continue to Question 8)
a) If your answer to Question 7 was “yes”:
i) During the past five years, was any such registration statement or Regulation A offering statement the subject of a refusal order, stop order or order suspending the Regulation A exemption?
Yes No
ii) Is any such registration statement or Regulation A offering statement currently the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued?
Yes No
8. Are you subject to a U.S. Postal Service false representation order entered within the past five years?
Yes No
9. Are you currently subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the U.S. Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations?
Yes No
10. In the space provided below, describe any facts or circumstances that caused you to answer “yes” to any Question (indicating the corresponding Question number). Attach additional pages if necessary.
___________________________________________________________________
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___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
(SIGNATURE PAGE FOLLOWS)
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A. FOR EXECUTION BY AN INDIVIDUAL:
By:
Print Name:
Date:
B. FOR EXECUTION BY AN ENTITY:
Entity Name:
By:
Print Name:
Title:
Date:
C. ADDITIONAL SIGNATURES (if required by partnership, corporation or trust document):
Entity Name:
By:
Print Name:
Title:
Date:
Entity Name:
By:
Print Name:
Title:
Date:
Appendix I – Page 8
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