Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”) is dated as of September 29, 2023, by and among SAB Biotherapeutics, Inc., a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively, the “Purchasers”).
RECITALS
A. The Company is 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”), and Rule 506 of Regulation D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “Commission”) under the Securities Act, and each Purchaser acknowledges the approach.
B. Each Purchaser, severally and not jointly, wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, (i) that aggregate number of shares of Series A-1 Preferred Stock, par value $0.0001 per share, of the Company (the “Series A-1 Preferred Stock”), set forth below such Purchaser’s name on the signature page of this Agreement (which aggregate amount for all Purchasers together shall be 7,500 shares of Series A-1 Preferred Stock and shall be collectively referred to herein as the “Shares”), (ii) a Tranche A Warrant to acquire shares of Series A-1 Preferred Stock or shares of Series A-3 Preferred Stock, par value $0.0001 per share, of the Company (the “Series A-3 Preferred Stock”), as set forth in the Tranche A Warrant, in substantially the form attached hereto as Exhibit A (the “Tranche A Warrant”), (iii) a Tranche B Warrant to acquire shares of Series A-3 Preferred Stock, in substantially the form attached hereto as Exhibit B (the “Tranche B Warrant”) and (iv) a Tranche C Warrant to acquire shares of Series A-3 Preferred Stock, in substantially the form attached hereto as Exhibit C (the “Tranche C Warrant” and, together with the Tranche A Warrants and Tranche B Warrants, the “Warrants”).
C. Pursuant to the Certificate of Designation of the Series A Convertible Preferred Stock, in substantially the form attached hereto as Exhibit D (the “Certificate of Designation”), each Share is convertible into shares of common stock, par value $0.0001 per share, of the Company (the “Common Stock”) and/or, if applicable, shares of Series A-2 Preferred Stock, par value $0.0001 per share, of the Company (the “Series A-2 Preferred Stock”), in lieu of Common Stock. The shares of Series A-1 Preferred Stock or Series A-3 Preferred Stock issuable upon exercise of the Warrants collectively are referred to herein as the “Preferred Warrant Shares.”
D. Pursuant to the Certificate of Designation, each share of Series A-2 Preferred Stock issuable upon conversion of the Shares and each Preferred Warrant Share issuable upon exercise of the Warrants is convertible into shares of Common Stock. The shares of Common Stock issuable upon conversion of the Shares, the Series A-2 Preferred Stock and the Preferred Warrant Shares collectively are referred to herein as the “Conversion Shares.”
E. The Shares, the Warrants, the Series A-2 Preferred Stock issuable upon conversion of the Shares, the Preferred Warrant Shares issuable upon exercise of the Warrants, and the Conversion Shares collectively are referred to herein as the “Securities.”
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 the Purchasers hereby agree as follows:
DEFINITIONS
“Acquiring Person” has the meaning set forth in Section 4.6.
“Action” means any action, suit, inquiry, notice of violation, proceeding (including any partial proceeding such as a deposition) or investigation pending or, to the Company’s Knowledge, threatened in writing against the Company, any Subsidiary or any of their respective properties or any officer, director or employee of the Company or any Subsidiary acting in his or her capacity as an officer, director or employee before or by any federal, state, county, local or foreign court, arbitrator, governmental or administrative agency, regulatory authority, stock market, stock exchange or trading facility.
“Advance Indemnification Payment” has the meaning set forth in Section 4.15(c)(iv).
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, is controlled by or is under common control with such Person, as such terms are used in and construed under Rule 405 under the Securities Act. With respect to a Purchaser, any investment fund or managed account that is managed on a discretionary basis by the same investment manager as such Purchaser will be deemed to be an Affiliate of such Purchaser.
“Agreement” has the meaning set forth in the Preamble.
“Board of Directors” means the board of directors of the Company.
“Business Day” means any day except Saturday, Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
“Buy-In” has the meaning set forth in Section 4.1(f).
“Certificate of Designation” has the meaning set forth in the Recitals.
“Closing” means the closing of the purchase and sale of the Shares and the Warrants pursuant to this Agreement.
“Closing Date” means the Trading Day when all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all of the conditions set forth in Sections 2.1, 2.2, 5.1 and 5.2 hereof are satisfied or waived, as the case may be, or such other date as the parties may agree.
“Commission” has the meaning set forth in the Recitals.
“Common Stock” has the meaning set forth in the Recitals, and also includes any other class of securities into which the Common Stock may hereafter be reclassified or changed into.
“Common Stock Equivalents” means any securities of the Company or any Subsidiary 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
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exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities that entitle the holder to receive, directly or indirectly, Common Stock.
“Company” has the meaning set forth in the Preamble.
“Company Counsel” means Dentons US LLP, with offices located at 1221 Avenue of the Americas, New York, NY 10020.
“Company Covered Person” means, with respect to the Company as an “issuer” for purposes of Rule 506 promulgated under the Securities Act, any Person listed in the first paragraph of Rule 506(d)(1).
“Company Deliverables” has the meaning set forth in Section 2.2(a).
“Company Intellectual Property Rights” has the meaning set forth in Section 3.1(p).
“Company’s Knowledge” means with respect to any statement made to the Company’s Knowledge, that the statement is based upon the actual knowledge of one or more of the executive officers of the Company having responsibility for the matter or matters that are the subject of the statement.
“Company Party” has the meaning set forth in Section 4.15(c)(ii).
“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.
“Conversion Shares” has the meaning set forth in the Recitals.
“Cut Back Shares” has the meaning set forth in Section 4.15(b).
“Defaulting Purchaser” has the meaning set forth in Section 2.1(d)(i).
“DTC” has the meaning set forth in Section 4.1(c).
“Effective Date” has the meaning set forth in Section 4.15(a)(vii).
“Effectiveness Deadline” has the meaning set forth in Section 4.15(a)(ii).
“Environmental Laws” has the meaning set forth in Section 3.1(dd).
“Evaluation Date” has the meaning set forth in Section 3.1(t).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“Exempt Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company and (b) shares of Common Stock upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the
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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.
“FDA” means the United States Food and Drug Administration.
“Filing Date” has the meaning set forth in Section 4.15(a)(i).
“Funding Default” has the meaning set forth in Section 2.1(d)(i).
“GAAP” means U.S. generally accepted accounting principles, as applied by the Company.
“Intellectual Property Rights” means any and all of the following statutory and/or common law rights in any jurisdiction throughout the world: (i) patents, patent applications and patent disclosures; (ii) Internet domain names, trademarks, service marks, trade dress, trade names, logos and corporate names, and registrations and applications for registration thereof together with all translations, transliterations, adaptations, derivations and combinations thereof and including all of the goodwill associated therewith; (iii) copyrights and copyrightable works (registered or unregistered); (iv) trade secrets and other confidential information (including ideas, formulas, recipes, compositions, inventions, discoveries or invention disclosures and improvements (whether patentable or unpatentable and whether or not reduced to practice)), know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, non-public data and databases, financial and marketing plans and customer and supplier lists and information; (v) all rights in software; (vi) registrations and applications for any of the foregoing; and (vii) other proprietary, intellectual property and/or industrial rights.
“Irrevocable Transfer Agent Instructions” means, with respect to the Company, the Irrevocable Transfer Agent Instructions, in the form of Exhibit F, executed by the Company and delivered to and acknowledged in writing by the Transfer Agent.
“Legend Removal Date” has the meaning set forth in Section 4.1(c).
“Lien” means any lien, charge, claim, encumbrance, security interest, right of first refusal, preemptive right or other restrictions of any kind.
“Losses” has the meaning set forth in Section 4.15(c)(i).
“Material Adverse Effect” means a material adverse effect on the results of operations, assets, prospects, business or financial condition of the Company and the Subsidiaries, taken as a whole, except that any of the following, either alone or in combination, shall not be deemed a Material Adverse Effect: (i) effects caused by changes or circumstances affecting general market conditions in the U.S. economy or which are generally applicable to the industry in which the Company operates, provided that such effects are not borne disproportionately by the Company, (ii) effects resulting from or relating to the announcement or disclosure of the sale of the Securities or other transactions contemplated by this Agreement, or (iii) effects caused by any event, occurrence or condition resulting from or relating to the taking of any action in accordance with this Agreement.
“Material Contract” means any contract of the Company that has been filed or was required to have been filed as an exhibit to the SEC Reports pursuant to Item 601(b)(2), Item 601(b)(4) or Item 601(b)(10) of Regulation S-K.
“Material Permits” has the meaning set forth in Section 3.1(n).
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“Outside Date” means the fifth (5th) Business Day following the date of this Agreement.
“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” means Chardan Capital Markets LLC.
“Preferred Warrant Shares” has the meaning set forth in the Recitals.
“Press Release” has the meaning set forth in Section 4.5.
“Principal Trading Market” means the Trading Market on which the Common Stock is primarily listed on and quoted for trading, which, as of the date of this Agreement and the Closing Date, shall be The Nasdaq Capital Market.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened.
“Proposals” has the meaning set forth in Section 4.16.
“Purchase Price” means $1,000 per Share.
“Purchaser” or “Purchasers” has the meaning set forth in the Recitals.
“Purchaser Deliverables” has the meaning set forth in Section 2.2(b).
“Purchaser Party” has the meaning set forth in Section 4.9.
“Registrable Shares” means all Conversion Shares, without taking into account any limitations upon conversion set forth in the Certificate of Designation; provided, however, that a security shall cease to be a Registrable Share upon the earliest to occur of the following: (i) a Resale Registration Statement registering such security under the Securities Act has been declared or becomes effective and such security has been sold or otherwise transferred by the holder thereof pursuant to and in a manner contemplated by such effective Resale Registration Statement, (ii) such security is sold pursuant to Rule 144 under circumstances in which any legend borne by such security relating to restrictions on transferability thereof, under the Securities Act or otherwise, is removed by the Company, (iii) such security is eligible to be sold pursuant to Rule 144 without any limitation under that rule, including as to volume of sales and without the holder complying with any method of sale requirements or notice requirements under Rule 144, or (iv) such security shall cease to be outstanding following its issuance.
“Regulation D” has the meaning set forth in the Recitals.
“Required Approvals” has the meaning set forth in Section 3.1(e).
“Resale Registration Statement” means a registration statement or registration statements of the Company filed under the Securities Act pursuant to Section 4.15 hereof, and shall include any preliminary prospectus, final prospectus, exhibit or amendment included in or relating to such registration statements.
“Restriction Termination Date” has the meaning set forth in Section 4.15(b).
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“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.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region of Ukraine, Cuba, Iran, North Korea and Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b), or (d) any Person otherwise the subject or target of any Sanctions.
“Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (b) the United Nations Security Council, the European Union, any European Union member state, His Majesty’s Treasury of the United Kingdom or other relevant sanctions authority.
“SEC Reports” has the meaning set forth in Section 3.1(h).
“SEC Restrictions” has the meaning set forth in Section 4.15(b).
“Secretary’s Certificate” has the meaning set forth in Section 2.2(a)(ix).
“Securities Act” has the meaning set forth in the Recitals.
“Series A-1 Preferred Stock” has the meaning set forth in the Recitals.
“Series A-2 Preferred Stock” has the meaning set forth in the Recitals.
“Series A-3 Preferred Stock” has the meaning set forth in the Recitals.
“Shares” has the meaning set forth in the Recitals.
“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 (ii) substantially the same types of sales and other transactions through non-U.S. broker dealers or foreign regulated brokers (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
“Special Meeting” has the meaning set forth in Section 4.16.
“Staff” means the staff of the Commission.
“Stockholder Approval” has the meaning set forth in Section 3.1(e).
“Subscription Amount” means, with respect to each Purchaser, the aggregate amount to be paid for the Shares and the related Warrants purchased hereunder as indicated on such Purchaser’s signature page to this Agreement next to the heading “Aggregate Purchase Price (Subscription Amount)” in United States dollars and in immediately available funds.
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“Subsidiary” means any subsidiary of the Company as set forth in the SEC Reports, and shall, where applicable, include any subsidiary of the Company formed or acquired after the date hereof.
“Support Agreement” means that certain support agreement, dated the date hereof, by and among the Company and each of Christine Hamilton, MBA, Eddie Hamilton, DVM, MAgr, Eddie J. Sullivan, PhD, Samuel J. Reich and Jeffrey G. Spragens, in substantially the form attached hereto as Exhibit J.
“Tax” or “Taxes” means all federal, state, local, non-U.S. and other taxes, charges, fees, duties, levies, imposts, customs or other assessments, including all net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, profit share, license, lease, service, service use, value added, withholding, payroll, employment, excise, estimated, severance, stamp, occupation, premium, real property, personal property, payroll, escheat, unclaimed property, windfall profits, environmental, capital stock, social security (or similar), unemployment, disability, registration, alternative or add-on minimum, estimated, or other taxes, fees, assessments, customs, duties, levies, imposts or charges of any kind whatsoever, whether disputed or not, together with any interest, penalties, additions to tax, fines or other additional amounts imposed thereon or related thereto.
“Tax Returns” means any return, statement, schedule, declaration, claim for refund, report, document or form filed or required to be filed with respect to Taxes, including any amendment, attachment and supplement thereof.
“Trading Affiliate” has the meaning set forth in Section 3.2(g).
“Trading Day” means (i) a day on which the Common Stock is listed or quoted and traded on its Principal Trading Market (other than the OTC Bulletin Board), or (ii) if the Common Stock is not listed on a Trading Market (other than the OTC Bulletin Board), a day on which the Common Stock is traded in the over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if the Common Stock is not quoted on any Trading Market, a day on which the Common Stock is quoted in the over-the-counter market as reported by OTC Markets Group Inc. (formerly OTC Markets Inc.) (or any similar organization or agency succeeding to its functions of reporting prices); provided, that in the event that the Common Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day shall mean a Business Day.
“Trading Market” means whichever of the New York Stock Exchange, the American Stock Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market, The Nasdaq Capital Market or the OTC Bulletin Board on which the Common Stock is listed or quoted for trading on the date in question.
“Tranche A Warrant” has the meaning set forth in the Recitals.
“Tranche B Warrant” has the meaning set forth in the Recitals.
“Tranche C Warrant” has the meaning set forth in the Recitals.
“Transaction Documents” means this Agreement, the schedules and exhibits attached hereto, the Certificate of Designation, the Tranche A Warrants, the Tranche B Warrants, the Tranche C Warrants, the Irrevocable Transfer Agent Instructions, the Support Agreement and any other documents or agreements explicitly contemplated hereunder.
“Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing address of 1 State St 30th floor, New York, NY 10004, or any successor transfer agent for the Company.
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“Warrants” has the meaning set forth in the Recitals.
PURCHASE AND SALE
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REPRESENTATIONS AND WARRANTIES
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The Company and each of the Purchasers acknowledge and agree that no party to this Agreement has made or makes any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this ARTICLE III and the Transaction Documents.
OTHER AGREEMENTS OF THE PARTIES
NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON CONVERSION OR EXERCISE OF THESE SECURITIES HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES AND THE SECURITIES ISSUABLE UPON CONVERSION OR EXERCISE OF THESE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS TRANSFER AGENT OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT. 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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The Company acknowledges and agrees that a Purchaser may from time to time pledge, and/or grant a security interest in, some or all of the legended Securities in connection with applicable securities laws, pursuant to a bona fide margin agreement in compliance with a bona fide margin loan. Such a pledge would not be subject to approval or consent of the Company and no legal opinion of legal counsel to the pledgee, secured party or pledgor shall be required in connection with the pledge, but such legal opinion shall be required in connection with a subsequent transfer or foreclosure following default by the Purchaser transferee of the pledge. No notice shall be required of such pledge, but Purchaser’s transferee shall promptly notify the Company of any such subsequent transfer or foreclosure. Each Purchaser acknowledges that the Company shall not be responsible for any pledges relating to, or the grant of any security interest in, any of the Securities or for any agreement, understanding or arrangement between any Purchaser and its pledgee or secured party. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities, including the preparation and filing of any required prospectus supplement under Rule 424(b)(3) of the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of Selling Stockholders thereunder. Each Purchaser acknowledges and agrees that, except as otherwise provided in Section 4.1(c), any Securities subject to a pledge or security interest as contemplated by this Section 4.1(b) shall continue to bear the legend set forth in this Section 4.1(b) and be subject to the restrictions on transfer set forth in Section 4.1(a).
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CONDITIONS PRECEDENT TO CLOSING
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MISCELLANEOUS
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 to: Dentons US LLP
Ilan Katz and Brian Lee
1221 Avenue of the Americas
New York, NY 10020
Email: Ilan.Katz@Dentons.com; Brian.Lee@Dentons.com
If to a Purchaser: To the address set forth under such Purchaser’s name on the signature page hereof; or such other address as may be designated in writing hereafter, in the same manner, by such Person.
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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
SAB Biotherapeutics, Inc. | ||
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| Name: Eddie Sullivan |
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| Title: Chief Executive Officer |
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NAME OF PURCHASER: |
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By: |
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Name: |
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Title: |
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Aggregate Purchase Price (Subscription Amount): [Aggregate Closing subscriptions should equal $7,500,000] | $ |
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Number of Shares to be Acquired: |
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Underlying Shares of Series A-1 Preferred Stock or Series A-3 Preferred Stock Subject to Tranche A Warrant: |
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[Aggregate Tranche A Warrant Proceeds should equal $70,500,000] |
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Underlying Shares of Series A-3 Preferred Stock Subject to Tranche B Warrant: |
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[Aggregate Tranche B Warrant Proceeds should equal $52,000,000] |
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Underlying Shares of Series A-3 Preferred Stock Subject to Tranche C Warrant: |
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[Aggregate Tranche C Warrant Proceeds should equal $130,000,000] |
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Tax ID No.: |
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Address for Notice: |
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Telephone No.: |
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E-mail Address: |
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Attention: |
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Delivery Instructions:
(if different than above)
c/o _______________________________
Street: ____________________________
City/State/Zip: ______________________
Attention: __________________________
Telephone No.: ____________________________
EXHIBITS:
A: | Form of Tranche A Warrant |
B: | Form of Tranche B Warrant |
C: | Form of Tranche C Warrant |
D: | Certificate of Designation |
E-1: | Accredited Investor Questionnaire |
E-2: | Book Entry Questionnaire |
F: | Form of Irrevocable Transfer Agent Instructions |
G: | Form of Secretary’s Certificate |
H: | Form of Officer’s Certificate |
I: | Wire Instructions |
J: | Form of Support Agreement |
EXHIBIT A
FORM OF TRANCHE A WARRANT
EXHIBIT B
FORM OF TRANCHE B WARRANT
EXHIBIT C
FORM OF TRANCHE C WARRANT
EXHIBIT D
CERTIFICATE OF DESIGNATION
INSTRUCTION SHEET
(to be read in conjunction with the entire Securities Purchase Agreement)
A. | Complete the following items in the Securities Purchase Agreement: | |
| 1. | Provide the information regarding the Purchaser requested on the signature page. The Securities Purchase Agreement must be executed by an individual authorized to bind the Purchaser. |
| 2. | Exhibit E-1 – Accredited Investor Questionnaire: |
Provide the information requested by the Accredited Investor Questionnaire
| 3. | Exhibit E-2 Stock Certificate Questionnaire: |
Provide the information requested by the Book Entry Questionnaire
| 4. | Annex A Selling Securityholder Notice and Questionnaire |
Provide the information requested by the Selling Securityholder Notice and Questionnaire
B. | Instructions regarding the transfer of funds for the purchase of Shares and Warrants is set forth on Exhibit I to the Securities Purchase Agreement. |
EXHIBIT E-1
ACCREDITED INVESTOR QUESTIONNAIRE
(ALL INFORMATION WILL BE TREATED CONFIDENTIALLY)
To: SAB Biotherapeutics, Inc.
This Investor Questionnaire (“Questionnaire”) must be completed by each potential investor in connection with the offer and sale of the shares of the Series A-1 Preferred Stock, par value $0.0001 per share (“Series A-1 Preferred Stock”), Series A-2 Preferred Stock, par value $0.0001 per share, that may be issued upon conversion of the Series A-1 Preferred Stock, shares of Series A-1 Preferred Stock or Series A-3 Preferred Stock, par value $0.0001 per share (“Series A-3 Preferred Stock”), that may be issued upon exercise of the Tranche A Warrants, Series A-3 Preferred Stock that may be issued upon exercise of the Tranche B Warrants and shares of Series A-3 Preferred Stock that may be issued upon exercise of the Tranche C Warrants (the “Securities”) of SAB Biotherapeutics, Inc., a Delaware corporation (the “Corporation”). The Securities are being offered and sold by the Corporation without registration under the Securities Act of 1933, as amended (the “Act”), and the securities laws of certain states, in reliance on the exemptions contained in Section 4(2) of the 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 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. Your answers will be kept strictly confidential. However, 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 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)
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(City) |
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Telephone Number: (___)
If a corporation, partnership, limited liability company, trust or other entity:
Type of entity:
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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)
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(City) |
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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.
PART B. ACCREDITED INVESTOR QUESTIONNAIRE
In order for the Company 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 Company.
__ (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; |
__ (3) | An insurance company as defined in Section 2(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; |
__ (6) | A Rural Business Investment Company as defined in Section 384A of the Consolidated Farm and Rural Development Act of 1972, as amended; |
__ (7) | 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; |
__ (8) | 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; |
__ (9) | A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940; |
__ (10) | A tax-exempt organization described in Section 501(c)(3) of the Internal Revenue Code, a corporation, Massachusetts or similar business trust, partnership or limited liability company, not formed for the specific purpose of acquiring the Securities, with total assets in excess of $5,000,000; |
__ (11) | 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 Company; |
___ (12) | A revocable trust (including a revocable trust formed for the specific purpose of acquiring an interest in the Company) and the grantor or settlor of such trust is an Accredited Investor; |
___ (13) | A “family office” as defined in Rule 202(a)(11)(G)-1 under the Advisers Act, (a) with assets under management in excess of $5,000,000, (b) that was not formed for the specific purpose of acquiring interests in the Company, and (c) whose prospective investment in the Company is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of an investment in the Company (such a family office, a “Qualified Family Office”); |
___ (14) | A “family client,” as defined in Rule 202(a)(11)(G)-1 under the Advisers Act, whose prospective investment in the Company is directed by its Qualified Family Office; |
___ (15) | A natural person whose individual net worth, or joint net worth with that person’s spouse (excluding primary residence), at the time of his purchase exceeds $1,000,000; |
___ (16) | 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; |
___ (17) | A natural person who holds in good standing one or more of the following professional certifications: General Securities Representative license (Series 7), Private Securities Offerings Representative license (Series 82), or Investment Adviser Representative license (Series 65) |
___ (18) | A “family client,” as defined in Rule 202(a)(11)(G)-1 under the U.S. Investment Advisers Act of 1940, whose prospective investment in the Company is directed by that person’s Qualified Family Office. |
___ (19) | 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. |
A. | FOR EXECUTION BY AN INDIVIDUAL: |
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EXHIBIT E-2
BOOK-ENTRY QUESTIONNAIRE
Pursuant to Section 2.2(b) of the Agreement, please provide us with the following information:
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EXHIBIT F
IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
As of October [2], 2023
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004-1561
Attn: Henry Farrell
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase Agreement, dated as of September [29], 2023 (the “Agreement”), by and among SAB Biotherapeutics, Inc., a Delaware corporation (the “Company”), and the purchasers named on the signature pages thereto (collectively, and including permitted transferees, the “Holders”), pursuant to which the Company is issuing to the Holders (i) an aggregate of 7,500 shares (the “Shares”) of Series A-1 Preferred Stock of the Company, par value $0.0001 per share (the “Series A-1 Preferred Stock”), which are convertible into shares of common stock, par value $0.0001 per share, of the Company (“Common Stock”) and, if applicable, shares of Series A-2 Preferred Stock of the Company, par value $0.0001 per share (the “Series A-2 Preferred Stock”) in lieu of Common Stock, (ii) tranche A warrants (the "Tranche A Warrants") to acquire shares of Series A-1 Preferred Stock or Series A-3 Preferred Stock, par value $0.0001 per share, of the Company (the “Series A-3 Preferred Stock” and together with the Series A-1 Preferred Stock and Series A-2 Preferred Stock, the “Preferred Stock”), (iii) tranche B warrants (the “Tranche B Warrants”) to acquire shares of Series A-3 Preferred Stock and (iv) tranche C warrants to acquire shares of Series A-3 Preferred Stock (the “Tranche C Warrants” and together with the Tranche A Warrants and Tranche B Warrants, the “Tranche Warrants” and the shares of Preferred Stock underlying the Tranche Warrants, the “Tranche Warrant Shares”). The shares of Common Stock issuable upon conversion of the Series A-1 Preferred Stock, Series A-2 Preferred Stock and the Series A-3 Preferred Stock are herein referred to as the “Conversion Shares.” In addition
This letter shall serve as our irrevocable authorization and direction to you (provided that you are the transfer agent of the Company at such time and the conditions set forth in this letter are satisfied), subject to any stop transfer instructions that we may issue to you from time to time, if any:
(i) to issue certificates or book-entry credits representing the 7,500 Shares representing ownership by the investors set forth on Annex A hereto;
(ii) to reflect on your records that an aggregate of 70,500 shares of Series A-1 Preferred Stock and 70,500 shares of Series A-3 Preferred Stock are reserved for issuance upon exercise of the Tranche A Warrants issued to the investors as set forth on Annex A hereto;
(iii) to reflect on your records that an aggregate of 52,5000 shares of Series A-3 Preferred Stock are reserved for issuance upon exercise of the Tranche B Warrants issued to the investors as set forth on Annex A hereto;
(iv) to reflect on your records that an aggregate of 130,000 shares of Series A-3 Preferred Stock are reserved for issuance upon exercise of the Tranche C Warrants issued to the investors as set forth on Annex A hereto;
(v) to reflect on your records that an aggregate of [__] shares of Common Stock representing the Conversion Shares issuable to investors as set forth on Annex A hereto, are reserved for issuance upon exercise of the Shares;
(vi) to issue certificates or book-entry credits representing shares of Common Stock upon transfer or resale of the Conversion Shares pursuant to the effective registration statement registering the Conversion Shares for resale (during such time that such registration statement is effective and not withdrawn or suspended, and only as permitted by such registration statement) or Rule 144 under the Securities Act (“Rule 144”) (if the transferor is not an Affiliate (as defined in Rule 144) of the Company); and
(vii) to issue shares of Common Stock upon the conversion of the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock to or upon the order of a Holder from time to time upon delivery to you of a properly completed and duly executed notice of conversion, in the form attached hereto as Annex II, which has been acknowledged by the Company as indicated by the signature of a duly authorized officer of the Company thereon together with indication of receipt of the exercise price therefor.
PLEASE NOTE THAT THE SHARES, TRANCHE WARRANT SHARES AND CONVERSION SHARES HAVE NOT BEEN REGISTERED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION, AND SHALL BE ISSUED ON YOUR RECORDS AS UNCERTIFICATED BOOK ENTRY SHARES WITH THE FOLLOWING RESTRICTIVE LEGEND:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS TRANSFER AGENT OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT. 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.
Notwithstanding the foregoing, you further acknowledge and agree that so long as you have received (a) written confirmation from the Company’s legal counsel that the Conversion Shares have been sold in conformity with Rule 144 under the Securities Act (“Rule 144”) or are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such securities and without volume or manner-of-sale restrictions, then, unless otherwise required by law, within two (2) Trading Days of your receipt of a notice of transfer, you shall issue the certificates or book-entry credits representing the Conversion Shares, registered in the names of such Holders or transferees, as the case may be, and such certificates or book-entry credits shall not bear any legend restricting transfer of the Conversion Shares thereby and should not be subject to any stop-transfer restriction; provided, however, that if such Conversion Shares are not able to be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such securities and without volume or manner-of-sale restrictions, then the certificates or book-entry credits for such Conversion Shares shall bear the legend set forth immediately above.
Please be advised that the Holders are relying upon this letter as an inducement to enter into the Agreement and, accordingly, each Holder is a third party beneficiary to these instructions.
Please execute this letter in the space indicated to acknowledge your agreement to act in accordance with these instructions.
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Very truly yours, |
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SAB Biotherapeutics, Inc. |
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By:__________________________________ |
Name: Eddie Sullivan |
Title: Chief Executive Officer |
Acknowledged and Agreed:
Continental Stock Transfer & Trust Company
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By: __________________________________ |
Name: ________________________________ |
Title: ________________________________ |
Date: _________________, ______
Annex I
[INVESTOR/OWNERSHIP TABLE]
Annex II
FORM NOTICE OF CONVERSION
EXHIBIT G
FORM OF SECRETARY’S CERTIFICATE
The undersigned hereby certifies that he is the duly elected, qualified and acting Secretary of SAB Biotherapeutics, Inc., a Delaware corporation (the “Company”), and that as such he is authorized to execute and deliver this certificate in the name and on behalf of the Company and in connection with the Securities Purchase Agreement, dated as of September __, 2023, by and among the Company and the investors party thereto (the “Securities Purchase Agreement”), and further certifies in his official capacity, in the name and on behalf of the Company, the items set forth below. Capitalized terms used but not otherwise defined herein shall have the meaning set forth in the Securities Purchase Agreement.
1. | Attached hereto as Exhibit A is a true, correct and complete copy of the resolutions duly adopted by the Board of Directors of the Company at a meeting of the Board of Directors held on September __, 2023 approving (i) the transactions contemplated by the Securities Purchase Agreement and the other Transaction Documents, (ii) the filing of the Certificate of Designation and (ii) the issuance of the Securities. Such resolutions have not in any way been amended, modified, revoked or rescinded, have been in full force and effect since their adoption to and including the date hereof and are now in full force and effect. | ||
2. | Attached hereto as Exhibit B is a true, correct and complete copy of the Certificate of Incorporation of the Company, together with any and all amendments thereto currently in effect, and no action has been taken to further amend, modify or repeal such Certificate of Incorporation, the same being in full force and effect in the attached form as of the date hereof. | ||
3. | Attached hereto as Exhibit C is a true, correct and complete copy of the Bylaws of the Company and any and all amendments thereto currently in effect, and no action has been taken to further amend, modify or repeal such Bylaws, the same being in full force and effect in the attached form as of the date hereof. | ||
4. | Attached hereto as Exhibit D is a true, correct and complete copy of the Certificate of Designation of the Series A Convertible Preferred Stock, and no action has been taken to amend, modify or repeal such Certificate of Designation, the same being in full force and effect in the attached form as of the date hereof. | ||
5. | Each person listed below has been duly elected or appointed to the position(s) indicated opposite his name and is duly authorized to sign each of the Transaction Documents and related documents on behalf of the Company, and the signature appearing opposite such person’s name below is such person’s genuine signature. | ||
Name | Position | Signature | |
Eddie Sullivan | Chief Executive Officer |
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Russel Beyer | Chief Financial Officer |
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IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of this ____ day of ________, ___.
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Secretary |
I, Eddie Sullivan, Chief Executive Officer, hereby certify that [Insert Name] is the duly elected, qualified and acting Secretary of the Company and that the signature set forth above is his true signature.
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Chief Executive Officer |
EXHIBIT A
Resolutions
EXHIBIT B
Certificate of Incorporation
EXHIBIT C
Bylaws
EXHIBIT H
FORM OF OFFICER’S CERTIFICATE
The undersigned, the Chief Executive Officer of SAB Biotherapeutics, Inc., a Delaware corporation (the “Company”), pursuant to Section 5.1(i) of the Securities Purchase Agreement, dated as of ____________, by and among the Company and the investors signatory thereto (the “Securities Purchase Agreement”), hereby represents, warrants and certifies as follows (capitalized terms used but not otherwise defined herein shall have the meaning set forth in the Securities Purchase Agreement):
1. | The representations and warranties of the Company contained in the Securities Purchase Agreement are true and correct in all material respects (except for those representations and warranties which are qualified as to materiality, in which case, such representations and warranties shall be true and correct in all respects) as of the date when made and as of the date hereof, as though made on and as of such date, except for such representations and warranties that speak as of a specific date. |
2. | The Company has performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by it at or prior to the date hereof. |
IN WITNESS WHEREOF, the undersigned has executed this certificate this ___ day of __________, _____.
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Chief Executive Officer |
EXHIBIT I
WIRE INSTRUCTIONS
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ABA # [_]
Account No.: _______________
Account Name: _______________
EXHIBIT J
FORM OF SUPPORT AGREEMENT
ANNEX A
Selling Securityholder Notice and Questionnaire