Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”), dated as of February 8, 2023, is made by and among Spruce Biosciences, Inc., a Delaware corporation (the “Company”), and the Purchasers listed on Exhibit A hereto, together with their permitted transferees (each, a “Purchaser” and collectively, the “Purchasers”).
Recitals
A. 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 and/or Rule 506(b) of Regulation D (“Regulation D”) as promulgated by the SEC under the Securities Act.
B. The Purchasers, severally, and not jointly, desire to purchase from the Company, and the Company desires to sell to the Purchasers, upon the terms and conditions stated in this Agreement, (A) shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”), (B) to certain Purchasers, pre-funded warrants to purchase Common Stock (“Pre-Funded Warrants”) and (C) warrants to purchase Common Stock (“Standard Warrants”) having an aggregate purchase price of up to $53,623,720.00, as more fully described in this Agreement.
C. The capitalized terms used herein and not otherwise defined have the meanings given them in Article 7.
Agreement
In consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Purchasers (severally and not jointly) hereby agree as follows:
PURCHASE AND SALE
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REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as specifically contemplated by this Agreement, the Company hereby represents and warrants to the Purchasers and the Placement Agent as of the date of this Agreement that:
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The computer software, computer hardware, firmware, networks, interfaces and related systems (collectively, “Computer Systems”) used by the Company are sufficient for the conduct of the Company’s business in all material respects as now conducted or as proposed in the SEC Documents to be conducted, and there have been no material failures, crashes, security breaches or other adverse events affecting the Computer Systems which has caused material disruption to the business of the Company. The Company, and any directors, members, employees, agents, officers, managers, and other representatives of any of the Company, comply with and have at all times complied with, in all material respects, all Privacy Laws applicable to the Company or to the conduct of the business or operations of the Company.
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Any certificate signed by an authorized officer of the Company and required to be delivered to the Placement Agent in connection with this Agreement shall be deemed to be a representation and warranty by the Company to the Placement Agent as to the matters set forth therein.
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PURCHASER’S REPRESENTATIONS AND WARRANTIES
Each Purchaser represents and warrants to the Company and the Placement Agent, severally and not jointly, with respect to itself and its purchase hereunder, that as of the Closing (or, in the case of Section 3.1, as of the date of this Agreement):
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS, OR UNLESS OFFERED, SOLD, PLEDGED, HYPOTHECATED OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS.
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COVENANTS
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CONDITIONS TO CLOSING
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REGISTRATION RIGHTS
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provided that, in the case of clauses (l), (m) and (n) above, the Company shall not be required (A) to delay the filing of any Registration Statement or any amendment or supplement thereto as a result of any ongoing diligence inquiry by or on behalf of a Holder or to incorporate any comments to any Registration Statement or any amendment or supplement thereto by or on behalf of a Holder if such inquiry or comments would require a delay in the filing of such Registration Statement, amendment or supplement, as the case may be, or (B) to provide, and shall not provide, any Purchaser or its representatives with material, non-public information unless such Purchaser agrees to receive such information and enters into a written confidentiality agreement with the Company in a form reasonably acceptable to the Company; and provided further, that, in the case of clause (m) above, the Company shall pay the reasonable fees and expenses of such single counsel for the Purchasers in an amount not to exceed, in the aggregate, $30,000.
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DEFINITIONS
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GOVERNING LAW; MISCELLANEOUS
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If to the Company: Spruce Biosciences, Inc.
611 Gateway Boulevard, Suite 740
South San Francisco, CA 94080
Attn: Samir Gharib
With a copy to: Cooley LLP
55 Hudson Yards
New York, NY 10001
Attn: Jason Kent
If to a Purchaser: To the address set forth immediately below such Purchaser’s name on the signature pages hereto. Each party will provide prompt written notice to the other parties of any change in its address.
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[Signature Pages Follow]
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IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Spruce Biosciences, Inc.
By: /s/ Samir Gharib
Name: Samir Gharib
Title: President and Chief Financial Officer
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: Armistice Capital Master Fund Ltd.
By: /s/ Steven Boyd
Name: Steven Boyd
Title: CIO of Armistice Capital, LLC, its investment manager
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: 5AM Opportunities II, L.P.
By: /s/ Andrew Schwab
Name: Andrew Schwab
By: 5AM Opportunities II (GP), LLC
Title: Managing Member of General Partner
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: Abingworth Bioventures VII LP
By: its Manager, Abingworth LLP
By: /s/ John Heard
Name: John Heard
Title: General Counsel
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: WVP Emerging Manager Onshore Fund LLC – Optimized Equity Series
By: /s/ Orin Hirschman
Name: Orin Hirschman
Title: Managing Member, AIGH Capital Management LLC
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: WVP Emerging Manager Onshore Fund LLC – AIGH Series
By: /s/ Orin Hirschman
Name: Orin Hirschman
Title: Managing Member, AIGH Capital Management LLC
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: AIGH Investment Partners LP
By: /s/ Orin Hirschman
Name: Orin Hirschman
Title: Managing Member, AIGH Capital Management LLC
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: Alyeska Master Fund, L.P.
By: /s/ Jason Bragg
Name: Jason Bragg
Title: CFO Alyeska Investment Group, L.P.
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: Empery Asset Master, Ltd
By: Empery Asset Management, LP, its Authorized Agent
By: /s/ Brett S. Director
Name: Brett S. Director
Title: General Counsel of Empery Asset Management, LP
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: Empery Tax Efficient, LP
By: Empery Asset Management, LP, its Authorized Agent
By: /s/ Brett S. Director
Name: Brett S. Director
Title: General Counsel of Empery Asset Management, LP
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: Empery Tax Efficient III, LP
By: Empery Asset Management, LP, its Authorized Agent
By: /s/ Brett S. Director
Name: Brett S. Director
Title: General Counsel of Empery Asset Management, LP
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: HealthCap VIII, L.P.
By: its general partner HealthCap VIII GP SA represented by
By: /s/ Fabrice Bernhard /s/ Dag Richter
Name: Fabrice Bernhard Dag Richter
Title: Director Director
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: CVI Investments, Inc.
By: Heights Capital Management, Inc., its Authorized Agent
By: /s/ Martin Kobionger
Name: Martin Kobionger
Title: President
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: Dafna Lifescience LP
By: /s/ Fariba Ghodsian
Name: Fariba Ghodisan
Title: Chief Investment Officer
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: Dafna Lifescience Select LP
By: /s/ Fariba Ghodsian
Name: Fariba Ghodsian
Title: Chief Investment Officer
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: Novo Holdings A/S
By: /s/ Scott Beardsley
Name: Scott Beardsley, under specific power of attorney
Title: Managing Partner, Novo Ventures (US), Inc.
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: RiverVest Venture Fund III, L.P.
By: RiverVest Venture Partners III, L.P., its General Partner
By: RiverVest Venture Partners III, LLC, its sole General Partner
By: /s/ Niall A. O’Donnell, Ph.D.
Name: Niall A. O’Donnell, Ph.D.
Title: Authorized Person
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: RiverVest Venture Fund III (Ohio), L.P.
By: RiverVest Venture Partners III (Ohio), LLC, its General Partner
By: RiverVest Venture Partners III, L.P., its sole member
By: RiverVest Venture Partners III, LLC, its general partner
By: /s/ Niall A. O’Donnell, Ph.D.
Name: Niall A. O’Donnell, Ph.D.
Title: Authorized Person
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: RiverVest Venture Fund IV, L.P.
By: RiverVest Venture Partners IV, L.P., its General Partner
By: RiverVest Venture Partners IV, LLC, its sole General Partner
By: /s/ Niall A. O’Donnell, Ph.D.
Name: Niall A. O’Donnell, Ph.D.
Title: Authorized Person
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: Rock Springs Capital Master Fund LP
By: its general partner, Rock Springs General Partner LLC
By: /s/ Mark Bussard
Name: Mark Bussard
Title: Managing Member
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed as of the date first above written.
Purchaser: Four Pines Master Fund LP
By: its general partner, Four Pines General Partner LLC
By: /s/ Mark Bussard
Name: Mark Bussard
Title: Managing Member
[Signature Page to Securities Purchase Agreement]
EXHIBIT A
SCHEDULE OF PURCHASERS
Purchaser | Beneficial Ownership Limitation | Shares Subscription Amount | Shares | Shares Underlying Pre-Funded Warrants | Warrant Subscription Amount | Shares Underlying Standard Warrants | Aggregate Purchase Price |
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Total: |
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EXHIBIT B-1
FORM OF PRE-FUNDED WARRANT
EXHIBIT B-2
FORM OF STANDARD WARRANT