Attached files
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| 8-K - FORM 8-K - FLUOROPHARMA MEDICAL, INC. | fpmi8k_feb242017.htm |
Exhibit
10.1
WAIVER
This waiver (this “Waiver”)
is granted as of February [21], 2017, by Platinum-Montaur Life Sciences, LLC, a
Delaware limited liability company (“Platinum
Montaur”) in favor of
FluoroPharma Medical, Inc., a Nevada corporation (the
“Company”).
Capitalized terms used but not defined herein shall have the
meaning given to such term in the Purchase Agreement and the
Warrant (each, as defined below), as
applicable.
RECITALS
WHEREAS, pursuant to that certain
Securities Purchase Agreement, dated as of September 18, 2013, by
and between Platinum Montaur and the Company (the
“Purchase
Agreement”) and that certain Common Stock Purchase
Warrant, dated as of September 18, 2013, granted by the Company in
favor of Platinum Montaur (the “Warrant”), Platinum
Montaur purchased [4,523,076] Preferred Shares and Warrants to
purchase [6,020,214] shares of the Company’s common
stock;
WHEREAS, pursuant to Section 3.11(c) of
the Purchase Agreement, for so long as not less than 25% of the
Preferred Shares issued pursuant to the Purchase Agreement remain
outstanding, if the Company enters into any Subsequent Financing on
terms more favorable than the terms governing the sale of the
Preferred Stock thereunder, as determined by Platinum Montaur in
its reasonable discretion, then Platinum Montaur in its sole
discretion may exchange the Preferred Shares then held by it,
valued at their stated value, together with accrued but unpaid
dividends, for the securities issued or to be issued in the
Subsequent Financing (the “Preferred Ratchet
Rights”);
WHEREAS, pursuant to Section 3(e) of the
Warrant, during the term of the Warrant, in the event the Company
shall issue any Additional Shares of Common Stock or Convertible
Securities, other than as provided in Sections 3(a) through 3(d),
at a price per share less than the Exercise Price then in effect or
without consideration, then the Exercise Price upon each such
issuance shall be adjusted to the price equal to the consideration
per share paid for such Additional Shares of Common Stock or
Convertible Securities (the “Warrant Ratchet
Rights”);
WHEREAS, on February 10, 2017, the
Company provided notice to Platinum Montaur of its intent to
effectuate a Subsequent Financing, on terms more favorable than the
terms governing the sale of the Preferred Stock under the Purchase
Agreement, pursuant to which it may issue Additional Shares of
Common Stock or Convertible Securities at a price per share less
than the Exercise Price in the Warrant (the “Subsequent Financing”);
and
WHEREAS, the Company wishes that
Platinum Montaur waive, and Platinum Montaur is willing to waive,
its Preferred Ratchet Rights and Warrant Ratchet Rights with
respect to such Subsequent Financing.
NOW, THEREFORE, in consideration of the
mutual agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Waiver. Platinum Montaur, on behalf of itself
and each of its successors and assigns, hereby waives its Preferred
Ratchet Rights and Warrant Ratchet Rights with respect to the
Subsequent Financing; provided, however, that such waiver shall
be automatically revoked and of no further force and effect if the
Subsequent Financing is not completed by August 10,
2017.
2. Entire Agreement. This Waiver
contains the entire agreement among the parties hereto with respect
to the transactions contemplated hereby and supersedes all prior
arrangements or understandings, written or oral.
3. No Other Waiver. No waiver
granted hereunder shall be deemed to be a continuing waiver in the
future or a waiver of any other provisions, condition or
requirement of the Purchase Agreement or the Warrant, nor shall any
delay or omission of Platinum Montaur to exercise any right under
the Purchase Agreement or the Warrant in any manner impair the
exercise of any such right accruing to it thereafter.
4. Counterparts. This Waiver may
be executed in any number of counterparts by original or facsimile
signature, each such counterpart shall be an original instrument,
and all such counterparts together shall constitute one and the
same agreement.
5. Governing Law. This Waiver
shall be governed by and construed in accordance with the laws of
the State of New York. The terms of this Waiver applicable to
contracts made and to be performed wholly therein shall be governed
by and construed in accordance with the laws of the State of New
York (without regard to principles of conflicts of
laws).
[Signature page follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed as of the date first above written.
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Platinum-Montaur Life Sciences, LLC
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By:
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Matthew J.
Wright
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Name:
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Matthew J.
Wright
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Title:
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Company Manager, acting as
Joint Official Liquidator of Platinum Partners Value Arbitrage Fund
L.P. (the Joint Official Liquidators act as agents of the fund only
and contract without personal liability).
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Acknowledged and
Agreed:
FluoroPharma Medical, Inc.
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By:
Name:
Title: |
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/s/ Thomas Tulip
Thomas
Tulip
CEO and
President
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[Signature
page to Waiver]