Attached files
| file | filename |
|---|---|
| EX-10.1 - FORM OF NOTE PURCHASE AGREEMENT - MetaStat, Inc. | ex10-1.htm |
| EX-4.3 - FORM OF NOTE WARRANT - MetaStat, Inc. | ex4-3.htm |
| EX-4.2 - FORM OF JUNIOR NOTE - MetaStat, Inc. | ex4-2.htm |
| EX-4.1 - FORM OF SENIOR NOTE - MetaStat, Inc. | ex4-1.htm |
| 8-K - CURRENT REPORT - MetaStat, Inc. | mtst8kapr2018.htm |
Exhibit
10.2
EXCHANGE AGREEMENT
This
EXCHANGE AGREEMENT (this “Agreement”) is made
effective as of March 30, 2018 (the “Execution Date”) by and
among MetaStat, Inc., a Nevada corporation (the “Company”) and
[___________] (the “Investor”).
RECITALS
WHEREAS, the
Company and the Investor entered into a securities purchase
agreement dated as of December 31, 2014, as amended on March 27,
2015 (the “Series B
Purchase Agreement”), pursuant to which the Company
issued and sold to the Payee: (i) shares of Series B Convertible
Preferred Stock (the “Series B Preferred”) with
a stated value of $5,500 per share, which is convertible into
shares of the Company’s common stock, par value $0.0001 per
share (the “Common
Stock”) and (ii) five-year warrants to purchase 91,000
shares of Common Stock at $10.50 per share (the “Series A Warrants”) for
an aggregate purchase price of $1,001,000.00;
WHEREAS, the
Company and the Investor entered into that certain Exchange
Agreement dated January 17, 2017 (the “Exchange Agreement”),
pursuant to which the Company issued to the Investor a 10%
convertible promissory note (the “Promissory Note”), in the
aggregate principal amount of $1,000,000.00, which is convertible
into shares of Common Stock at $2.00 per share, and having a
maturity date of September 30, 2017, in accordance with the terms
of the Exchange Agreement;
WHEREAS, Investor
is currently the beneficial owner of 226.2941 shares of Series B
Preferred plus accrued and unpaid dividends through March 30, 2018
in the amount of $50,116.00 for an aggregate stated value of
$1,294,900.00 (the “Stated
Value”);
WHEREAS, Investor
is currently the beneficial owner of the Promissory Note in the
principal amount of $1,000,000.00 plus accrued and unpaid interest
through March 30, 2018 of $134,027.00 (the “Principal
Balance”);
WHEREAS, the
Company is currently conducting a private placement (the
“Private
Placement”) pursuant to a note purchase agreement
dated on or about March 30, 2018 (the “Note Purchase Agreement”)
in the form attached hereto as Exhibit A, which consists of
(i) senior non-convertible promissory bridge notes (the
“Senior
Notes”), in the form attached hereto as Exhibit B, (ii) junior
non-convertible promissory bridge notes (the “Junior Notes,” and
together with the Senior Notes, the “Notes”), in the form
attached hereto as Exhibit
C, and (iii) five-year warrants with an exercise price of
$2.00 per share (the “Note Warrants”) to
purchase 10,000 shares of Common Stock for every $100,000 principal
amount of Notes, in the form attached hereto as Exhibit D. The shares of Common
Stock the Warrants are exercisable into shall be referred to as the
“Warrant
Shares”;
WHEREAS,
concurrently, but in no event later than two (2) business days
following the Closing (as defined below), the Company shall repay
to the Investor $300,000.00 (the “Cash Payment”) of the
Principal Balance, leaving $834,027.00 principal amount of the
Promissory Note remaining (the “Note Exchange Balance”)
for the Exchange (as defined below).
WHEREAS, the
Company desires, and the Investor agrees, that the Investor
exchange (the “Exchange”) the Promissory
Note, the Series B Preferred, and the Series A Warrants for the
following securities to be issued in the Private Placement: (i) a
Senior Note in the aggregate principal amount equal to $834,027.00
(the Note Exchange Balance), (ii) a Junior Note in the aggregate
principal amount equal to $1,294,900.00 (the Stated Value), and
(iii) Warrants to purchase an aggregate of 212,893 shares of Common
Stock (the “Note
Warrants”), upon the terms and conditions set forth
herein and shall be deemed a purchaser under the Note Purchase
Agreement;
WHEREAS, each of
the Notes, the Note Warrants, and the Warrant Shares is intended to
qualify as an exempted security under Section 3(a)(9) or Section
4(a)(2) of the Securities Act of 1933, as amended (the
“Securities
Act”).
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AGREEMENT
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 Investor agree as follows:
ARTICLE I
THE EXCHANGE
1.1 Closing.
Subject to the terms and conditions set forth in this Agreement,
the Company and the Investor shall exchange (i) the Promissory Note
in consideration for the issuances of a Senior Note in the
aggregate principal amount equal to $834,027.00 (the Note Exchange
Balance) and 83,403 Note Warrants, and (ii) the Series B Preferred
and the Series A Warrant in consideration for the issuances of a
Junior Note in the aggregate principal amount equal to
$1,294,900.00 (the Stated Value), and 129,490 Note Warrants. The
closing of the Exchange and issuance of the Notes and Note Warrants
(the “Closing”) shall take
place at the offices of the Company, 27 Drydock Ave., 2nd Floor, Boston, MA
02210 on the date hereof or such other date as the parties shall
agree (the “Closing
Date”).
1.2 Exchange.
(a) Investor Obligations. At the
Closing, the Investor shall deliver or promptly cause to be
delivered to the Company (i) the original Promissory Note, (ii) the
certificates representing the Series B Preferred, or an
indemnification undertaking with respect to such certificates in
the event of the loss, theft or destruction of such certificates
(iii) an executed copy of this Agreement, and (iv) an executed copy
of the Note Purchase Agreement and any other related Private
Placement documents.
(b) Company Obligations. At the
Closing, the Company shall deliver or promptly cause to be
delivered to the Investor (i) the Notes, (ii) the Note Warrants,
(iii) an executed copy of this Agreement, and (iv) an executed copy
of the Note Purchase Agreement and any other related Private
Placement documents. Promptly, but in no event later than two (2)
business days following the Closing, the Company shall pay the Cash
Payment of $300,000.00 to the Investor, according to written wire
instructions provided by the Investor to the Company attached
hereto on Exhibit
E, or otherwise agreed to by the parties.
(c)
Promissory Note, Series B
Preferred and Series A Warrant. Effective as of the Closing
Date, the Promissory Note, the Series B Preferred and the Series A
Warrant shall be deemed automatically canceled and of no further
force or effect and shall thereafter represent only the right to
receive the Notes and Note Warrants (sometimes collectively
referred to herein as the “New Securities”), and the
Cash Payment .
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Investor
Representations and Warranties. The Investor hereby
represents and warrants to the Company as follows on the Execution
Date and the Closing Date:
(a) Organization;
Authority. The Investor, if not a natural person, is an
entity duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization. The Investor has
the requisite power and authority to enter into and to consummate
the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder. This Agreement has been duly
executed by the Investor, and when delivered by the Investor in
accordance with the terms hereof, will constitute the valid and
legally binding obligation of the Investor, enforceable against it
in accordance with its terms.
(b)
Ownership of the
Promissory Note, Series B Preferred and Series A Warrant.
The Investor is the sole owner of the Promissory Note, the Series B
Preferred, and the Series A Warrant free and clear of any and all
liens, claims and encumbrances of any kind.
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(c) Investment Intent. The Investor
is acquiring the New Securities as principal for its own account
for investment purposes only and not with a view to or for
distributing or reselling such New Securities or any part thereof,
except pursuant to sales that are exempt from the registration
requirements of the Securities Act and/or sales registered under
the Securities Act. The Investor does not have any agreement or
understanding, directly or indirectly, with any person or entity to
distribute the New Securities.
(d) Investor Status. At the time
the Investor was offered the New Securities, it was, and at the
date hereof it is, an “accredited investor” as defined
in Rule 501(a) of Regulation D under the Securities Act. The
Investor is not a broker-dealer.
(e) General Solicitation. The
Investor is not acquiring the New Securities as a result of or
subsequent to any advertisement, article, notice or other
communication regarding the New Securities published in any
newspaper, magazine or similar media or broadcast over television
or radio or presented at any seminar or any other general
solicitation or general advertisement.
(f) Reliance. The Investor
understands and acknowledges that (i) the New Securities are
being offered and sold to it without registration under the
Securities Act in a transaction that is exempt from the
registration provisions of the Securities Act, and (ii) the
availability of such exemption depends in part on, and the Company
will rely upon the accuracy and truthfulness of, the foregoing
representations, and the Investor hereby consents to such
reliance.
(g) Brokers and Finders. The
Investor has no knowledge of any person who will be entitled to or
make a claim for payment of any finder fee or other compensation as
a result of the consummation of the transactions contemplated by
this Agreement.
2.2 Company
Representations and Warranties. The Company hereby makes the
following representations and warranties to each Investor on the
Execution Date and on the Closing Date:
(a) Organization and Qualification.
The Company is a corporation incorporated, validly existing and in
good standing under the laws of the State of Nevada, with the
requisite corporate power and authority to own and use its
properties and assets and to carry on its business as currently
conducted. The Company is duly qualified as a foreign corporation
to do business and is in good standing in every jurisdiction where
the nature of the business it conducts makes such qualification
necessary, except where the failure to do so would not have a
material adverse effect on the Company.
(b) Authorization; Enforcement. The
Company has the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by this
Agreement and to issue the Notes, the Note Warrants and Warrant
Shares, upon exercise of the Note Warrants in accordance with the
terms of the Note Warrants and otherwise to carry out its
obligations hereunder and thereunder. The execution, delivery and
performance of this Agreement and any other agreements and the
consummation of the transactions contemplated hereby and thereby
have been duly authorized by the Company’s Board of
Directors, and no further consent or authorization of the Company,
its Board of Directors (including any committee thereof) or any
class of the Company’s stockholders is required. This
Agreement, the Notes, and the Note Warrants have been duly executed
by the Company and, when delivered in accordance with the terms
hereof, will constitute the valid and binding obligations of the
Company enforceable against the Company, in accordance with their
terms, except: (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable
law.
(c) Issuance of the New Securities.
The Notes and the Note Warrants, when issued at the Closing, will
be duly authorized, validly issued, fully paid and non-assessable
and will be free and clear of all taxes, liens, options or other
encumbrances of any nature (except for those imposed under
applicable securities laws).
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(d) No Conflicts. The execution,
delivery and performance of this Agreement, and the consummation by
the Company of the transactions contemplated hereby and thereby
(including, without limitation, the issuance and reservation for
issuance, as applicable, of the Warrant Shares will not, (i) result
in a violation of the certificate of incorporation of the Company
(the “Certificate of
Incorporation”) or the bylaws of the Company (the
“Bylaws”) or (ii) result
in a violation of any law, rule, regulation, order, judgment or
decree (including United States federal and state securities laws
and regulations and rules or regulations of any self-regulatory
organizations to which either the Company or its securities are
subject) applicable to the Company or by which any property or
asset of the Company is bound or affected. The Company is not in
violation of its Certificate of Incorporation, Bylaws or other
organizational documents. The Company is not in default (and no
event has occurred which, with notice or lapse of time or both,
would put the Company in default) under, nor has there occurred any
event giving others (with notice or lapse of time or both) any
rights of termination, amendment, acceleration or cancellation of,
any agreement, indenture or instrument to which the Company is a
party except for such violations, defaults or events that have had
a material adverse effect.
(e) Absence of Certain Changes.
Since February 28, 2017, there has been no material adverse change
and no material adverse development in the business, properties,
operations, prospects, financial condition or results of operations
of the Company, except as disclosed in the reports, schedules,
forms, statements and other documents (including all financial
statements and schedules thereto and all exhibits included therein
and documents incorporated by reference therein) required to be
filed by the Company with the Securities and Exchange Commission
(the “SEC”) pursuant to the
reporting requirements of the Securities Exchange Act of 1934, as
amended, filed before the date hereof. The Company has not taken
any steps, and does not currently expect to take any steps, to seek
protection pursuant to any bankruptcy or receivership law nor does
the Company have any knowledge or reason to believe that its
creditors intend to initiate involuntary bankruptcy proceedings
with respect to the Company.
(f) Certain Fees. No fees or
commissions will be payable by the Company to any broker, financial
advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated
by this Agreement.
ARTICLE III
OTHER COVENANTS
3.1 Securities
Laws. The Investor acknowledges that the Notes, Note
Warrants and Warrant Shares have not been registered under the
Securities Act and may only be disposed of pursuant to an available
exemption from or in a transaction not subject to the registration
requirements of the Securities Act.
3.2 Restrictive
Legend. The Investor agrees to the imprinting of the
following legend, or in similar form, on the Notes, Note Warrants
and Warrant Shares:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION, AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO 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.
3.3
Reservation of
Shares. The Company shall at all times have authorized and
reserved for the purpose of issuance a sufficient number of Warrant
Shares.
-4-
ARTICLE IV
MISCELLANEOUS
4.1 Fees
and Expenses. Except as set forth in this Section 4.1, each
party shall pay the fees and expenses of its advisers, counsel,
accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement. The Company
shall pay all stamp and other taxes and duties levied in connection
with the issuance of the New Securities.
4.2 Entire
Agreement; Amendments. This Agreement together with the
exhibits and schedules hereto, dated as of the Execution Date,
contains the entire understanding of the parties with respect to
the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into such documents,
exhibits and schedules.
4.3 Notices.
Any and all notices or other communications or deliveries required
or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via
facsimile at the facsimile number or email at the email address
specified in this Section prior to 6:00 p.m. (New York City time)
on a business day, against electronic confirmation thereof, (ii)
the business day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number or
email at the email address specified in this Agreement later than
6:00 p.m. (New York City time) on any date, against electronic
confirmation thereof, (iii) the business day following the date of
mailing, if sent by nationally recognized overnight courier
service, or (iv) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and
communications shall be as follows:
If to the
Company:
MetaStat,
Inc.
27
Drydock Ave., 2nd Floor
Boston,
MA 02210
Facsimile No.:
(646) 304-7086
Email:
dschniederman@metastat.com
Attn:
Daniel Schneiderman
With
copies to (which
shall
Loeb & Loeb LLP
not constitute
notice):
345 Park Ave.
New
York, NY 10154
Facsimile No.:
(212) 898-1184
Email:
dlevine@loeb.com
Attn:
David Levine
If to the
Investor:
[___________]
[___________]
[___________]
Attention:
[___________]
Tel.
No.: [___________]
Fax
No.: [___________]
Email:
[___________]
or such
other address as may be designated in writing hereafter, in the
same manner, by such person or entity.
4.4 Amendments;
Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an
amendment, by the Company and by the Investor. No waiver of any
default with respect to any provision, condition or requirement of
this Agreement shall be deemed to be a continuing waiver in the
future or a waiver of any other provision, condition or requirement
hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
4.5 Headings.
The headings herein are for convenience only, do not constitute a
part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
-5-
4.6 Successors
and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted
assigns. The Investor may not assign this Agreement or any rights
or obligations hereunder without the prior written consent of the
Company.
4.7 No
Third-Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective successors
and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other person or
entity.
4.8 Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law thereof.
The Company and the Investor irrevocably consent to the
jurisdiction of the United States federal courts and state courts
located in the State of New York in any suit or proceeding based on
or arising under this Agreement and irrevocably agree that all
claims in respect of such suit or proceeding may be determined in
such courts.
4.9 Survival.
The representations and warranties contained herein shall survive
until the expiration of the first anniversary following the
Closing. The agreements and covenants contained herein shall
survive the Closing and the delivery of the New Securities until
the expiration of the applicable statute of limitations (if any)
therefor.
4.10 Execution.
This Agreement may be executed in one or more counterparts, all of
which when taken together shall be considered one and the same
agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party, it being
understood that all parties need not sign the same counterpart. In
the event that any signature is delivered by facsimile transmission
or a scanned copy via electronic mail, such signature shall create
a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) the same with the same force and
effect as if such facsimile or scanned signature page were an
original thereof.
4.11 Severability.
In case any one or more of the provisions of this Agreement shall
be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this
Agreement shall not in any way be affected or impaired thereby and
the parties will attempt to agree upon a valid and enforceable
provision which shall be a reasonable substitute therefor, and upon
so agreeing, shall incorporate such substitute provision in this
Agreement.
4.12 Further
Assurances. The parties hereto agree that each shall execute
and deliver any and all further agreements, instruments,
certificates and other documents, and shall take any and all
action, as any of the parties hereto may reasonably deem necessary
or desirable in order to carry out the intent of the parties to
this Agreement.
4.13 Attorneys’
Fees. If either party shall commence an action or proceeding
to enforce any provisions relating to the obligations to close the
transactions contemplated by this Agreement prior to the Closing,
then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorneys’ fees and
other costs and expenses incurred with the investigation,
preparation and prosecution of such action or
proceeding.
[signature
page follows]
-6-
IN
WITNESS WHEREOF, the parties hereto have caused this Exchange
Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
COMPANY:
METASTAT,
INC.
By:
___________________________
Name:
Title:
INVESTOR:
By:
______________________________
Name:
Title:
[Signature
Page to Exchange Agreement]
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Exhibit A
[Form of Note Purchase Agreement]
-8-
Exhibit B
[Form
of Senior Note]
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Exhibit C
[Form
of Junior Note]
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Exhibit D
[Form
of Note Warrant]
-11-
Exhibit E
[Wire
Instructions]
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