Item 1.01 Entry into a Material Definitive Agreement
As previously announced, on April 16, 2018, Axim Biotechnologies, Inc., a Nevada corporation (the “Company”), entered into a Stock Purchase Agreement (the “Purchase Agreement”) with Cross & Company, a Nevada corporation (the “Investor”), pursuant to which the Investor agreed to purchase, upon our written notice, shares of our common stock registered under the Registration Statement on Form S-3 (File No. 333-220155) filed by the Company on August 24, 2017, and declared effective by the Securities and Exchange Commission (the “SEC”) on September 14, 2017 (the “Registration Statement”), for an aggregate purchase price of up to $50 million.
On December 16, 2019, the Company entered into an amendment to the Purchase Agreement (the “Amendment”) pursuant to which we agreed to certain changes to the true-up adjustments under the Agreement. Capitalized terms used but not otherwise defined herein shall have the same meaning ascribed to such term as set forth in the Agreement.
Specifically, a maximum limit was put on the True-up Payment such that in any Adjustment Period for which the lowest trading price is less than 50% of the Unadjusted Purchase Price, then the True-Up Payment shall be limited to the greater of (i) an amount that when added to the total net proceeds realized by Investor from the sale of the S-3 Shares under a specific notice is equal to 150% of the amount paid by Investor for the S-3 Shares applicable to the True-Up Payment, or (ii) an amount that when added to the total net proceeds realized by Investor from the sale of the S-3 Shares under a specific notice is equal to 100% plus 1%, for each trading day in the Adjustment Period, of the amount paid by the Investor for the S-3 Shares applicable to the True-Up Payment.
In addition, the Adjustment Period for a True-Up Payment was adjusted to be defined as the greater of (i) sixty (60) trading days following DWAC receipt by Investor of S-3 Shares purchased pursuant to a specific notice, or (ii) the number of trading days that is equal to 150% of the number of S-3 Shares under such notice for which the Adjusted Purchase Price is being determined divided by 25% of the trailing average daily trading volume for the twenty (20) trading days prior to DWAC receipt by Investor of S-3 Shares purchased pursuant to such notice (rounded to the nearest whole number). If any notice is delivered to Investor prior to the date on which the sale of all of the S-3 Shares (or True-Up Shares) pursuant to any prior notice has been completed, then the unsold S-3 Shares (or True-Up Shares) of the new notice shall be added to the S-3 Shares being acquired pursuant to the new notice for purposes of determining the Adjustment Period applicable to the new notice. No other terms of the Purchase Agreement were amended.
The foregoing description of the Amendment to the Stock Purchase Agreement is qualified in its entirety by reference to the full text of such amendment, a copy of which is filed herewith as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference. This Current Report on Form 8-K also incorporates by reference the Amendment to the Stock Purchase Agreement into the Registration Statement.
A copy of the opinion of Procopio, Cory, Hargreaves & Savitch LLP relating to the legality of the shares of common stock issuable under the Amendment, is filed as Exhibit 5.1 to this Current Report on Form 8-K and is also incorporated by reference into the Registration Statement.