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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF
THE SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): July 26, 2023 (July 20, 2023)
PROPANC
BIOPHARMA, INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
000-54878 |
|
33-0662986 |
(State or other jurisdiction
of Incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification Number) |
302,
6 Butler Street
Camberwell,
VIC, 3124 Australia
(Address
of registrant’s principal executive office) (Zip code)
+61-03-
9882-0780
(Registrant’s
telephone number, including area code)
N/A
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
N/A |
|
N/A |
|
N/A |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01 Entry into a Material Definitive Agreement.
On
July 20, 2023, Propanc Biopharma, Inc. (the “Company”) entered into a common stock purchase agreement (the “Equity
Line Agreement”) with an institutional investor (the “Investor”) providing for an equity financing facility, pursuant
to which Company has the option to request that the Investor commit to purchase up to $5,000,000 of the Company’s shares (the “Shares”)
of common stock, par value $0.001 per share (the “Common Stock”), over a 24-month term commencing on the date on which a
registration statement filed by the Company to register the offer and resale of the Shares by the Investor (the “Registration Statement”)
is declared effective by the U.S. Securities and Exchange Commission (the “SEC”). Pursuant to the Equity Line Agreement,
the Company has the option to exercise this right by providing a notice (a “Drawdown Notice”) from the Company to the Investor
setting forth the number of Shares that the Investor will purchase. The Company has agreed to use the proceeds from such issuances for
the purpose of financing its research and product development activities, finished product manufacture for clinical
studies, working capital requirements and general corporate purposes.
Pursuant
to the Equity Line Agreement, purchases of Shares cannot occur unless and until certain conditions are met, including but not limited
to, the SEC declaring the Registration Statement effective, and the maximum number of Shares that may be purchased pursuant to a Drawdown
Notice cannot exceed the lesser of (i) 200% of the average daily traded value of the Common Stock during the five (5) business days immediately
preceding a Drawdown Notice or (ii) $200,000; provided that in no event may a Drawdown Notice be for less than $5,000, exceed 52,500,000
Shares or cause the Investor’s ownership to exceed 4.99% of the outstanding number of shares of Common Stock immediately prior
to the issuance of such Shares. The actual amount of proceeds that the Company will receive in connection with each Drawdown Notice is
determined under the Equity Line Agreement by multiplying the number of Shares to be sold by the applicable purchase price per share,
which is equal to 85% of the lowest traded price of the Common Stock during the 7 business days immediately following the Clearing Date, less Clearing Costs (as each such term is defined in the Equity Line Agreement).
Additionally,
in connection with the Equity Line Agreement, the Company and the Investor entered into a registration rights agreement, dated July 20,
2023 (the “Registration Rights Agreement”), pursuant to which the Company agreed to register the maximum number of Shares
within 45 days of the date of the Registration Rights Agreement, subject to any comments from the SEC and applicable laws, rules and
regulations.
The
foregoing descriptions of each of the Equity Line Agreement and the Registration Rights Agreement do not purport to be complete and are
qualified in their entirety by reference to the full text of each of the Equity Line Agreement and the Registration Rights Agreement,
copies of which are attached to this Current Report on Form 8-K (this “Report”) as Exhibits 10.1 and 10.2.
Item
3.02 Unregistered Sales of Equity Securities.
The
applicable information set forth in Item 1.01 above is incorporated herein by reference.
The
offer and sale of the Shares will be issued in reliance on the exemption from registration pursuant to Section 4(a)(2) of the Securities
Act of 1933, as amended (the “Securities Act”), and/or Regulation D promulgated thereunder. Such offer and sale will be made
only to an “accredited investor” under Rule 501 of Regulation D promulgated under the Securities Act, and without any form
of general solicitation and with full access to any information requested by such investor regarding the Company or the Shares offered
and to be issued in connection with the Equity Line Agreement.
Forward-Looking
Statements
This
Report contains, and may implicate, forward-looking statements regarding the Company, and include cautionary statements identifying important
factors that could cause actual results to differ materially from those anticipated. Forward-looking statements include, but are not
limited to, statements that express the Company’s intentions, beliefs, expectations, strategies, predictions or any other statements
related to the Company’s future activities, or future events or conditions. These statements are based on current expectations,
estimates and projections about the Company’s business based, in part, on assumptions made by its management. These statements
are not guarantees of future performances and involve risks, uncertainties and assumptions that are difficult to predict. Therefore,
actual outcomes and results may differ materially from what is expressed or forecasted in the forward-looking statements due to numerous
factors, including those risks discussed in documents that the Company files from time to time with the SEC. Any forward-looking statements
speak only as of the date on which they are made, and the Company undertakes no obligation to update any forward-looking statement to
reflect events or circumstances after the date of this Report, except as required by law.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits:
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date:
July 26, 2023 |
PROPANC
BIOPHARMA, INC. |
|
|
|
|
By: |
/s/
James Nathanielsz |
|
Name: |
James
Nathanielsz |
|
Title: |
Chief
Executive Officer and Chief Financial Officer |
Exhibit
10.1
COMMON
STOCK PURCHASE AGREEMENT
This
Common Stock Purchase Agreement is entered into as of July 20, 2023 (this “Agreement”), by and between PROPANC
BIOPHARMA, INC., a Delaware corporation (the “Company”), and DUTCHESS CAPITAL GROWTH FUND L.P., a Delaware
limited partnership (the “Investor”). The Company and Investor may be referred to herein as each a “Party”
and, collectively, the “Parties”.
WHEREAS,
the Parties desire that, upon the terms and subject to the conditions contained herein, the Investor shall purchase, from time to time,
as provided herein, and the Company shall issue and sell Five Million U.S. Dollars (US$5,000,000) of the Company’s Common Stock
(as defined below).
NOW,
THEREFORE, the Parties hereto agree as follows:
ARTICLE
I CERTAIN DEFINITIONS
Section
1.1 DEFINED TERMS. As used in this Agreement, the following terms shall have the following meanings specified or indicated (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Agreement”
shall have the meaning specified in the preamble hereof.
“Average
Daily Trading Value” shall mean the average trading volume of the Company’s Common Stock in the five (5) Business Days
immediately preceding the applicable Drawdown Notice Date (as defined herein) multiplied by the Purchase Price.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Business
Day” shall mean a day on which the Principal Market shall be open for business. “Claim Notice” shall have
the meaning specified in Section 9.3(a).
“Clearing
Costs” shall mean all of the Investor’s broker, Transfer Agent, and commission expenses incurred during the fulfillment
of a Drawdown Notice.
“Clearing
Date” shall mean the first entire Business Day that the Investor holds the Drawdown Notice Shares in its brokerage account
and is eligible to trade such shares.
“Closing”
shall mean one of the closings of a purchase and sale of shares of Common Stock pursuant to Section 2.2.
“Commitment
Amount” shall mean Five Million U.S. Dollars (US$5,000,000).
“Commitment
Period” shall mean the earlier of (i) the date on which all US$5,000,000 of Drawdown Notice Shares have been issued to the
Investors pursuant to this Agreement and (ii) twenty-four (24) months immediately following the initial date of effectiveness of the
Registration Statement.
“Common
Stock” shall mean the Company’s common stock, $0.001 par value per share.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company”
shall have the meaning specified in the preamble to this Agreement.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Damages”
shall mean any loss, claim, damage, liability, cost and expense (including, without limitation, reasonable attorneys’ fees and
disbursements and costs and expenses of expert witnesses and investigation).
“Dispute
Period” shall have the meaning specified in Section 9.3(a).
“Drawdown
Notice” shall mean a written notice from the Company, substantially in the form of Exhibit A hereto, to Investor setting forth
the Drawdown Notice Shares which the Company intends to require Investor to purchase pursuant to the terms of this Agreement.
“Drawdown
Notice Date” shall have the meaning specified in Section 2.2(b).
“Drawdown
Notice Shares” shall mean all shares of Common Stock issued, or that the Company shall be entitled to issue, per applicable
Drawdown Notice in accordance with the terms and conditions of this Agreement.
“DTC”
shall mean The Depository Trust Company, or any successor performing substantially the same function for the Company.
“DTC/FAST
Program” shall mean the DTC’s Fast Automated Securities Transfer Program.
“DWAC”
shall mean Deposit Withdrawal at Custodian as defined by the DTC.
“DWAC
Eligible” shall mean that (a) the Common Stock is eligible at DTC for full services pursuant to DTC’s Operational Arrangements,
including, without limitation, transfer through DTC’s DWAC system, (b) the Company has been approved (without revocation) by the
DTC’s underwriting department, (c) the Transfer Agent is approved as an agent in the DTC/FAST Program, (d) the Drawdown Notice
Shares are otherwise eligible for delivery via DWAC, and (e) the Transfer Agent does not have a policy prohibiting or limiting delivery
of the Drawdown Notice Shares, as applicable, via DWAC.
“DWAC
Shares” means shares of Common Stock that are (i) issued in electronic form, (ii) freely tradable and transferable and without
restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s specified DWAC account
with DTC under the DTC/FAST Program, or any similar program hereafter adopted by DTC performing substantially the same function.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange
Cap” shall have the meaning set forth in Section 7.1(c).
“Execution
Date” shall mean the date of this Agreement.
“FINRA”
shall mean the Financial Industry Regulatory Authority, Inc.
“Indemnified
Party” shall have the meaning specified in Section 9.2.
“Indemnifying
Party” shall have the meaning specified in Section 9.2.
“Indemnity
Notice” shall have the meaning specified in Section 9.3(e).
“Investment
Amount” shall mean the Drawdown Notice Shares referenced in the Drawdown Notice multiplied by the Purchase Price (as defined
herein).
“Investor”
shall have the meaning specified in the preamble to this Agreement.
“Lien”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material
Adverse Effect” shall mean any effect on the business, operations, properties, or financial condition of the Company and the
Subsidiaries that is material and adverse to the Company and the Subsidiaries and/or any condition, circumstance, or situation that would
prohibit or otherwise materially interfere with the ability of the Company to enter into and perform its obligations under any Transaction
Document.
“Person”
shall mean an individual, a corporation, a partnership, an association, a trust or other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
“Principal
Market” shall mean any of the national exchanges (i.e., NYSE, NYSE AMEX, Nasdaq), or principal quotation systems (i.e., OTCQX,
OTCQB, OTC Pink, the OTC Bulletin Board), or other principal exchange or recognized quotation system which is at the time the principal
trading platform or market for the Common Stock.
“Pricing
Period” shall mean the period of seven (7) trading days immediately following the Clearing Date.
“Purchase
Price” shall mean eighty-five percent (85%) of the lowest traded price of the Common Stock during the Pricing Period.
“Registration
Rights Agreement” shall mean that certain registration rights agreement, dated as of the date hereof, by and between the Parties.
“Registration
Statement” shall have the meaning specified in Section 6.2.
“Regulation
D” shall mean Regulation D promulgated under the Securities Act.
“Rule
144” shall mean Rule 144 under the Securities Act or any similar provision then in force under the Securities Act.
“SEC”
shall mean the United States Securities and Exchange Commission.
“SEC
Documents” shall have the meaning specified in Section 4.5.
“Securities”
means, collectively, the Drawdown Notice Shares.
“Securities
Act” shall mean the Securities Act of 1933, as amended.
“Subsidiary”
means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly, owns a majority of the voting
stock or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of Regulation S-K promulgated under
the Securities Act.
“Third
Party Claim” shall have the meaning specified in Section 9.3(a).
“Transaction
Documents” shall mean this Agreement, the Registration Rights Agreement and all schedules and exhibits hereto and thereto.
“Transfer
Agent” shall mean the current transfer agent of the Company, and any successor transfer agent of the Company.
ARTICLE
II PURCHASE AND SALE OF COMMON STOCK
Section
2.1 DRAWDOWN NOTICES. Upon the terms and conditions set forth herein (including, without limitation, the provisions of Article
VII), the Company shall have the right, but not the obligation, to direct the Investor, by its delivery to the Investor of a Drawdown
Notice from time to time, to purchase Drawdown Notice Shares provided that the amount of Drawdown Notice Shares
shall not exceed the lesser of: (i) US$200,000 or (ii) 200% of the Average Daily Trading Value; provided that in no event shall the Drawdown
Notice Shares delivered exceed the Beneficial Ownership Limitation applicable to the Investor set forth in Section 7.2(g). Notwithstanding
the foregoing, the Company may not deliver a subsequent Drawdown Notice until the Closing of an active Drawdown Notice, except if waived
by the Investor in writing. In no event shall an Investment Amount be less than Five Thousand U.S. Dollars ($5,000) or a Drawdown
Notice require the issuance of more than Fifty-Two Million Five Hundred Thousand (52,500,000) shares of Common Stock.
Section
2.2 MECHANICS.
(a)
DRAWDOWN NOTICE. At any time from time to time and beginning two (2) trading days following a Closing (as defined herein) of an
immediately preceding Drawdown Notice during the Commitment Period, except as provided in this Agreement, the Company may deliver a Drawdown
Notice to Investor subject to satisfaction of the conditions set forth in Section 7.2 and otherwise provided herein. The Company shall
deliver the Drawdown Notice Shares as DWAC Shares to the Investor alongside delivery of the Drawdown Notice.
(b)
DATE OF DELIVERY OF DRAWDOWN NOTICE. A Drawdown Notice shall be deemed delivered on (i) the Business Day it is received by email
by the Investor if such notice is received on or prior to 8:00 a.m. New York time or (ii) the immediately succeeding Business Day if
it is received by email after 8:00 a.m. New York time on a Business Day or at any time on a day which is not a Business Day (the “Drawdown
Notice Date”).
(c)
CLOSING. Within three (3) Business Days after the completion of the Pricing Period, the Investor shall deliver the Investment
Amount (net of Clearing Costs) by wire transfer of immediately available funds to an account designated
by the Company (each a “Closing”). In the event that the Investor does not deliver such payment at such Closing, the
Investor shall promptly return the applicable Drawdown Notice Shares to the Company unless the Company agrees to grant the Investor an
additional one (1) Business Day to deliver such payment.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF INVESTOR
The
Investor represents and warrants to the Company that:
Section
3.1 INTENT. The Investor is entering into this Agreement for its own account and the Investor has no present arrangement (whether
or not legally binding) at any time to sell the Securities to or through any Person in violation of the Securities Act or any applicable
state securities laws; provided, however, that the Investor reserves the right to dispose of the Securities at any time
in accordance with federal and state securities laws applicable to such disposition.
Section
3.2 NO LEGAL ADVICE FROM THE COMPANY. The Investor acknowledges that it has had the opportunity to review
this Agreement and the transactions contemplated by this Agreement with its own legal counsel and investment and tax advisors. The Investor
is relying solely on such counsel and advisors and not on any statements or representations of the Company or any of its representatives
or agents for legal, tax or investment advice with respect to this investment, the transactions contemplated by this Agreement or the
securities laws of any jurisdiction.
Section
3.3 ACCREDITED INVESTOR. The Investor is an accredited investor as defined in Rule 501(a)(3) of Regulation D, and the Investor
has such experience in business and financial matters that it is capable of evaluating the merits and risks of an investment in the Securities.
The Investor acknowledges that an investment in the Securities is speculative and involves a high degree of risk.
Section
3.4 AUTHORITY. The Investor has the requisite power and authority to enter into and perform its obligations under the Transaction
Documents and to consummate the transactions contemplated hereby and thereby. The execution and delivery of the Transaction Documents
and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action and
no further consent or authorization of the Investor is required. The Transaction Documents to which it is a party has been duly executed
by the Investor, and when delivered by the Investor in accordance with the terms hereof, will constitute the valid and binding obligation
of the Investor enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, or similar laws relating
to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application.
Section
3.5 NOT AN AFFILIATE. The Investor is not an officer, director nor “affiliate” (as that term is defined in
Rule 405 of the Securities Act) of the Company.
Section
3.6 ORGANIZATION AND STANDING. The Investor is an entity duly incorporated or formed, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or
similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents.
Section
3.7 ABSENCE OF CONFLICTS. The execution and delivery of the Transaction Documents, and the consummation of the transactions contemplated
hereby and thereby and compliance with the requirements hereof and thereof, will not (a) violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Investor, (b) violate any provision of any indenture, instrument or agreement to
which the Investor is a party or is subject, or by which the Investor or any of its assets is bound, or conflict with or constitute a
material default thereunder, (c) result in the creation or imposition of any Lien pursuant to the terms of any such indenture, instrument
or agreement, or constitute a breach of any fiduciary duty owed by the Investor to any third party, or (d) require the approval of any
third-party (that has not been obtained) pursuant to any material contract, instrument, agreement, relationship or legal obligation to
which the Investor is subject or to which any of its assets, operations or management may be subject.
Section
3.8 DISCLOSURE; ACCESS TO INFORMATION. The Investor had an opportunity to review copies of the SEC Documents filed on behalf of
the Company and has had access to all publicly available information with respect to the Company.
Section
3.9 MANNER OF SALE. At no time was the Investor presented with or solicited by or through any leaflet, public promotional meeting,
television advertisement or any other form of general solicitation or advertising.
ARTICLE
IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Investor that, except as disclosed in the SEC Documents or except as set forth in the disclosure
schedules hereto:
Section
4.1 ORGANIZATION OF THE COMPANY. The Company is an entity duly incorporated or otherwise organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, with the requisite power and authority to own and use its properties
and assets and to carry on its business as currently conducted. The Company is not in violation or default of any of the provisions of
its certificate or of incorporation, bylaws or other organizational or charter documents. The Company is duly qualified to conduct business
and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case
may be, could not have or reasonably be expected to result in a Material Adverse Effect and no proceeding has been instituted in any
such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
Section
4.2 AUTHORITY. The Company has the requisite corporate power and authority to enter into and perform its obligations under the
Transaction Documents. The execution and delivery of the Transaction Documents by the Company and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of
the Company or its Board of Directors or stockholders is required. The Transaction Documents have been duly executed and delivered by
the Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally
the enforcement of, creditors’ rights and remedies or by other equitable principles of general application.
Section
4.3 CAPITALIZATION. As of the date hereof, the authorized capital stock of the Company consists of 10,000,000,000 shares of Common
Stock, of which approximately 8,449,645 shares of Common Stock are issued and outstanding and 1,500,005 shares of “blank check”
authorized preferred stock, $0.01 per share, consisting of 500,000 shares of Series A authorized preferred stock, of which no shares
are outstanding, and 5 shares of authorized Series B preferred stock, of which 1 share is outstanding. Except as set forth on Schedule
4.3, or as disclosed in the Company’s periodic and current filings with the SEC, the Company has not issued any capital stock
since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under
the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee
stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most
recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation,
or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as set forth on Schedule
4.3, or as disclosed in the Company’s periodic and current filings with the SEC, and except as a result of the purchase and
sale of the Securities, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person
any right to subscribe for or acquire any shares of Common Stock, or contracts, commitments, understandings or arrangements by which
the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance
and sale of the Securities will not obligate the Company to issue shares of Common Stock or other securities to any Person (other than
the Investor) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset
price under any of such securities. Except as otherwise disclosed in its SEC filings, there are no stockholders agreements, voting agreements
or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company’s stockholders and the Company is not obligated to register the sale of any of
its or their securities under the Securities Act and there are no anti-dilution or price adjustment provisions contained in any security
issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of any of the
Securities. The Company has furnished to the Investor true and correct copies of the Company’s Certificate of Incorporation as
in effect on the date hereof (“Certificate of Incorporation”), the Company’s bylaws, as in effect on the date hereof
(the “Bylaws”), and the terms of all securities convertible into or exercisable for Common Stock of the Company and the material
rights of the holders thereof in respect thereto. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act,
and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating such
registration. The Company has not, in the twelve (12) months preceding the date hereof, received notice from the Principal Market on
which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance
requirements of such Principal Market. The Company is and has no reason to believe that it will not in the foreseeable future continue
to be, in compliance with all such listing and maintenance requirements.
Section
4.4 SEC DOCUMENTS; DISCLOSURE. Except as set forth on Schedule 4.4, the Company has filed all reports, schedules, forms,
statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant
to Section 13(a) or 15(d) thereof, for the one (1) year preceding the date hereof (or such shorter period as the Company was required
by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference
therein, being collectively referred to herein as the “SEC Documents”) on a timely basis or has received a valid extension
of such time of filing and has filed any such SEC Documents prior to the expiration of any such extension. As of their respective dates,
the SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable,
and other federal laws, rules and regulations applicable to such SEC Documents, and none of the SEC Documents when filed contained any
untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company
included in the SEC Documents comply as to form and substance in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements
have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved
(except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements,
to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the
financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject,
in the case of unaudited statements, to normal, immaterial, year-end audit adjustments). Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting
on its behalf has provided the Investor or its agents or counsel with any information that it believes constitutes or might constitute
material, non-public information. The Company understands and confirms that the Investor will rely on the foregoing representation in
effecting transactions in securities of the Company.
Section
4.5 VALID ISSUANCES. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid, and non-assessable, free and clear of all Liens imposed by the Company other
than restrictions on transfer provided for in the Transaction Documents.
Section
4.6 NO CONFLICTS. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by
the Company of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the Drawdown Notice Shares,
does not and will not: (a) result in a violation of the Company’s or any Subsidiary’s certificate or articles of incorporation,
by-laws or other organizational or charter documents, (b) conflict with, or constitute a material default (or an event that with notice
or lapse of time or both would become a material default) under, result in the creation of any Lien upon any of the properties or assets
of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement,
indenture, instrument or any “lock-up” or similar provision of any underwriting or similar agreement to which the Company
or any Subsidiary is a party, or (c) result in a violation of any federal, state or local law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations) applicable to the Company or any Subsidiary or by which any property or
asset of the Company or any Subsidiary is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect) nor is the Company otherwise
in violation of, conflict with or in default under any of the foregoing. The business of the Company is not being conducted in violation
of any law, ordinance or regulation of any governmental entity, except for possible violations that either singly or in the aggregate
do not and will not have a Material Adverse Effect. The Company is not required under federal, state or local law, rule or regulation
to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order
for it to execute, deliver or perform any of its obligations under the Transaction Documents (other than any SEC, FINRA or state securities
filings that may be required to be made by the Company in connection with or subsequent to any Closing or any registration statement
that may be filed pursuant hereto); provided that, for purposes of the representation made in this sentence, the Company is assuming
and relying upon the accuracy of the relevant representations and agreements of Investor herein.
Section
4.7 NO MATERIAL ADVERSE CHANGE. No event has occurred that would have a Material Adverse Effect on the Company that has not been
disclosed in subsequent SEC filings.
Section
4.8 LITIGATION AND OTHER PROCEEDINGS. Except as disclosed in the SEC Documents or as set forth on Schedule 4.8, there are
no actions, suits, investigations, inquiries or proceedings pending or, to the knowledge of the Company, threatened against or affecting
the Company, any Subsidiary or any of their respective properties, nor has the Company received any written or oral notice of any such
action, suit, proceeding, inquiry or investigation, which would have a Material Adverse Effect. No judgment, order, writ, injunction
or decree or award has been issued by or, to the knowledge of the Company, requested of any court, arbitrator or governmental agency
which would have a Material Adverse Effect. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the SEC involving the Company, any Subsidiary or any current or former director or officer of the Company or any
Subsidiary.
Section
4.9 REGISTRATION RIGHTS. Except as set forth on Schedule 4.9, no Person (other than the Investor) has any right to cause
the Company to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.
ARTICLE
V COVENANTS OF INVESTOR
Section
5.1 SHORT SALES AND CONFIDENTIALITY. Neither the Investor, nor any affiliate of the Investor, trading for or on behalf of the
Investor as a “related party” as defined by Item 404 of Regulation SK, will execute any Short Sales (as defined by the SEC)
during the period from the date hereof to the end of the Commitment Period. For the purposes hereof, and in accordance with Regulation
SHO, the sale after delivery of the Drawdown Notice of such number of shares of Common Stock reasonably expected to be purchased under
the Drawdown Notice shall not be deemed a Short Sale. The Investor shall, until such time as the transactions contemplated by the Transaction
Documents are publicly disclosed by the Company in accordance with the terms of the Transaction Documents, maintain the confidentiality
of the existence and terms of this transaction and the information included in the Transaction Documents.
Section
5.2 COMPLIANCE WITH LAW; TRADING IN SECURITIES. The Investor’s trading activities with respect to shares of Common Stock
will be in compliance with all applicable state and federal securities laws and regulations and the rules and regulations of FINRA and
the Principal Market.
ARTICLE
VI COVENANTS OF THE COMPANY
Section
6.1 LISTING OF COMMON STOCK. The Company shall promptly secure the listing or quotation, as applicable, of all of the Drawdown
Notice Shares to be issued to the Investor hereunder on the Principal Market (subject to official notice of issuance) and shall use commercially
reasonable best efforts to maintain, so long as any shares of Common Stock shall be so listed or quoted on a Principal Market, as applicable,
the listing or quotation of all such Drawdown Notice Shares from time to time issuable hereunder. The Company shall use its commercially
best reasonable efforts to continue the listing, quotation and/or trading of the Common Stock on the Principal Market (including, without
limitation, maintaining sufficient net tangible assets) and will comply in all respects with the Company’s reporting, filing and
other obligations under the bylaws or rules of FINRA and the Principal Market.
Section
6.2 FILING OF CURRENT REPORT AND REGISTRATION STATEMENT. The Company agrees that it shall file a Current Report on Form 8-K, including
the Transaction Documents as exhibits thereto, with the SEC within the time required by the Exchange Act, relating to the transactions
contemplated by, and describing the material terms and conditions of the Transaction Documents (the “Current Report”).
The Company shall permit the Investor to review and comment upon the final pre-filing draft version of the Current Report within a reasonable
time prior to its filing with the SEC, and the Company shall give reasonable consideration to all such comments. The Investor shall use
its reasonable best efforts to comment upon the final pre-filing draft version of the Current Report within one (1) Business Day from
the date the Investor receives it from the Company. The Company shall use reasonable efforts to file with the SEC, within forty-five
(45) Business Days from the date hereof, a new registration statement (the “Registration Statement”) registering the
resale of the Drawdown Notice Shares, subject to applicable securities laws, rules and regulations, the applicable rules and regulations
of the Principal Market, comments received by the SEC on such Registration Statement, and in accordance with the terms of the Registration
Rights Agreement.
ARTICLE
VII CONDITIONS TO DELIVERY OF DRAWDOWN NOTICE AND CONDITIONS TO CLOSING
Section
7.1 CONDITIONS PRECEDENT TO THE RIGHT OF THE COMPANY TO ISSUE AND SELL DRAWDOWN NOTICE SHARES. The right of the Company to issue
and sell the Drawdown Notice Shares to the Investor is subject to the satisfaction of each of the conditions set forth below:
(a)
ACCURACY OF INVESTOR’S REPRESENTATIONS AND WARRANTIES.The representations and warranties of the Investor shall be true and
correct in all material respects as of the date of this Agreement and as of the date of each Closing as though made at each such time.
(b)
PERFORMANCE BY INVESTOR. Investor shall have performed, satisfied and complied in all respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied with by the Investor at or prior to such Closing.
(c)
PRINCIPAL MARKET REGULATION. The Company shall not issue any Drawdown Notice Shares, and the Investor shall not have the right
to receive any Drawdown Notice Shares, if the issuance of such Drawdown Notice Shares would exceed the aggregate number of shares of
Common Stock which the Company may issue without breaching the Company’s obligations under the rules or regulations of the Principal
Market (the “Exchange Cap”).
Section
7.2 CONDITIONS PRECEDENT TO THE OBLIGATION OF INVESTOR TO PURCHASE DRAWDOWN NOTICE SHARES. The obligation of the Investor hereunder
to purchase Drawdown Notice Shares is subject to the satisfaction of each of the following conditions:
(a)
EFFECTIVE REGISTRATION STATEMENT. The Registration Statement, and any amendment or supplement thereto, shall remain effective
for the resale by the Investor of the Drawdown Notice Shares and (i) neither the Company nor the Investor shall have received notice
that the SEC has issued or intends to issue a stop order with respect to such Registration Statement or that the SEC otherwise has suspended
or withdrawn the effectiveness of such Registration Statement, either temporarily or permanently, or intends or has threatened to do
so and (ii) no other suspension of the use of, or withdrawal of the effectiveness of, such Registration Statement or related prospectus
shall exist.
(b)
ACCURACY OF THE COMPANY’S REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Company shall be true
and correct in all material respects as of the date of this Agreement and as of the date of each Closing (except for representations
and warranties specifically made as of a particular date).
(c)
PERFORMANCE BY THE COMPANY. The Company shall have performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company.
(d)
NO INJUNCTION. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or adopted by any court or governmental authority of competent jurisdiction that prohibits or directly and materially adversely affects
any of the transactions contemplated by the Transaction Documents, and no proceeding shall have been commenced that may have the effect
of prohibiting or materially adversely affecting any of the transactions contemplated by the Transaction Documents.
(e)
ADVERSE CHANGES. Since the date of filing of the Company’s most recent SEC Document, no event that had or is reasonably
likely to have a Material Adverse Effect has occurred.
(f)
NO SUSPENSION OF TRADING IN OR DELISTING OF COMMON STOCK. The trading of the Common Stock shall
not have been suspended by the SEC, the Principal Market or FINRA, or otherwise halted for any reason, and the Common Stock shall have
been approved for listing or quotation on and shall not have been delisted from the Principal Market. In the event of a suspension, delisting,
or halting for any reason, of the trading of the Common Stock, as contemplated by this Section 7.2(f), the Investor shall have the right
to return to the Company any amount of Drawdown Notice Shares associated with such Drawdown Notice, and the Investment Amount with respect
to such Drawdown Notice shall be reduced accordingly.
(g)
BENEFICIAL OWNERSHIP LIMITATION. The number of Drawdown Notice Shares then to be purchased
by the Investor shall not exceed the number of such shares that, when aggregated with all other shares of Common Stock then owned by
the Investor beneficially or deemed beneficially owned by the Investor, would result in the Investor owning more than the Beneficial
Ownership Limitation (as defined below), as determined in accordance with Sections 13 and 16 of the Exchange Act and the regulations
promulgated thereunder. For purposes of this Section 7.2(g), in the event that the amount of Common Stock outstanding is greater on a
Clearing Date than on the date upon which the Drawdown Notice associated with such Clearing Date is given, the amount of Common Stock
outstanding on such issuance of a Drawdown Notice shall govern for purposes of determining whether the Investor, when aggregating all
purchases of Common Stock made pursuant to this Agreement, would own more than the Beneficial Ownership Limitation following such Clearing
Date. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately
prior to the issuance of shares of Common Stock issuable pursuant to a Drawdown Notice.
(h)
PRINCIPAL MARKET REGULATION. The issuance of the Drawdown Notice Shares shall not exceed the Exchange Cap.
(i)
NO KNOWLEDGE. The Company shall have no knowledge of any event more likely than not to have the effect of causing the Registration
Statement to be suspended or otherwise ineffective (which event is more likely than not to occur within the fifteen (15) Business Days
following the Business Day on which such Drawdown Notice is deemed delivered).
(j)
NO VIOLATION OF SHAREHOLDER APPROVAL REQUIREMENT. The issuance of the Drawdown Notice Shares
shall not violate the shareholder approval requirements of the Principal Market.
(k)
DWAC ELIGIBLE. The Common Stock must be DWAC Eligible and not subject to a “DTC chill”.
(l)
SEC DOCUMENTS. All reports, schedules, registrations, forms, statements, information and other documents required to have been
filed by the Company with the SEC pursuant to the reporting requirements of the Exchange Act shall have been filed with the SEC within
the applicable time periods prescribed for such filings under the Exchange Act.
ARTICLE
VIII LEGENDS
Section
8.1 NO RESTRICTIVE STOCK LEGEND. No restrictive stock legend shall be placed on the share certificates representing the Drawdown
Notice Shares upon their registration pursuant to the Registration Statement.
Section
8.2 INVESTOR’S COMPLIANCE. Nothing in this Article VIII shall affect in any way the Investor’s obligations hereunder
to comply with all applicable securities laws upon the sale of any shares of Common Stock pursuant to this Agreement.
ARTICLE
IX NOTICES; INDEMNIFICATION
Section
9.1 NOTICES. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall
be in writing and, unless otherwise specified herein, shall be (a) personally served, (b) deposited in the mail, registered or certified,
return receipt requested, postage prepaid, (c) delivered by reputable air courier service with charges prepaid, or (d) transmitted by
hand delivery, telegram, or email as a PDF, addressed as set forth below or to such other address as such party shall have specified
most recently by written notice given in accordance herewith. Any notice or other communication required or permitted to be given hereunder
shall be deemed effective (i) upon hand delivery or delivery by email at the address designated below (if delivered on a Business Day
during normal business hours where such notice is to be received), or the first Business Day following such delivery (if delivered other
than on a Business Day during normal business hours where such notice is to be received) or (ii) on the second Business Day following
the date of mailing by express courier service or on the fifth Business Day after deposited in the mail, in each case, fully prepaid,
addressed to such address, or upon actual receipt of such mailing, whichever shall first occur.
The
addresses for such communications shall be:
|
If
to the Company: |
|
|
|
|
|
PROPANC
BIOPHARMA, INC. |
|
|
ATT:
James Nathanielsz |
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302,
6 Butler Street |
|
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Camberwell,
VIC 3124 |
|
|
Australia
|
|
|
Email: |
|
|
|
|
If
to the Investor: |
|
|
|
|
|
DUTCHESS
CAPITAL GROWTH FUND L.P. |
|
|
ATT:
Michael Novielli |
|
|
75
Port City Landing |
|
|
Suite
200 |
|
|
Mount
Pleasant, SC 29464 |
|
|
Email: |
Either
party hereto may from time to time change its address or email for notices under this Section 9.1 by giving at least ten (10) days’
prior written notice of such changed address to the other party hereto.
Section
9.2 INDEMNIFICATION. Each Party (an “Indemnifying Party”) agrees to indemnify and hold harmless the other Party
along with its officers, directors, employees, and authorized agents, and each Person or entity, if any, who controls such party within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (an “Indemnified Party”) from and
against any Damages, joint or several, and any action in respect thereof to which the Indemnified Party becomes subject to, resulting
from, arising out of or relating to (i) any misrepresentation, breach of warranty or nonfulfillment of or failure to perform any covenant
or agreement on the part of the Indemnifying Party contained in this Agreement, (ii) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any post-effective amendment thereof or supplement thereto, or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading,
(iii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or contained in the
final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the omission
or alleged omission to state therein any material fact necessary to make the statements made therein, in the light of the circumstances
under which the statements therein were made, not misleading, or (iv) any violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any state securities law or any rule or regulation under the Securities Act, the Exchange Act or any state securities
law, as such Damages are incurred, except to the extent such Damages result primarily from the Indemnified Party’s failure to perform
any covenant or agreement contained in this Agreement or the Indemnified Party’s negligence, recklessness or bad faith in performing
its obligations under this Agreement; provided, however, that the foregoing indemnity agreement shall not apply to any
Damages of an Indemnified Party to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission made by an Indemnifying Party in reliance upon and in conformity with written information furnished
to the Indemnifying Party by the Indemnified Party expressly for use in the Registration Statement, any post-effective amendment thereof
or supplement thereto, or any preliminary prospectus or final prospectus (as amended or supplemented).
Section
9.3 METHOD OF ASSERTING INDEMNIFICATION CLAIMS. All claims for indemnification by any Indemnified Party under Section 9.2
shall be asserted and resolved as follows:
(a)
In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 9.2 is asserted against
or sought to be collected from such Indemnified Party by a Person other than a party hereto or an affiliate thereof (a “Third
Party Claim”), the Indemnified Party shall deliver a written notification, enclosing a copy of all papers served, if any, and
specifying the nature of and basis for such Third Party Claim and for the Indemnified Party’s claim for indemnification that is
being asserted under any provision of Section 9.2 against an Indemnifying Party, together with the amount or, if not then reasonably
ascertainable, the estimated amount, determined in good faith, of such Third Party Claim (a “Claim Notice”) with reasonable
promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the
Indemnified Party receives notice of such Third Party Claim, the Indemnifying Party shall not be obligated to indemnify the Indemnified
Party with respect to such Third Party Claim to the extent that the Indemnifying Party’s ability to defend has been prejudiced
by such failure of the Indemnified Party. The Indemnifying Party shall notify the Indemnified Party as soon as practicable within the
period ending thirty (30) calendar days following receipt by the Indemnifying Party of either a Claim Notice or an Indemnity Notice (as
defined below) (the “Dispute Period”) whether the Indemnifying Party disputes its liability or the amount of its liability
to the Indemnified Party under Section 9.2 and whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified
Party against such Third Party Claim.
(i)
If the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the
Indemnified Party with respect to the Third Party Claim pursuant to this Section 9.3(a), then the Indemnifying Party shall have the right
to defend, with counsel reasonably satisfactory to the Indemnified Party, at the sole cost and expense of the Indemnifying Party, such
Third Party Claim by all appropriate proceedings, which proceedings shall be vigorously and diligently prosecuted by the Indemnifying
Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified
Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the
payment of monetary damages as to which the Indemnified Party shall not be indemnified in full pursuant to Section 9.2). The Indemnifying
Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided,
however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying
Party’s delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings
or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and
provided, further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense
of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying
Party elects to contest. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim
controlled by the Indemnifying Party pursuant to this clause (i), and except as provided in the preceding sentence, the Indemnified Party
shall bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take
over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under
Section 9.2 with respect to such Third Party Claim.
(ii)
If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend
the Third Party Claim pursuant to Section 9.3(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and
diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period,
then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim
by all appropriate proceedings, which proceedings shall be prosecuted by the Indemnified Party in a reasonable manner and in good faith
or will be settled at the discretion of the Indemnified Party(with the consent of the Indemnifying Party, which consent will not be unreasonably
withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof;
provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying
Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified
Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified
Party within the Dispute Period that the Indemnifying Party disputes its liability or the amount of its liability hereunder to the Indemnified
Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided
in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense
pursuant to this clause (ii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and
the Indemnified Party shall reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying
Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled
by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party shall bear its own costs and expenses with respect
to such participation.
(iii)
If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability or the amount of its liability to the
Indemnified Party with respect to the Third Party Claim under Section 9.2 or fails to notify the Indemnified Party within the Dispute
Period whether the Indemnifying Party disputes its liability or the amount of its liability to the Indemnified Party with respect to
such Third Party Claim, the amount of Damages specified in the Claim Notice shall be conclusively deemed a liability of the Indemnifying
Party under Section 9.2 and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying
Party has timely disputed its liability or the amount of its liability with respect to such claim, the Indemnifying Party and the Indemnified
Party shall proceed in good faith to negotiate a resolution of such dispute; provided, however, that if the dispute is
not resolved within thirty (30) days after the Claim Notice, the Indemnifying Party shall be entitled to institute such legal action
as it deems appropriate.
(b)
In the event any Indemnified Party should have a claim under Section 9.2 against the Indemnifying Party that does not involve a
Third Party Claim, the Indemnified Party shall deliver a written notification of a claim for indemnity under Section 9.2 specifying
the nature of and basis for such claim, together with the amount or, if not then reasonably ascertainable, the estimated amount,
determined in good faith, of such claim (an “Indemnity Notice”) with reasonable promptness to the Indemnifying
Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except
to the extent that the Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party
notifies the Indemnified Party that it does not dispute the claim or the amount of the claim described in such Indemnity Notice or
fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim or the amount of
the claim described in such Indemnity Notice, the amount of Damages specified in the Indemnity Notice will be conclusively deemed a
liability of the Indemnifying Party under Section 9.2 and the Indemnifying Party shall pay the amount of such Damages to the
Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability or the amount of its liability with respect
to such claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such
dispute; provided, however, that if the dispute is not resolved within thirty (30) days after the Claim Notice, the Indemnifying
Party shall be entitled to institute such legal action as it deems appropriate.
(c)
The Indemnifying Party agrees to pay the Indemnified Party, promptly as such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such
Claim.
(d)
The indemnity provisions contained herein shall be in addition to (i) any cause of action or similar rights of the Indemnified Party
against the Indemnifying Party or others, and (ii) any liabilities the Indemnifying Party may be subject to.
ARTICLE
X MISCELLANEOUS
Section
10.1 GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and interpreted in accordance with the laws of the
State of Delaware without regard to the principles of conflicts of law. The Parties hereto will submit all disputes arising under
this Agreement to arbitration in Kent County, Delaware, before a single arbitrator of the American Arbitration Association (the
“AAA”). The arbitrator shall be selected by application of the rules of the AAA, or by mutual agreement of the
parties, except that such arbitrator shall be an attorney admitted to practice law in the State of Delaware. No Party hereto will
challenge the jurisdiction or venue provisions provided in this Section 10.1. Nothing in this Section 10.1 shall limit
a Party’s right to obtain an injunction for a breach of this Agreement from a court of law. Any injunction obtained shall
remain in full force and effect until the arbitrator, as set forth in this Section 10.1 fully adjudicates the
dispute.
EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
Section
10.2 ASSIGNMENT. The Transaction Documents shall be binding upon and inure to the benefit of the Company and the Investor and
their respective successors. Neither this Agreement nor any rights of the Investor or the Company hereunder may be assigned by
either party to any other Person.
Section
10.3 NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for the benefit of the Company and the Investor and their respective
successors, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as set forth in Section
9.3.
Section
10.4 TERMINATION. The Company may terminate this Agreement at any time by written notice to the Investor in the event of a
material breach of this Agreement by the Investor. In addition, this Agreement shall automatically terminate on the earlier of (i)
the end of the Commitment Period; (ii) the date on which the Registration Statement or any subsequent Registration Statement(s) or
amendments thereto related to the Commitment Amount are no longer effective unless such suspension is cured within a reasonable
period of time in accordance with the Registration Statement, or (iii) the date that, pursuant to or within the meaning of any
Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding against the Company, a Custodian is
appointed for the Company or for all or substantially all of its property or the Company makes a general assignment for the benefit
of its creditors; provided, however, that the provisions of Articles III, IV, V, VI, IX and the agreements and covenants of the
Company and the Investor set forth in Article X shall survive the termination of this Agreement.
Section
10.5 ENTIRE AGREEMENT. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire
understanding of the Company and the Investor with respect to the matters covered herein and therein and supersede 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.
Section
10.6 FEES AND EXPENSES. Except as expressly set forth in the Transaction Documents or any other writing to the contrary, 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
the Clearing Cost associated with each Closing, and any Transfer Agent fees (including any fees required for same-day processing of any
instruction letter delivered by the Company), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities
to the Investor.
Section
10.7 COUNTERPARTS. The Transaction Documents may be executed in multiple counterparts, each of which may be executed by less
than all of the Parties and shall be deemed to be an original instrument which shall be enforceable against the Parties actually
executing such counterparts and all of which together shall constitute one and the same instrument. The Transaction Documents may be
delivered to the other parties hereto by email of a copy of the Transaction Documents bearing the signature of the parties so
delivering this Agreement.
Section
10.8 SEVERABILITY. In the event that any provision of this Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision;
provided that such severability shall be ineffective if it materially changes the economic benefit of this Agreement to any
party.
Section
10.9 FURTHER ASSURANCES. Each Party shall do and perform, or cause to be done and performed, all such further acts and
things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
Section
10.10 NO STRICT CONSTRUCTION. The language used in this Agreement will be deemed to be the language chosen by the Parties to express
their mutual intent, and no rules of strict construction will be applied against any Party.
Section
10.11 EQUITABLE RELIEF. The Company recognizes that in the event that it fails to perform, observe, or discharge any or all
of its obligations under this Agreement, any remedy at law may prove to be inadequate relief to the Investor. The Company therefore
agrees that the Investor shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of
proving actual damages.
Section
10.12 TITLE AND SUBTITLES. The titles and subtitles used in this Agreement are used for the convenience of reference and are not
to be considered in construing or interpreting this Agreement.
Section
10.13 AMENDMENTS; WAIVERS. No provision of this Agreement may be amended or waived by the Parties from and after the date
that is one (1) Business Day immediately preceding the initial filing of the Registration Statement with the SEC. Subject to the
immediately preceding sentence, (i) no provision of this Agreement may be amended other than by a written instrument signed by both
parties hereto and (ii) no provision of this Agreement may be waived other than in a written instrument signed by the party against
whom enforcement of such waiver is sought. No failure or delay in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other right, power or privilege.
Section
10.14 PUBLICITY. The Company and the Investor shall consult with each other in issuing any press releases or otherwise making
public statements with respect to the transactions contemplated hereby and no Party shall issue any such press release or otherwise
make any such public statement, other than as required by law, without the prior written consent of the other parties, which consent
shall not be unreasonably withheld or delayed, except that no prior consent shall be required if such disclosure is required by law,
in which such case the disclosing Party shall provide the other Party with prior notice of such public statement. Notwithstanding
the foregoing, the Company shall not publicly disclose the name of the Investor without the prior written consent of the Investor,
except to the extent required by law. The Investor acknowledges that the Transaction Documents may be deemed to be “material
contracts,” as that term is defined by Item 601(b)(10) of Regulation S-K, and that the Company may therefore be required to
file such documents as exhibits to reports or registration statements filed under the Securities Act or the Exchange Act. The
Investor further agrees that the status of such documents and materials as material contracts shall be determined solely by the
Company, in consultation with its counsel.
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their respective officers thereunto duly authorized
as of the day and year first above written.
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PROPANC
BIOPHARMA, INC. |
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By: |
/s/ James Nathanielsz |
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Name: |
James
Nathanielsz |
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Title: |
Chief
Executive Officer |
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DUTCHESS
CAPITAL GROWTH FUND L.P. |
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By: |
Dutchess
Capital Advisors LLC,
its
General Partner |
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By: |
/s/
Michael Novielli |
|
Name: |
Michael
Novielli |
|
Title: |
Managing
Member |
DISCLOSURE
SCHEDULES
TO
COMMON STOCK PURCHASE AGREEMENT
These
Disclosure Schedules are made and given pursuant to the Common Stock Purchase Agreement, dated as of July 20, 2023 (the “Agreement”),
by and between the Company and the Investor. All capitalized terms used but not defined herein shall have the meanings as defined in
the Agreement, unless otherwise provided. These Disclosure Schedules are arranged in sections corresponding to the numbered and lettered
sections contained in the Agreement.
Nothing
in these Disclosure Schedules is intended to broaden the scope of any representation or warranty contained in the Agreement or to create
any covenant. Inclusion of any item in these Disclosure Schedules (1) does not represent a determination that such item is material or
establish a standard of materiality, (2) does not represent a determination that such item did not arise in the ordinary course of business,
(3) does not represent a determination that the transactions contemplated by the Agreement require the consent of third parties, and
(4) shall not constitute, or be deemed to be, an admission to any third party concerning such item. These Disclosure Schedules may include
brief descriptions or summaries of certain agreements and instruments, copies of which are available upon reasonable request. Such descriptions
do not purport to be comprehensive, and are qualified in their entirety by reference to the text of the documents described.
Schedule
4.3 – Capitalization
Schedule
4.4 – SEC Documents
Schedule
4.8 – Litigation
Schedule
4.9 – Registration Rights
EXHIBIT
A
FORM
OF DRAWDOWN NOTICE
TO:
DUTCHESS CAPITAL GROWTH FUND L.P.
We
refer to the common stock purchase agreement, dated as of ____________ __, 2023, (the “Agreement”), entered into by
and between PROPANC BIOPHARMA, INC. and you. Capitalized terms defined in the Agreement shall, unless otherwise defined herein, have
the same meaning when used herein.
We
hereby:
1)
Give you notice that we require you to purchase __________ Drawdown Notice Shares; and
2)
Certify that, as of the date hereof, the conditions set forth in Section 7.2 of the Agreement are satisfied.
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PROPANC
BIOPHARMA, INC. |
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By:
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Name:
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Title:
|
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Exhibit
10.2
REGISTRATION
RIGHTS AGREEMENT
REGISTRATION
RIGHTS AGREEMENT (this “Agreement”), dated as of July 20, 2023, by and between PROPANC BIOPHARMA, INC., a
Delaware corporation (the “Company”), and DUTCHESS CAPITAL GROWTH FUND L.P., a Delaware limited partnership
(together with it permitted assigns, the “Investor”). Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the Common Stock Purchase Agreement by and between the parties hereto, dated
as of the date hereof (as amended, restated, supplemented, or otherwise modified from time to time, the “Purchase
Agreement”).
WHEREAS:
In
consideration of Five Million U.S. Dollars (US$5,000,000) of Drawdown Notice Shares and to induce the Investor to enter into the Purchase
Agreement, the Company has agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the rules
and regulations thereunder, or any similar successor statute (collectively, the “Securities Act”), and applicable
state securities laws.
NOW,
THEREFORE, in consideration of the promises 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 Investor hereby agree as follows:
1.
DEFINITIONS.
As
used in this Agreement, the following terms shall have the following meanings:
a.
“Investor” means Dutchess Capital Growth Fund, L.P., as defined above, any transferee or assignee thereof to whom
an Investor assigns its rights under this Agreement in accordance with Section 9 and who agrees to become bound by the provisions of
this Agreement, and any transferee or assignee thereof to whom a transferee or assignee assigns its rights under this Agreement in accordance
with Section 9 and who agrees to become bound by the provisions of this Agreement.
b.
“Person” means any individual or entity including but not limited to any corporation, a limited liability company,
an association, a partnership, an organization, a business, an individual, a governmental or political subdivision thereof or a governmental
agency.
c.
“Register”, “registered”, and “registration” refer to a registration effected
by preparing and filing one or more registration statements of the Company in compliance with the Securities Act and/or pursuant to Rule
415 under the Securities Act or any successor rule providing for offering securities on a continuous basis (“Rule 415”),
and the declaration or ordering of effectiveness of such registration statement(s) by the United States Securities and Exchange Commission
(the “ SEC “).
d.
“Registrable Securities” means the greater of (a) up to Five Million U.S. Dollars (US$5,000,000) in Drawdown Notice
Shares or (b) an aggregate of up to Fifty Million (50,000,000) shares of Common Stock representing the Drawdown
Notice Shares, which number of shares shall include any shares of Common Stock that may be issued to the Investor as a result
of any stock split, stock dividend, recapitalization, exchange by the Company or similar event or otherwise with respect thereto, subject
to the limitations on the number of shares of Common Stock that may be registered under Section 2.
e.
“Registration Statement” means one or more registration statements of the Company covering only the sale of the Registrable
Securities.
2.
REGISTRATION.
a.
Mandatory Registration. The Company shall use reasonable efforts to, within forty-five (45) Business Days from the date hereof,
file with the SEC an initial Registration Statement covering the maximum number of Registrable Securities (beginning with the Drawdown
Notice Shares) as shall be permitted to be included thereon in accordance with applicable SEC rules, regulations and interpretations
so as to permit the resale of such Registrable Securities by the Investor, including but not limited to under Rule 415 under the Securities
Act at then prevailing market prices (and not fixed prices), as mutually determined by both the Company and the Investor in consultation
with their respective legal counsel, subject to the aggregate number of authorized shares of Common Stock then available for issuance
in its Certificate of Incorporation. The initial Registration Statement shall register only the Registrable Securities.
The
Investor and its counsel shall have a reasonable opportunity to review and comment upon such Registration Statement and any amendment
or supplement to such Registration Statement and any related prospectus prior to its filing with the SEC, and the Company shall give
due consideration to all reasonable comments. The Investor shall furnish all information reasonably requested by the Company for inclusion
therein. The Company shall use its reasonable best efforts to have the Registration Statement and any amendment declared effective by
the SEC at the earliest possible date. The Company shall use reasonable best efforts to keep the Registration Statement effective, including
but not limited to pursuant to Rule 415 promulgated under the Securities Act and available for the resale by the Investor of all of the
Registrable Securities covered thereby at all times until the earlier of (i) the date as of which the Investor may sell all of the Registrable
Securities without restriction pursuant to Rule 144 promulgated under the Securities Act and (ii) the date on which the Investor shall
have sold all the Registrable Securities covered thereby and no Drawdown Notices may be issued by the Company under the Purchase Agreement
(the “Registration Period”). The Registration Statement (including any amendments or supplements thereto and prospectuses
contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein,
or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
b.
Rule 424 Prospectus. The Company shall, as required by applicable securities regulations, from time-to-time file with the SEC,
pursuant to Rule 424 promulgated under the Securities Act, the prospectus and prospectus supplements, if any, to be used in connection
with sales of the Registrable Securities under the Registration Statement. The Investor and its counsel shall have a reasonable opportunity
to review and comment upon such prospectus prior to its filing with the SEC, and the Company shall give due consideration to all such
comments. The Investor shall use its reasonable best efforts to comment upon such prospectus within one (1) Business Day from the date
the Investor receives the final pre-filing version of such prospectus.
c.
Sufficient Number of Shares Registered. In the event the number of shares available under the Registration Statement is insufficient
to cover all of the Registrable Securities, the Company shall amend the Registration Statement or file a new Registration Statement (a
“New Registration Statement”), so as to cover all of such Registrable Securities (subject to the limitations set forth
in Section 2(a)) as soon as practicable, but in any event not later than forty five (45) Business Days after the necessity therefor arises,
subject to any limits that may be imposed by the SEC pursuant to Rule 415 under the Securities Act. The Company shall use it reasonable
best efforts to cause such amendment and/or New Registration Statement to become effective as soon as practicable following the filing
thereof. Unless the Registration Period has ended or unless the Investor has provided its consent to the Company, in the event that any
of the Drawdown Notice Shares are not included in the Registration Statement, or have not been included in any New Registration Statement
and the Company files any other registration statement under the Securities Act (other than on Form S-4, Form S-8, or with respect to
other employee related plans or rights offerings) (“Other Registration Statement “) then the Company shall include
in such Other Registration Statement first all of such Drawdown Notice Shares that have not been previously registered, and second any
other securities the Company wishes to include in such Other Registration Statement. Unless the Registration Period has ended, the Company
agrees that it shall not file any such Other Registration Statement unless all of the Drawdown Notice Shares have been included in such
Other Registration Statement or otherwise have been registered for resale as described above.
d.
Offering. If the staff of the SEC (the “Staff’) or the SEC seeks to characterize any offering pursuant to a
Registration Statement filed pursuant to this Agreement as constituting an offering of securities that does not permit such Registration
Statement to become effective and be used for resales by the Investor under Rule 415 at then-prevailing market prices (and not fixed
prices), or if after the filing of the initial Registration Statement with the SEC pursuant to Section 2(a), the Company is otherwise
required by the Staff the SEC, or the rules and regulations of the Principal Market to reduce the number of Registrable Securities included
in such initial Registration Statement, then the Company shall reduce the number of Registrable Securities to be included in such initial
Registration Statement (with the prior consent, which shall not be unreasonably withheld, of the Investor and its legal counsel as to
the specific Registrable Securities to be removed therefrom) until such time as the Staff, the SEC and/or the Principal Market shall
so permit such Registration Statement to become effective and be used as aforesaid. Unless the Registration Period has ended, in the
event of any reduction in Registrable Securities pursuant to this paragraph, once permitted to do so by the Staff, the SEC and/or the
Principal Market, the Company shall file one or more New Registration Statements and/or post-effective amendments to the Registration
Statement in accordance with Section 2(c) until such time as all Registrable Securities have been included in Registration Statements
that have been declared effective and the prospectus contained therein is available for use by the Investor. Notwithstanding any provision
herein or in the Purchase Agreement to the contrary, the Company’s obligations to register Registrable Securities (and any related
conditions to the Investor’s obligations) shall be qualified as necessary to comport with any requirement of the SEC or the Staff
as addressed in this Section 2(d).
3.
RELATED OBLIGATIONS.
With
respect to the Registration Statement and whenever any Registrable Securities are to be registered pursuant to Section 2 including on
any New Registration Statement, the Company shall use its reasonable best efforts to effect the registration of the Registrable Securities
in accordance with the intended method of disposition thereof and, pursuant thereto, the Company shall have the following obligations:
a.
The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to any registration
statement and the prospectus used in connection with such registration statement, which prospectus is to be filed pursuant to Rule 424
promulgated under the Securities Act, as may be necessary to keep the Registration Statement or any New Registration Statement effective
at all times during the Registration Period, and, during such period, comply with the provisions of the Securities Act with respect to
the disposition of all Registrable Securities of the Company covered by the Registration Statement or any New Registration Statement
until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition
by the seller or sellers thereof as set forth in such registration statement.
b.
The Company shall permit the Investor to review and comment upon the Registration Statement or any New Registration Statement and all
amendments and supplements thereto at least two (2) Business Days prior to their filing with the SEC, and not file any document in a
form to which Investor reasonably objects. The Investor shall use its reasonable best efforts to comment upon the Registration Statement
or any New Registration Statement and any amendments or supplements thereto within two (2) Business Days from the date the Investor receives
the final version thereof. The Company shall furnish to the Investor, without charge any correspondence from the SEC or the staff of
the SEC to the Company or its representatives relating to the Registration Statement or any New Registration Statement.
c.
Upon request of the Investor, the Company shall furnish to the Investor, (i) promptly after the same is prepared and filed with the SEC,
at least one copy of such registration statement and any amendment(s) thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits, (ii) upon the effectiveness of any registration statement, a copy of the prospectus
included in such registration statement and all amendments and supplements thereto (or such other number of copies as the Investor may
reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably
request from time to time in order to facilitate the disposition of the Registrable Securities owned by the Investor. For the avoidance
of doubt, any filing available to the Investor via the SEC’s live EDGAR system shall be deemed “furnished to the Investor”
hereunder.
d.
The Company shall use reasonable best efforts to (i) register and qualify the Registrable Securities covered by a registration statement
under such other securities or “blue sky” laws, (ii) prepare and file in those jurisdictions, such amendments (including
post effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness
thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications
in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith
or as a condition thereto to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process
in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the Company
of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale
under the securities or “blue sky” laws or its receipt of actual notice of the initiation or threatening of any proceeding
for such purpose.
e.
As promptly as practicable after becoming aware of such event or facts, the Company shall notify the Investor in writing of the happening
of any event or existence of such facts as a result of which the prospectus included in any registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading, and promptly prepare a supplement or
amendment to such registration statement to correct such untrue statement or omission, and deliver a copy of such supplement or amendment
to the Investor (or such other number of copies as the Investor may reasonably request). The Company shall also promptly notify the Investor
in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a registration statement
or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to the Investor by email
or facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements
to any registration statement or related prospectus or related information, and (iii) of the Company’s reasonable determination
that a post-effective amendment to a registration statement would be appropriate.
f.
The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of any
registration statement, or the suspension of the qualification of any Registrable Securities for sale in any jurisdiction and, if such
an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify
the Investor of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of
any proceeding for such purpose.
g.
The Company shall (i) cause all the Registrable Securities to be listed or quoted on the Principal Market, if any, if the listing or
quotation of such Registrable Securities is then permitted under the rules of such Principal Market, or (ii) secure designation and quotation
of all the Registrable Securities on the Principal Market. The Company shall pay all fees and expenses in connection with satisfying
its obligation under this Section.
h.
The Company shall cooperate with the Investor to facilitate the timely preparation and delivery of certificates (not bearing any restrictive
legend) representing the Registrable Securities to be offered pursuant to any registration statement and enable such certificates to
be in such denominations or amounts as the Investor may reasonably request and registered in such names as the Investor may request,
provided that if such securities are recorded in book-entry or other non-physical form, then such requirement to provide such certificates
shall not apply.
i.
The Company shall at all times provide a transfer agent and registrar with respect to its Common Stock.
j.
If reasonably requested by the Investor, the Company shall (i) immediately incorporate in a prospectus supplement or post-effective amendment
such information as the Investor believes should be included therein relating to the sale and distribution of Registrable Securities,
including, without limitation, information with respect to the number of Registrable Securities being sold, the purchase price being
paid therefor and any other terms of the offering of the Registrable Securities; (ii) make all required filings of such prospectus supplement
or post effective amendment as soon as practicable upon notification of the matters to be incorporated in such prospectus supplement
or post-effective amendment; and (iii) supplement or make amendments to any registration statement.
k.
The Company shall use its reasonable best efforts to cause the Registrable Securities covered by any registration statement to be registered
with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable
Securities.
l.
Within three (3) Business Days after any registration statement, which includes the Registrable Securities is ordered effective by the
SEC, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable
Securities (with copies to the Investor) confirmation that such registration statement has been declared effective by the SEC. Thereafter,
if requested by the Investor at any time, the Company shall require its counsel to deliver to the Investor a written confirmation whether
or not the effectiveness of such registration statement has lapsed at any time for any reason (including, without limitation, the issuance
of a stop order) and whether or not the registration statement is current and available to the Investor for sale of all of the Registrable
Securities.
m.
The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities
pursuant to any registration statement.
4.
OBLIGATIONS OF THE INVESTOR.
a.
The Company shall notify the Investor in writing of the information the Company reasonably requires from the Investor in connection with
any registration statement hereunder. The Investor shall furnish to the Company such information regarding itself, the Registrable Securities
held by it and the intended method of disposition of the Registrable Securities held by it as shall be reasonably required to affect
the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company
may reasonably request.
b.
The Investor agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing
of any registration statement hereunder.
c.
The Investor agrees that, upon receipt of any notice from the Company of the happening of any event or existence of facts of the kind
described in Section 3(f) or the first sentence of 3(e), the Investor will immediately discontinue disposition of Registrable Securities
pursuant to any registration statement(s) covering such Registrable Securities until the Investor’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(f) or the first sentence of 3(e). Notwithstanding anything to the contrary,
the Company shall cause its transfer agent to promptly deliver shares of Common Stock without any restrictive legend in accordance with
the terms of the Purchase Agreement in connection with any sale of Registrable Securities with respect to which an Investor has entered
into a contract for sale prior to the Investor’s receipt of a notice from the Company of the happening of any event of the kind
described in Section 3(f) or the first sentence of Section 3(e) and for which the Investor has not yet settled.
5.
EXPENSES OF REGISTRATION.
All
reasonable expenses, other than sales or brokerage commissions, incurred in connection with registrations, filings or qualifications
pursuant to Sections 2 and 3, including, without limitation, all registration, listing and qualifications fees, printers and accounting
fees, and fees and disbursements of counsel for the Company, shall be paid by the Company.
6.
INDEMNIFICATION.
a.
To the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend the Investor, each Person,
if any, who controls the Investor, the members, the directors, officers, partners, employees, agents, representatives of the Investor
and each Person, if any, who controls the Investor within the meaning of the Securities Act or the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) (each, an “Indemnified Person”), against any losses, claims, damages,
liabilities, judgments, fines, penalties, charges, costs, attorneys’ fees, amounts paid in settlement or expenses, joint or several,
(collectively, “Claims”) incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding,
investigation or appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory agency, body
or the SEC, whether pending or threatened, whether or not an indemnified party is or may be a party thereto (“Indemnified Damages”),
to which any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in the Registration
Statement, any New Registration Statement or any post-effective amendment thereto or in any filing made in connection with the qualification
of the offering under the securities or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered
(“Blue Sky Filing”) , or the omission or alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained
in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances
under which the statements therein were made, not misleading, (iii) any violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any other law, including, without limitation, any state securities law, or any rule or regulation thereunder relating
to the offer or sale of the Registrable Securities pursuant to the Registration Statement or any New Registration Statement or (iv) any
material violation by the Company of this Agreement (the matters in the foregoing clauses (i) through (iv) being, collectively, “Violations”).
The Company shall reimburse each Indemnified Person promptly as such expenses are incurred and are due and payable, for any reasonable
legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement contained in this Section 6(a): (i) shall not apply to a Claim
by an Indemnified Person arising out of or based upon a Violation which occurs in reliance upon and in conformity with information about
the Investor furnished in writing to the Company by such Indemnified Person expressly for use in connection with the preparation of the
Registration Statement, any New Registration Statement or any such amendment thereof or supplement thereto, if such prospectus was timely
made available by the Company pursuant to Section 3(c) or Section 3(e); (ii) with respect to any superseded prospectus, shall not inure
to the benefit of any such person from whom the person asserting any such Claim purchased the Registrable Securities that are the subject
thereof (or to the benefit of any person controlling such person) if the untrue statement or omission of material fact contained in the
superseded prospectus was corrected in the revised prospectus, as then amended or supplemented, if such revised prospectus was timely
made available by the Company pursuant to Section 3(c) or Section 3(e), and the Indemnified Person was promptly advised in writing not
to use the incorrect prospectus prior to the use giving rise to a violation and such Indemnified Person, notwithstanding such advice,
used it; (iii) shall not be available to the extent such Claim is based on a failure of the Investor to deliver or to cause to be delivered
the prospectus made available by the Company, if such prospectus was timely made available by the Company pursuant to Section 3(c) or
Section 3(e); and (iv) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written
consent of the Company, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of the Indemnified Person and shall survive the transfer of the Registrable Securities by the
Investor pursuant to Section 9.
b.
Promptly after receipt by an Indemnified Person or Indemnified Party under this Section 6 of notice of the commencement of any action
or proceeding (including any governmental action or proceeding) involving a Claim, such Indemnified Person or Indemnified Party shall,
if a Claim in respect thereof is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof
with counsel mutually satisfactory to the indemnifying party and the Indemnified Person or the Indemnified Party, as the case may be;
provided, however, that an Indemnified Person or Indemnified Party shall have the right to retain its own counsel with the fees and expenses
to be paid by the indemnifying party, if, in the reasonable opinion of counsel retained by the indemnifying party, the representation
by such counsel of the Indemnified Person or Indemnified Party and the indemnifying party would be inappropriate due to actual or potential
differing interests between such Indemnified Person or Indemnified Party and any other party represented by such counsel in such proceeding.
The Indemnified Party or Indemnified Person shall cooperate fully with the indemnifying party in connection with any negotiation or defense
of any such action or claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available
to the Indemnified Party or Indemnified Person which relates to such action or claim. The indemnifying party shall keep the Indemnified
Party or Indemnified Person fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto.
No indemnifying party shall be liable for any settlement of any action, claim or proceeding effectuated without its written consent,
provided, however, that the indemnifying party shall not unreasonably withhold, delay, or condition its consent. No indemnifying party
shall, without the consent of the Indemnified Party or Indemnified Person, consent to entry of any judgment or enter into any settlement
or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified
Party or Indemnified Person of a release from all liability in respect to such claim or litigation. Following indemnification as provided
for hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified Party or Indemnified Person with respect to
all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified Party under this Section 6, except to the extent that the indemnifying
party is prejudiced in its ability to defend such action.
c.
To the fullest extent permitted by law, the Investor will, and hereby does, indemnify, hold harmless and defend the Company, each Person,
if any, who controls the Company, the members, the directors, officers, partners, employees, agents, representatives of the Company and
each Person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act (each, with respect to the
Company, a “Company Indemnified Person”), against Claims (with respect to the Company and related Company Indemnified
Persons) and Indemnified Damages (with respect to the Company and related Indemnified Persons), to which any of them may become subject
insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon
(i) any untrue statement of a material fact in any Registration Statement under which such Registrable Securities were registered or
sold under the Securities Act (including any final, preliminary or summary prospectus contained therein or any amendment thereof or supplement
thereto or any documents incorporated by reference therein) or (ii) any omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of a prospectus or preliminary prospectus, in light of the circumstances
under which they were made) not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission
is contained in any information relating to the Investor furnished in writing by the Investor to the Company specifically for inclusion
in a Registration Statement and used by the Company in conformity therewith.
d.
The indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received, or Indemnified Damages are incurred.
e.
The indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified Party or
Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant
to the law.
7.
CONTRIBUTION.
To
the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law;
provided, however, that: (i) no seller of Registrable Securities guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any seller of Registrable Securities who was not guilty of fraudulent
misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds
received by such seller from the sale of such Registrable Securities.
8.
REPORTS AND DISCLOSURE UNDER THE SECURITIES ACTS.
With
a view to making available to the Investor the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or
regulation of the SEC that may at any time permit the Investor to sell securities of the Company to the public without registration (“Rule
144”), the Company agrees, at the Company’s sole expense, to:
a.
make and keep public information available, as those terms are understood and defined in Rule 144;
b.
use reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities
Act and the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents
is required for the applicable provisions of Rule 144;
c.
furnish to the Investor so long as the Investor owns Registrable Securities, promptly upon request, (i) a written statement by the Company
that it has complied with the reporting and or disclosure provisions of Rule 144, the Securities Act and the Exchange Act, (ii) a copy
of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested to permit the Investor to sell such securities pursuant to Rule 144 without registration;
and
d.
take such additional action as is requested by the Investor to enable the Investor to sell the Registrable Securities pursuant to Rule
144, including, without limitation, delivering all such consents, certificates, resolutions and instructions to the Company’s Transfer
Agent as may be requested from time to time by the Investor and otherwise fully cooperate with Investor and Investor’s broker to
effect such sale of securities pursuant to Rule 144.
9.
ASSIGNMENT OF REGISTRATION RIGHTS.
The
Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Investor. The
Investor may not assign its rights under this Agreement without the written consent of the Company.
10.
AMENDMENT OF REGISTRATION RIGHTS.
No
provision of this Agreement may be amended or waived by the parties from and after the date that is one Business Day immediately preceding
the initial filing of the Registration Statement with the SEC. Subject to the immediately preceding sentence, no provision of this Agreement
may be (i) amended other than by a written instrument signed by both parties hereto or (ii) waived other than in a written instrument
signed by the party against whom enforcement of such waiver is sought. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.
11.
MISCELLANEOUS.
a.
A Person is deemed to be a holder of Registrable Securities whenever such Person owns or is deemed to own of record such Registrable
Securities. If the Company receives conflicting instructions, notices or elections from two or more Persons with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions, notice or election received from the registered owner of
such Registrable Securities.
b.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement shall be governed
by the notice provisions of the Purchase Agreement.
c.
The corporate laws of the State of Delaware shall govern all issues concerning this Agreement and the Purchase Agreement. All other questions
concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed as set forth in the Purchase
Agreement. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.
d.
This Agreement and the Purchase Agreement constitute the entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein
and therein. This Agreement and the Purchase Agreement supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
e.
Subject to the requirements of Section 9, this Agreement shall inure to the benefit of and be binding upon the successors and permitted
assigns of each of the parties hereto.
f.
The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
g.
This Agreement may be executed in identical counterparts, each of which shall be deemed an original but all of which shall constitute
one and the same agreement. This Agreement, once executed by a party, may be delivered to the other party hereto by email in a “.pdf”
format data file of a copy of this Agreement bearing the signature of the party so delivering this Agreement.
h.
Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments, and documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
i.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules
of strict construction will be applied against any party.
j.
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.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of day and year first above written.
|
PROPANC
BIOPHARMA, INC. |
|
|
|
|
By: |
/s/
James Nathanielsz |
|
Name: |
James
Nathanielsz |
|
Title: |
Chief
Executive Officer |
|
|
|
|
DUTCHESS
CAPITAL GROWTH FUND L.P. |
|
|
|
|
By: |
Dutchess
Capital Advisors LLC, its General Partner |
|
|
|
|
By: |
/s/
Michael Novielli |
|
Name: |
Michael
Novielli |
|
Title: |
Managing
Member |
v3.23.2
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Jul. 26, 2023 |
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000-54878
|
Entity Registrant Name |
PROPANC
BIOPHARMA, INC.
|
Entity Central Index Key |
0001517681
|
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33-0662986
|
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DE
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