An informed consent agreement is a legal contract that outlines the terms of an agreement between two parties, usually including one party who knowingly consents to an activity with risk. The person disclosing sensitive information must present this document to the other party before proceeding with any data exchange.
This type of arrangement can benefit both sides as it establishes rules and boundaries regarding what each individual will disclose under which circumstances.
Below is a list of common sections included in Informed Consent Agreements. These sections are linked to the below sample agreement for you to explore.
This Consent Agreement (this " Consent Agreement "), dated as of July 16, 2019, is by and among Xenetic Biosciences, Inc., a Nevada corporation (the “ Company ”), and each of the purchasers identified on the signature pages hereto (each, including its successors and assigns, a " Purchaser " and collectively, the " Purchasers ").
Reference is made to that certain Securities Purchase Agreement (the “ Agreement ”) dated as of March 5, 2019, among the Company and the Purchasers.
WHEREAS, the Board of Directors of the Company (the “ Board ”) has determined to enter into financing transaction (the " Financing "), pursuant to which the Company will issue warrants (the " Financing Warrants ");
WHEREAS, the Financing Warrants include certain terms that may cause the issuance of such warrants to be deemed a Variable Rate Transaction (as defined in the Agreement);
WHEREAS, the Agreement prohibits the Company from effecting or entering into an agreement to effect any issuance by the Company or any of its subsidiaries of common stock or common stock equivalents (or a combination of units thereof) involving a Variable Rate Transaction, and
WHEREAS, for the avoidance of doubt, the Company now seeks the written consent of the Purchasers before the Company undertakes the Financing that constitutes a Variable Rate Transaction.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenant contained in this Consent Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
Terms not otherwise defined in this Consent Agreement shall have the meanings ascribed to them in the Agreement.
ARTICLE II.
CONSENT AND COVENANTS
2.1 Consent . Purchasers hereby consent to the Financing that constitutes a Variable Rate Transaction (the “ Consent ”).
2.2 Consideration . In consideration of the Purchasers’ Consent, if the Company consummates the Financing, the Company shall (i) no later than two Trading Days following the date of consummation of the Financing, issue to each Purchaser that number of shares of the Company’s Common Stock set forth beneath such Purchaser's name on the signature page of this Consent Agreement (the “ Consent Shares ”), and (ii) adjust the exercise price of that certain warrant (each a " Warrant ") issued to each Purchaser in connection with the Company's reverse stock split on June 25, 2019, seven Trading Days after the closing date of the Financing to an exercise price per share equal to the lowest VWAP of the Company's common stock calculated during the five Trading Day period beginning on, and including, the Trading Day immediately following the public announcement of the pricing of the Financing.
2.3 Filing of Form 8-K . Before 9:00 am ET on July 17, 2019, the Company shall issue a Current Report on Form 8-K, reasonably acceptable to the Purchasers disclosing the material terms of the transactions contemplated hereby, which shall include this form of Consent Agreement (the “ 8-K Filing ”). From and after the issuance of the 8-K Filing, the Company represents to the Purchasers that the Purchasers shall not be in possession of any material, nonpublic information received from the Company, any of its Subsidiaries (as defined below) or any of their respective officers, directors, employees or agents, that is not disclosed in the 8-K Filing. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, employees or agents, on the one hand, and the Purchasers or any of their Affiliates, on the other hand, shall terminate. As used herein, “Subsidiary” means any subsidiary of the Company, and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
2.4 Registration Rights . On or prior to the sixtieth (60 th ) calendar day following the date of issuance of the Consent Shares, the Company shall prepare and file with the Commission a registration statement (the “ Registration Statement ”) covering (i) the resale of all of the Consent Shares, (ii) all of the shares of Common Stock underlying all the Warrants issued to the Purchasers pursuant to the Agreement and (iii) all of the shares of Common Stock underlying all of the Warrants issued to the Purchasers in connection with the reverse stock split on June 25, 2019, each that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement filed hereunder shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith); provided , however , that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. The Company shall use its best efforts to cause the Registration Statement filed under this Agreement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the 90th calendar day following the date of issuance of the Consent Shares (or, in the event of a “full review” by the Commission, the 120th calendar day following the date of issuance of the Consent Shares); provided , however , that in the event the Company is notified by the Commission that the Registration Statements will not be reviewed or is no longer subject to further review and comments, the fifth Trading Day following the date on which the Company is so notified if such date precedes the dates otherwise required above, provided , further , if any of such dates falls on a day that is not a Trading Day, then the next succeeding Trading Day.
2.5 Legend Removal . The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Consent Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Consent Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Consent Shares may reasonably request in connection with a pledge or transfer of the Consent Shares, including, if the Consent Shares are subject to registration pursuant to Section 2.4 above, the preparation and filing of any required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of selling stockholders thereunder. Certificates evidencing the Consent Shares shall not contain any legend (including the legend set forth in Section 3.2(g) hereof): (i) while a registration statement (including the Registration Statement) covering the resale of such security is effective under the Securities Act, (ii) following any sale of such Consent Shares pursuant to Rule 144, (iii) if such Consent Shares are eligible for sale under Rule 144 or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Securities and Exchange Commission (the “ Commission ”)). The Company shall cause its counsel to issue a legal opinion to its transfer agent (“ Transfer Agent ”) or a Purchaser promptly after the Effective Date (as defined below) if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. The Company agrees that following the Effective Date or at such time as such legend is no longer required under this Section 2.5, it will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing Consent Shares, as applicable, issued with a restrictive legend (such date, the “ Legend Removal Date ”), deliver or cause to be delivered to such Purchaser a certificate representing such shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 2.5. Certificates for Consent Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by such Purchaser. As used herein, (a) “ Standard Settlement Period ” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of a certificate representing Consent Shares, as applicable, issued with a restrictive legend, and (b) “ Effective Date ” means the earliest of the date that (a) the initial Registration Statement has been declared effective by the Commission, (b) all of the Consent Shares have been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 or (c) following the one year anniversary of the issuance date of the Consent Shares provided that a holder of Consent Shares is not an Affiliate of the Company.