Exhibit 10.4


 


SECURITIES
PURCHASE AGREEMENT


 


This SECURITIES
PURCHASE AGREEMENT (as amended from time to time, this “Purchase Agreement”) dated as of March 16, 2016,
is by and among InspireMD, Inc., a Delaware corporation (the “Company”), and the persons or entities identified
on Schedule A hereto (which persons or entities, with any of their successors or assignees, are hereinafter referred to
individually as a “Purchaser” and collectively as the “Purchasers”).


 


RECITALS


 


A.           WHEREAS,
the Company has filed with the U.S. Securities and Exchange Commission a registration statement on Form S-3 (File No. 333-191875)
including a related prospectus dated November 27, 2013 (the “Base Prospectus”), for the registration of certain
securities under the Securities Act of 1933, as amended (the “Securities Act”); and


 


B.           WHEREAS,
on March 15, 2016, the Company filed a preliminary prospectus supplement to the Base Prospectus (the “Preliminary Prospectus”)
related to a firm commitment underwritten offering (the “Offering”) of units (“Units”) of
securities, each such Unit consisting of (a) one share of the Company’s common stock (the “Common Stock”)
and (b) a warrant, which warrant is each exercisable to purchase 0.5 shares of Common Stock (the “Warrants”);


 


C.           WHEREAS,
the Purchasers wish to purchase from the Company at the Closing (as defined below), and the Company wishes to sell to the Purchasers
at the Closing, such number of Units at a price per Unit equal to the Offering Price (as defined below) that would result in aggregate
gross proceeds to the Company of $609,500 (the “Aggregate Proceeds”); and


 


D.           WHEREAS,
each Purchaser has agreed to purchase such number of non-registered Units having an aggregate purchase price equal to such Purchaser’s
Commitment Amount (as defined below) and the Company has agreed to sell such number of Units on the terms and conditions set forth
herein.


 


NOW, THEREFORE, in
consideration of the mutual promises and covenants contained in this Purchase Agreement, the parties hereto, intending to be legally
bound, agree as follows:


 


Article
I

PURCHASE OF COMMON STOCK


 


1.1         Purchase
and Sale of the Common Stock to the Purchasers.


 


(a)          On
or prior to the Closing (as defined below), the Company shall have authorized the sale and issuance to the Purchasers of such number
of Units equal to the quotient of (x) the Aggregate Proceeds and (y) the Offering Price in accordance with this Agreement. For
purposes of this Agreement, the “Offering Price” means the price per Unit at which the Units are offered and
sold to the public in the Offering.


 




     


    	 



    

 


(b)          Subject
to and upon the terms and conditions set forth in this Purchase Agreement and in reliance on the representations and warranties
set forth or referred to herein, the Company agrees to issue and sell to each Purchaser, and each Purchaser agrees to purchase
from the Company, at the Closing, if such Closing occurs, the number of Units equal to the quotient of (x) the amount set forth
opposite the name of such Purchaser on Schedule A attached hereto under the caption “Commitment Amount” (with
respect to each Purchaser, its “Commitment Amount”) and (y) the Offering Price.


 


(c)          The
purchase price per Unit payable by each Purchaser for the Units purchased by it at the Closing under this Purchase Agreement shall
be the Offering Price. The aggregate purchase price for all Units to be issued and sold by the Company to the Purchasers pursuant
to this Section 1.1 shall be $609,500.


 


1.2         The
Closing.


 


(a)          The
closing of the sale and purchase of the Units (the “Closing”) under this Purchase Agreement shall occur concurrently
with the closing of the Offering. At the Closing, if such Closing occurs, subject to the terms and conditions hereof, the Company
shall deliver the Units to each Purchaser and each Purchaser shall deliver its Commitment Amount to the Company by wire transfer
of immediately available funds. The parties agree that the delivery of this Purchase Agreement on the date hereof and any other
documents at the Closing may be effected by means of an exchange of signatures by facsimile or electronic mail with original copies
to follow by mail or courier service.


 


Article
II

rEPRESENTATIONS AND WARRANTIES OF THE COMPANY


 


The Company hereby
makes the following representations and warranties to the Purchasers.


 


2.1           Organization,
Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as now conducted
and as currently proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction
in which the failure to so qualify would have a material adverse effect on its business or properties.


 


2.2           Corporate
Power and Authority; Authorization; Enforceability. All corporate action necessary for the authorization of this Purchase Agreement
and the performance of all obligations of the Company hereunder has been taken or will be taken prior to the Closing. This Purchase
Agreement has been duly executed and delivered by the Company and constitutes the valid and legally binding obligation of the Company,
enforceable in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement of creditors' rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other equitable remedies (the “Enforceability Exceptions”).
When issued, the Warrants included in the Units will be duly executed and delivered by the Company and constitute the valid and
legally binding obligation of the Company, enforceable in accordance with their terms subject to the Enforceability Exceptions.


 




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2.3           No
Conflict. Neither the authorization, execution, delivery or performance of this Purchase Agreement, the consummation of the
transactions contemplated hereby, or the sale, issuance and delivery of the Units will conflict with or result in a breach of or
default under (or with due notice or lapse of time or both would result in a default under) the Company's certificate of incorporation
or by-laws, as currently in effect, or any statute, law, rule, regulation, judgment, decree, writ, injunction, order or award of
any arbitrator, court or governmental authority.


 


2.4           Valid
Issuance. (A) Upon issuance against payment of the purchase price therefor, the shares of Common Stock included in the Units,
and (B) when issued upon exercise of the Warrants included in the Units in accordance with the terms thereof, the shares of Common
Stock issuable upon exercise of the Warrants included in the Units (the “Warrant Shares”), in each case, will
be duly authorized, validly issued, fully paid and non-assessable.


 


Article
III

REPRESENTATION AND WARRANTIES OF THE PURCHASERS


 


Each Purchaser hereby
severally and not jointly represents and warrants to the Company with respect to such Purchaser as follows:


 


3.1           Authorization.
The execution, delivery and performance by such Purchaser of this Purchase Agreement have been duly authorized by all requisite
corporate, partnership or other action on the part of such Purchaser. This Purchase Agreement has been duly executed and delivered
by such Purchaser or on behalf of such Purchaser by a duly authorized representative of such Purchaser and constitutes valid and
legally binding obligations of such Purchaser enforceable against such Purchaser in accordance with its terms subject to the Enforceability
Exceptions.


 


3.2           Investment
Purpose; Restrictions. Such Purchaser is purchasing the Units for its own account, for investment and not with a view to the
distribution thereof, nor with any present intention of distributing the same. Such Purchaser understands and acknowledges that
none of the Units, the Common Stock and Warrants included in the Units, or the Warrant Shares (collectively, the “Securities”)
have been registered under the Securities Act, or applicable state securities laws and those Securities therefore cannot be resold
unless they are subsequently registered under the Securities Act and applicable state securities laws or unless an exemption from
such registration is available. Such Purchaser further represents that it understands and agrees that all certificates evidencing
any Securities, whether upon initial issuance or upon any permitted transfer thereof, shall bear a legend, prominently stamped
or printed thereon, reading substantially as follows:


 




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THESE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED BY ANY PERSON, INCLUDING A PLEDGEE, UNLESS (1) EITHER (A) A REGISTRATION WITH
RESPECT THERETO SHALL BE EFFECTIVE UNDER THE SECURITIES ACT, OR (B) THE COMPANY SHALL HAVE RECEIVED AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT IS AVAILABLE, AND (2) THERE SHALL HAVE BEEN COMPLIANCE
WITH ALL APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS


 


3.3           Information.
Such Purchaser has been furnished with or has had access to all information it has requested from the Company and has had an opportunity
to review the books and records of the Company and to discuss with management of the Company its business and financial affairs
and has generally such knowledge and experience in business and financial matters and with respect to investments in securities
of development-stage companies so as to enable it to understand and evaluate the risks of such investment and form an investment
decision with respect thereto; provided, however, that the foregoing shall in no way affect, diminish, or derogate from
the representations and warranties made by the Company hereunder or the right of such Purchaser to rely thereon. Such Purchaser
acknowledges and agrees that neither the Placement Agent nor any affiliate of the Placement Agent has provided such Purchaser with
any information or advice with respect to the Units nor is such information or advice necessary or desired. Neither the Placement
Agent nor any affiliate has made or makes any representation as to the Company or the quality of the Units. In connection with
the issuance of the Units to such Purchaser, neither the Placement Agent nor any of its affiliates has acted as a financial advisor
or fiduciary to such Purchaser.


 


3.4           Accredited
Investor. Such Purchaser is an “accredited investor” within the meaning set forth in Rule 501 under the Securities
Act, is capable of evaluating the merits and risks of the transactions contemplated hereunder and is able to bear the economic
risks of its investment in the Securities.


 


3.5           Use
of Placement Agent. Such Purchaser has been advised that the Company has retained Dawson James Securities, Inc. as its placement
agent for this offering (“Placement Agent”), and that the Company has agreed to pay the Placement Agent a placement
agent fee of 8% of the Aggregate Proceeds, to reimburse the Placement Agent for its expenses up to $25,000 and to issue the Placement
Agent warrants to purchase up to 5% of the number of shares of common stock sold in this offering. The Placement Agent warrants
will be exercisable at any time and from time to time, in whole or in part, during the period commencing six months following the
consummation of this offering, and ending five years from the consummation of this offering, at a price per share equal to 125%
of the Offering Price. The Placement Agent warrants will provide for a cashless exercise provision.


 


Article
IV

CONDITIONS


 


4.1           Conditions
to Purchasers’ Obligations at each Closing. Purchasers’ obligations under Article I of this Purchase Agreement
are subject to the satisfaction of the following conditions:


 




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(a)          Representations
and Warranties True; Performance of Obligations.          The representations
and warranties made by the Company in Article II hereof shall be true and correct in all material respects as of the Closing;


 


(b)          Legal
Investment. At the time of the Closing, the sale and issuance of the Securities contemplated by this Purchase Agreement shall
be legally permitted by all laws and regulations to which Purchasers and the Company are subject;


 


(c)          Consents,
Permits, and Waivers. At or prior to the time of the Closing, the Company shall have obtained any and all consents, permits
and waivers necessary or appropriate for consummation of the transactions contemplated by this Purchase Agreement;


 


(d)          Delivery
of the Common Stock. Following receipt of the purchase price for the Units, the Company shall irrevocably instruct its transfer
agent to deliver to each Purchaser a certificate representing the shares of Common Stock included in the Units purchased by such
Purchaser and the Company will deliver certificates evidencing the Warrants included in such Units; and


 


(e)          Offering.
The Offering shall close concurrently with the sale and issuance of the Units hereunder.


 


4.2         Conditions
to Obligations of the Company. The Company’s obligations under Article I of this Purchase Agreement are subject to the
satisfaction of the following conditions:


 


(a)          Representations
and Warranties True. The representations and warranties in Article III made by the Purchasers shall be true and correct as
of the Closing;


 


(b)          Legal
Investment. At the time of the Closing, the sale and issuance of the Securities contemplated by this Purchase Agreement shall
be legally permitted by all laws and regulations to which Purchasers and the Company are subject;


 


(c)          Consents,
Permits, and Waivers. At or prior to the time of the Closing, the Company shall have obtained any and all consents, permits
and waivers necessary or appropriate for consummation of the transactions contemplated by this Purchase Agreement;


 


(d)          Purchase
Price Delivery. The Company shall have received from each Purchaser the Purchase Price for the Units being purchased by such
Purchaser hereunder in immediately available funds; and


 


(e)          Offering.
The Offering shall close concurrently with the issuance of the Units hereunder.


 




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Article
V

MISCELLANEOUS


 


5.1           Amendments
and Waivers. This Purchase Agreement may be amended, and any term or provision of this Purchase Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively) only upon the written consent of the Company and
Purchasers holding at least a majority of the aggregate number of Units to be purchased hereunder.


 


5.2           Successors
and Assigns. This Purchase Agreement may not be assigned, conveyed or transferred without the prior written consent of the
Company. Subject to the foregoing, the rights and obligations of the Company and each Purchaser under this Purchase Agreement shall
be binding upon and benefit their respective permitted successors, assigns, heirs, administrators and transferees. The terms and
provisions of this Purchase Agreement are for the sole benefit of the parties hereto and their respective permitted successors
and assigns, and are not intended to confer any third-party benefit on any other person.


 


5.3           Notices.
All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing, and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when delivered by hand, or, in the case of facsimile
or electronic mail notice, when received, or, in the case of a nationally recognized courier service, one business day after delivery
to such courier service, addressed as follows in the case of the Company and the Purchasers or to such other address as may be
hereafter notified by the respective parties hereto:


 


	Company:	InspireMD, Inc.
	 	321 Columbus Avenue
	 	Boston, MA 02116
	 	Attn: President and Chief Executive Officer
	 	 
	With a copy to:	Haynes and Boone, LLP
	 	30 Rockefeller Plaza, 26th Floor
	 	New York, New York 10112
	 	Attn: Rick A. Werner, Esq.
	 	 
	Purchasers:	To the addresses set forth on the signature pages
	 	hereto


 


5.4           Waiver;
Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of any party hereto, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.


 


5.5           Counterparts.
This Purchase Agreement may be executed by one or more of the parties to this Purchase Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one and the same instrument.


 




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5.6           Severability.
Any provision of this Purchase Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


5.7           Integration.
This Purchase Agreement represents the entire agreement of the Company and the Purchasers with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by the Company or the Purchasers relative to the subject
matter hereof not expressly set forth or referred to in this Purchase Agreement.


 


5.8           Governing
Law. This Purchase Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware,
without giving effect to the conflicts of law principles thereof.


 


5.9           Jurisdiction
and Service of Process. Any legal action or proceeding with respect to this Purchase Agreement shall be brought in the courts
of the State of Delaware or of the United States of America for the District of Delaware. By execution and delivery of this Purchase
Agreement, each of the parties hereto accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. Each of the parties hereto irrevocably consents to the service of process of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by certified mail, postage prepaid, to the party at its
address set forth in Section 5.3 hereof.


 


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Blank]


 




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IN WITNESS WHEREOF, the
parties hereto have caused this Securities Purchase Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.


 


	 	COMPANY:
	 	 
	 	INSPIREMD, INC.
	 	 
	 	By:	/s/ Craig Shore
	 	 	Craig Shore
	 	 	Chief Financial Officer


 




     


    	 



    

 


IN WITNESS WHEREOF, the
parties hereto have caused this Securities Purchase Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.


 


PURCHASER:


 


	Name of Purchaser:  	 


 


	Signature: 	 


 


	Name of Authorized Signatory: 	 


 


	Title of Authorized Signatory: 	 


 


	Email Address of Purchaser: 	 


 


	Address for Notice: 	 


 


	Commitment Amount: 	 


 




     


    	 



    

 


 


SCHEDULE A


 


List of Purchasers


 


	Purchasers	 	Commitment Amount
	 	 	 
	Sol J. Barer, Ph.D.	 	 
	 	 	 
	James J. Loughlin	 	 
	 	 	 
	Paul S. Stuka	 	 
	 	 	 
	Campbell Rogers