Exhibit 10.4


 


SUBORDINATION AGREEMENT


 


This Subordination
Agreement is made as of ________, 2014 by and among each of the undersigned creditors (individually, a “Creditor”
and, collectively, the “Creditors”), BAXANO SURGICAL, INC., a Delaware corporation (“Borrower”),
and the undersigned lenders (individually, a “Lender” and collectively, the “Lenders”).


 


Recitals


 


A.           Borrower
has obtained certain loans or other credit accommodations from Lenders to the terms of those certain subordinated convertible debentures
with an aggregate principal amount of $10 million, due April 22, 2017, issued by the Borrower to the Lenders on April 22, 2014
(the “Debentures”) pursuant to the certain securities purchase agreement by and among the Borrower and the Lenders,
dated as of March 11, 2014 (the “March 11, 2014 Purchase Agreement”).


 


B.           Each
Creditor has extended loans or other credit accommodations to Borrower, and/or may extend loans or other credit accommodations
to Borrower from time to time, subject to the terms of the Debentures.


 


C.           Each
Creditor is willing to subordinate: (i) all of Borrower’s indebtedness and obligations to such Creditor arising under
those certain Subordinated Convertible Debentures issued by Borrower to the Creditors (the “Subordinated Debentures”),
and under the other Transaction Documents referred to in the Subordinated Debentures, whether presently existing or arising in
the future (the “Subordinated Debt”) to all of Borrower’s indebtedness and obligations to the Lenders;
and (ii) all of such Creditor’s security interests, if any, in Borrower’s property, to all of the Lenders’
security interests in the Borrower’s property, if any. For purposes hereof, references to the Creditor shall mean the Creditor
solely in its capacity as a holder of the Subordinated Debt.


 


NOW, THEREFORE, THE
PARTIES AGREE AS FOLLOWS:


 


1.         Each Creditor hereby acknowledges and agrees that (i) such Creditor does not have any lien on or security interest in any property
of Borrower, whether now owned or hereafter acquired, and (ii) such Creditor shall not take any lien on or security interest in
any property of Borrower whether now owned or hereafter acquired. In furtherance of the foregoing, each Creditor hereby subordinates
to each Lender any security interest or lien that such Creditor may have in any property of Borrower. Notwithstanding the respective
dates of attachment or perfection of any security interest of a Creditor and the security interest of any Lender, the lien and
security interest of any Lender in the any property of Borrower, whether now owned or hereafter acquired, shall at all times be
senior to the lien and security interest of such Creditor. Capitalized terms not otherwise defined herein shall have the same meaning
as in the Debentures.


 


2.          All
Subordinated Debt is subordinated in right of payment to all obligations of Borrower to the Lenders now existing or hereafter arising,
together with all reasonable and customary costs of collecting such obligations (including attorneys’ fees), including, without
limitation, all stated interest accruing after the commencement by or against Borrower of any Bankruptcy, reorganization or similar
proceeding, and all obligations under the Debentures (the “Senior Debt”).


 


3.          (a)          Except
as expressly set forth otherwise under this Agreement, each Creditor, severally and not jointly with the other Creditors, will
not demand or receive from Borrower (and Borrower will not pay to such Creditor) all or any part of the Subordinated Debt, by way
of payment, prepayment, setoff, lawsuit or otherwise, nor will such Creditor exercise any remedy with respect to any assets of
the Borrower, nor will such Creditor commence, or cause to commence, prosecute or participate in any administrative, legal or equitable
action against Borrower (“Enforcement Action”), for so long as any portion of the Senior Debt remains outstanding,
unless, in each case, (i) an event of default shall have occurred and be continuing under any one or more agreements between and
among a Creditor, the Borrower and/or any of their respective subsidiaries which would entitle such Creditor to take such action
(each, a “Creditor Default”), (ii) such Creditor shall have provided each Lender written notice of the occurrence
of each such Creditor Default and that it intends to take an Enforcement Action, specifically referencing this section and indicating
what actions are contemplated (each, a “Creditor Enforcement Action Notice”), (iii) a period of at least 90
days shall have elapsed after the receipt by the Lenders of the respective Creditor Enforcement Action Notice, (iv) no Lender is
diligently pursuing an Enforcement Action pursuant to the Debentures, and (v) no Insolvency Proceeding shall have been commenced.


 




    	 



    	 



    

 


(b)       Notwithstanding
the foregoing, nothing under this Agreement shall restrict in any way (i) each Creditor’s right to receive shares of (and
warrants exercisable for shares of) the Borrower’s common stock in satisfaction of principal, interest or other obligations
owed to the Creditors, including but not limited to shares issuable upon conversion of the Subordinated Debt and exercise of other
securities issued in connection therewith and satisfaction or settlement of other obligations of the Borrower to the Creditors,
(ii) each Creditor’s right to seek specific performance of the Borrower’s obligation to issue shares of its common
stock as described in preceding clause (i), and (iii) so long as each Creditor has provided each Lender with at least 3 business
days’ notice thereof (with a copy to the Borrower), each Creditor’s right to receive payment of cash interest, liquidated
damages, buy-in compensation and other fees, expenses and amounts required to be paid pursuant to the Transaction Documents (registration
rights agreement), in an amount not to exceed $1,500,000 in the aggregate for all Creditors pursuant to this clause (iii).


 


4.         Except
to the extent permitted to be retained by Creditor under Section 3(b) of this Agreement, each Creditor shall promptly deliver to
each Lender, on a pro rata basis based on the percentage of the aggregate principal amount of Debentures then held by each Lender,
in the form received (except for endorsement or assignment by such Creditor where required by the Lenders) for application to the
Senior Debt any payment, distribution, security or proceeds received by such Creditor with respect to the Subordinated Debt other
than in accordance with this Agreement.


 


5.         In
the event of Borrower’s insolvency, reorganization or any case or proceeding under any bankruptcy or insolvency law or laws
relating to the relief of debtors (each, an “Insolvency Proceeding”), these provisions shall remain in full
force and effect, and the Lenders’ claims against Borrower and the estate of Borrower shall be paid in full before any payment
is made to any Creditor.


 


6.         Each
Creditor shall immediately affix a legend to the instruments evidencing the Subordinated Debt stating that the instruments are
subject to the terms of this Agreement. No amendment of the documents evidencing or relating to the Subordinated Debt shall directly
or indirectly modify the provisions of this Agreement in any manner which might terminate or impair the subordination of the Subordinated
Debt or the subordination of the security interest or lien that such Creditor may have in any property of Borrower. By way of example,
such instruments shall not be amended to (i) increase the rate of interest with respect to the Subordinated Debt, or (ii) accelerate
the payment of the principal or interest or any other portion of the Subordinated Debt.


 


7.         This
Agreement shall remain effective for so long as the Borrower owes any amounts to the Lenders under the Debentures or otherwise.
If, at any time after payment in full of the Senior Debt any payments of the Senior Debt must be disgorged by the Lenders for any
reason (including, without limitation, the bankruptcy of Borrower), this Agreement and the relative rights and priorities set forth
herein shall be reinstated as to all such disgorged payments as though such payments had not been made and each Creditor shall
immediately pay over to each Lender, on a pro rata basis based on the percentage of the aggregate principal amount of Debentures
then held by each Lender, all payments received with respect to the Subordinated Debt to the extent that such payments would have
been prohibited hereunder. At any time and from time to time, without notice to Creditors, Lenders may take such actions with respect
to the Senior Debt as each Lender, in its sole discretion, may deem appropriate, including, without limitation, terminating advances
to Borrower, increasing the principal amount, extending the time of payment, increasing applicable interest rates, renewing, compromising
or otherwise amending the terms of any documents affecting the Senior Debt and any collateral securing the Senior Debt, and enforcing
or failing to enforce any rights against Borrower or any other person. No such action or inaction shall impair or otherwise affect
Lenders’ rights hereunder.


 


8.         This
Agreement shall bind any successors or assignees of a Creditor and shall benefit any successors or assigns of the Lenders. This
Agreement is solely for the benefit of each Creditor and each Lender and not for the benefit of Borrower or any other party. Each
Creditor further agrees that if Borrower is in the process of refinancing a portion of the Senior Debt with a new lender, and any
Lender makes a request of such Creditor, Creditor shall agree to enter into a new subordination agreement with the new lender on
substantially the terms and conditions of this Agreement.


 




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9.         This
Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall
constitute one instrument.


 


10.       This
Agreement shall be governed by, and construed in accordance with, the internal laws of the State of California, without regard
to principles of conflicts of law. Jurisdiction shall lie in the State of California. THE UNDERSIGNED ACKNOWLEDGE THAT THE RIGHT
TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED UNDER CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW,
EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER CHOICE, KNOWINGLY AND VOLUNTARILY,
AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR ANY OTHER DOCUMENT, INSTRUMENT OR AGREEMENT BETWEEN THE UNDERSIGNED PARTIES. If the jury waiver set forth
in this Section is not enforceable, then any dispute, controversy or claim arising out of or relating to this Agreement or any
of the transactions contemplated herein shall be resolved by judicial reference pursuant to Code of Civil Procedure Section 638
et seq before a mutually acceptable referee or, if none is selected, then a referee chosen by the Presiding Judge of the California
Superior Court for Santa Clara County, provided this provision shall not restrict any party from seeking to enforce any prejudgment
remedies.


 


11.       This
Agreement represents the entire agreement with respect to the subject matter hereof, and supersedes all prior negotiations, agreements
and commitments. No Creditor is relying on any representations by any Lender or Borrower in entering into this Agreement, and each
Creditor has kept and will continue to keep itself fully apprised of the financial and other condition of Borrower. This Agreement
may be amended only by written instrument signed by each Creditor and each Lender.


 


12.       In
the event of any legal action to enforce the rights of a party under this Agreement, the party prevailing in such action shall
be entitled, in addition to such other relief as may be granted, all reasonable costs and expenses, including reasonable attorneys’
fees, incurred in such action.


 


13.       Borrower
and Creditor each acknowledges, confirms and agrees that any Creditor Default or any default or event of default by Borrower under
the Subordinated Debentures and/or any other document executed in connection therewith, including, without limitation, any stock
purchase agreement, warrant agreement and/or registration rights agreement, or any failure by Borrower to register shares as required
under any of the foregoing, shall constitute an immediate Event of Default (as such term is defined in the Debentures) under the
Debentures, for which no grace period or notice requirement shall apply.


 


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intentionally left blank]


 




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IN WITNESS WHEREOF,
the undersigned have executed this Agreement as of the date first above written.


 


	LENDERS:
	 
	SABBY HEALTHCARE VOLATILITY MASTER FUND, LTD.
	 
	By:	 	 
	Name: 
	Title:
	 
	SABBY VOLATILITY WARRANT MASTER FUND, LTD.
	 
	By:	 	 
	Name:
	Title:
	 
	DAFNA LIFESCIENCE, L.P.
	 
	By:	 	 
	Name:
	Title:
	 
	BORROWER:
	 
	BAXANO SURGICAL, INC.
	 
	By:	 	 
	Name:
	Title:


 




    	 



    	 



    

 


	CREDITOR:	 
	 	 	 
	Name: 	 	 
	 	 	 
	By:	 	 
	Name:	 
	Title:	 


 


[Signature Page to Baxano Subordination
Agreement]