WARRANT EXERCISE AGREEMENT
Exhibit 10.4
This Warrant Exercise Agreement (this “Agreement”), dated as of May 14, 2018, is by and between TapImmune Inc., a Nevada corporation (the “Company”) and the undersigned holder (the “Holder”) of that certain Series D Warrant to Purchase Common Stock issued by the Company to the Holder, which warrant is exercisable at an exercise price (the “Series D Warrant Exercise Price”) of $9.00 per share (the “Series D Warrant”).
WHERAS, the Holder’s Series D Warrant is exercisable for a number of shares of Common Stock as set forth on such Holder’s signature page hereto (the “Series D Warrant Shares”) and the Holder desires to fully exercise such Series D Warrant and, immediately prior to such exercise and in consideration of the Holder’s agreement to so exercise such Series D Warrant, the Company has agreed to reduce the Series D Warrant Exercise Price to $2.50 per share (the “Revised Series D Warrant Exercise Price”); and
ARTICLE I
ARTICLE II
EXERCISE OF WARRANT;
REDUCTION OF EXERCISE PRICES OF WARRANT; CLOSING
Section 2.1 Exercise of Series D Warrant. Subject to the satisfaction (or waiver) of the closing conditions set forth in Article IV hereof, upon the Closing, the Company and the Holder hereby agree that the Series D Warrant Exercise Price with respect to the Series D Warrant Shares shall be reduced to the Revised Series D Warrant Exercise Price and the Holder shall fully exercise the Series D Warrant for the number of Series D Warrant Shares underlying such Holder’s Series D Warrant at the Revised Series D Warrant Exercise Price per share, for aggregate cash proceeds to the Company in the amount set forth on the Holder’s signature page hereto, pursuant to the terms of the Series D Warrant. Holder shall execute and deliver the aggregate cash exercise price for such Series D Warrant to the bank account set forth on the Company’s signature page hereto and the Company shall deliver the Series D Warrant Shares to the Holder via the Depository Trust Company Deposit or Withdrawal at Custodian system pursuant to the instructions set forth on the Holder’s signature page hereto.
Section 2.2 Closing. Upon the terms and subject to the conditions set forth herein, the closing of this Agreement and the exercise of the Series D Warrant (as amended hereby) contemplated in this Section 2 (the “Closing”) will take place at 2:00 p.m., New York time, on the first business day after the satisfaction or waiver of the closing conditions set forth in Article IV at Closing, at the offices of Xxxxxxxx, Loop & Xxxxxxxx, LLP, 000 X. Xxxxxxx Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx, unless another time, date or place is agreed to in writing by the parties. The date on which the Closing occurs is referred to herein as the “Closing Date.” Upon Closing, the Series D Warrant exercised pursuant to this Agreement, shall be deemed automatically and immediately cancelled and retired and shall not be reissued, sold or transferred. Within five (5) business days following the Closing Date, the Holder shall deliver to the Company the original Series D Warrant held by Holder
Section 2.6 Filing of Form 8-K and Prospectus Supplement. On or before 9:00 a.m., New York time, on the first (1st) Business Day following the Closing, the Company shall file a Current Report on Form 8-K, including the form of this Agreement (the “8-K Filing”), with the Securities and Exchange Commission (“Commission”) in the form required by the Securities Exchange Act of 1934, as amended (the “Exchange Act”). From and after the 8-K Filing, the Company represents to the Holder that it shall have publicly disclosed all material, non-public information delivered to the Holder by the Company, or any of their respective officers, directors, employees or agents. In addition, effective upon 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 or any of their respective officers, directors, agents, employees or affiliates on the one hand, and the Holder or any of its affiliates on the other hand, shall terminate.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
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(e) Disclosure. All of the disclosure furnished by or on behalf of the Company to the Holder regarding the Company and its subsidiaries, their respective businesses and the transactions contemplated hereby, including but not limited to the disclosure set forth in the SEC Reports, is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. As used herein, “SEC Reports” means all reports, schedules, forms, statements and other documents required to be filed by the Company with the Commission pursuant to the reporting requirements of the 1934 Act, including all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein.
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(f) The Holder has good and transferable title to, and is the sole owner of the Series D Warrant, and such Series D Warrant is free and clear of liens, claims or encumbrances of any kind.
(g) Compliance with Limitations on Exercises. The Holder represents and warrants that as of the Closing, the Series D Warrant exercised at the Closing does not violate the limitations on exercises set forth in Section 1(f) of the Series D Warrant.
ARTICLE IV
Section 4.1 Holder’s Closing Conditions. The Holder’s obligations to consummate the transactions contemplated hereby are subject to satisfaction or waiver, in the discretion of the Holder, of the following conditions:
(a) the Company shall have executed and delivered to the Holder this Agreement;
(b) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver, on an expedited basis, the Series D Warrant Shares to the Holder via the Depository Trust Company Deposit or Withdrawal at Custodian system; and
(c) the accuracy in all material respects (or to the extent representations or warranties are qualified by materiality or material adverse effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein, in which case they shall be true and correct as of such date).
Section 4.2 Company Closing Conditions. The Company’s obligation to consummate the transactions contemplated hereby are subject to satisfaction or waiver, in the discretion of the Company, of the following conditions:
(a) the Holder shall have executed and delivered to the Company this Agreement;
(b) the accuracy in all material respects (or to the extent representations or warranties are qualified by materiality or material adverse effect, in all respects) when made and on the Closing Date of the representations and warranties of the Holder contained herein (unless as of a specific date therein, in which case they shall be true and correct as of such date); and
(c) the Holder shall have executed a Voting and Support Agreement with regard to the Company’s anticipated reverse triangular merger with Marker Therapeutics, Inc.
ARTICLE V
Section 5.1 Short Sales. After the Closing Date, the Holder covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales (as defined below) during the period from the date hereof until the one year anniversary of the date of this Agreement. “Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
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Section 4.3 Other Holders. The Company acknowledges and agrees that the obligations of the Holder under this Agreement are several and not joint with the obligations of any other holder or any other holders of the Series A Warrants, Series A-1 Warrants, Series C Warrants, Series D Warrants, Series D-1 Warrants, Series E Warrants, Series E-1 Warrants, Series F Warrants and Series F-1 Warrants of the Company (each, an “Other Holder”) under any other agreement related to the exercise of such warrants (“Other Warrant Exercise Agreement”), and the Holder shall not be responsible in any way for the performance of the obligations of any Other Holder or under any such Other Warrant Exercise Agreement. Nothing contained in this Agreement, and no action taken by the Holder pursuant hereto, shall be deemed to constitute the Holder and the Other Holders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Holder and the Other Holders are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement and the Company acknowledges that the Holder and the Other Holders are not acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement or any Other Warrant Exercise Agreement. The Company and the Holder confirm that the Holder has independently participated in the negotiation of the transactions contemplated hereby with the advice of its own counsel and advisors. The Holder shall be entitled to independently protect and enforce their rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any Other Holder to be joined as an additional party in any proceeding for such purpose. The Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the date hereof that none of the terms offered to any Other Holder with respect to any Other Warrant Exercise Agreement (or any amendment, modification or waiver thereof), is or will be more favorable to such Other Holder than those of the Holder pursuant to this Agreement.
[Signature Pages to Follow]
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TAPIMMUNE INC. | ||
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By: | /s/Xxxxx Xxxxx | |
Name: Xxxxx Xxxxx Title: President and Chief Executive Officer |
Wire Instructions:
DOMESTIC WIRE
ABA | |
Bank Name | |
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Beneficiary Account Number (BNF) | |
Beneficiary Account Name |
FOREIGN WIRE
ABA | |
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Bank Address | |
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[Signature Page to Warrant Exercise Agreement (Iroquois)]
[HOLDER SIGNATURE PAGE TO
Name of Holder: The Xxxxxxx Xxxx Irrevocable Trust
Signature of Authorized Signatory of Holder: /s/Xxxxxxx Xxxx
Name of Authorized Signatory: Xxxxxxx Xxxx
Title of Authorized Signatory: Trustee
Date: May 14, 2018
Total Number of Series D Warrant Shares Underlying Series D Warrant: 496
Revised Series D Warrant Exercise Price: $2.50
Aggregate Exercise Price to be Paid: $1,240.00
Number of Series D Warrant Shares to be Issued Upon Exercise: 496
DWAC Instructions for Series D Warrant Shares:
____________________________
____________________________
____________________________
[Signature Page to Warrant Exercise Agreement (Iroquois)]
[HOLDER SIGNATURE PAGE TO
Name of Holder: Iroquois Master Fund Ltd.
Signature of Authorized Signatory of Holder: /s/Xxxxxxx Xxxx
Name of Authorized Signatory: Xxxxxxx Xxxx
Title of Authorized Signatory: Director
Date: May 14, 2018
Total Number of Series D Warrant Shares Underlying Series D Warrant: 7,441
Revised Series D Warrant Exercise Price: $2.50
Aggregate Exercise Price to be Paid: $18,602.50
Number of Series D Warrant Shares to be Issued Upon Exercise: 7,441
DWAC Instructions for Series D Warrant Shares:
____________________________
____________________________
____________________________
[Signature Page to Warrant Exercise Agreement (Iroquois)]
[HOLDER SIGNATURE PAGE TO
WARRANT EXERCISE AGREEMENT]
Name of Holder: The Xxxxx Xxxx Irrevocable Trust
Signature of Authorized Signatory of Holder: /s/Xxx Xxxx
Name of Authorized Signatory: Xxx Xxxx
Title of Authorized Signatory: Trustee
Date: May 14, 2018
Total Number of Series D Warrant Shares Underlying Series D Warrant: 1,488
Revised Series D Warrant Exercise Price: $2.50
Aggregate Exercise Price to be Paid: $3,720.50
Number of Series D Warrant Shares to be Issued Upon Exercise: 1,488
DWAC Instructions for Series D Warrant Shares:
____________________________
____________________________
____________________________
[Signature Page to Warrant Exercise Agreement (Iroquois)]
[HOLDER SIGNATURE PAGE TO
WARRANT EXERCISE AGREEMENT]
Name of Holder: The Xxxxxxxx Xxxx Irrevocable Trust
Signature of Authorized Signatory of Holder: /s/Xxxxxxx Xxxx
Name of Authorized Signatory: Xxxxxxx Xxxx
Title of Authorized Signatory: Trustee
Date: May 14, 2018
Total Number of Series D Warrant Shares Underlying Series D Warrant: 495
Revised Series D Warrant Exercise Price: $2.50
Aggregate Exercise Price to be Paid: $1,237.50
Number of Series D Warrant Shares to be Issued Upon Exercise: 495
DWAC Instructions for Series D Warrant Shares:
____________________________
____________________________
____________________________
[Signature Page to Warrant Exercise Agreement (Iroquois)]
[HOLDER SIGNATURE PAGE TO
WARRANT EXERCISE AGREEMENT]
Name of Holder: The Xxxxx Xxxx Irrevocable Trust
Signature of Authorized Signatory of Holder: /s/Xxxxxxx Xxxx
Name of Authorized Signatory: Xxxxxxx Xxxx
Title of Authorized Signatory: Trustee
Date: May 14, 2018
Total Number of Series D Warrant Shares Underlying Series D Warrant: 495
Revised Series D Warrant Exercise Price: $2.50
Aggregate Exercise Price to be Paid: $1,237.50
Number of Series D Warrant Shares to be Issued Upon Exercise: 495
DWAC Instructions for Series D Warrant Shares:
____________________________
____________________________
____________________________
[Signature Page to Warrant Exercise Agreement (Iroquois)]