Contract
Exhibit
4.1
THE
REGISTERED HOLDER OF THIS PURCHASE WARRANT BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS
PURCHASE WARRANT EXCEPT AS HEREIN PROVIDED AND THE REGISTERED
HOLDER OF THIS PURCHASE WARRANT AGREES THAT IT WILL NOT SELL,
TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE WARRANT OR
CAUSE IT TO BE THE SUBJECT OF ANY HEDGING, SHORT SALE, DERIVATIVE,
PUT, OR CALL TRANSACTION THAT WOULD RESULT IN THE EFFECTIVE
ECONOMIC DISPOSITION OF THE PURCHASE WARRANT BY ANY PERSON FOR A
PERIOD OF ONE HUNDRED EIGHTY (180) DAYS FOLLOWING THE EFFECTIVE
DATE (DEFINED BELOW) TO ANYONE OTHER THAN (I) ALEXANDER CAPITAL,
L.P. OR A SELECTED DEALER IN CONNECTION WITH THE OFFERING, OR (II)
A BONA FIDE OFFICER OR PARTNER OF ALEXANDER CAPITAL, L.P. OR OF ANY
SELECTED DEALER AND IN ACCORDANCE WITH FINRA RULE
5110(G)(2).
THIS
PURCHASE WARRANT IS NOT EXERCISABLE PRIOR TO MAY 13, 2020. VOID
AFTER 5:00 P.M., EASTERN TIME, MAY 13, 2024.
For the
Purchase of [ ] Shares of Common Stock
of
1. Purchase Warrant. THIS
CERTIFIES THAT, in consideration of funds duly paid by or on behalf
of [__________] (“Holder”), as registered owner of
this Purchase Warrant, to AxurRx BioPharma, Inc., a Delaware
corporation (the “Company”), Holder is entitled, at
any time or from time to time from May 13, 2020 (the
“Commencement
Date”), and at or before 5:00 p.m., Eastern time May
13, 2024 (the “Expiration
Date”), but not thereafter, to subscribe for, purchase
and receive, in whole or in part, up to [●] shares of common
stock of the Company, par value $0.0001 per share (the
“Shares”),
subject to adjustment as provided in Section 5 hereof. If the
Expiration Date is a day on which banking institutions are
authorized by law to close, then this Purchase Warrant may be
exercised on the next succeeding day which is not such a day in
accordance with the terms herein. During the period ending on the
Expiration Date, the Company agrees not to take any action that
would terminate this Purchase Warrant. This Purchase Warrant is
initially exercisable at $2.82 per Share; provided, however, that
upon the occurrence of any of the events specified in Section 5
hereof, the rights granted by this Purchase Warrant, including the
exercise price per Share and the number of Shares to be received
upon such exercise, shall be adjusted as therein specified. This
Warrant is being issued pursuant to the certain Selling Agent
Agreement (the “Selling Agent
Agreement”), dated May 9, 2019, by and among the
Company and the Holder, providing for the public offering (the
“Offering”) of
shares of common stock, par value $0.001 per share, of the Company.
The term “Effective
Date” shall mean the effective date of the Offering.
The term “Exercise
Price” shall mean the initial exercise price or the
adjusted exercise price, depending on the context.
-1-
1. Exercise.
1.1 Exercise
Form. In order to exercise this
Purchase Warrant, the exercise form attached hereto must be duly
executed and completed and delivered to the Company, together with
this Purchase Warrant and payment of the Exercise Price for the
Shares being purchased payable in cash by wire transfer of
immediately available funds to an account designated by the Company
or by certified check or official bank check. If the subscription
rights represented hereby shall not be exercised at or before 5:00
p.m., Eastern time, on the Expiration Date, this Purchase Warrant
shall become and be void without further force or effect, and all
rights represented hereby shall cease and
expire.
1.2 Cashless
Exercise. If at any time after
the Commencement Date there is no effective registration statement
registering, or no current prospectus available for, the resale of
the Shares by the Holder, then in lieu of exercising this Purchase
Warrant by payment of cash or check payable to the order of the
Company pursuant to Section 1.1 above, Holder may elect to receive
the number of Shares equal to the value of this Purchase Warrant
(or the portion thereof being exercised), by surrender of this
Purchase Warrant to the Company, together with the exercise form
attached hereto, in which event the Company shall issue to Holder,
Shares in accordance with the following
formula:
|
X
=
|
Y(A-B)
|
|
A
|
Where,
X = The
number of Shares to be issued to Holder;
Y = The
number of Shares for which the Purchase Warrant is being
exercised;
A = The
fair market value of one Share; and
B = The
Exercise Price.
For
purposes of this Section 1.2, the fair market value of a Share is
defined as follows:
(i) if
the Company’s common stock is traded on a securities
exchange, the fair market value shall be deemed to be the closing
price on such exchange on the trading day immediately prior to the
date the exercise form is submitted to the Company in connection
with the exercise of the Purchase Warrant; or
(ii) if
the Company’s common stock is actively traded
over-the-counter, the fair market value shall be deemed to be the
closing bid price on the trading day immediately prior to the date
the exercise form is submitted to the Company in connection with
the exercise of the Purchase Warrant; or
(iii) if
there is no active public market, the value shall be the fair
market value thereof, as determined in good faith by the
Company’s Board of Directors.
1.3 Legend.
Each certificate for the securities purchased under this Purchase
Warrant shall bear a legend as follows unless such securities have
been registered under the Securities Act of 1933, as amended (the
“Act”):
“The
securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the
“Act”), or
applicable state law. Neither the securities nor any interest
therein may be offered for sale, sold or otherwise transferred
except pursuant to an effective registration statement under the
Securities Act, or pursuant to an exemption from registration under
the Securities Act and applicable state law which, in the opinion
of counsel to the Company, is available.”
1.4 No
Obligation to Net Cash Settle. Notwithstanding anything to
the contrary contained in this Purchase Warrant, in no event will
the Company be required to net cash settle the exercise of the
Purchase Warrant. The holder of the Purchase Warrant will not be
entitled to exercise the Purchase Option unless it exercises such
Purchase Warrant pursuant to the cashless exercise right or a
registration statement is effective, or an exemption from the
registration requirements is available at such time and, if the
Holder is not able to exercise the Purchase Warrant, the Purchase
Warrant will expire worthless.
-2-
2. Transfer.
2.1 General
Restrictions. The registered
Holder of this Purchase Warrant agrees by his, her or its
acceptance hereof, that such Holder will not: (a) sell, transfer,
assign, pledge or hypothecate this Purchase Warrant for a period of
one hundred eighty (180) days following the Effective Date to
anyone other than: (i) Alexander Capital L.P.
(“Alexander
Capital”) or another
selected dealer participating in the Offering, or (ii) a bona fide
officer or partner of Alexander Capital or of any such underwriter
or selected dealer, in each case in accordance with FINRA Conduct
Rule 5110(g)(1), or (b) cause this Purchase Warrant or the
securities issuable hereunder to be the subject of any hedging,
short sale, derivative, put or call transaction that would result
in the effective economic disposition of this Purchase Warrant or
the securities hereunder, except as provided for in FINRA Rule
5110(g)(2). On and after one (1) year after the Effective Date,
transfers to others may be made subject to compliance with or
exemptions from applicable securities laws. In order to make any
permitted assignment, the Holder must deliver to the Company the
assignment form attached hereto duly executed and completed,
together with the Purchase Warrant and payment of all transfer
taxes, if any, payable in connection therewith. The Company shall
within five (5) Business Days transfer this Purchase Warrant on the
books of the Company and shall execute and deliver a new Purchase
Warrant or Purchase Warrants of like tenor to the appropriate
assignee(s) expressly evidencing the right to purchase the
aggregate number of Shares purchasable hereunder or such portion of
such number as shall be contemplated by any such
assignment.
2.2 Restrictions
Imposed by the Securities Act.
The securities evidenced by this Purchase Warrant shall not be
transferred unless and until: (i) the Company has received the
opinion of counsel for the Holder that the securities may be
transferred pursuant to an exemption from registration under the
Securities Act and applicable state securities laws, the
availability of which is established to the reasonable satisfaction
of the Company (the Company hereby agreeing that the opinion of
Cozen X’Xxxxxx shall be deemed satisfactory evidence of the
availability of an exemption), or (ii) a registration statement or
a post-effective amendment to the Registration Statement relating
to the offer and sale of such securities has been filed by the
Company and declared effective by the U.S. Securities and Exchange
Commission (the “Commission”) and compliance with
applicable state securities law has been
established.
3. Registration
Rights.
3.1 “Piggy-Back”
Registration.
3.1.1 Grant
of Right. The Holder shall have
the right, for a period of no more than seven (7) years from the
Effective Date in accordance with FINRA Rule 5110(f)(2)(G)(v), to
include any portion of the Shares underlying the Purchase Warrants
(collectively, the “Registrable
Securities”) as part of
any other registration of securities filed by the Company (other
than in connection with a transaction contemplated by Rule 145(a)
promulgated under the Securities Act or pursuant to Form S-8 or any
equivalent form); provided,
however,
that if, solely in connection with any primary underwritten public
offering for the account of the Company, the managing
underwriter(s) thereof shall, in its reasonable discretion, impose
a limitation on the number of shares of common stock which may be
included in the Registration Statement because, in such
underwriter(s)’ judgment, marketing or other factors dictate
such limitation is necessary to facilitate public distribution,
then the Company shall be obligated to include in such Registration
Statement only such limited portion of the Registrable Securities
with respect to which the Holder requested inclusion hereunder as
the underwriter shall reasonably permit. Any exclusion of
Registrable Securities shall be made pro rata among the Holders
seeking to include Registrable Securities in proportion to the
number of Registrable Securities sought to be included by such
Holders; provided,
however,
that the Company shall not exclude any Registrable Securities
unless the Company has first excluded all outstanding securities,
the holders of which are not entitled to inclusion of such
securities in such Registration Statement or are not entitled to
pro rata inclusion with the Registrable
Securities.
-3-
3.1.2 Terms.
The Company shall bear all fees and expenses attendant to
registering the Registrable Securities pursuant to Section 3.1.1
hereof, but the Holders shall pay any and all underwriting
commissions and the expenses of any legal counsel selected by the
Holders to represent them in connection with the sale of the
Registrable Securities. In the event of such a proposed
registration, the Company shall furnish the then Holders of
outstanding Registrable Securities with not less than thirty (30)
days written notice prior to the proposed date of filing of such
registration statement. Such notice to the Holders shall continue
to be given for each registration statement filed by the Company
until such time as all of the Registrable Securities have been sold
by the Holder. The holders of the Registrable Securities shall
exercise the “piggy-back” rights provided for herein by
giving written notice within ten (10) days of the receipt of the
Company’s notice of its intention to file a registration
statement. Except as otherwise provided in this Purchase Warrant,
there shall be no limit on the number of times the Holder may
request registration under this Section 3.1.2; provided,
however,
that such registration rights shall terminate upon on the sixth
anniversary of the Commencement Date.
3.2 General
Terms.
3.2.1 Indemnification.
The Company shall indemnify the Holder(s) of the Registrable
Securities to be sold pursuant to any registration statement
hereunder and each person, if any, who controls such Holders within
the meaning of Section 15 of the Securities Act or Section 20(a) of
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), against all loss, claim, damage, expense
or liability (including all reasonable attorneys’ fees and
other expenses reasonably incurred in investigating, preparing or
defending against any claim whatsoever) to which any of them may
become subject under the Securities Act, the Exchange Act or
otherwise, arising from such registration statement but only to the
same extent and with the same effect as the provisions pursuant to
which the Company has agreed to indemnify the Selling Agent
contained in Section 6.1 of the Selling Agent Agreement between the
Selling Agent and the Company, dated as of May 8, 2019. The
Holder(s) of the Registrable Securities to be sold pursuant to such
registration statement, and their successors and assigns, shall
severally, and not jointly, indemnify the Company and its
affiliates, against all loss, claim, damage, expense or liability
(including all reasonable attorneys’ fees and other expenses
reasonably incurred in investigating, preparing or defending
against any claim whatsoever) to which they may become subject
under the Securities Act, the Exchange Act or otherwise, arising
from information furnished by or on behalf of such Holders, or
their successors or assigns, in writing, for specific inclusion in
such registration statement to the same extent and with the same
effect as the provisions contained in Section 6.2 of the Selling
Agent Agreement pursuant to which the Selling Agent has agreed to
indemnify the Company.
3.2.2 Exercise
of Purchase Warrants. Nothing
contained in this Purchase Warrant shall be construed as requiring
the Holder(s) to exercise their Purchase Warrants prior to or after
the initial filing of any registration statement or the
effectiveness thereof.
3.2.3 Documents
Delivered to Holders. The
Company shall furnish to each Holder participating in any
underwritten offerings and to each underwriter of any such
offering, a signed counterpart, addressed to such Holder and
underwriter, of: (i) an opinion of counsel to the Company, dated
the effective date of such registration statement (and an opinion
dated the date of the closing under any underwriting agreement
related thereto), and (ii) a “cold comfort” letter
dated the effective date of such registration statement (and a
letter dated the date of the closing under the underwriting
agreement) signed by the independent registered public accounting
firm which has issued a report on the Company’s financial
statements included in such registration statement, in each case
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and,
in the case of such accountants’ letter, with respect to
events subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer’s counsel and in
accountants’ letters delivered to underwriters in
underwritten public offerings of securities. The Company shall also
deliver promptly to each Holder participating in the underwritten
offering requesting the correspondence and memoranda described
below and to the managing underwriter copies of all correspondence
between the Commission and the Company, its counsel or auditors and
all memoranda relating to discussions with the Commission or its
staff with respect to the registration statement and permit each
Holder and underwriter to do such investigation, upon reasonable
advance notice, with respect to information contained in or omitted
from the registration statement as it deems reasonably necessary to
comply with applicable securities laws or rules of FINRA. Such
investigation shall include access to books, records and properties
and opportunities to discuss the business of the Company with its
officers and independent auditors, all to such reasonable extent
and at such reasonable times as any such Holder shall reasonably
request.
-4-
3.2.4 Underwriting
Agreement. In the event the
Company shall enter into an underwriting agreement with any
managing underwriter(s), if any, selected by the Company with
respect to the Registrable Securities that are being registered
pursuant to this Section 3, which managing underwriter shall be
reasonably satisfactory to the Majority Holders. Such agreement
shall be reasonably satisfactory in form and substance to the
Company and such managing underwriters, and shall contain such
representations, warranties and covenants by the Company and such
other terms as are customarily contained in agreements of that type
used by the managing underwriter. The Holders shall be parties to
any underwriting agreement relating to an underwritten sale of
their Registrable Securities and may, at their option, require that
any or all the representations, warranties and covenants of the
Company to or for the benefit of such underwriters shall also be
made to and for the benefit of such Holders. Such Holders shall not
be required to make any representations or warranties to or
agreements with the Company or the underwriters except as they may
relate to such Holders, their Shares and their intended methods of
distribution.
3.2.5 Documents
to be Delivered by Xxxxxx(s).
Each of the Holder(s) participating in any of the foregoing
offerings shall furnish to the Company a completed and executed
questionnaire provided by the Company requesting information
customarily sought of selling security holders.
3.2.6 Damages.
Should the registration or the effectiveness thereof required by
Section 3.1 hereof be delayed by the Company or the Company
otherwise fails to comply with such provisions, the Holder(s)
shall, in addition to any other legal or other relief available to
the Holder(s), be entitled to seek specific performance or other
equitable (including injunctive) relief against the threatened
breach of such provisions or the continuation of any such breach,
without the necessity of proving actual damages and without the
necessity of posting bond or other security.
4. New
Purchase Warrants to be Issued.
4.1 Partial
Exercise or Transfer. Subject
to the restrictions in Section 2 hereof, this Purchase Warrant may
be exercised or assigned in whole or in part. In the event of the
exercise or assignment hereof in part only, upon surrender of this
Purchase Warrant for cancellation, together with the duly executed
exercise or assignment form and funds sufficient to pay any
Exercise Price and/or transfer tax if exercised pursuant to Section
1.1 hereto, the Company shall cause to be delivered to the Holder
without charge a new Purchase Warrant of like tenor to this
Purchase Warrant in the name of the Holder evidencing the right of
the Holder to purchase the number of Shares purchasable hereunder
as to which this Purchase Warrant has not been exercised or
assigned.
4.2 Lost
Certificate. Upon receipt by
the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Purchase Warrant and of
reasonably satisfactory indemnification or the posting of a bond,
the Company shall execute and deliver a new Purchase Warrant of
like tenor and date. Any such new Purchase Warrant executed and
delivered as a result of such loss, theft, mutilation or
destruction shall constitute a substitute contractual obligation on
the part of the Company.
5. Adjustments.
5.1 Adjustments
to Exercise Price and Number of Securities. The Exercise Price and the number of Shares
underlying the Purchase Warrant shall be subject to adjustment from
time to time as hereinafter set forth:
5.1.1 Share
Dividends; Split Ups. If, after
the date hereof, and subject to the provisions of Section 5.3
below, the number of outstanding Shares is increased by a stock
dividend payable in Shares or by a split up of Shares or other
similar event, then, on the effective day thereof, the number of
Shares purchasable hereunder shall be increased in proportion to
such increase in outstanding Shares, and the Exercise Price shall
be proportionately decreased.
5.1.2 Aggregation
of Shares. If, after the date
hereof, and subject to the provisions of Section 5.3 below, the
number of outstanding Shares is decreased by a consolidation,
combination or reclassification of Shares or other similar event,
then, on the effective date thereof, the number of Shares
purchasable hereunder shall be decreased in proportion to such
decrease in outstanding Shares, and the Exercise Price shall be
proportionately increased.
-5-
5.1.3 Replacement
of Securities upon Reorganization, etc. In case of any reclassification or
reorganization of the outstanding Shares other than a change
covered by Section 5.1.1 or 5.1.2 hereof or that solely affects the
par value of such Shares, or in the case of any share
reconstruction or amalgamation or consolidation of the Company with
or into another corporation or other entity (other than a
consolidation or share reconstruction or amalgamation in which the
Company is the continuing corporation and that does not result in
any reclassification or reorganization of the outstanding Shares),
or in the case of any sale or conveyance to another corporation or
entity of the property of the Company as an entirety or
substantially as an entirety in connection with which the Company
is dissolved, the Holder of this Purchase Warrant shall have the
right thereafter (until the expiration of the right of exercise of
this Purchase Warrant) to receive upon the exercise hereof, for the
same aggregate Exercise Price payable hereunder immediately prior
to such event, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such
reclassification, reorganization, share reconstruction or
amalgamation, or consolidation, or upon a dissolution following any
such sale or transfer, by a Holder of the number of Shares of the
Company obtainable upon exercise of this Purchase Warrant
immediately prior to such event; and if any reclassification also
results in a change in Shares covered by Section 5.1.1 or 5.1.2,
then such adjustment shall be made pursuant to Sections 5.1.1,
5.1.2 and this Section 5.1.3. The provisions of this Section 5.1.3
shall similarly apply to successive reclassifications,
reorganizations, share reconstructions or amalgamations, or
consolidations, sales or other transfers.
5.1.4 Changes
in Form of Purchase Warrant.
This form of Purchase Warrant need not be changed because of any
change pursuant to this Section 5.1, and Purchase Warrants issued
after such change may state the same Exercise Price and the same
number of Shares as are stated in the Purchase Warrants initially
issued pursuant to this Agreement. The acceptance by any Holder of
the issuance of new Purchase Warrants reflecting a required or
permissive change shall not be deemed to waive any rights to an
adjustment occurring after the Commencement Date or the computation
thereof.
5.2 Substitute
Purchase Warrant. In case of
any consolidation of the Company with, or share reconstruction or
amalgamation of the Company with or into, another corporation or
other entity (other than a consolidation or share reconstruction or
amalgamation which does not result in any reclassification or
change of the outstanding Shares), the corporation or other entity
formed by such consolidation or share reconstruction or
amalgamation shall execute and deliver to the Holder a supplemental
Purchase Warrant providing that the holder of each Purchase Warrant
then outstanding or to be outstanding shall have the right
thereafter (until the stated expiration of such Purchase Warrant)
to receive, upon exercise of such Purchase Warrant, the kind and
amount of shares of stock and other securities and property
receivable upon such consolidation or share reconstruction or
amalgamation, by a holder of the number of Shares of the Company
for which such Purchase Warrant might have been exercised
immediately prior to such consolidation, share reconstruction or
amalgamation, sale or transfer. Such supplemental Purchase Warrant
shall provide for adjustments which shall be identical to the
adjustments provided for in this Section 5. The above provision of
this Section shall similarly apply to successive consolidations or
share reconstructions or amalgamations.
5.3 Elimination
of Fractional Interests. The
Company shall not be required to issue certificates representing
fractions of Shares upon the exercise of the Purchase Warrant, nor
shall it be required to issue scrip or pay cash in lieu of any
fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction
up or down, as the case may be, to the nearest whole number of
Shares or other securities, properties or
rights.
-6-
6. Reservation
and Listing. The Company shall
at all times reserve and keep available out of its authorized
Shares, solely for the purpose of issuance upon exercise of the
Purchase Warrants, such number of Shares or other securities,
properties or rights as shall be issuable upon the exercise
thereof. The Company covenants and agrees that, upon exercise of
the Purchase Warrants and payment of the Exercise Price therefor,
in accordance with the terms hereby, all Shares and other
securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable and not subject to preemptive
rights of any shareholder. The Company further covenants and agrees
that upon exercise of the Purchase Warrants and payment of the
exercise price therefor, all Shares and other securities issuable
upon such exercise shall be duly and validly issued, fully paid and
non-assessable and not subject to preemptive rights of any
shareholder. As long as the Purchase Warrants shall be outstanding,
the Company shall use its commercially reasonable efforts to cause
all Shares issuable upon exercise of the Purchase Warrants to be
listed (subject to official notice of issuance) on all national
securities exchanges (or, if applicable, on the OTC Bulletin Board
or any successor trading market) on which the Shares issued to the
public in the Offering may then be listed and/or
quoted.
7. Certain
Notice Requirements.
7.1 Holder’s
Right to Receive Notice.
Nothing herein shall be construed as conferring upon the Holders
the right to vote or consent or to receive notice as a shareholder
for the election of directors or any other matter, or as having any
rights whatsoever as a shareholder of the Company. If, however, at
any time prior to the expiration of the Purchase Warrants and their
exercise, any of the events described in Section 7.2 shall occur,
then, in one or more of said events, the Company shall give written
notice of such event at least fifteen (15) days prior to the date
fixed as a record date or the date of closing the transfer books
for the determination of the shareholders entitled to such
dividend, distribution, conversion or exchange of securities or
subscription rights, or entitled to vote on such proposed
dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of the closing of the transfer
books, as the case may be. Notwithstanding the foregoing, the
Company shall deliver to each Holder a copy of each notice given to
the other shareholders of the Company at the same time and in the
same manner that such notice is given to the
shareholders.
7.2 Events
Requiring Notice. The Company
shall be required to give the notice described in this Section 7
upon one or more of the following events: (i) if the Company shall
take a record of the holders of its Shares for the purpose of
entitling them to receive a dividend or distribution payable
otherwise than in cash, or a cash dividend or distribution payable
otherwise than out of retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books
of the Company, (ii) the Company shall offer to all the holders of
its Shares any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of capital
stock of the Company, or any option, right or warrant to subscribe
therefor, or (iii) a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation or share
reconstruction or amalgamation) or a sale of all or substantially
all of its property, assets and business shall be
proposed.
7.3 Notice
of Change in Exercise Price.
The Company shall, promptly after an event requiring a change in
the Exercise Price pursuant to Section 5 hereof, send notice to the
Holders of such event and change (“Price Notice”). The Price Notice shall describe the
event causing the change and the method of calculating same and
shall be certified as being true and accurate by the
Company’s Chief Financial Officer.
-7-
7.4 Transmittal
of Notices. All notices,
requests, consents and other communications under this Purchase
Warrant shall be in writing and shall be deemed to have been duly
made when hand delivered, or mailed by express mail or private
courier service: (i) if to the registered Holder of the Purchase
Warrant, to the address of such Holder as shown on the books of the
Company, or (ii) if to the Company, to following address or to such
other address as the Company may designate by notice to the
Holders:
If to
the Holder:
____________
____________
____________
Attn:
[●]
Email:
With a copy (which
shall not constitute notice) to:
Cozen
X’Xxxxxx
00 Xxxxx
0xx
Xxxxxx, Xxxxx 0000
Minneapolis,
Minnesota 55402
Attn: Xxxxxxxxxxx
X. Xxxxxxx, Esq.
Email:
If to the
Company:
000 Xxxxxxxx
Xxxxxx
Downstate
Biotechnology Incubator, Suite 304
Brooklyn, New York
11226
Attn: Chief
Executive Officer
Email:
with a copy (which
shall not constitute notice) to:
Disclosure Law Group
000 Xxxx
Xxxxxxxx
Xxxxx 000
San Diego, CA 92101
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Email:
8. Miscellaneous.
8.1 Amendments.
The Company and Alexander Capital may from time to time supplement
or amend this Purchase Warrant without the approval of any of the
Holders in order to cure any ambiguity, to correct or supplement
any provision contained herein that may be defective or
inconsistent with any other provisions herein, or to make any other
provisions in regard to matters or questions arising hereunder that
the Company and Alexander Capital may deem necessary or desirable
and that the Company and Alexander Capital deem shall not adversely
affect the interest of the Holders. All other modifications or
amendments shall require the written consent of and be signed by
the party against whom enforcement of the modification or amendment
is sought.
8.2 Headings.
The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of
this Purchase Warrant.
-8-
8.3 Entire
Agreement. This Purchase
Warrant (together with the other agreements and documents being
delivered pursuant to or in connection with this Purchase Warrant)
constitutes the entire agreement of the parties hereto with respect
to the subject matter hereof, and supersedes all prior agreements
and understandings of the parties, oral and written, with respect
to the subject matter hereof.
8.4 Binding
Effect. This Purchase Warrant
shall inure solely to the benefit of and shall be binding upon, the
Holder and the Company and their permitted assignees, respective
successors, legal representative and assigns, and no other person
shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this
Purchase Warrant or any provisions herein
contained.
8.5 Governing
Law; Submission to Jurisdiction; Trial by Jury. This Purchase Warrant shall be governed by and
construed and enforced in accordance with the laws of the State of
New York, without giving effect to conflict of laws principles
thereof. The Company hereby agrees that any action, proceeding or
claim against it arising out of, or relating in any way to this
Purchase Warrant shall be brought and enforced in the New York
Supreme Court, County of New York, or in the United States District
Court for the Southern District of New York, and irrevocably
submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company hereby waives any objection to such
exclusive jurisdiction and that such courts represent an
inconvenient forum. Any process or summons to be served upon the
Company may be served by transmitting a copy thereof by registered
or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 7 hereof. Such
mailing shall be deemed personal service and shall be legal and
binding upon the Company in any action, proceeding or claim. The
Company and the Holder agree that the prevailing party(ies) in any
such action shall be entitled to recover from the other party(ies)
all of its reasonable attorneys’ fees and expenses relating
to such action or proceeding and/or incurred in connection with the
preparation therefor. The Company (on its behalf and, to the extent
permitted by applicable law, on behalf of its stockholders and
affiliates) and the Holder hereby irrevocably waive, to the fullest
extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated
hereby.
8.6 Waiver,
etc. The failure of the Company
or the Holder to at any time enforce any of the provisions of this
Purchase Warrant shall not be deemed or construed to be a waiver of
any such provision, nor to in any way affect the validity of this
Purchase Warrant or any provision hereof or the right of the
Company or any Holder to thereafter enforce each and every
provision of this Purchase Warrant. No waiver of any breach,
non-compliance or non-fulfillment of any of the provisions of this
Purchase Warrant shall be effective unless set forth in a written
instrument executed by the party or parties against whom or which
enforcement of such waiver is sought; and no waiver of any such
breach, non-compliance or non-fulfillment shall be construed or
deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
8.7 Execution
in Counterparts. This Purchase
Warrant may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which
shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement, and shall become
effective when one or more counterparts has been signed by each of
the parties hereto and delivered to each of the other parties
hereto. Such counterparts may be delivered by facsimile
transmission or other electronic transmission.
[Signature
Page Follows]
-9-
IN
WITNESS WHEREOF, the Company has caused this Purchase Warrant to be
signed by its duly authorized officer as of the ______ day of
________________, 2019.
By:
Name:
Title:
-10-
[Form
to be used to exercise Purchase Warrant]
Date:
_______________, 20___
The
undersigned hereby elects irrevocably to exercise the Purchase
Warrant for shares of common stock,
par value $0.0001 per share (the “Shares”), of AzurRx BioPharma,
Inc., a Delaware corporation (the “Company”), and hereby makes
payment of $ (at the rate of $2.82 per Share) in payment of
the Exercise Price pursuant thereto. Please issue the Shares as to
which this Purchase Warrant is exercised in accordance with the
instructions given below and, if applicable, a new Purchase Warrant
representing the number of Shares for which this Purchase Warrant
has not been exercised.
or
The
undersigned hereby elects irrevocably to convert its right to
purchase ___ Shares of the Company under the Purchase Warrant for
______ Shares, as determined in accordance with the following
formula:
|
X
=
|
Y(A-B)
|
|
A
|
Where,
X = The
number of Shares to be issued to Holder;
Y = The
number of Shares for which the Purchase Warrant is being
exercised;
A = The
fair market value of one Share which is equal to $_____;
and
B = The
Exercise Price which is equal to $2.82 per share
The
undersigned agrees and acknowledges that the calculation set forth
above is subject to confirmation by the Company and any
disagreement with respect to the calculation shall be resolved by
the Company in its sole discretion.
Please
issue the Shares as to which this Purchase Warrant is exercised in
accordance with the instructions given below and, if applicable, a
new Purchase Warrant representing the number of Shares for which
this Purchase Warrant has not been converted.
Signature
Signature
Guaranteed
-11-
INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
Name:
(Print
in Block Letters)
Address:
NOTICE:
The signature to this form must correspond with the name as written
upon the face of the Purchase Warrant without alteration or
enlargement or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, or by a trust company or by a firm
having membership on a registered national securities
exchange.
-12-
[Form
to be used to assign Purchase Warrant]
ASSIGNMENT
(To be
executed by the registered Holder to effect a transfer of the
within Purchase Warrant):
FOR
VALUE RECEIVED, __________________ does hereby sell, assign and
transfer unto the right to purchase shares of common stock, par
value $0.0001 per share, of AzurRx BioPharma, Inc., a Delaware
corporation (the “Company”), evidenced by the
Purchase Warrant and does hereby authorize the Company to transfer
such right on the books of the Company.
Dated:
__________, 20__
Signature
Signature
Guaranteed
NOTICE:
The signature to this form must correspond with the name as written
upon the face of the within Purchase Warrant without alteration or
enlargement or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, or by a trust company or by a firm
having membership on a registered national securities
exchange.
-13-
