Contract
Exhibit 4.2
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR THE SECURITIES LAWS OF ANY STATE AND,
EXCEPT AS SET FORTH IN SECTIONS 5.3 AND 5.4 BELOW, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED (I) UNLESS AND
UNTIL REGISTERED UNDER SAID ACT AND LAWS OR (II) WITHOUT AN OPINION
OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
COMPANY, THAT SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER IS EXEMPT
FROM SUCH REGISTRATION.
WARRANT TO PURCHASE
STOCK1
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Company
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CELCUITY, INC.
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Number of Shares
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26,042
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Type/Series of Stock
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Common Stock, par value $0.01 per share of the Company
(“Common
Stock”)
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Warrant Price
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$14.40 per share2
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Issue Date
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April 8, 2021
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Expiration Date
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April 8, 2031 (See also
Section 5.1(b))
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Credit Facility
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This Warrant to Purchase Stock (“Warrant”) is issued in
connection with that certain Loan and Security Agreement, dated
April 8, 2021, among Innovatus Life Sciences Lending Fund I, LP, as
Lender and Collateral Agent, the Lenders from time to time party
thereto, and the Company (as modified, amended and/or restated from
time to time, the “Loan
Agreement”).
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THIS WARRANT CERTIFIES THAT, for good and valuable
consideration, INNOVATUS LIFE SCIENCES LENDING FUND I, LP
(“Innovatus”), a Delaware limited partnership with an
office located at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
(together with any successor or permitted assignee or transferee of
this Warrant or of any shares issued upon exercise hereof,
“Holder”)
is entitled to purchase the number of fully paid and non-assessable
shares (the “Shares”)
of the above-stated Type/Series of Stock (the
“Class”)
of the above-named company (the “Company”)
at the above-stated Warrant Price, all as set forth above and as
adjusted pursuant to Section 2 of this Warrant, subject to the
provisions and upon the terms and conditions set forth in this
Warrant.
______________
1 The Company
acknowledges and agrees that this Warrant is issued in connection
with the Term A Loan under, and as defined in, the Loan Agreement,
and that, in the event the Company draws the Term B Loan and/or the
Term C Loan, each as defined therein, the Company shall issue
the Holder additional Warrants to purchase shares of the
Company’s Common Stock, equal to 2.5% of the funded amount of
such Term B and Term C Loans, at the price per share described
above, subject to any adjustments to the shares and/or price, on
substantially the terms and conditions set forth in this
Warrant.
SECTION
1. EXERCISE.
1.1. Method
of Exercise. Holder may at any time and from time to time
after June 1, 2021 exercise this Warrant, in whole or in part, by
delivering to the Company the original of this Warrant together
with a duly executed Notice of Exercise in substantially the form
attached hereto as Appendix 1 and, unless Holder is exercising this
Warrant pursuant to a cashless exercise set forth in Section 1.2, a
check, wire transfer of same-day funds (to an account designated by
the Company), or other form of payment acceptable to the Company
for the aggregate Warrant Price for the Shares being purchased;
provided that if an Acquisition occurs the Holder may exercise this
Warrant according to the terms hereof at any time.
1.2. Cashless
Exercise. On any exercise of this Warrant, in lieu of
payment of the aggregate Warrant Price in the manner as specified
in Section 1.1 above, but otherwise in accordance with the
requirements of Section 1.1, Holder may elect to receive Shares
equal to the value of this Warrant, or portion hereof as to which
this Warrant is being exercised. Thereupon, the Company shall issue
to the Holder such number of fully paid and non-assessable Shares
as are computed using the following formula:
X =
Y(A-B)/A
where:
X =
the
number of Shares to be issued to the Holder;
Y =
the
number of Shares with respect to which this Warrant is being
exercised (inclusive of the Shares surrendered to the Company in
payment of the aggregate Warrant Price);
A =
the
Fair Market Value (as determined pursuant to Section 1.3 below) of
one Share; and
B =
the
Warrant Price.
1.3. Fair
Market Value. If the Common Stock is then traded or quoted
on a nationally recognized securities exchange, inter-dealer
quotation system or over-the-counter market (a “Trading Market”), the
fair market value of a Share shall be the closing price of a share
of Common Stock reported for the Business Day immediately before
the date on which Holder delivers this Warrant together with its
Notice of Exercise to the Company. If the Common Stock is not
traded in a Trading Market, the Board of Directors of the Company
shall determine the fair market value of a Share in its reasonable
good faith judgment.
1.4. Delivery
of Certificate and New Warrant. Promptly after Holder
exercises this Warrant in the manner set forth in Section 1.1 or
1.2 above, the Company shall deliver to Holder a certificate (via
an electronic shares program, if applicable) representing the
Shares issued to Holder upon such exercise and, if this Warrant has
not been fully exercised and has not expired, a new warrant of like
tenor representing the Shares not so acquired.
1.5. Replacement
of Warrant. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on
delivery of an indemnity agreement reasonably satisfactory in form,
substance and amount to the Company or, in the case of mutilation,
on surrender of this Warrant to the Company for cancellation, the
Company shall, within a reasonable time, execute and deliver to
Holder, in lieu of this Warrant, a new warrant of like tenor and
amount.
2
1.6. Treatment
of Warrant Upon Acquisition of Company.
(a) Acquisition. For the purpose of
this Warrant, “Acquisition” means any
transaction or series of related transactions involving: (i) the
sale, lease, exclusive license or other disposition of all or
substantially all of the assets of the Company; (ii) any merger or
consolidation of the Company into or with another person or entity
(other than a merger or consolidation effected exclusively to
change the Company’s domicile), or any other corporate
reorganization, in which the stockholders of the Company in their
capacity as such immediately prior to such merger, consolidation or
reorganization, own less than a majority of the Company’s (or
the surviving or successor entity’s) outstanding voting power
immediately after such merger, consolidation or reorganization; or
(iii) any sale or other transfer by the stockholders of the Company
of shares representing a majority of the Company’s then-total
outstanding combined voting power.
(b) Treatment of Warrant at
Acquisition. In the event of an Acquisition in which the
consideration to be received by the Company’s stockholders
consists solely of cash, solely of Marketable Securities or a
combination of cash and Marketable Securities (a
“Cash/Public
Acquisition”), either (i) Holder shall exercise this
Warrant pursuant to Section 1.1 and/or 1.2 and such exercise will
be deemed effective immediately prior to and contingent upon the
consummation of such Acquisition or (ii) if Holder elects not to
exercise the Warrant, this Warrant will expire immediately prior to
the consummation of such Acquisition. For the avoidance of doubt,
“Acquisition” shall
exclude any sale and issuance by the Company of shares of its
capital stock, or securities or instruments exercisable for or
convertible into or otherwise representing the right to acquire
shares of capital stock, to one or more investors in a transaction
or series of related transactions the primary purpose of which is a
bona fide equity financing of the Company.
(c) The Company shall
provide Holder with written notice of its request relating to the
Cash/Public Acquisition (together with such reasonable information
as Holder may reasonably require regarding the treatment of this
Warrant in connection with such contemplated Cash/Public
Acquisition giving rise to such notice), which is to be delivered
to Holder not less than seven (7) Business Days prior to the
closing of the proposed Cash/Public Acquisition. Notwithstanding
the foregoing, if, immediately prior to the Cash/Public
Acquisition, the fair market value of one Share (or other security
issuable upon the exercise hereof) as determined in accordance with
Section 1.3 above would be greater than the Warrant Price in effect
on such date, then this Warrant shallautomatically be deemed on and
as of such date to be exercised pursuant to Section 1.2 above as to
all Shares (or such other securities) for which it shall not
previously have been exercised, and the Company shall promptly
notify the Holder of the number of Shares (or such other
securities) issued upon such exercise to the Holder.
(d) Upon the closing of
any Acquisition other than a Cash/Public Acquisition defined above,
the acquiring, surviving or successor entity shall assume the
obligations of this Warrant, and this Warrant shall thereafter be
exercisable for the same securities and/or other property as would
have been paid for the Shares issuable upon exercise of the
unexercised portion of this Warrant as if such Shares were
outstanding on and as of the closing of such Acquisition, subject
to further adjustment from time to time in accordance with the
provisions of this Warrant.
3
(e) As used in this
Warrant, “Marketable
Securities” means securities meeting all of the
following requirements: (i) the issuer thereof is then subject to
the reporting requirements of Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), and is then current in its filing of all
required reports and other information under the Act and the
Exchange Act; (ii) the class and series of shares or other security
of the issuer that would be received by Holder in connection with
the Acquisition were Holder to exercise this Warrant on or prior to
the closing thereof is then traded in Trading Market; and (iii)
Holder would be able to publicly re-sell, within six (6) months
following the closing of such Acquisition, all of the
issuer’s shares and/or other securities that would be
received by Holder in such Acquisition were Holder to exercise this
Warrant in full on or prior to the closing of such
Acquisition.
SECTION
2. ADJUSTMENTS TO THE SHARES AND WARRANT
PRICE.
2.1. Stock
Dividends, Splits, Etc. If the Company declares or pays a
dividend or distribution on the outstanding shares of the Class
payable in common stock or other securities or property (other than
cash), then upon exercise of this Warrant, for each Share acquired,
Holder shall receive, without additional cost to Holder, the total
number and kind of securities and property which Holder would have
received had Holder owned the Shares of record as of the date the
dividend or distribution occurred. If the Company subdivides the
outstanding shares of the Class by reclassification or otherwise
into a greater number of shares, the number of Shares purchasable
hereunder shall be proportionately increased and the Warrant Price
shall be proportionately decreased. If the outstanding shares of
the Class are combined or consolidated, by reclassification or
otherwise, into a lesser number of shares, the Warrant Price shall
be proportionately increased and the number of Shares shall be
proportionately decreased.
2.2. Reclassification,
Exchange, Combinations or Substitution. Upon any event
whereby all of the outstanding shares of the Class are
reclassified, exchanged, combined, substituted, or replaced for,
into, with or by Company securities of a different class and/or
series, then from and after the consummation of such event, this
Warrant will be exercisable for the number, class and series of
Company securities that Holder would have received had the Shares
been outstanding on and as of the consummation of such event, and
subject to further adjustment thereafter from time to time in
accordance with the provisions of this Warrant. The provisions of
this Section 2.2 shall similarly apply to successive
reclassifications, exchanges, combinations substitutions,
replacements or other similar events.
2.3. Intentionally
Omitted.
2.4. Intentionally
Omitted.
2.5. No
Fractional Share. No fractional Share shall be issuable upon
exercise of this Warrant and the number of Shares to be issued
shall be rounded down to the nearest whole Share. If a fractional
Share interest arises upon any exercise of the Warrant, the Company
shall eliminate such fractional Share interest by paying Holder in
cash the amount computed by multiplying the fractional interest by
(a) the fair market value (as determined in accordance with Section
1.3 above) of a full Share, less (b) the then-effective Warrant
Price.
2.6. Notice/Certificate
as to Adjustments. Upon each adjustment of the Warrant
Price, Class and/or number of Shares, the Company, at the
Company’s expense, shall notify Holder in writing within a
reasonable time setting forth the adjustments to the Warrant Price,
Class and/or number of Shares and facts upon which such adjustment
is based. The Company shall, upon written request from Holder,
furnish Holder with a certificate of its Chief Financial Officer,
including computations of such adjustment and the Warrant Price,
Class and number of Shares in effect upon the date of such
adjustment.
4
SECTION
3. REPRESENTATIONS AND COVENANTS OF THE
COMPANY.
3.1. Representations
and Warranties. The Company represents and warrants to, and
agrees with, the Holder as follows:
(a) The initial Warrant
Price referenced on the first page of this Warrant is not greater
than the price per share at which shares of the Class were last
sold and issued prior to the Issue Date hereof in an arms-length
transaction in which at least $500,000 of such shares were
sold.
(b) All Shares which
may be issued upon the exercise of this Warrant, and all
securities, if any, issuable upon conversion of the Shares, shall,
upon issuance, be duly authorized, validly issued, fully paid and
non-assessable, and free of any liens and encumbrances except for
restrictions on transfer provided for herein or under applicable
federal and state securities laws. The Company covenants that it
shall at all times cause to be reserved and kept available out of
its authorized and unissued capital stock such number of shares of
the Class as will be sufficient to permit the exercise in full of
this Warrant.
3.2. Notice
of Certain Events. If the Company proposes at any time
to:
(a) declare any
dividend or distribution upon the outstanding shares of the Class,
whether in cash, property, stock, or other securities and whether
or not a regular cash dividend;
(b) offer for
subscription or sale pro rata to the holders of the outstanding
shares of the Class any additional shares of any class or series of
the Company’s stock (other than pursuant to contractual
pre-emptive rights);
(c) effect any
reclassification, exchange, combination, substitution,
reorganization or recapitalization of the outstanding shares of the
Class;or
(d) effect an
Acquisition or to liquidate, dissolve or wind up;
then, in connection with each such event, the Company shall give
Holder:
(1)
at least seven (7) Business Days prior written notice of the date
on which a record will be taken for such dividend, distribution, or
subscription rights (and specifying the date on which the holders
of outstanding shares of the Class will be entitled thereto) or for
determining rights to vote, if any, in respect of the matters
referred to in (a) and (b) above;and
(2)
in the case of the matters referred to in (c) and (d) above at
least seven (7) Business Days prior written notice of the date when
the same will take place (and specifying the date on which the
holders of outstanding shares of the Class will be entitled to
exchange their shares for the securities or other property
deliverable upon the occurrence of such event).
Reference is made to Section 1.6(c) whereby this Warrant will be
deemed to be exercised pursuant to Section 1.2 hereof if the
Company does not give written notice to Holder of a Cash/Public
Acquisition as required by the terms hereof. Company will also
provide information requested by Holder that is reasonably
necessary to enable Holder to comply with Holder’s accounting
or reporting requirements.
5
SECTION
4. REPRESENTATIONS,
WARRANTIES OF THE HOLDER.
The
Holder represents and warrants to the Company as
follows:
4.1. Purchase
for Own Account. This Warrant and the securities to be
acquired upon exercise of this Warrant by Holder are being acquired
for investment for Holder’s account, not as a nominee or
agent, and not with a view to the public resale or distribution
within the meaning of the Act. Holder also represents that it has
not been formed for the specific purpose of acquiring this Warrant
or the Shares.
4.2. Disclosure
of Information. Holder is aware of the Company’s
business affairs and financial condition and has received or has
had full access to all the information it considers necessary or
appropriate to make an informed investment decision with respect to
the acquisition of this Warrant and its underlying securities.
Holder further has had an opportunity to ask questions and receive
answers from the Company regarding the terms and conditions of the
offering of this Warrant and its underlying securities and to
obtain additional information (to the extent the Company possessed
such information or could acquire it without unreasonable effort or
expense) necessary to verify any information furnished to Holder or
to which Holder has access.
4.3. Investment
Experience. Holder understands that the purchase of this
Warrant and its underlying securities involves substantial risk.
Holder has experience as an investor in securities of companies in
the development stage and acknowledges that Holder can bear the
economic risk of such Holder’s investment in this Warrant and
its underlying securities and has such knowledge and experience in
financial or business matters that Holder is capable of evaluating
the merits and risks of its investment in this Warrant and its
underlying securities and/or has a preexisting personal or business
relationship with the Company and certain of its officers,
directors or controlling persons of a nature and duration that
enables Holder to be aware of the character, business acumen and
financial circumstances of such persons.
4.4. Accredited
Investor Status. Holder is an “accredited
investor” within the meaning of Regulation D promulgated
under the Act.
4.5. The
Act. Holder understands that this Warrant and the Shares
issuable upon exercise hereof have not been registered under the
Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of
the Holder’s investment intent as expressed herein. Holder
understands that this Warrant and the Shares issued upon any
exercise hereof must be held indefinitely unless subsequently
registered under the Act and qualified under applicable state
securities laws, or unless exemption from such registration and
qualification are otherwise available. Holder is aware of the
provisions of Rule 144 promulgated under the Act.
4.6. No
Voting Rights. Holder, as a Holder of this Warrant, will not
have any voting rights until the exercise of this
Warrant.
SECTION
5. MISCELLANEOUS.
5.1. Term
and Automatic Conversion Upon Expiration.
(a) Term. Subject to the provisions
of Section 1.6 above, this Warrant is exercisable in whole or in
part at any time and from time to time on or before 6:00 P.M.,
Eastern time, on the Expiration Date and shall be void
thereafter.
6
(b) Automatic
Cashless Exercise upon Expiration. In the event that, upon
the Expiration Date, the fair market value of one Share (or other
security issuable upon the exercise hereof) as determined in
accordance with Section 1.3 above is greater than the Warrant Price
in effect on such date, then this Warrant shall automatically be
deemed on and as of such date to be exercised pursuant to Section
1.2 above as to all Shares (or such other securities) for which it
shall not previously have been exercised, and the Company shall,
within a reasonable time, deliver a certificate (via an electronic
shares program, if applicable) representing the Shares (or such
other securities) issued upon such exercise to Holder.
5.2. Legends.
The Shares (and the securities issuable, directly or indirectly,
upon conversion of the Shares, if any) shall be imprinted with a
legend in substantially the following form:
THE
SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES
LAWS OF ANY STATE AND, EXCEPT AS SET FORTH IN THAT CERTAIN WARRANT
TO PURCHASE STOCK ISSUED BY THE ISSUER TO INNOVATUS LIFE SCIENCES
LENDING FUND I, LP DATED APRIL 8, 2021, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED (I) UNLESS AND UNTIL REGISTERED
UNDER SAID ACT AND LAWS OR (II) WITHOUT AN OPINION OF COUNSEL, IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER, THAT SUCH
OFFER, SALE, PLEDGE OR OTHER TRANSFER IS EXEMPT FROM SUCH
REGISTRATION.
5.3. Compliance
with Securities Laws on Transfer. This Warrant and the
Shares issuable upon exercise of this Warrant (and the securities
issuable, directly or indirectly, upon conversion of the Shares, if
any) may not be transferred or assigned in whole or in part except
in compliance with applicable federal and state securities laws by
the transferor and the transferee (including, without limitation,
the delivery of investment representation letters and legal
opinions reasonably satisfactory to the Company, as reasonably
requested by the Company). The Company shall not require Holder to
provide an opinion of counsel if the transfer is to an affiliate of
Holder. Additionally, the Company shall also not require an opinion
of counsel if there is no material question as to the availability
of Rule 144 promulgated under the Act.
5.4. Transfer
Procedure. Subject to the provisions of Section 5.3 and upon
providing the Company with written notice, Holder may transfer all
or part of this Warrant or the Shares issuable upon exercise of
this Warrant (or the securities issuable directly or indirectly,
upon conversion of the Shares, if any) to any transferee,
provided,
however, in
connection with any such transfer, Holder will give the Company
notice of the portion of the Warrant being transferred with the
name, address and taxpayer identification number of the transferee
and Holder will surrender this Warrant to the Company for
reissuance to the transferee(s) (and Holder if applicable); and
provided
further, that any
subsequent transferee shall agree in writing with the Company to be
bound by all of the terms and conditions of this
Warrant.
7
5.5. Notices.
All notices and other communications hereunder from the Company to
the Holder, or vice versa, shall be deemed delivered and effective
(i) when given personally, (ii) on the third (3rd) Business Day after
being mailed by first-class registered or certified mail, postage
prepaid, (iii) upon actual receipt if given by facsimile or
electronic mail and such receipt is confirmed in writing by the
recipient, or (iv) on the first Business Day following delivery to
a reliable overnight courier service, courier fee prepaid, in any
case at such address as may have been furnished to the Company or
Holder, as the case may be, in writing by the Company or such
Holder from time to time in accordance with the provisions of this
Section 5.5. All notices to Holder shall be addressed as follows
until the Company receives notice of a change of address in
connection with a transfer or otherwise:
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INNOVATUS LIFE SCIENCES LENDING FUND I, LP
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000 Xxxxx Xxxxxx, 00xx Xxxxx
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Xxx Xxxx, XX 00000
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Attention:
Xxxxx Xxxxxxx
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Email:
xxxxxxxx@xxxxxxxxxxx.xxx
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Notice
to the Company shall be addressed as follows until Holder receives
notice of a change in address:
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CELCUITY, INC.
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16305 – 00xx Xxxxxx Xxxxx
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Xxxxx 000
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Xxxxxxxxxxx, XX 00000
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Attn: Chief Financial Officer
Facsimile No.:________________
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Email: xxxxxx@xxxxxxxx.xxx
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With a copy (which shall not constitute notice) to:
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Xxxxxxxxxx
& Xxxxx, P.A.200 South Sixth Street, Suite 4000
Xxxxxxxxxxx,
XX 00000
Attn:
Xxxx WallaceFax: (000) 000-0000
Email:
xxxxxxxx@xxxxxxx.xxx
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5.6. Waiver.
This Warrant and any term hereof may be changed, waived, discharged
or terminated (either generally or in a particular instance and
either retroactively or prospectively) only by an instrument in
writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought.
5.7. Attorneys’
Fees. In the event of any dispute between the parties
concerning the terms and provisions of this Warrant, the party
prevailing in such dispute shall be entitled to collect from the
other party all costs incurred in such dispute, including
reasonable attorneys’ fees.
5.8. Counterparts;
Facsimile/Electronic Signatures. This Warrant may be
executed in counterparts, all of which together shall constitute
one and the same agreement. Any signature page delivered
electronically or by facsimile shall be binding to the same extent
as an original signature page with regards to any agreement subject
to the terms hereof or any amendment thereto.
8
5.9. Governing
Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York, without giving
effect to its principles regarding conflicts of law.
5.10. Headings.
The headings in this Warrant are for purposes of reference only and
shall not limit or otherwise affect the meaning of any provision of
this Warrant.
5.11. Business
Days. “Business Day” is any day
that is not a Saturday, Sunday or a day on which banks in New York,
New York are closed.
[Signature page follows]
9
IN
WITNESS WHEREOF, the parties have caused this Warrant to Purchase
Stock to be executed by their duly authorized representatives
effective as of the Issue Date written above.
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“COMPANY”
CELCUITY, INC.
By: /s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
(Print)
Title: Chairman and Chief Executive Officer
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“HOLDER”
INNOVATUS LIFE SCIENCES LENDING FUND I, LP
By: /s/ Xxxxxx
Xxxxxx
Name: Xxxxxx Xxxxxx
(Print)
Title: Authorized Signatory
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APPENDIX 1
NOTICE OF EXERCISE
1. The
undersigned Holder hereby exercises its right purchase ___________
shares of the Common Stock of CELCUITY, INC. (the
“Company”)
in accordance with the attached Warrant To Purchase Stock, and
tenders payment of the aggregate Warrant Price for such shares as
follows:
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[ ]
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check in the amount of $________ payable to order of the Company
enclosed herewith
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[ ]
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Wire transfer of immediately available funds to the Company’s
account
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[ ]
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Cashless Exercise pursuant to Section 1.2 of the
Warrant
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[ ]
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Other [Describe]
__________________________________________
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2. Please
issue a certificate or certificates representing the Shares in the
name specified below:
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___________________________________________
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Holder’s Name
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___________________________________________
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___________________________________________
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(Address)
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3. By
its execution below and for the benefit of the Company, Holder
hereby restates each of the representations and warranties in
Section 4 of the Warrant to Purchase Stock as of the date
hereof.
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HOLDER:
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_________________________
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By:_________________________
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Name:________________________
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Title:_________________________
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Date: _________________________
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Schedule 1
