Contract
Exhibit 4.3
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 UNLESS AND UNTIL REGISTERED
UNDER SAID ACT AND LAWS OR IN FORM AND SUBSTANCE SATISFACTORY TO
THE COMPANY, SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER IS EXEMPT
FROM SUCH REGISTRATION.
WARRANT
TO PURCHASE STOCK
Company:
Number of
Shares:
Set forth
below.
Type/Series of
Stock:
Common Stock, subject to adjustment as
set forth herein
Warrant
Price:
$0.01 per share,
subject to adjustment as set forth herein
Issue
Date:
August 6,
2020
Expiration
Date:
August 6,
2030
Secured
Note:
This Warrant to
Purchase Stock (“Warrant”) is
issued in connection with that certain Note and Warrant Purchase
and Security Agreement (the “Note”), issued
as of the date hereof, by Sanuwave Health, Inc. (the
“Company”) to
NH Expansion Credit Fund Holdings LP (the “Noteholder”).
THIS
WARRANT CERTIFIES THAT, for good and valuable consideration, NH
Expansion Credit Fund Holdings LP (“Holder”) is
entitled to purchase such number of fully paid and non-assessable
shares (the “Shares”) of
the above-stated Type/Series of Stock (the “Class”) of the
Company as is equal to two percent (2.00%) of the Company’s
Common Stock on a Fully Diluted Basis (as defined below) as of the
Issue Date plus any Post-Closing Adjustment (as defined below), if
any, at a price per Share equal to the Warrant Price, which price
is subject to adjustment pursuant to Section 2 of this
Warrant, and upon the terms and conditions set forth in this
Warrant.
As of
the Issue Date, the Company’s outstanding Common Stock on a
Fully Diluted Basis (as defined below) is 623,988,938. “Fully Diluted
Basis” shall mean the Company’s outstanding
common stock including: (i) all common stock, (ii) all preferred
stock on an as-converted to common stock basis, (iii) all stock
reserved for grant or issuance under the Company’s employee
option pool, and assuming the exercise of all convertible notes, if
any, warrants and options to purchase stock and the conversion of
all rights to purchase stock and any other securities convertible
into or exchangeable for Common Stock of the Company.
“Post-Closing Adjustment” shall mean any increase in
the Company’s outstanding common stock after the Issue Date
for which a corresponding adjustment is not already made pursuant
to Section 2 due to (i) the issuance of additional shares of common
stock pursuant to Section 6.1 of that certain Securities Purchase
Agreement by and among the Issuer and the parties thereto dated as
of the date hereof (the “Securities Purchase
Agreement”), (ii) any increase in the number of shares
of common stock for which the warrants issued pursuant to the
Securities Purchase Agreement become exercisable, and (iii) any
issuance of additional shares of common stock as a result of the
conversion to common stock of any convertible note issued on or
prior to the Issue Date.
SECTION
1.
X =
Y(A-B)/A
where:
X
=
the number of
Shares to be issued to 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.
(a) 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 at least a majority of the Company’s
then-total outstanding combined voting power.
(b) In
the event of an Acquisition in which (i) 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”) and (ii)
the outstanding amounts due under the Notes (as defined in the
Purchase Agreement) have been repaid in full prior to or
concurrently with such Acquisition, this Warrant shall be
automatically deemed exercised pursuant to Section 1.2, effective
immediately prior to and contingent upon the consummation of such
Acquisition provided that if the sum of the Fair Market Value of
the Marketable Securities and Cash payable to Holder is less than
the Minimum Cash Value, the Company shall, as a condition to the
exercise of the Warrant, subject to the Company having legally
available funds, pay Holder in cash the amount of such difference.
For purposes of the foregoing sentence, the value of Marketable
Securities shall be determined as set forth in 1.3 by reference to
the date immediately prior to the date the Acquisition is
consummated. “Minimum Cash Value” means the Put Amount
(as defined below).
(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 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 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 Warrant shall be treated in accordance with
Section 1.7.
(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.
(a) declare
any dividend or distribution upon the outstanding shares of the
Class or common stock, 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 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); or
(c) 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 ten (10) 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 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) above at least ten (10)
Business Days prior written notice of the date when the same will
take place (and specifying the date on which 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).
SECTION
4.
Holder
represents and warrants to the Company as follows:
SECTION
5.
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 MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED UNDER
SAID ACT AND LAWS OR IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER, SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER IS EXEMPT FROM
SUCH REGISTRATION.
NH
Expansion Credit Fund Holdings LP
0000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxx Xxxxxxxxxx
Notice
to the Company shall be addressed as follows until Holder receives
notice of a change in address:
0000
Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
00000
Attn:
Xxxx X. Xxxxxxxxx, Chief Financial Officer
Email:
xxxx.xxxxxxxxx@xxxxxxxx.xxx
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.
5.11 Business
Days. “Business Day” is any day that is not a
Saturday, Sunday or a day on which banks in New York City are
closed.
[Balance of Page Intentionally
Left Blank]
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“COMPANY”
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By: /s/
Xxxx X. Xxxxxxxxx
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Name:
Xxxx X. Xxxxxxxxx
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Title:
Chief Financial Officer
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“HOLDER”
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NH
EXPANSION CREDIT FUND HOLDINGS LP
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By: MS
Expansion Credit GP L.P., its general partner
By: MS
Expansion Credit GP Inc., its general partner
By:
Xxxxxxx Xxxxxxx
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Name:
Xxxxxxx Xxxxxxx
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Title:
Managing Director
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[Signature Page to Warrant to
Purchase Stock]
APPENDIX
1
1. The
undersigned Holder hereby exercises its right to purchase
___________ shares of the Common/Series ______ Preferred [circle
one] Stock of Sanuwave Health, 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:
[
] check
in the amount of $________ payable to order of the Company enclosed
herewith
[
] Wire
transfer of immediately available funds to the Company’s
account
[
] Cashless
Exercise pursuant to Section 1.2 of the Warrant
[
] Other
[Describe] __________________________________________
2. Attached
is a calculation of any adjustment to the number of Shares in
accordance with Section 2.6.
3. Please
issue a certificate or certificates representing the Shares in the
name specified below:
Holder’s
Name
(Address)
4. 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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By:
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Name:
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Title:
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Date:
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