WARRANT TO PURCHASE COMMON STOCK OF ENDRA, INC.
Exhibit 4.6
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
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Dated:
___________
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Warrant Number: ___________
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WARRANT TO PURCHASE
COMMON STOCK OF
ENDRA, INC.
This
certifies that ___________, or assigns (collectively, the
“Holder”), for
value received, is entitled to purchase, at an exercise price per
share equal to $5.72 (the “Exercise Price”), from
ENDRA, INC., a Delaware
corporation (the “Company”), up to ___________
(___________) fully paid and nonassessable shares (the
“Warrant
Shares”) of the Company’s Common Stock (the
“Common
Stock”). This Warrant shall be exercisable at any time
from time to time from and after the date of issuance hereof (the
“Issuance
Date”) up to and including 5:00 p.m. (Pacific Time) on
the fifth (5th) anniversary of the
Issuance Date (such date being referred to herein as the
“Expiration
Date”), upon surrender to the Company at its principal
office (or at such other location as the Company may advise the
Holder in writing) of this Warrant properly endorsed with
(i) the Form of Subscription attached hereto duly completed
and executed and (ii) if applicable, payment pursuant to
Section 4 of the aggregate Exercise Price for the number of
shares for which this Warrant is being exercised determined in
accordance with the provisions hereof. The Exercise Price and the
number of shares purchasable hereunder are subject to adjustment as
provided in Sections 6 and 7 of this Warrant.
1. Exercise. This Warrant is
exercisable at the option of the holder of record hereof, at any
time or from time to time from or after the Issuance Date up to the
Expiration Date for all or any part of the Warrant Shares (but not
for a fraction of a share), which may be purchased hereunder. The
Company agrees that the shares of Common Stock purchased under this
Warrant shall be and are deemed to be issued to the Holder hereof
as the record owner of such shares as of the close of business on
the date on which this Warrant shall have been surrendered,
properly endorsed, the completed, executed Form of Subscription
delivered and, if applicable, payment made for such shares. If at
the time of exercise hereof the Company has completed its initial
public offering, then this Warrant may also be exercised, in whole
or in part, at such time by means of a “cashless
exercise” in which the Holder shall be entitled to receive a
number of Warrant Shares equal to the quotient obtained by dividing
[(A-B) (X)] by (A), where:
(A) =
the average closing price for each of the five trading days
immediately preceding the date on which Holder elects to exercise
this Warrant by means of a “cashless exercise,” as set
forth in the applicable Form of Subscription;
(B) =
the Exercise Price of this Warrant, as adjusted hereunder;
and
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(X) =
the number of Warrant Shares that would be issuable upon exercise
of this Warrant in accordance with the terms of this Warrant if
such exercise were by means of a cash exercise rather than a
cashless exercise.
2. Issuance of Certificate.
Certificates for the shares of the Common Stock so purchased,
together with any other securities or property to which the Holder
hereof is entitled upon such exercise, shall be delivered to the
Holder hereof by the Company’s transfer agent at the
Company’s expense within a reasonable time after the rights
represented by this Warrant have been so exercised. Each
certificate so delivered shall be in such denominations of the
Warrant Shares as may be requested by the Holder hereof and shall
be registered in the name of such Holder.
3. Acknowledgement. In case of a
purchase of less than all the Warrant Shares, the Company shall
execute and deliver to Holder within a reasonable time an
Acknowledgement in the form attached hereto indicating the number
of Warrant Shares which remain subject to this Warrant, if
any.
4.
Payment for Shares. Unless the
Warrant is exercised pursuant to the cashless exercise provisions
of Section 1, the aggregate purchase price for Warrant Shares being
purchased hereunder may be paid either by check, cash or wire
transfer of immediately available funds.
5. Shares to be Fully Paid; Reservation
of Shares. The Company covenants and agrees that all shares
of Common Stock which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable and free
from all preemptive rights of any shareholder and free of all
taxes, liens and charges with respect to the issue thereof. The
Company further covenants and agrees that during the period within
which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized and reserved, for the
purpose of issue or transfer upon exercise of the subscription
rights evidenced by this Warrant, a sufficient number of shares of
authorized but unissued shares of Common Stock, or other securities
and property, when and as required to provide for the exercise of
the rights represented by this Warrant.
6. Adjustment of Exercise Price Upon
First Qualified Financing. From or after the Issuance Date
up to the Expiration Date, if the Company consummates an equity
financing transaction resulting in the Company receiving gross
proceeds of at least $1.0 million (a “Qualified Financing”), then the
Exercise Price of the Warrant shall immediately be adjusted to the
greater of (i) per share valuation of the Common Stock issued in
such Qualified Financing and (ii) $2.86; provided, however, in no
event shall the Exercise Price be adjusted upward. For the
avoidance of doubt, if the Company consummates a Qualified
Financing with a per share valuation of the Common Stock greater
than $5.72, no adjustment will be made to the Exercise Price and
this Section 6 shall terminate and be of no effect. The adjustment
provisions of this Section 6 shall (A) only be applicable to the
first Qualified Financing consummated by the Company (B) only apply
to the Exercise Price of the Warrant and shall have no affect on
the number of Warrant Shares.
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7.
Adjustment of Exercise Price and
Number of Shares. The Exercise Price and the number of
shares purchasable upon the exercise of this Warrant shall be
subject to adjustment from time to time upon the occurrence of
certain events described in this Section 7. Upon each
adjustment of the Exercise Price, the Holder of this Warrant shall
thereafter be entitled to purchase, at the Exercise Price resulting
from such adjustment, the number of shares obtained by multiplying
the Exercise Price in effect immediately prior to such adjustment
by the number of shares purchasable pursuant hereto immediately
prior to such adjustment, and dividing the product thereof by the
Exercise Price resulting from such adjustment.
7.1 Subdivisions,
Combinations and Dividends. In case the Company shall at any
time subdivide its outstanding shares of Common Stock into a
greater number of shares or pay a dividend in Common Stock in
respect of outstanding shares of Common Stock, the Exercise Price
in effect immediately prior to such subdivision or at the record
date of such dividend shall be proportionately reduced, and
conversely, in case the outstanding shares of the Common Stock of
the Company shall be combined into a smaller number of shares, the
Exercise Price in effect immediately prior to such combination
shall be proportionately increased.
7.2 Reclassification.
If any reclassification of the capital stock of the Company shall
be effected in such a way that holders of Common Stock shall be
entitled to receive stock, securities, or other assets or property,
then, as a condition of such reclassification, lawful and adequate
provisions shall be made whereby the Holder hereof shall thereafter
have the right to purchase and receive (in lieu of the shares of
the Common Stock immediately theretofore purchasable and receivable
upon the exercise of the rights represented hereby) such shares of
stock, securities or other assets or property as may be issued or
payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such
Common Stock immediately theretofore purchasable and receivable
upon the exercise of the rights represented hereby. In any
reclassification described above, appropriate provision shall be
made with respect to the rights and interests of the Holder of this
Warrant to the end that the provisions hereof (including, without
limitation, provisions for adjustments of the Exercise Price and of
the number of shares purchasable and receivable upon the exercise
of this Warrant) shall thereafter be applicable, as nearly as may
be, in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise hereof.
7.3 Notice
of Adjustment. Upon any adjustment of the Exercise Price or
any increase or decrease in the number of shares purchasable upon
the exercise of this Warrant, the Company shall give written notice
thereof, by first class mail postage prepaid, addressed to the
registered Holder of this Warrant at the address of such Holder as
shown on the books of the Company. The notice shall be signed by
the Company’s chief financial officer and shall state the
Exercise Price resulting from such adjustment and the increase or
decrease, if any, in the number of shares purchasable at such price
upon the exercise of this Warrant, setting forth in reasonable
detail the method of calculation and the facts upon which such
calculation is based.
7.4 Other
Notices. If at any time:
(1) the
Company shall declare any cash dividend upon its Common
Stock;
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(2) there
shall be a Change of Control; or
(3) there
shall be a voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then,
in any one or more of said cases, the Company shall give, by first
class mail, postage prepaid, addressed to the Holder of this
Warrant at the address of such Holder as shown on the books of the
Company, (a) at least twenty (20) days prior written notice of the
date on which the books of the Company shall close or a record
shall be taken for such dividend or for determining rights to vote
in respect of any such Change of Control or dissolution,
liquidation or winding-up, and (b) in the case of any such Change
of Control or dissolution, liquidation or winding-up, at least
twenty (20) days prior written notice of the date when the same
shall take place; provided, however, that the Holder shall make a
best efforts attempt to respond to such notice as early as possible
after the receipt thereof. Any notice given in accordance with the
foregoing clause (a) shall also specify, in the case of any such
dividend, the date on which the holders of Common Stock shall be
entitled thereto. Any notice given in accordance with the foregoing
clause (b) shall also specify the date on which the holders of
Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such Change of
Control, dissolution, liquidation, winding-up or conversion, as the
case may be.
8. No Voting or Dividend Rights.
Nothing contained in this Warrant shall be construed as conferring
upon the Holder hereof the right to vote or to consent to receive
notice as a shareholder of the Company or any other matters or any
rights whatsoever as a shareholder of the Company. No dividends or
interest shall be payable or accrued in respect of this Warrant or
the interest represented hereby or the shares purchasable hereunder
until, and only to the extent that, this Warrant shall have been
exercised.
9. Warrants Transferable. Subject
to compliance with applicable federal and state securities laws,
this Warrant and all rights hereunder may be transferred, in whole
or in part, without charge to the holder hereof (except for
transfer taxes), upon the prior written consent of the Company and,
thereafter, upon surrender of this Warrant properly endorsed and
compliance with the provisions hereof. Each taker and holder of
this Warrant, by taking or holding the same, consents and agrees
that this Warrant, when endorsed in blank, shall be deemed
negotiable, and that the holder hereof, when this Warrant shall
have been so endorsed, may be treated by the Company, at the
Company’s option, and all other persons dealing with this
Warrant as the absolute owner hereof for any purpose and as the
person entitled to exercise the rights represented by this Warrant,
or to the transfer hereof on the books of the Company and notice to
the contrary notwithstanding; but until such transfer on such
books, the Company may treat the registered owner hereof as the
owner for all purposes.
10. Lost Warrants. Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft,
destruction, or mutilation of this Warrant and, in the case of any
such loss, theft or destruction, upon receipt of an indemnity
reasonably satisfactory to the Company, or in the case of any such
mutilation upon surrender and cancellation of such Warrant, the
Company, at its expense, will make and deliver a new Warrant, of
like tenor, in lieu of the lost, stolen, destroyed or mutilated
Warrant.
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11. Modification and Waiver. Any
term of this Warrant may be amended and the observance of any term
of this Warrant may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the
written consent of the Company and the Holder hereof. Any amendment
or waiver effected in accordance with this paragraph shall be
binding upon the Company and the Holder.
12. Notices. All notices and other
communications from the Company to the Holder, or vice versa, shall
be deemed delivered and effective when given personally or mailed
by first-class registered or certified mail, postage prepaid, at
such address as may have been furnished to the Company or the
Holder, as the case may be, in writing by the Company or such
holder from time to time.
13. Titles and Subtitles; Governing Law;
Venue. The titles and subtitles used in this Warrant are
used for convenience only and are not to be considered in
construing or interpreting this Warrant. This Warrant is to be
construed in accordance with and governed by the internal laws of
the State of Delaware without giving effect to any choice of law
rule that would cause the application of the laws of any
jurisdiction other than the internal laws of the State of Delaware
to the rights and duties of the Company and the Holder. All
disputes and controversies arising out of or in connection with
this Warrant shall be resolved exclusively by the state and federal
courts located in the State of Delaware, and each of the Company
and the Holder hereto agrees to submit to the jurisdiction of said
courts and agrees that venue shall lie exclusively with such
courts.
[Signature Page Follows]
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IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its officers, thereunto duly authorized as of the date
first above written.
ENDRA,
INC.
By:
Name:
Xxxxxxx Xxxxxxxx
Title:
President
[Signature Page to Warrant to Purchase Common Stock]
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FORM
OF SUBSCRIPTION
(To be
signed only upon exercise of Warrant)
To:
ENDRA, INC.
(1) The
undersigned, the holder of a right to purchase shares of Common
Stock of ENDRA, INC., a
Delaware corporation (the “Company”), pursuant to that
certain Warrant to Purchase Common Stock of Endra, Inc. Number ____________ (the
“Warrant”),
dated as of ____________, 2015, hereby irrevocably elects to
exercise the purchase right represented by such Warrant for, and to
purchase thereunder, __________________________ (_________) shares
of Common Stock of the Company and tenders herewith payment of the
exercise price in full.
(2) Payment
shall take the form of (check applicable box):
[ ] in
lawful money of the United States; or
[ ] if
permitted, the cancellation of such number of Warrant Shares as is
necessary, in accordance with the formula set forth in Section 1,
to exercise this Warrant with respect to the maximum number of
Warrant Shares purchasable pursuant to the cashless exercise
procedure set forth in Section 1.
(3) Please
issue said Warrant Shares in the name of the undersigned or in such
other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account
Number or by physical delivery of a certificate to:
_______________________________
_______________________________
_______________________________
(4) If
the undersigned is requesting DWAC share delivery, the undersigned
hereby makes the following representations and warranties to the
Company:
1.
I am not now, and
have not been during the preceding three months, an officer,
director, or holder of 10% or more of the outstanding shares of the
Company or in any other way an “affiliate” of the
Company (as that term is defined in Rule 144(a)(1) under the
Securities Act of 1933).
2.
(check as
applicable)
(a)
❑ I confirm that I
have been the beneficial owner of the Warrant for a period of at
least six (6) months, but less than one year; and
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(b)
❑ I confirm that, to
the best of my knowledge, the Company is in compliance with the
current public information reporting requirements contained in Rule
144(c)(1).
or
(c)
❑ I confirm that I
have been the beneficial owner of the Warrant for a period of
at least one (1) year as computed in accordance with paragraph (d)
of Rule 144, and therefore am free to sell the shares without
restriction.
(5)
Accredited Investor. The undersigned is an “accredited
investor” as defined in Regulation D promulgated under the
Securities Act of 1933, as amended.
[Signature Follows
on Next Page]
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Name of
Investing Entity:
Signature of Authorized Signatory of Investing
Entity:
Name of
Authorized Signatory:
Title
of Authorized Signatory:
Date:
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ACKNOWLEDGMENT
To:
____________
The
undersigned hereby acknowledges that as of the date hereof,
__________________ (___________) shares of Common Stock remain
subject to the right of purchase in favor of __________________
pursuant to that certain Warrant to Purchase Common Stock of Endra,
Inc. Number ____________ dated as of ____________,
2015.
DATED:
________________
ENDRA,
INC.
By:
Name:
Title:
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