WARRANT AGENT AGREEMENT
Exhibit 99(d)(1)
THIS WARRANT AGENT AGREEMENT, dated October 26, 2016 (the “Agreement”), is entered into by and between Katalyst Securities LLC (the “Warrant Agent”) and Enumeral Biomedical Holdings, Inc. (the “Company”).
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2. Representations of Warrant Agent.
(a) The Warrant Agent is a member in good standing of FINRA and is registered as a broker-dealer under the Exchange Act and under the securities laws and regulations of each state into which a holder of an Original Warrant is solicited hereunder.
(b) None of the Warrant Agent or its affiliates, or any person acting on behalf of the foregoing (other than the Company or its affiliates or any person acting on its or their behalf, in respect of which no representation is made) has taken nor will take any action that conflicts with the conditions and requirements of, or that would make unavailable with respect to the Offer to Amend and Exercise, the exemption(s) from registration available pursuant to Rule 506 of Regulation D or Section 4(a)(2) of the Securities Act, or knows of any reason why any such exemption would be otherwise unavailable to it.
(c) The Warrant Agent represents that neither it nor, to its knowledge, any of its directors, executive officers, general partners, managing members or other officers participating in the Offer to Amend and Exercise (each, a “Warrant Agent Covered Person” and, together, “Warrant Agent Covered Persons”), is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”) or has been involved in any mater which would be a Disqualification Event except for the fact that it occurred before September 23, 2013.
(d) The Warrant Agent represents that it is not aware of any person (other than a Warrant Agent Covered Person) that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the Offer to Amend and Exercise. The Warrant Agent will promptly notify the Company of any agreement entered into between such Warrant Agent and such person in connection with such sale.
(e) The Warrant Agent will notify the Company promptly in writing of (i) any Disqualification Event relating to any Warrant Agent Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any Warrant Agent Covered Person.
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(a) The Offer to Amend and Exercise will commence on the date the Offer Materials are first sent to the Warrant Holders (the “Offer Date”) and will expire on the date that is at least twenty (20) business days following the Offer Date, as may be extended by the Company in its sole discretion, or as required by applicable law (the “Expiration Date”).
(b) In order to participate in the Offer to Amend and Exercise and exercise an Amended Warrant, the Warrant Holder must deliver to the Company before the Expiration Date all of the Acceptance and Exercise Documents (as defined below) and deliver the exercise price for such exercised Amended Warrants by check or wire transfer to a non-interest bearing escrow account (the “Escrow Account”) maintained by the escrow agent designated by the Company for such purpose (the “Escrow Agent”). The “Acceptance and Exercise Documents” mean (i) a signed copy of the Election to Consent, Participate and Exercise Warrant, (ii) a signed accredited investor questionnaire, (iii) the original copy of the Warrant Holder’s Original Warrant (or an Affidavit of Loss and Indemnification Agreement) for cancellation, (iv) receipt of the Exercise Price in the Escrow Account, and (v) any other document deemed necessary by the Company in its sole discretion.
(c) All Warrant Holder funds for the exercise of the Amended Warrants will be held in the Escrow Account pursuant to the terms of an escrow agreement among the Company, the Warrant Agent and the Escrow Agent. The Company will pay all fees related to the establishment and maintenance of the Escrow Account.
(d) Provided that the requirements and conditions to the Offer to Amend and Exercise set forth in the Offer Materials are satisfied by the Expiration Date, the Company will notify the Warrant Agent of the acceptance of the executed and delivered Acceptance and Exercise Documents and will issue, or cause to be issued, the Common Stock certificates representing the shares to be issued upon exercise of the Amended Warrants promptly following the Expiration Date.
(e) Subject to the joint waiver by the Company and the Warrant Agent, a minimum of $2,000,000 in Amended Warrants must be tendered and exercised and the holders of a majority of the Original Warrants must consent to the elimination of the Anti-Dilution Rights by the Expiration Date for the Offer to Amend and Exercise to be completed. The other requirements and conditions set forth in the offering materials must also be satisfied by the Expiration Date. If the conditions to the Offer to Amend and Exercise as set forth in the Offer Materials have been satisfied prior to the Expiration Date, promptly following the Expiration Date the Company will notify the Escrow Agent and the transfer agent of its acceptance of the exercise price payment and Acceptance and Exercise Documents.
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(f) If the requirements and conditions of the Offer to Amend and Exercise set forth in the Offer Materials have not been satisfied on or before the Expiration Date for any reason, the Offer to Amend and Exercise will be terminated, no Common Stock will be issued, and the Escrow Agent, will, at the request of the Company, cause all monies received from the Warrant Holders to be promptly returned to such Warrant Holders without interest, penalty, expense or deduction.
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(a) The term of this Agreement (the “Term”) shall be for the shorter of (i) two (2) months from and after the date first above written or (ii) the last to expire of the Amended Warrants.
(b) This Agreement may be terminated by the Company at any time prior to the acceptance by the Company of the Warrant Holders’ Acceptance and Exercise Documents by the Company (i) in the event that the Warrant Agent shall have failed to perform any of its material obligations hereunder, (ii) on account of the Warrant Agent’s fraud, illegal or willful misconduct or gross negligence, or (iii) in the event of a material breach of this Agreement by the Warrant Agent.
(c) In the event of termination of the Agreement by the Company pursuant to this Section 7, the Warrant Agent shall not be entitled to any amounts except (i) as may be due under any indemnity or contribution obligation provided herein, at law or otherwise, (ii) as provided in Section 5(c) above, or (iii) that portion of the Solicitation Fee for any Warrant Investors who exercised their Amended Warrants prior to the Company’s notice of termination, assuming such Warrant Holders’ Acceptance and Exercise Documents have been accepted by the Company and that a Closing has occurred.
(d) Before any termination by Company under Section 7(b)(i) or (iii) shall become effective, the Company shall give five (5) days prior written notice to the Warrant Agent of its intention to terminate the Agreement (the “Termination Notice”). The Termination Notice shall specify the grounds for the proposed termination. If the specified grounds for termination, or their resulting adverse effect on the transactions contemplated hereby, are curable, then the Warrant Agent shall have three (3) days from the Termination Notice within which to remove such grounds or to eliminate all of their material adverse effects on the transactions contemplated hereby; otherwise, the Agreement shall terminate.
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(a) The Company will (i) indemnify and hold harmless the Warrant Agent, its agents, and its and their respective officers, directors, employees, selected dealers and each person, if any, who controls the Warrant Agent, within the meaning of the Securities Act (each, a “Warrant Agent Indemnitee”) against, and pay or reimburse each Warrant Agent Indemnitee for, any and all losses, claims, damages, liabilities or expenses whatsoever (or actions or proceedings or investigations in respect thereof), severally (which will, for all purposes of this Agreement, include, but not be limited to, all reasonable costs of defense and investigation and all reasonable attorneys’ fees, including appeals, court costs, expenses), to which any Warrant Agent Indemnitee may become subject under the Securities Act or otherwise in connection with the Offer to Amend and Exercise and as a result of the breach of any agreement made by the Company herein, regardless of whether such losses, claims, damages, liabilities or expenses shall result from any claim by any Warrant Agent Indemnitee or by any third party; and (ii) reimburse each Warrant Agent Indemnitee for any legal or other expenses reasonably incurred in connection with investigating or defending against any such loss, claim, action, proceeding or investigation; provided, however, the Company will not have any obligation to indemnify or reimburse any Indemnitee to the extent that any such claim, damage or liability is finally judicially determined to have resulted from (w) an untrue statement or alleged untrue statement of a material fact made in the Offer Materials, or an omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, made solely in reliance upon and in conformity with written information furnished to the Company by the Warrant Agent specifically for use in the Offer Materials, (x) any violations of law by the Warrant Agent (including, without limitation, violations of the Securities Act or state securities laws) that does not result from a violation thereof by the Company or its affiliates, (y) due to intentional or negligent misrepresentations and/or malfeasance of the Warrant Agent, or (z) the gross negligence or willful misconduct or violations of law by the Warrant Agent Indemnitee seeking indemnification hereunder. In addition to the foregoing agreement to indemnify and reimburse, the Company will indemnify and hold harmless each Warrant Agent Indemnitee against any and all losses, claims, damages, liabilities or expenses whatsoever (or actions or proceedings or investigations in respect thereof), joint or several (which shall, for all purposes of this Agreement, include, but not be limited to, all reasonable costs of defense and investigation and all reasonable attorneys’ fees, including appeals) to which any Warrant Agent Indemnitee may become subject insofar as such costs, expenses, losses, claims, damages or liabilities arise out of or are based upon the claim of any person or entity that he or it is entitled to broker’s or finder’s fees from any Warrant Agent Indemnitee in connection with the Offer to Amend and Exercise as a result of the Company obligating itself or any other person or entity to pay such a fee. The foregoing indemnity agreements are in addition to any liability which the Company may otherwise have.
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(b) The Warrant Agent will (i) indemnify and hold harmless the Company, its agents, and its and their respective officers, directors, employees, selected dealers and each person, if any, who controls the Company, within the meaning of the Securities Act (each, a “Company Indemnitee”) against, and pay or reimburse each the Company Indemnitee for, any and all losses, claims, damages, liabilities or expenses whatsoever (or actions or proceedings or investigations in respect thereof), severally (which will, for all purposes of this Agreement, include, but not be limited to, all reasonable costs of defense and investigation and all reasonable attorneys’ fees, including appeals), to which any Company Indemnitee may become subject under the Securities Act or otherwise in connection with the Offer to Amend and Exercise, regardless of whether such losses, claims, damages, liabilities or expenses shall result from any claim by any Company Indemnitee or by any third party, but only to the extent that such losses, claims, damages, liabilities or expenses are based upon (A) any agreement made by the Warrant Agent herein, (B) any violations of law by the Warrant Agent (including, without limitation, violations of the Securities Act, the Exchange Act or state securities laws) which does not result from a violation thereof by the Company or any of their respective affiliates, (C) any untrue statement or alleged untrue statement of any material fact contained in the Offer Materials made in reliance upon and in conformity with information contained in the Offer Materials relating to the Warrant Agent, or an omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in either case, if made or omitted in reliance upon and in conformity with written information furnished to the Company by the Warrant Agent, specifically for use in the preparation thereof, or (D) intentional or negligent misrepresentations by and/or malfeasance of the Warrant Agent; and (ii) reimburse each the Company Indemnitee for any legal or other expenses reasonably incurred in connection with investigating or defending against any such loss, claim, action, proceeding or investigation. In addition to the foregoing agreement to indemnify and reimburse, the Warrant Agent will indemnify and hold harmless each Company Indemnitee against any and all losses, claims, damages, liabilities or expenses whatsoever (or actions or proceedings or investigations in respect thereof), joint or several (which shall, for all purposes of this Agreement, include, but not be limited to, all reasonable costs of defense and investigation and all reasonable attorneys’ fees, including appeals) to which any Company Indemnitee may become subject insofar as such costs, expenses, losses, claims, damages or liabilities arise out of or are based upon the claim of any person or entity that he or it is entitled to broker’s or finder’s fees from any Company Indemnitee in connection with the Offer to Amend and Exercise as a result of the Warrant Agent obligating itself or any other person or entity to pay such a fee. The foregoing indemnity agreements are in addition to any liability which the Warrant Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, claim, proceeding or investigation (the “Action”), such indemnified party, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, will notify the indemnifying party of the commencement thereof, but the omission to so notify the indemnifying party will not relieve it from any liability that it may have to any indemnified party under this Section 8 unless the indemnifying party has been substantially prejudiced by such omission. The indemnifying party will be entitled to participate in and, to the extent that it may wish, jointly with any other indemnifying party, to assume the defense thereof subject to the provisions herein stated, with counsel reasonably satisfactory to such indemnified party. The indemnified party will have the right to employ separate counsel in any such Action and to participate in the defense thereof, but the fees and expenses of such counsel will not be at the expense of the indemnifying party if the indemnifying party has assumed the defense of the Action with counsel reasonably satisfactory to the indemnified party, provided, however, that if the indemnified party shall be requested by the indemnifying party to participate in the defense thereof or shall have concluded in good faith and specifically notified the indemnifying party either that there may be specific defenses available to it that are different from or additional to those available to the indemnifying party or that such Action involves or could have a material adverse effect upon it with respect to matters beyond the scope of the indemnity agreements contained in this Agreement, then the counsel representing it, to the extent made necessary by such defenses, shall have the right to direct such defenses of such Action on its behalf and in such case the reasonable fees and expenses of such counsel in connection with any such participation or defenses shall be paid by the indemnifying party. No settlement of any Action against an indemnified party will be made without the consent of the indemnifying party and the indemnified party, which consent shall not be unreasonably withheld or delayed in light of all factors of importance to such party, and no indemnifying party shall be liable to indemnify any person for any settlement of any such claim effected without such indemnifying party’s consent.
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(a) The Warrant Agent will maintain the confidentiality of the Information and, unless and until such Information shall have been made publicly available by the Company or by others without breach of a confidentiality agreement, shall disclose the Information only as authorized by the Company or as required by law or by order of a governmental authority or court of competent jurisdiction. In the event the Warrant Agent is legally required to make disclosure of any of the Information, the Warrant Agent will give prompt notice to the Company prior to such disclosure to the extent the Warrant Agent can practically do so.
(b) The foregoing paragraph shall not apply to information that (i) at the time of disclosure by the Company, is or thereafter becomes, generally available to the public or within the industries in which the Company conducts business, other than as a result of a breach by the Warrant Agent of its obligations under this Agreement; (ii) prior to or at the time of disclosure by the Company, was already in the possession of, the Warrant Agent or any of its affiliates, or could have been developed by them from information then lawfully in their possession, by the application of other information or techniques in their possession, generally available to the public; (iii) at the time of disclosure by the Company or thereafter, is obtained by the Warrant Agent or any of its affiliates from a third party who the Warrant Agent reasonably believes to be in possession of the information not in violation of any contractual, legal or fiduciary obligation to the Company with respect to that information; or (iv) is shown by written records to have been independently developed by the Warrant Agent or its affiliates. The exclusions set forth in this Section 10(b) shall not apply to pro forma financial information and/or financial projections of the Company, which pro forma financial information and/or projections shall in all events be subject to Section 10(a) above.
(c) Warrant Agent acknowledges that the Company has a class of securities registered under Section 12 of the Exchange Act and is therefore subject to the restrictions imposed by Regulation FD thereunder, and that some of the Information will constitute, when disclosed to the Warrant Agent, and for some period thereafter, material, non-public information for purposes of the federal securities laws. The Warrant Agent agrees that it (i) will not use the Information for the purpose of trading in the Company's Common Stock or any other securities, and (ii) will not disclose such Information to any other party for the purpose of trading in the Company's Common Stock for a period that is the earlier of (a) the date on which the Company discloses the confidential information to the public by a Regulation FD compliant method of disclosure or (b) one hundred any eighty (180) days after the disclosure date (the “Initial Expiration Date”). If, prior to Initial Expiration Date, the Company believes that certain disclosed Information still constitutes material, non-public information, then the Company shall notify Warrant Agent of such fact and the Company may extend the period of confidentiality to the 210th day after the disclosure date (the “Extended Expiration Date”) by written notification to the Warrant Agent prior to the Initial Expiration Date, with such notice identifying the Information that still constitutes material non-public information. Failure to deliver such written notice within such time period shall be considered confirmation by the Company that all disclosed Information is no longer material, non-public information. The Company agrees that, after the Closing of the Offer to Amend and Exercise, it will not disclose any material non-public information to the Warrant Agent, participating brokers or affiliated persons without the prior written approval of such persons.
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11. Notices. All communications hereunder will be in writing and, except as otherwise expressly provided herein or after notice by one party to the other of a change of address, if sent to the Warrant Agent, will be mailed, postage prepaid, certified mail, return receipt requested or sent by overnight courier or delivered by hand and signed by addressee to Katalyst Securities LLC, 1330 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 Attn: Xxxxxxx X. Xxxxxxxxx, Managing Director, with a copy to: Law Offices of Xxxxxxx X. Glenns, Esq. 00 Xxxxxxxxx Xxxxx, Xxxxx 00X, Xxx Xxxx, XX 00000 Attn: Xxxxxxx X. Glenns, Esq. and CKR Law LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxx Xxxxxxxx, Esq., if sent to the Company will be mailed, postage prepaid, certified mail, return receipt requested or sent by overnight courier or delivered by hand and signed by addressee to Enumeral Biomedical Holdings, Inc., 000 XxxxxxxxxXxxx Xxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000, Attn: Xxxx Xxxxx, Chief Executive Officer and Xxxxxxx Xxxxx, General Counsel, with a copy to: Xxxxx Xxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxxxx X. Xxxxxxx, Esq. Notices sent by certified mail shall be deemed received five days thereafter, notices sent by hand delivery or overnight delivery shall be deemed received on the date of the relevant written record of receipt.
12. Governing Law, Jurisdiction. This Agreement shall be deemed to have been made and delivered in New York City and shall be governed as to validity, interpretation, construction, effect and in all other respects by the internal laws of the State of New York without regard to principles of conflicts of law thereof, applicable to contracts to be wholly performed within said state.
THE PARTIES HERETO AGREE TO SUBMIT ALL CONTROVERSIES TO the exclusive jurisdiction of FINRA IN ACCORDANCE WITH THE PROVISIONS SET FORTH BELOW AND UNDERSTAND THAT (A) ARBITRATION IS FINAL AND BINDING ON THE PARTIES, (B) THE PARTIES ARE WAIVING THEIR RIGHTS TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL, (C) PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND DIFFERENT FROM COURT PROCEEDINGS, (D) THE ARBITRATOR’S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY’S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULES BY ARBITRATORS IS STRICTLY LIMITED, AND (E) ALL CONTROVERSIES WHICH MAY ARISE BETWEEN THE PARTIES CONCERNING THIS AGREEMENT SHALL BE DETERMINED BY ARBITRATION PURSUANT TO THE RULES THEN PERTAINING TO FINRA ARBITRATION FORUM. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEw york. JUDGMENT ON ANY AWARD OF ANY SUCH ARBITRATION MAY BE ENTERED IN THE SUPREME COURT OF THE STATE OF NEW YORK OR IN ANY OTHER COURT HAVING JURISDICTION OVER THE PERSON OR PERSONS AGAINST WHOM SUCH AWARD IS RENDERED. THE PARTIES AGREE THAT THE DETERMINATION OF THE ARBITRATORS SHALL BE BINDING AND CONCLUSIVE UPON THEM. THE PREVAILING PARTY, AS DETERMINED BY SUCH ARBITRATORS, IN A LEGAL PROCEEDING SHALL BE ENTITLED TO COLLECT ANY COSTS, DISBURSEMENTS AND REASONABLE ATTORNEY’S FEES FROM THE OTHER PARTY. PRIOR TO FILING AN ARBITRATION, THE PARTIES HEREBY AGREE THAT THEY WILL ATTEMPT TO RESOLVE THEIR DIFFERENCES FIRST BY SUBMITTING THE MATTER FOR RESOLUTION TO A MEDIATOR, ACCEPTABLE TO ALL PARTIES, AND WHOSE EXPENSES WILL BE BORNE EQUALLY BY ALL PARTIES. THE MEDIATION WILL BE HELD IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, ON AN EXPEDITED BASIS. IF THE PARTIES CANNOT SUCCESSFULLY RESOLVE THEIR DIFFERENCES THROUGH MEDIATION, THE MATTER WILL BE RESOLVED BY ARBITRATION. THE ARBITRATION SHALL TAKE PLACE IN THE COUNTY OF NEW YORK, THE STATE OF NEW YORK, ON AN EXPEDITED BASIS.
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ENUMERAL BIOMEDICAL HOLDINGS, INC. | ||
By: | /s/ Xxxxx X. Xxxxx | |
Name: Xxxxx X. Xxxxxx | ||
Title: Vice President of Finance, Chief Accounting Officer and Treasurer |
KATALYST SECURITIES, LLC | ||
By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
Name: Xxxxxxx X. Xxxxxxxxx | ||
Title: Managing Director |
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