Warrant for the Purchase of ____________ Shares of Common Stock Par Value $0.001 CLASS E WARRANT AGREEMENT (this “Agreement”)
Exhibit 4.1
Warrant for the Purchase of ____________
Shares of Common Stock
Par Value $0.001
CLASS E WARRANT AGREEMENT
(this “Agreement”)
THE
HOLDER OF THIS WARRANT, BY ACCEPTANCE HEREOF, BOTH WITH RESPECT TO
THE WARRANT AND COMMON STOCK ISSUABLE UPON EXERCISE OF THE WARRANT,
AGREES AND ACKNOWLEDGES THAT THE SECURITIES REPRESENTED BY THIS
AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE
SECURITIES LAWS OF ANY STATE. THESE SECURITIES HAVE BEEN ACQUIRED
FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND THE LAWS OF ANY APPLICABLE
STATE, OR (B) THE SALE OR TRANSFER BEING EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT AND SUCH STATE STATUTES, OR (II) UNLESS
SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT.
This is
to certify that, for value received, ______________ and its successors and
assigns (each, a
“Holder”) is
entitled, upon the terms and subject to the limitation on exercise
and conditions hereinafter set forth, at any time on or prior to
the close of business on August 6, 2023 (the “Termination Date”) but not
thereafter, to purchase from SANUWAVE HEALTH, INC. (the
“Company”), all
or any part of _________
shares (which number may be adjusted as provided herein)
(“Warrant
Shares”) of the Company’s common stock, par
value $0.001 (the “Common
Stock”), at an initial purchase price of $0.25 per
share (which amount may be adjusted as provided herein)
(“Warrant
Price”). Upon exercise of this warrant in whole or in
part, a certificate for the Warrant Shares so purchased shall be
issued and delivered to the Holder. If, at any time prior to the
Termination Date, less than the total warrant is exercised, a new
warrant of similar tenor shall be issued for the unexercised
portion of the warrant represented by this Agreement. This Warrant
is issued pursuant to that certain Securities Purchase Agreement
dated as of August 6, 2020 by and among the Company, the Holder and
the other purchasers party thereto (the “Subscription Agreement”).
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Subscription
Agreement.
(A)
=
the VWAP on the
Trading Day immediately preceding the date on which Holder elects
to exercise this Warrant by means of a “cashless
exercise,” as set forth in the applicable Notice of
Exercise;
(B)
=
the Exercise Price
of this Warrant, as adjusted hereunder; and
(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.
Notwithstanding
anything herein to the contrary, on the Termination Date, this
Warrant shall be automatically exercised via cashless exercise
pursuant to this Section 1(c).
“VWAP” means, for any
date, the price determined by the first of the following clauses
that applies: (i) if the Common Stock is then listed or quoted on
an Exchange, the daily volume weighted average price of the Common
Stock for such date (or, if such date is not a Trading Day, the
nearest preceding Trading Day) on the primary Exchange on which the
Common Stock is then listed or quoted as reported by Bloomberg L.P.
(based on a Trading Day from 9:30 a.m. Eastern Time to 4:00 p.m.
Eastern Time); (ii) if the Common Stock is not then listed or
quoted on an Exchange and if prices for the Common Stock are then
reported in the “Pink” market published by OTC Markets
Group (or a similar organization or agency succeeding to its
functions of reporting prices), the most recent bid price per share
of the Common Stock so reported; or (iii) in all other cases, the
fair market value of a share of Common Stock as determined by a
nationally recognized-independent appraiser selected in good faith
by Holder and reasonably acceptable to the Company and whose fees
and expenses shall be borne by the Company (such value as
determined pursuant to this clause (iii), the “Fair Market
Value”).
The
“Exchange” means the New
York Stock Exchange, the NYSE American, the NASDAQ Global Select
Market, the NASDAQ Global Market, the NASDAQ Capital Market or OTC
Bulletin Board) or other national securities or over-the-counter
exchange on which the Common Stock is then listed.
(e) Holder’s Exercise
Limitations. The Company shall not effect any exercise of
this Warrant, and a Holder shall not have the right to exercise any
portion of this Warrant, pursuant to Section 1 or otherwise, to the
extent that after giving effect to such issuance after exercise as
set forth on the applicable Notice of Exercise, the Holder
(together with the Holder’s Affiliates, and any other Persons
acting as a group together with the Holder or any of the
Holder’s Affiliates), would beneficially own in excess of the
Beneficial Ownership Limitation (as defined below). For
purposes of the foregoing sentence, the number of shares of Common
Stock beneficially owned by the Holder and its Affiliates shall
include the number of shares of Common Stock issuable upon exercise
of this Warrant with respect to which such determination is being
made, but shall exclude the number of shares of Common Stock which
would be issuable upon (i) exercise of the remaining, nonexercised
portion of this Warrant beneficially owned by the Holder or any of
its Affiliates and (ii) exercise or conversion of the unexercised
or nonconverted portion of any other securities of the Company
(including, without limitation, any other securities convertible
into Common Stock) subject to a limitation on conversion or
exercise analogous to the limitation contained herein beneficially
owned by the Holder or any of its Affiliates. Except as set
forth in the preceding sentence, for purposes of this Section 1(e),
beneficial ownership shall be calculated in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”) and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is
not representing to the Holder that such calculation is in
compliance with Section 13(d) of the Exchange Act and the Holder is
solely responsible for any schedules required to be filed in
accordance therewith. To the extent that the limitation contained
in this Section 1(e) applies, the determination of whether this
Warrant is exercisable (in relation to other securities owned by
the Holder together with any Affiliates) and of which portion of
this Warrant is exercisable shall be in the sole discretion of the
Holder, and the submission of a Notice of Exercise shall be deemed
to be the Holder’s determination of whether this Warrant is
exercisable (in relation to other securities owned by the Holder
together with any Affiliates) and of which portion of this Warrant
is exercisable, in each case subject to the Beneficial Ownership
Limitation, and the Company shall have no obligation to verify or
confirm the accuracy of such determination. In addition, a
determination as to any group status as contemplated above shall be
determined in accordance with Section 13(d) of the Exchange Act and
the rules and regulations promulgated thereunder. For purposes of
this Section 1(e), in determining the number of outstanding shares
of Common Stock, a Holder may rely on the number of outstanding
shares of Common Stock as reflected in (A) the Company’s most
recent periodic or annual report filed with the Commission, as the
case may be, (B) a more recent public announcement by the Company
or (C) a more recent written notice by the Company or the Transfer
Agent setting forth the number of shares of Common Stock
outstanding. Upon the written or oral request of a Holder,
the Company shall within two (2) Trading Days confirm orally and in
writing to the Holder the number of shares of Common Stock
outstanding pursuant to prior sentence. In any case, the
number of outstanding shares of Common Stock shall be determined
after giving effect to the conversion or exercise of securities of
the Company, including this Warrant, by the Holder or its
Affiliates since the date as of which such number of outstanding
shares of Common Stock was reported. The “Beneficial Ownership
Limitation” shall be 4.99% of the number of shares of
the Common Stock outstanding immediately after giving effect to the
issuance of shares of Common Stock issuable upon exercise of all or
any portion of this Warrant. The Holder, upon not less than 61
days’ prior notice to the Company, may increase or decrease
the Beneficial Ownership Limitation provisions of this Section
1(e), provided that the Beneficial Ownership Limitation in no event
exceeds 9.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of
shares of Common Stock upon exercise of this Warrant held by the
Holder and the provisions of this Section 1(e) shall continue to
apply. Any such increase or decrease will not be effective until
the 61st day after such notice is delivered to the Company. The
provisions of this paragraph shall be construed and implemented in
a manner otherwise than in strict conformity with the terms of this
Section 1(e) to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial
Ownership Limitation herein contained or to make changes or
supplements necessary or desirable to properly give effect to such
limitation. The limitations contained in this paragraph shall apply
to a successor holder of this Warrant.
(i) In
the event of a Combination (as defined below), each Holder shall
have the right to receive upon exercise of the Warrant the kind and
amount of shares of capital stock or other securities or property
which such Holder would have been entitled to receive upon or as a
result of such Combination had such Warrant been exercised
immediately prior to such event (subject to further adjustment in
accordance with the terms hereof). Unless paragraph (ii) is
applicable to a Combination, the Company shall provide that the
surviving or acquiring Person (the “Successor Company”) in
such Combination will assume by written instrument the obligations
under this Section 2 and the obligations to deliver to the
Holder such shares of stock, securities or assets as, in accordance
with the foregoing provisions, the Holder may be entitled to
acquire. “Combination” means an
event in which the Company consolidates with, mergers with or into,
or sells all or substantially all of its assets to another Person,
where “Person” means any
individual, corporation, partnership, joint venture, limited
liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
subdivision thereof or any other entity;
(ii) In
the event of (x) a Combination where consideration to the holders
of Common Stock in exchange for their shares is payable solely in
cash or (y) the dissolution, liquidation or winding-up of the
Company, the Holders shall be entitled to receive, upon surrender
of their Warrant, distributions on an equal basis with the holders
of Common Stock or other securities issuable upon exercise of the
Warrant, as if the Warrant had been exercised immediately prior to
such event, less the Exercise Price. In case of any Combination
described in this Section 2, the surviving or acquiring Person
and, in the event of any dissolution, liquidation or winding-up of
the Company, the Company, shall deposit promptly with an agent or
trustee for the benefit of the Holders of the funds, if any,
necessary to pay to the Holders the amounts to which they are
entitled as described above. After such funds and the surrendered
Warrant are received, the Company is required to deliver a check in
such amount as is appropriate (or, in the case or consideration
other than cash, such other consideration as is appropriate) to
such Person or Persons as it may be directed in writing by the
Holders surrendering such Warrant.
“Post-Listing Threshold
Price” means (i) the average VWAP of the Common
Stock for the Measurement Period, multiplied by (ii) one hundred
twenty-five percent (125%).
Except
and to the extent as waived or consented to by the Holder, the
Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any
of the terms of this Warrant, but will at all times in good faith
assist in the carrying out of all such terms and in the taking of
all such actions as may be necessary or appropriate to protect the
rights of Holder as set forth in this Warrant against impairment.
Without limiting the generality of the foregoing, the Company will
(i) not increase the par value of any Warrant Shares above the
amount payable therefor upon such exercise immediately prior to
such increase in par value, (ii) take all such action as may
be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable Warrant Shares upon
the exercise of this Warrant and (iii) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof, as may
be, necessary to enable the Company to perform its obligations
under this Warrant.
Before
taking any action which would result in an adjustment in the number
of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction
thereof.
********************
(Signature
Page Follows)
By:
Name:
Xxxx X. Xxxxxxxxx
Title:
Chief Financial Officer
NOTICE OF EXERCISE
(1) The
undersigned hereby elects to purchase ________________ Warrant
Shares of the Company pursuant to the terms of the attached
Warrant, and tenders herewith payment of the exercise price in
full, together with all applicable transfer taxes, if
any.
(2) Please
issue a certificate or certificates representing said Warrant
Shares in the name of the undersigned or in such other name as is
specified below*:
_______________________________
*If a
name other than the Holder is specified, please complete the Share
Assignment Form.
The
Warrant Shares shall be delivered to the following DWAC Account
Number or by physical delivery of a certificate to:
_______________________________
_______________________________
_______________________________
Signature of Holder / Authorized Signatory
Name of
Holder
Name of
Authorized Signatory
Title
of Authorized Signatory
Date
[To
assign the shares being issued pursuant to the foregoing warrant,
execute this form and supply required information. Do not use this
form to assign or exercise the warrant.]
FOR
VALUE RECEIVED, [all of / _______________________________________]
shares of the foregoing W xxxxxx and all rights evidenced thereby
are hereby assigned to
_______________________________________________
whose address is:
_______________________________________________________________.
Dated:
______________, _______
In
connection with any transfer of the Warrant, the undersigned
confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and is making
the transfer pursuant to one of the following:
[Check All That Apply]
(1) to
the Company; or
(2) to
an “accredited investor” (as defined in Rule 501(a)
under the Securities Act of 1933, as amended (the “Securities
Act”)); or
(3) pursuant
to the exemption from registration provided by Rule 144 under the
Securities Act or pursuant to another exemption available under the
Securities Act; or
(4) pursuant
to an effective registration statement under the Securities
Act.
If
the box is checked below, the undersigned confirms and represents
to the Company that the Warrant is not being transferred to an
“affiliate” of the Company as defined in Rule 144 of
the Securities Act.
☐
The
transferee is not an “affiliate” of the Company as
defined in Rule 144 of the Securities Act.
Holder’s
Signature:
Holder’s
Address:
Signature Guaranteed
WARRANT ASSIGNMENT FORM
[To be
completed and signed only upon transfer of Warrant]
[FOR
VALUE RECEIVED,] the undersigned hereby [sells], assigns and
transfers unto ________________________________ the right
represented by the within Warrant to purchase ____________ Warrant
Shares to which the within Warrant relates and appoints
________________ attorney to transfer said right on the books of
SANUWAVE Health, Inc. (the “Company”) with full power
of substitution in the premises.
In
connection with any transfer of the Warrant, the undersigned
confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and is making
the transfer pursuant to one of the following:
[Check
All That Apply]
(1) to
the Company; or
(2) to
an “accredited investor” (as defined in Rule 501(a)
under the Securities Act of 1933, as amended (the “Securities
Act”)); or
(3) pursuant
to the exemption from registration provided by Rule 144 under the
Securities Act or pursuant to another exemption available under the
Securities Act; or
(4) pursuant
to an effective registration statement under the Securities
Act.
If
the box is checked below, the undersigned confirms and represents
to the Company that the Warrant is not being transferred to an
“affiliate” of the Company as defined in Rule 144 of
the Securities Act.
☐
The
transferee is not an “affiliate” of the Company as
defined in Rule 144 of the Securities Act.
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Dated: ,
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Address
of Transferee
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In the
presence of:
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