CORMEDIX INC. Warrant To Purchase Common Stock
EXECUTION VERSION
Exhibit 4.1
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS
EXERCISABLE HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS.
THIS SECURITY MAY BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED DIRECTLY OR INDIRECTLY, ONLY (A) TO THE COMPANY, (B) IF THE SECURITY HAS BEEN REGISTERED IN
COMPLIANCE WITH THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES
ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS,
(C) IN COMPLIANCE WITH THE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES
ACT IN ACCORDANCE WITH RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND
IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS PROVIDED
THAT THE HOLDER HAS FURNISHED TO THE COMPANY REASONABLE ASSURANCES,
IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, THAT
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT, OR
(D) IN A TRANSACTION THAT DOES NOT
REQUIRE REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE
STATE LAWS AND REGULATIONS GOVERNING THE OFFER AND SALE OF
SECURITIES. NOTWITHSTANDING THE FOREGOING, THIS SECURITY MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN
OR FINANCING ARRANGEMENT SECURED BY THIS
SECURITY.
Warrant To Purchase Common Stock
Warrant
No.:
This
Warrant to Purchase Common Stock (including any Warrants to
Purchase Common Stock issued in exchange, transfer or replacement
hereof, the “Warrant”) of CorMedix Inc. (the “Company”) is issued this 31st day
of December, 2018 (the “Issuance Date”) to Manchester
Securities Corp. (the “Holder”) pursuant to that certain
Securities Purchase Agreement, dated the Issuance Date (the
“Purchase
Agreement”). The Company hereby certifies that, for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Holder or its permitted assigns
is entitled, subject to the terms set forth below, to purchase from
the Company, at the Exercise Price (as defined below) then in
effect, upon exercise of this Warrant, at any time or times on or
after the Issue Date (the “Initial Exercisability Date”), but
not after 11:59 p.m., New York time, on the Expiration Date (as
defined below), four hundred fifty thousand (450,000) shares of
Common Stock (subject to adjustment as provided herein) fully paid
and nonassessable shares of Common Stock (as defined
below) (the
“Warrant
Shares”).
Except
as otherwise defined herein or in the Purchase Agreement,
capitalized terms in this Warrant shall have the meanings set forth
in Section 14.
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(a) Mechanics of Exercise. Subject
to the terms and conditions hereof (including, without limitation,
the limitations set forth in Section 1(e)), this Warrant may
be exercised by the Holder on any day on or after the Initial
Exercisability Date, in whole or in part, by delivery (whether via
facsimile or otherwise) of a written notice, in the form attached
hereto as Exhibit A
(the “Exercise
Notice”), of the Holder’s election to exercise
this Warrant. Within one (1) Trading Day following an exercise of
this Warrant as aforesaid, the Holder shall deliver payment to the
Company of an amount equal to the Exercise Price in effect on the
date of such exercise multiplied by the number of Warrant Shares as
to which this Warrant was so exercised (the “Aggregate Exercise Price”) in cash
or via wire transfer of immediately available funds if the Holder
did not notify the Company in such Exercise Notice that such
exercise was made pursuant to a Cashless Exercise (as defined in
Section 1(c)). The Holder shall not be required to deliver the
original of this Warrant in order to effect an exercise hereunder.
Execution and delivery of an Exercise Notice with respect to less
than all of the Warrant Shares shall have the same effect as
cancellation of the original of this Warrant and issuance of a new
Warrant evidencing the right to purchase the remaining number of
Warrant Shares. Execution and delivery of an Exercise Notice for
all of the then-remaining Warrant Shares shall have the same effect
as cancellation of the original of this Warrant after delivery of
the Warrant Shares in accordance with the terms hereof. On or
before the first (1st) Trading Day
following the date on which the Company has received an Exercise
Notice, the Company shall transmit by facsimile an acknowledgment
of confirmation of receipt of such Exercise Notice, in the form
attached hereto as Exhibit B,
to the Holder and the Company’s transfer agent (the
“Transfer
Agent”). On or before the second (2nd) Trading Day
following the date on which the Company has received such Exercise
Notice, the Company shall (X) provided that the Transfer Agent is
participating in The Depository Trust Company (“DTC”) Fast Automated Securities
Transfer Program and provided the shares of Common Stock which the
Holder is entitled to are registered on an effective registration
statement or may be sold without any restriction under Rule 144,
upon the request of the Holder, credit such aggregate number of
shares of Common Stock to which the Holder is entitled pursuant to
such exercise to the Holder’s or its designee’s balance
account with DTC through its Deposit/Withdrawal at Custodian
system, or (Y) if the Transfer Agent is not participating in the
DTC Fast Automated Securities Transfer Program, issue and deliver
to the Holder or, at the Holder’s instruction pursuant to the
Exercise Notice, the Holder’s agent or designee, in each
case, sent by reputable overnight courier to the address as
specified in the applicable Exercise Notice, a certificate,
registered in the Company’s share register in the name of the
Holder or its designee (as indicated in the applicable Exercise
Notice), for the number of shares of Common Stock to which the
Holder is entitled pursuant to such exercise, which may contain a
restrictive legend if required to comply with applicable securities
laws. Upon delivery of an Exercise Notice, the Holder shall be
deemed for all corporate purposes to have become the holder of
record of the Warrant Shares with respect to which this Warrant has
been exercised, irrespective of the date such Warrant Shares are
credited to the Holder’s DTC account or the date of delivery
of the certificates evidencing such Warrant Shares (as the case may
be). If this Warrant is submitted in connection with any exercise
pursuant to this Section 1(a) and the number of Warrant Shares
represented by this Warrant submitted for exercise is greater than
the number of Warrant Shares being acquired upon an exercise, then,
at the request of the Holder, the Company shall as soon as
practicable and in no event later than three (3) Business Days
after any exercise and at its own expense, issue and deliver to the
Holder (or its designee) a new Warrant (in accordance with
Section 6(d) representing the right to purchase the number of
Warrant Shares purchasable immediately prior to such exercise under
this Warrant, less the number of Warrant Shares with respect to
which this Warrant is exercised. No fractional shares of Common
Stock are to be issued upon the exercise of this Warrant, but
rather the number of shares of Common Stock to be issued shall be
rounded up to the nearest whole number. The Company shall pay any
and all taxes and fees which may be payable with respect to the
issuance and delivery of Warrant Shares upon exercise of this
Warrant.
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(b) Exercise Price. For purposes of
this Warrant, “Exercise
Price” means $1.50 per share, subject to adjustment as
provided herein.
(c) Cashless Exercise. The Holder
may, in its sole discretion, exercise this Warrant in whole or in
part and, in lieu of making the cash payment otherwise contemplated
to be made to the Company upon such exercise in payment of the
Aggregate Exercise Price, elect instead to receive upon such
exercise the “Net Number” of shares of Common Stock
determined according to the following formula (a
“Cashless
Exercise”):
Net
Number = (A x B) - (A x
C)
B
For
purposes of the foregoing formula:
A
=
the total number of
shares with respect to which this Warrant is then being
exercised.
B
=
as applicable: (i)
the Closing Sale Price of the Common Stock on the Trading Day
immediately preceding the date of the applicable Exercise Notice if
such Exercise Notice is (1) both executed and delivered pursuant to
Section 1(a) hereof on a day that is not a Trading Day or (2) both
executed and delivered pursuant to Section 1(a) hereof on a Trading
Day prior to the opening of “regular trading hours” (as
defined in Rule 600(b)(64) of Regulation NMS promulgated under the
federal securities laws) on such Trading Day, (ii) the Closing Bid
Price of the Common Stock as of the time of the Holder’s
execution of the applicable Exercise Notice if such Exercise Notice
is executed during “regular trading hours” on a Trading
Day and is delivered within two (2) hours thereafter pursuant to
Section 1(a) hereof or (iii) the Closing Sale Price of the Common
Stock on the date of the applicable Exercise Notice if the date of
such Exercise Notice is a Trading Day and such Exercise Notice is
both executed and delivered pursuant to Section 1(a) hereof after
the close of “regular trading hours” on such Trading
Day.
C
=
the Exercise Price
then in effect for the applicable Warrant Shares at the time of
such exercise.
(d) Disputes. In the case of a
dispute as to the determination of the Exercise Price or the
arithmetic calculation of the number of Warrant Shares to be issued
pursuant to the terms hereof, the Company shall promptly issue to
the Holder the number of Warrant Shares that are not disputed and
resolve such dispute in good faith.
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(i) Reserved.
(ii) Principal
Market Regulation. The Company shall not issue any shares of
Common Stock upon the exercise of this Warrant if the issuance of
such shares of Common Stock would exceed the aggregate number of
shares of Common Stock which the Company may issue upon exercise or
conversion (as the case may be) of this Warrant without breaching
the Company’s obligations under the rules or regulations of
the Principal Market (the number of shares which may be issued
without violating such rules and regulations, the
“Exchange Cap”),
except that such limitation shall not apply in the event that the
Company (A) obtains the approval of its stockholders as required by
the applicable rules of the Principal Market for issuances of
shares of Common Stock in excess of such amount or (B) obtains a
written opinion from outside counsel to the Company that such
approval is not required, which opinion shall be reasonably
satisfactory to the Holder or (C) obtain a waiver from the
Principal Market of the applicable rules of such Principal Market
for the issuance of shares of Common Stock in excess of such
amount. Until such approval or such written opinion is obtained,
the Holder shall not be issued in the aggregate, upon conversion or
exercise (as the case may be) of any of this Warrant, shares of
Common Stock in an amount greater than the Exchange Cap. In the
event that the Holder shall sell or otherwise transfer this
Warrant, the restrictions of the prior sentence shall apply to such
transferee.
2. ADJUSTMENT OF EXERCISE PRICE OF
WARRANT SHARES. The Exercise Price of this Warrant, but
not the number of Warrant Shares issuable hereunder, is subject to
adjustment from time to time as set forth in this
Section 2.
(a) Stock Dividends and Splits. If
the Company, at any time on or after the date of the Purchase
Agreement, (i) pays a stock dividend on one or more classes of its
then outstanding shares of Common Stock or otherwise makes a
distribution on any class of capital stock that is payable in
shares of Common Stock, (ii) subdivides (by any stock split, stock
dividend, recapitalization or otherwise) one or more classes of its
then outstanding shares of Common Stock into a larger number of
shares or (iii) combines (by combination, reverse stock split or
otherwise) one or more classes of its then outstanding shares of
Common Stock into a smaller number of shares, then in each such
case the Exercise Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock
outstanding immediately before such event and of which the
denominator shall be the number of shares of Common Stock
outstanding immediately after such event. Any adjustment made
pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution, and
any adjustment pursuant to clause (ii) or (iii) of this paragraph
shall become effective immediately after the effective date of such
subdivision or combination. If any event requiring an adjustment
under this paragraph occurs during the period that an Exercise
Price is calculated hereunder, then the calculation of such
Exercise Price shall be adjusted appropriately to reflect such
event.
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(b) Number of Warrant Shares.
Regardless of any adjustment to the Exercise Price pursuant to
paragraph (a) of this Section 2, the number of Warrant Shares
that may be purchased upon exercise of this Warrant shall not be
increased or decreased.
(c) Calculations. All calculations
under this Section 2 shall be made by rounding to the nearest
cent or the nearest 1/100th of a share, as
applicable. The number of shares of Common Stock outstanding at any
given time shall not include shares owned or held by or for the
account of the Company, and the disposition of any such shares
shall be considered an issue or sale of Common Stock.
3. NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not,
by amendment of its Certificate of Incorporation (as defined in the
Purchase Agreement), Bylaws (as defined in the Purchase Agreement)
or through any reorganization, transfer of assets, consolidation,
merger, scheme of arrangement, 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,
and will at all times in good faith carry out all the provisions of
this Warrant and take all action as may be required to protect the
rights of the Holder. Without limiting the generality of the
foregoing, the Company (i) shall not increase the par value of
any shares of Common Stock receivable upon the exercise of this
Warrant above the Exercise Price then in effect, (ii) shall
take all such actions as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock upon the exercise of this
Warrant, and (iii) shall, so long as this Warrant is outstanding,
take all action necessary to reserve and keep available out of its
authorized and unissued shares of Common Stock, solely for the
purpose of effecting the exercise of this Warrant, the maximum
number of shares of Common Stock as shall from time to time be
necessary to effect the exercise of this Warrant to the extent
outstanding (without regard to any limitations on
exercise).
(a) Fundamental Transactions. (1)
The Company shall not enter into or be party to a Fundamental
Transaction unless (i) the Successor Entity (if different than the
Company) assumes in writing all of the obligations of the Company
under this Warrant in accordance with the provisions of this
Section 4(a) including agreements to deliver to the Holder in
exchange for this Warrant a security of the Successor Entity
evidenced by a written instrument substantially similar in form and
substance to this Warrant, including, without limitation, which is
exercisable for a corresponding number of shares of capital stock
equivalent to the shares of Common Stock acquirable and receivable
upon exercise of this Warrant (without regard to any limitations on
the exercise of this Warrant) prior to such Fundamental
Transaction, and with an exercise price which applies the exercise
price hereunder to such shares of capital stock (but taking into
account the relative value of the shares of Common Stock pursuant
to such Fundamental Transaction and the value of such shares of
capital stock, such adjustments to the number of shares of capital
stock and such exercise price being for the purpose of protecting
the economic value of this Warrant immediately prior to the
consummation of such Fundamental Transaction) and (ii) the
Successor Entity (including its Parent Entity) is a publicly traded
corporation whose common stock is quoted on or listed for trading
on an Eligible Market. Upon the consummation of each Fundamental
Transaction, the Successor Entity shall succeed to, and be
substituted for (so that from and after the date of the applicable
Fundamental Transaction, the provisions of this Warrant and the
other Transaction Documents referring to the “Company”
shall refer instead to the Successor Entity), and may exercise
every right and power of the Company and shall assume all of the
obligations of the Company under this Warrant and the other
Transaction Documents with the same effect as if such Successor
Entity had been named as the Company herein. Upon consummation of
each Fundamental Transaction, the Successor Entity (if different
from the Company) shall deliver to the Holder confirmation that
there shall be issued upon exercise of this Warrant at any time
after the consummation of the applicable Fundamental Transaction,
in lieu of the shares of Common Stock (or other securities, cash,
assets or other property) issuable upon the exercise of this
Warrant prior to the applicable Fundamental Transaction, such
shares of common stock (or its equivalent) of the Successor Entity
(including its Parent Entity) which the Holder would have been
entitled to receive upon the happening of the applicable
Fundamental Transaction had this Warrant been exercised immediately
prior to the applicable Fundamental Transaction (without regard to
any limitations on the exercise of this Warrant), as adjusted in
accordance with the provisions of this Warrant. In addition to and
not in substitution for any other rights hereunder, prior to the
consummation of each Fundamental Transaction pursuant to which
holders of shares of Common Stock are entitled to receive
securities or other assets with respect to or in exchange for
shares of Common Stock (a “Corporate Event”), the Company
shall make appropriate provision to insure that the Holder will
thereafter have the right to receive upon an exercise of this
Warrant at any time after the consummation of the applicable
Fundamental Transaction but prior to the Expiration Date, in lieu
of the shares of the Common Stock (or other securities, cash,
assets or other property) issuable upon the exercise of the Warrant
prior to such Fundamental Transaction, such shares of stock,
securities, cash, assets or any other property whatsoever
(including warrants or other purchase or subscription rights) which
the Holder would have been entitled to receive upon the happening
of the applicable Fundamental Transaction had this Warrant been
exercised immediately prior to the applicable Fundamental
Transaction (without regard to any limitations on the exercise of
this Warrant). Provision made pursuant to the preceding sentence
shall be in a form and substance reasonably satisfactory to the
Holder.
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(2)
Notwithstanding the provisions of Section 4(a)(1), (A) the Company
shall have the right to require that Holder waive the requirements
of Section 4(a)(1) (the “Waiver”) in a Fundamental
Transaction in which the definitive documentation relating to such
Fundamental Transaction provides that to the extent this Warrant is
“in the money” (by reference to the purchase price per
share of Common Stock in such Fundamental Transaction (such price
the, “Fundamental Transaction
Per Share Price”)), the Buyer shall receive proceeds
equal to the product of (a) the number of shares of Common Stock
into which this Warrant is exercisable and (b) the difference
between the Fundamental Transaction Per Share Price and the
Exercise Price (the “Fundamental Transaction Amount”)
and (B) the Holder shall have the right to receive the Fundamental
Transaction Amount or, if the consideration paid to holders of
Common Stock in respect of such Fundamental Transaction includes
non-cash consideration, such securities or other assets (including
cash) received by the holders of shares of Common Stock in
connection with the consummation of such Fundamental Transaction in
such amounts as the Holder would have been entitled to receive had
this Note been converted into Common Stock as of immediately prior
to the earlier of the record date for determining entitlement to
such consideration or as of immediately prior to the consummation
of such Fundamental Transaction, in lieu of the assumption
contemplated by Section 4(a)(1). Notwithstanding anything to the
contrary in this Section 4(a), until such time that the Holder
receives the Fundamental Transaction Amount (at which point this
Warrant shall be cancelled), this Warrant may be exercised, in
whole or in part, by the Holder (x) prior to consummation of the
applicable Fundamental Transaction, into Common Stock pursuant to
Section 1, or (y) upon (which may be expressly conditioned upon the
consummation of the applicable Fundamental Transaction) or after
the consummation of the applicable Fundamental Transaction, into
any such shares of stock, securities, cash, assets or any other
property whatsoever (including warrants or other purchase or
subscription rights, if applicable) which the Holder would have
been entitled to receive upon the happening of such Fundamental
Transaction had the Warrant been exercised immediately prior to the
consummation of such Fundamental Transaction. The Holder and
the Company acknowledge and agree that the provisions of Section
4(a)(1) shall be of no further force or effect to the extent that
the Buyer exercises its cashless exercise rights pursuant to
Section 1(c) hereof prior to the consummation of a Fundamental
Transaction.
(b) Application. The provisions of
this Section 4 shall apply similarly and equally to successive
Fundamental Transactions and Corporate Events and shall be applied
as if this Warrant (and any such subsequent warrants) were fully
exercisable and without regard to any limitations on the exercise
of this Warrant.
5. WARRANT
HOLDER NOT DEEMED A STOCKHOLDER. Except as
otherwise specifically provided herein, the Holder, solely in its
capacity as a holder of this Warrant, shall not be entitled to vote
or receive dividends or be deemed the holder of share capital of
the Company for any purpose, nor shall anything contained in this
Warrant be construed to confer upon the Holder, solely in its
capacity as the Holder of this Warrant, any of the rights of a
stockholder of the Company or any right to vote, give or withhold
consent to any corporate action (whether any reorganization, issue
of stock, reclassification of stock, consolidation, merger,
conveyance or otherwise), receive notice of meetings, receive
dividends or subscription rights, or otherwise, prior to the
issuance to the Holder of the Warrant Shares which it is then
entitled to receive upon the due exercise of this Warrant. In
addition, nothing contained in this Warrant shall be construed as
imposing any liabilities on the Holder to purchase any securities
(upon exercise of this Warrant or otherwise) or as a stockholder of
the Company, whether such liabilities are asserted by the Company
or by creditors of the Company. Notwithstanding this
Section 5, the Company shall provide the Holder with copies of
the same notices and other information given to the stockholders of
the Company generally, contemporaneously with the giving thereof to
the stockholders.
6
6. REISSUANCE OF
WARRANTS.
(a) Transfer of Warrant. If this
Warrant is to be transferred, the Holder shall surrender this
Warrant to the Company, whereupon the Company will forthwith issue
and deliver upon the order of the Holder a new Warrant (in
accordance with Section 6(d)), registered as the Holder may
request, representing the right to purchase the number of Warrant
Shares being transferred by the Holder and, if less than the total
number of Warrant Shares then underlying this Warrant is being
transferred, a new Warrant (in accordance with Section 6(d))
to the Holder representing the right to purchase the number of
Warrant Shares not being transferred.
(b) Lost, Stolen or Mutilated
Warrant. Upon receipt by the Company of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant (as to which a written certification and
the indemnification contemplated below shall suffice as such
evidence), and, in the case of loss, theft or destruction, of any
indemnification undertaking by the Holder to the Company in
customary and reasonable form and, in the case of mutilation, upon
surrender and cancellation of this Warrant, the Company shall
execute and deliver to the Holder a new Warrant (in accordance with
Section 6(d)) representing the right to purchase the Warrant
Shares then underlying this Warrant.
(c) Exchangeable for Multiple
Warrants. This Warrant is exchangeable, upon the surrender
hereof by the Holder at the principal office of the Company, for a
new Warrant or Warrants (in accordance with Section 6(d))
representing in the aggregate the right to purchase the number of
Warrant Shares then underlying this Warrant, and each such new
Warrant will represent the right to purchase such portion of such
Warrant Shares as is designated by the Holder at the time of such
surrender; provided, however, no warrants for fractional shares of
Common Stock shall be given.
(d) Issuance of New Warrants.
Whenever the Company is required to issue a new Warrant pursuant to
the terms of this Warrant, such new Warrant (i) shall be of like
tenor with this Warrant, (ii) shall represent, as indicated on the
face of such new Warrant, the right to purchase the Warrant Shares
then underlying this Warrant (or in the case of a new Warrant being
issued pursuant to Section 6(a) or Section 6(c), the Warrant
Shares designated by the Holder which, when added to the number of
shares of Common Stock underlying the other new Warrants issued in
connection with such issuance, does not exceed the number of
Warrant Shares then underlying this Warrant), (iii) shall have an
issuance date, as indicated on the face of such new Warrant which
is the same as the Issuance Date, and (iv) shall have the same
rights and conditions as this Warrant.
7. NOTICES.
Whenever notice is required to be given under this Warrant, unless
otherwise provided herein, such notice shall be given in accordance
with Section 7(f) of the Purchase Agreement. The Company shall
provide the Holder with prompt written notice of all actions taken
pursuant to this Warrant, including in reasonable detail a
description of such action and the reason therefor. Without
limiting the generality of the foregoing, the Company will give
written notice to the Holder (i) immediately upon each adjustment
of the Exercise Price and the number of Warrant Shares, setting
forth in reasonable detail, and certifying, the calculation of such
adjustment(s). To the extent that any notice provided hereunder
constitutes, or contains, material, non-public information
regarding the Company or any of its Subsidiaries, the Company shall
simultaneously file such notice with the SEC (as defined in the
Purchase Agreement) pursuant to a Current Report on Form 8-K. It is
expressly understood and agreed that the time of execution
specified by the Holder in each Exercise Notice shall be definitive
and may not be disputed or challenged by the Company.
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8. AMENDMENT
AND WAIVER. Except as
otherwise provided herein, the provisions of this Warrant may be
amended and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only
if the Company has obtained the written consent of the Holder. The
Holder shall be entitled, at its option, to the benefit of any
amendment of (i) any other similar warrant issued under the
Purchase Agreement or (ii) any other similar warrant. No waiver
shall be effective unless it is in writing and signed by an
authorized representative of the waiving party.
9. SEVERABILITY.
If any provision of this Warrant is prohibited by law or otherwise
determined to be invalid or unenforceable by a court of competent
jurisdiction, the provision that would otherwise be prohibited,
invalid or unenforceable shall be deemed amended to apply to the
broadest extent that it would be valid and enforceable, and the
invalidity or unenforceability of such provision shall not affect
the validity of the remaining provisions of this Warrant so long as
this Warrant as so modified continues to express, without material
change, the original intentions of the parties as to the subject
matter hereof and the prohibited nature, invalidity or
unenforceability of the provision(s) in question does not
substantially impair the respective expectations or reciprocal
obligations of the parties or the practical realization of the
benefits that would otherwise be conferred upon the parties. The
parties will endeavor in good faith negotiations to replace the
prohibited, invalid or unenforceable provision(s) with a valid
provision(s), the effect of which comes as close as possible to
that of the prohibited, invalid or unenforceable
provision(s).
10. GOVERNING
LAW. This Warrant
shall be governed by and construed and enforced in accordance with,
and all questions concerning the construction, validity,
interpretation and performance of this Warrant shall be governed
by, the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other
than the State of New York. The Company hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts
sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or
with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Nothing contained
herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. Nothing contained herein
shall be deemed or operate to preclude the Holder from bringing
suit or taking other legal action against the Company in any other
jurisdiction to collect on the Company’s obligations to the
Holder or to enforce a judgment or other court ruling in favor of
the Holder. THE COMPANY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
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11. CONSTRUCTION;
HEADINGS. This Warrant
shall be deemed to be jointly drafted by the Company and the Holder
and shall not be construed against any Person as the drafter
hereof. The headings of this Warrant are for convenience of
reference and shall not form part of, or affect the interpretation
of, this Warrant. Terms used in this Warrant but defined in the
other Transaction Documents shall have the meanings ascribed to
such terms on the Closing Date in such other Transaction Documents
unless otherwise consented to in writing by the
Holder.
12. REMEDIES,
CHARACTERIZATION, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE
RELIEF. The remedies
provided in this Warrant shall be cumulative and in addition to all
other remedies available under this Warrant and the other
Transaction Documents, at law or in equity (including a decree of
specific performance and/or other injunctive relief), and nothing
herein shall limit the right of the Holder to pursue actual damages
for any failure by the Company to comply with the terms of this
Warrant. The Company covenants to the Holder that there shall be no
characterization concerning this instrument other than as expressly
provided herein. Amounts set forth or provided for herein with
respect to payments, exercises and the like (and the computation
thereof) shall be the amounts to be received by the Holder and
shall not, except as expressly provided herein, be subject to any
other obligation of the Company (or the performance thereof). The
Company acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to the Holder and that the
remedy at law for any such breach may be inadequate. The Company
therefore agrees that, in the event of any such breach or
threatened breach, the holder of this Warrant shall be entitled, in
addition to all other available remedies, to an injunction
restraining any breach, without the necessity of showing economic
loss and without any bond or other security being required. The
Company shall provide all information and documentation to the
Holder that is requested by the Holder to enable the Holder to
confirm the Company’s compliance with the terms and
conditions of this Warrant (including, without limitation,
compliance with Section 2 hereof). The issuance of shares and
certificates for shares as contemplated hereby upon the exercise of
this Warrant shall be made without charge to the Holder or such
shares for any issuance tax or other costs in respect thereof,
provided that the Company shall not be required to pay any tax
which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in a name other than the
Holder or its agent on its behalf.
13. TRANSFER.
This Warrant may be offered for sale, sold, transferred or assigned
without the consent of the Company.
(a) “Bloomberg” means Bloomberg,
L.P.
(b) “Business Day” means any day other
than Saturday, Sunday or other day on which commercial banks in The
City of New York are authorized or required by law to remain
closed.
9
(c) “Closing Bid Price” and
“Closing Sale
Price” means, for any security as of any date, the
last closing bid price and last closing trade price, respectively,
for such security on the Principal Market, as reported by
Bloomberg, or, if the Principal Market begins to operate on an
extended hours basis and does not designate the closing bid price
or the closing trade price (as the case may be) then the last bid
price or last trade price, respectively, of such security prior to
4:00 p.m., New York City time, as reported by Bloomberg, or, if the
Principal Market is not the principal securities exchange or
trading market for such security, the last closing bid price or
last trade price, respectively, of such security on the principal
securities exchange or trading market where such security is listed
or traded as reported by Bloomberg, or if the foregoing do not
apply, the last closing bid price or last trade price,
respectively, of such security in the over-the-counter market on
the electronic bulletin board for such security as reported by
Bloomberg, or, if no closing bid price or last trade price,
respectively, is reported for such security by Bloomberg, the
average of the bid prices, or the ask prices, respectively, of any
market makers for such security as reported in the “pink
sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC).
If the Closing Bid Price or the Closing Sale Price cannot be
calculated for a security on a particular date on any of the
foregoing bases, the Closing Bid Price or the Closing Sale Price
(as the case may be) of such security on such date shall be the
fair market value as mutually determined by the Company and the
Holder. All such determinations shall be appropriately adjusted for
any stock dividend, stock split, stock combination or other similar
transaction during such period.
(d) “Common Stock” means (i) the
Company’s shares of common stock, $0.001 par value per share,
and (ii) any capital stock into which such common stock shall have
been changed or any share capital resulting from a reclassification
of such common stock.
(e) “Eligible Market” means The New
York Stock Exchange, the NYSE American, the Nasdaq Global Select
Market, the Nasdaq Global Market or the Principal
Market.
(f) “Expiration Date” means December
31, 2023.
(g) “Fundamental Transaction” means
that (i) the Company or any of its Subsidiaries shall, directly or
indirectly, in one or more related transactions, (1) consolidate or
merge with or into (whether or not the Company or any of its
Subsidiaries is the surviving corporation) any other Person, or (2)
sell, lease, license, assign, transfer, convey or otherwise dispose
of all or substantially all of its respective properties or assets
to any other Person, or (3) support any other Person in making a
purchase, tender or exchange offer that is accepted by the holders
of more than 50% of the outstanding shares of Voting Stock of the
Company (not including any shares of Voting Stock of the Company
held by the Person or Persons making or party to, or associated or
affiliated with the Persons making or party to, such purchase,
tender or exchange offer), or (4) consummate a stock or share
purchase agreement or other business combination (including,
without limitation, a reorganization, recapitalization, spin-off or
scheme of arrangement) with any other Person whereby such other
Person acquires more than 50% of the outstanding shares of Voting
Stock of the Company (not including any shares of Voting Stock of
the Company held by the other Person or other Persons making or
party to, or associated or affiliated with the other Persons making
or party to, such stock or share purchase agreement or other
business combination).
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(h) “Parent Entity” of a Person means
an entity that, directly or indirectly, controls the applicable
Person and whose common stock or equivalent equity security is
quoted or listed on an Eligible Market, or, if there is more than
one such Person or Parent Entity, the Person or Parent Entity with
the largest public market capitalization as of the date of
consummation of the Fundamental Transaction.
(i) “Person” means an individual, a
limited liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization, any other
entity or a government or any department or agency
thereof.
(j) “Principal Market” means the NYSE
American.
(k) “Subsidiary” means any Person in
which the Company, directly or indirectly, (i) owns any of the
outstanding capital stock or holds any equity or similar interest
of such Person or (ii) controls or operates all or any part of the
business, operations or administration of such Person, and all of
the foregoing.
(l) “Successor Entity” means the Person
(or, if so elected by the Holder, the Parent Entity) formed by,
resulting from or surviving any Fundamental Transaction or the
Person (or, if so elected by the Holder, the Parent Entity) with
which such Fundamental Transaction shall have been entered
into.
(m) “Trading Day” means any day on
which the Common Stock is traded on the Principal Market, or, if
the Principal Market is not the principal trading market for the
Common Stock, then on the principal securities exchange or
securities market on which the Common Stock is then traded,
provided that “Trading Day” shall not include any day
on which the Common Stock is scheduled to trade on such exchange or
market for less than 4.5 hours or any day that the Common Stock is
suspended from trading during the final hour of trading on such
exchange or market (or if such exchange or market does not
designate in advance the closing time of trading on such exchange
or market, then during the hour ending at 4:00:00 p.m., New York
time) unless such day is otherwise designated as a Trading Day in
writing by the Holder.
(n) “Voting Stock” of a Person means
capital stock of such Person of the class or classes pursuant to
which the holders thereof have the general voting power to elect,
or the general power to appoint, at least a majority of the board
of directors, managers or trustees of such Person (irrespective of
whether or not at the time capital stock of any other class or
classes shall have or might have voting power by reason of the
happening of any contingency).
[signature
page follows]
11
IN WITNESS WHEREOF, the Company has
caused this Warrant to Purchase Common Stock to be duly executed as
of the Issuance Date set out above.
By:
Name:
Xxxxx Xxxxxx
Title:Chief
Executive Officer
[Signature Page to
Warrant]
12
EXHIBIT A
EXERCISE NOTICE
TO BE
EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
WARRANT
TO PURCHASE COMMON STOCK
The
undersigned holder hereby exercises the right to purchase
_________________ of the shares of Common Stock
(“Warrant
Shares”) of CorMedix Inc., a Delaware corporation (the
“Company”),
evidenced by Warrant to Purchase Common Stock No. _______ (the
“Warrant”).
Capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Warrant.
1. Form
of Exercise Price. The Holder intends that payment of the
Exercise Price shall be made as:
____________
a
“Cash
Exercise” with respect to _________________ Warrant
Shares; and/or
____________
a
“Cashless
Exercise” with respect to _______________ Warrant
Shares.
In the
event that the Holder has elected a Cashless Exercise with respect
to some or all of the Warrant Shares to be issued pursuant hereto,
the Holder hereby represents and warrants that (i) this Exercise
Notice was executed by the Holder at __________ [a.m.][p.m.] on the
date set forth below and (ii) if applicable, the Closing Bid Price
as of such time of execution of this Exercise Notice was
$________.
2. Payment
of Exercise Price. In the event that the Holder has elected
a Cash Exercise with respect to some or all of the Warrant Shares
to be issued pursuant hereto, the Holder shall pay the Aggregate
Exercise Price in the sum of $___________________ to the Company in
accordance with the terms of the Warrant.
3. Delivery
of Warrant Shares. The Company shall deliver to Holder, or
its designee or agent as specified below, __________ Warrant Shares
in accordance with the terms of the Warrant. Delivery shall be made
to Holder, or for its benefit, to the following address or DTC
Account number:
Date:
,
Name of
Registered Holder
By:
13
EXHIBIT B
ACKNOWLEDGMENT
The
Company hereby acknowledges this Exercise Notice and hereby directs
______________ to issue the above indicated number of shares of Common Stock
in accordance with the Transfer Agent Instructions dated _________,
20__, from the Company and acknowledged and agreed to by
_______________.
By:
Name:
Title:
14
