Contract
Exhibit 4.1
THE
REGISTERED HOLDER OF THIS PURCHASE WARRANT BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS
PURCHASE WARRANT EXCEPT AS HEREIN PROVIDED AND THE REGISTERED
HOLDER OF THIS PURCHASE WARRANT AGREES THAT IT WILL NOT SELL,
TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE WARRANT FOR A
PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING NOVEMBER 27, 2020 (THE
“EFFECTIVE
DATE”) TO ANYONE OTHER THAN (I) AEGIS CAPITAL CORP. OR
A SELECTED DEALER IN CONNECTION WITH THE OFFERING FOR WHICH THIS
PURCHASE WARRANT WAS ISSUED TO THE UNDERWRITER AS CONSIDERATION
(THE “OFFERING”), OR (II) A BONA FIDE OFFICER OR
PARTNER OF AEGIS CAPITAL CORP.
THIS
PURCHASE WARRANT IS NOT EXERCISABLE PRIOR TO MAY 26, 2021. VOID
AFTER 5:00 P.M., EASTERN TIME, NOVEMBER 27, 2023.
COMMON STOCK PURCHASE WARRANT
For the Purchase of 108,000 Shares of Common Stock
of
1.
Purchase Warrant.
THIS CERTIFIES THAT, in consideration of funds duly paid by or on
behalf of [●] (“Holder”), as registered owner of
this Purchase Warrant, to HF Enterprises Inc., a Delaware
corporation (the “Company”), Holder is entitled, at
any time or from time to time beginning November 27, 2020 (the
“Commencement
Date”), and at or before 5:00 p.m., Eastern time,
November 27, 2023 (the “Expiration Date”),
but not thereafter, to subscribe for, purchase and receive, in
whole or in part, up to [●] shares of common stock of the
Company, par value $0.001 per share (the “Shares”), subject to adjustment as
provided in Section 6 hereof. If the Expiration Date is a day on
which banking institutions are authorized by law to close, then
this Purchase Warrant may be exercised on the next succeeding day
which is not such a day in accordance with the terms herein. During
the period ending on the Expiration Date, the Company agrees not to
take any action that would terminate this Purchase Warrant. This
Purchase Warrant is initially exercisable at $9.80 per Share; provided, however, that upon the
occurrence of any of the events specified in Section 6 hereof, the
rights granted by this Purchase Warrant, including the exercise
price per Share and the number of Shares to be received upon such
exercise, shall be adjusted as therein specified. The term
“Exercise Price”
shall mean the initial exercise price or the adjusted exercise
price, depending on the context.
2.
Exercise.
2.1 Exercise
Form. In order to exercise this Purchase Warrant, the
exercise form attached hereto must be duly executed and completed
and delivered to the Company, together with this Purchase Warrant
and payment of the Exercise Price for the Shares being purchased
payable in cash by wire transfer of immediately available funds to
an account designated by the Company or by certified check or
official bank check. If the subscription rights represented hereby
shall not be exercised at or before 5:00 p.m., Eastern time, on the
Expiration Date, this Purchase Warrant shall become and be void
without further force or effect, and all rights represented hereby
shall cease and expire. Each exercise hereof shall be
irrevocable.
2.2 Cashless
Exercise. In lieu of
exercising this Purchase Warrant by payment of cash or check
payable to the order of the Company pursuant to Section 2.1 above,
Holder may elect to receive the number of Shares equal to the value
of this Purchase Warrant (or the portion thereof being exercised),
by surrender of this Purchase Warrant to the Company, together with
the exercise form attached hereto, in which event the Company
will
issue to Holder Shares in accordance with the
following formula:
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X
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=
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Y(A-B)
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A
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Where,
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X
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=
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The number of Shares to be issued to Holder;
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Y
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=
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The number of Shares for which the Purchase Warrant is being
exercised;
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A
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=
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The fair market value of one Share; and
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B
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=
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The Exercise Price.
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For
purposes of this Section 2.2, the fair market value of a Share is
defined as follows:
(i)
if
the Company’s common stock is traded on a national securities
exchange, the OTCQB or OTCQX, the value shall be deemed to be the
closing price on such exchange, the OTCQB or OTCQX, as the case may
be, on the Business Day immediately preceding the date that the
exercise form is delivered pursuant to Section 8.4 in connection
with the exercise of the Purchase Warrant; or
(ii)
if the Company’s common stock is not then
traded on a securities exchange, the OTCQB or OTCQX and if prices
for the Company’s common stock are then reported on the
“Pink Sheets” published by OTC Markets Group, Inc., the
value shall be deemed to be the closing bid prior to the exercise
form being submitted in connection with the exercise of the
Purchase Warrant so reported; provided, however, if there is no
active public market, the value shall be the fair market value
thereof, as determined in good faith by the Company’s Board
of Directors.
2.3 Legend.
Each certificate for the securities purchased under this Purchase
Warrant shall bear a legend as follows unless such securities have
been registered under the Securities Act of 1933, as amended (the
“Act”):
“The
securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the
“Act”), or
applicable state law. Neither the securities nor any interest
therein may be offered for sale, sold or otherwise transferred
except pursuant to an effective registration statement under the
Act, or pursuant to an exemption from registration under the Act
and applicable state law which, in the opinion of counsel to the
Company, is available.”
2.4 Resale
of Shares. Holder and the Company acknowledge that as of the
date hereof the Staff of the Division of Corporation Finance of the
SEC has published Compliance & Disclosure Interpretation 528.04
in the Securities Act Rules section thereof, stating that the
holder of securities issued in connection with a public offering
may not rely upon Rule 144 promulgated under the Act to establish
an exemption from registration requirements under Section 4(a)(1)
under the Act, but may nonetheless apply Rule 144 constructively
for the resale of such shares in the following manner: (a) provided
that six months has elapsed since the last sale under the
registration statement, an underwriter or finder may resell the
securities in accordance with the provisions of Rule 144(c), (e),
and (f), except for the notice requirement; (b) a purchaser of the
shares from an underwriter receives restricted securities unless
the sale is made with an appropriate, current prospectus, or unless
the sale is made pursuant to the conditions contained in (a) above;
(c) a purchaser of the shares from an underwriter who receives
restricted securities may include the underwriter’s holding
period, provided that the underwriter or finder is not an affiliate
of the issuer; and (d) if an underwriter transfers the shares to
its employees, the employees may tack the firm’s holding
period for purposes of Rule 144(d), but they must aggregate sales
of the distributed shares with those of other employees, as well as
those of the underwriter or finder, for a six-month period from the
date of the transfer to the employees. Holder and the Company also
acknowledge that the Staff of the Division of Corporation Finance
of the SEC has advised in various no-action letters that the
holding period associated with securities issued without
registration to a service provider commences upon the completion of
the services, which the Company agrees and acknowledges shall be
the final closing of the Offering, and that Rule 144(d)(3)(ii)
provides that securities acquired from the issuer solely in
exchange for other securities of the same issuer shall be deemed to
have been acquired at the same time as the securities surrendered
for conversion (which the Company agrees is the date of the initial
issuance of this Purchase Warrant). In the event that following a
reasonably-timed written request by Xxxxxx to transfer the Shares
in accordance with Compliance & Disclosure Interpretation
528.04 counsel for the Company in good faith concludes that
Compliance & Disclosure Interpretation 528.04 no longer may be
relied upon as a result of changes in applicable laws, regulations,
or interpretations of the SEC Division of Corporation Finance, or
as a result of judicial interpretations not known by the Company or
its counsel on the date hereof (either, a “Registration
Trigger Event”), then the Company shall promptly, and in any
event within five (5) business days following the request, provide
written notice to Holder of such determination. As a condition to
giving such notice, the parties shall negotiate in good faith a
single demand registration right pursuant to an agreement in
customary form reasonably acceptable to the parties; provided that
notwithstanding anything to the contrary, the obligations of the
Company pursuant to this Section 2 shall terminate on the fifth
anniversary of the Effective Date. In the absence of such
conclusion by counsel for the Company, the Company shall, upon such
a request of Holder given no earlier than six months after the
final closing of the Offering, instruct its transfer agent to
permit the transfer of such shares in accordance with Compliance
& Disclosure Interpretation 528.04, provided that Holder has
provided such documentation as shall be reasonably be requested by
the Company to establish compliance with the conditions of
Compliance & Disclosure Interpretation 528.04. Notwithstanding
anything to the contrary, pursuant to FINRA Rule 5110(f)(2)(G)(iv),
the Holder shall not be entitled to more than one demand
registration right hereunder and the duration of the registration
rights hereunder shall not exceed four years from the Effective
Date.
3.
Transfer.
3.1 General
Restrictions. The registered Holder of this Purchase Warrant
agrees by his, her or its acceptance hereof, that such Holder will
not: (a) sell, transfer, assign, pledge or hypothecate this
Purchase Warrant for a period of one hundred eighty (180) days
following the Effective Date to anyone other than: (i) Aegis
Captital Corp (“Aegis”) or an underwriter,
placement agent, or a selected dealer participating in the
Offering, or (ii) a bona fide officer or partner of Aegis or of any
such underwriter, placement agent or selected dealer, in each case
in accordance with FINRA Conduct Rule 5110(g)(1), or (b) cause this
Purchase Warrant or the securities issuable hereunder to be the
subject of any hedging, short sale, derivative, put or call
transaction that would result in the effective economic disposition
of this Purchase Warrant or the securities hereunder, except as
provided for in FINRA Rule 5110(g)(2). After 180 days after the
Effective Date, transfers to others may be made subject to
compliance with or exemptions from applicable securities laws. In
order to make any permitted assignment, the Holder must deliver to
the Company the assignment form attached hereto duly executed and
completed, together with the Purchase Warrant and payment of all
transfer taxes, if any, payable in connection therewith. The
Company shall within five (5) Business Days transfer this Purchase
Warrant on the books of the Company and shall execute and deliver a
new Purchase Warrant or Purchase Warrants of like tenor to the
appropriate assignee(s) expressly evidencing the right to purchase
the aggregate number of Shares purchasable hereunder or such
portion of such number as shall be contemplated by any such
assignment.
3.2 Restrictions
Imposed by the Act. The securities evidenced by this
Purchase Warrant shall not be transferred unless and until: (i) if
required by applicable law, the Company has received the opinion of
counsel for the Company that the securities may be transferred
pursuant to an exemption from registration under the Act and
applicable state securities laws, or (ii) a registration statement
or a post-effective amendment to the Registration Statement
relating to the offer and sale of such securities has been filed by
the Company and declared effective by the U.S. Securities and
Exchange Commission (the ”Commission”) and compliance with
applicable state securities law has been established.
4.
Piggyback Registration
Rights.
4.1
Grant of Right. Whenever the
Company proposes to register any shares of its common stock under
the Act (other than (i) a registration effected solely to implement
an employee benefit plan or a transaction to which Rule 145 of the
Act is applicable, or (ii) a registration statement on Form S-4,
S-8 or any successor form thereto or another form not available for
registering the Shares issuable upon exercise of this Purchase
Warrant for sale to the public, whether for its own account or for
the account of one or more stockholders of the Company (a
“Piggyback Registration”), the Company shall give
prompt written notice (in any event no later than ten (10) Business
Days prior to the filing of such registration statement) to the
Holder of the Company’s intention to effect such a
registration and, subject to the remaining provisions of this
Section 4.1, shall include in such registration such number of
Shares underlying this Purchase Warrant (the “Registrable Securities”) that the
Holders have (within ten (10) Business Days of the respective
Holder’s receipt of such notice) requested in writing
(including such number) to be included within such registration. If
a Piggyback Registration is an underwritten offering and the
managing underwriter advises the Company that it has determined in
good faith that marketing factors require a limit on the number of
shares of common stock to be included in such registration,
including all Shares issuable upon exercise of this Purchase
Warrant (if the Holder has elected to include such shares in such
Piggyback Registration) and all other shares of common stock
proposed to be included in such underwritten offering, the Company
shall include in such registration (i) first, the number of shares
of common stock that the Company proposes to sell and (ii) second,
the number of shares of common stock, if any, requested to be
included therein by selling stockholders (including the Holder)
allocated pro rata among all such persons on the basis of the
number of shares of common stock then owned by each such person. If
any Piggyback Registration is initiated as a primary underwritten
offering on behalf of the Company, the Company shall select the
investment banking firm or firms to act as the managing underwriter
or underwriters in connection with such offering. Notwithstanding
anything to the contrary, the obligations of the Company pursuant
to this Section 4.1 shall terminate on the earlier of (i) the third
anniversary of the Effective Date and (ii) the date that Rule 144
would allow the Holder to sell its Registrable Securities during
any ninety (90) day period, and shall not be applicable so long as
the Company’s Registration Statement on Form S-1 (No.
333-235693 covering the Registable Securities remains effective at
such time.
4.2 Indemnification.
The Company shall indemnify the Holder(s) of the Registrable
Securities to be sold pursuant to any registration statement
hereunder and each person, if any, who controls such Holders within
the meaning of Section 15 of the Act or Section 20 (a) of the
Securities Exchange Act of 1934, as amended (“Exchange Act”), against all loss,
claim, damage, expense or liability (including all reasonable
attorneys’ fees and other out-of-pocket expenses reasonably
incurred in investigating, preparing or defending against any claim
whatsoever) to which any of them may become subject under the Act,
the Exchange Act or otherwise, arising from such registration
statement but only to the same extent and with the same effect as
the provisions pursuant to which the Company has agreed to
indemnify Aegis contained in the Underwriting Agreement between
Aegis and the Company, dated as of [●], 2019. The Holder(s)
of the Registrable Securities to be sold pursuant to such
registration statement, and their successors and assigns, shall
severally, and not jointly, indemnify the Company, against all
loss, claim, damage, expense or liability (including all reasonable
attorneys’ fees and other expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever)
to which they may become subject under the Act, the Exchange Act or
otherwise, arising from information furnished by or on behalf of
such Holders, or their successors or assigns, in writing, for
specific inclusion in such registration statement to the same
extent and with the same effect as the provisions contained in the
Underwriting Agreement pursuant to which Aegis has agreed to
indemnify the Company.
4.3 Exercise
of Purchase Warrants. Nothing contained in this Purchase
Warrant shall be construed as requiring the Holder(s) to exercise
their Purchase Warrants prior to or after the initial filing of any
registration statement or the effectiveness thereof.
4.4 Documents
Delivered to Holders. The Company shall deliver promptly to
each Holder participating in the offering requesting the
correspondence and memoranda described below, copies of all
correspondence between the Commission and the Company, its counsel
or auditors and all memoranda relating to discussions with the
Commission or its staff with respect to the registration statement
and permit each Holder and underwriter to do such investigation,
upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems
reasonably necessary to comply with applicable securities laws or
rules of FINRA. Such investigation shall include access to books,
records and properties and opportunities to discuss the business of
the Company with its officers and independent auditors, all to such
reasonable extent and at such reasonable times, during normal
business hours, as any such Holder shall reasonably
request.
4.5 Underwriting
Agreement. The Holders shall be parties to any underwriting
agreement relating to a Piggyback Registration. Such Holders shall
not be required to make any representations or warranties to or
agreements with the Company or the underwriters except as they may
relate to such Holders, their Shares and the amount and nature of
their ownership thereof and their intended methods of
distribution.
4.6 Documents
to be Delivered by Xxxxxx(s). Each of the Holder(s)
participating in any of the foregoing offerings shall furnish to
the Company a completed and executed questionnaire provided by the
Company requesting information customarily sought of selling
security holders.
4.7 Damages.
Should the Company fail to comply with such provisions, the
Holder(s) shall, in addition to any other legal or other relief
available to the Holder(s), be entitled to obtain specific
performance or other equitable (including injunctive) relief
against the threatened breach of such provisions or the
continuation of any such breach, without the necessity of proving
actual damages and without the necessity of posting bond or other
security.
5.
New Purchase Warrants to be
Issued.
5.1 Partial
Exercise or Transfer. Subject to the restrictions in Section
3 hereof, this Purchase Warrant may be exercised or assigned in
whole or in part. In the event of the exercise or assignment hereof
in part only, upon surrender of this Purchase Warrant for
cancellation, together with the duly executed exercise or
assignment form and funds sufficient to pay any Exercise Price
and/or transfer tax if exercised pursuant to Section 2.1 hereto,
the Company shall cause to be delivered to the Holder without
charge a new Purchase Warrant of like tenor to this Purchase
Warrant in the name of the Holder evidencing the right of the
Holder to purchase the number of Shares purchasable hereunder as to
which this Purchase Warrant has not been exercised or
assigned.
5.2 Lost
Certificate. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of
this Purchase Warrant and of reasonably satisfactory
indemnification or the posting of a bond, determined in the sole
discretion of the Company, the Company shall execute and deliver a
new Purchase Warrant of like tenor and date. Any such new Purchase
Warrant executed and delivered as a result of such loss, theft,
mutilation or destruction shall constitute a substitute contractual
obligation on the part of the Company.
6.
Adjustments.
6.1 Adjustments
to Exercise Price and Number of Securities. The Exercise
Price and the number of Shares underlying the Purchase Warrant
shall be subject to adjustment from time to time as hereinafter set
forth:
6.1.1 Share
Dividends; Split Ups. If, after the date hereof, and subject
to the provisions of Section 6.3 below, the number of outstanding
Shares is increased by a stock dividend payable in Shares or by a
split up of Shares or other similar event, then, on the effective
day thereof, the number of Shares purchasable hereunder shall be
increased in proportion to such increase in outstanding Shares, and
the Exercise Price shall be proportionately decreased.
6.1.2 Aggregation
of Shares. If, after the date hereof, and subject to the
provisions of Section 6.3 below, the number of outstanding Shares
is decreased by a consolidation, combination or reclassification of
Shares or other similar event, then, on the effective date thereof,
the number of Shares purchasable hereunder shall be decreased in
proportion to such decrease in outstanding Shares, and the Exercise
Price shall be proportionately increased.
6.1.3 Replacement
of Securities upon Reorganization, etc. In case of any
reclassification or reorganization of the outstanding Shares other
than a change covered by Section 6.1.1 or 6.1.2 hereof or that
solely affects the par value of such Shares, or in the case of any
share reconstruction or amalgamation or consolidation or merger of
the Company with or into another corporation (other than a
consolidation or share reconstruction or amalgamation or merger in
which the Company is the continuing corporation and that does not
result in any reclassification or reorganization of the outstanding
Shares), or in the case of any sale or conveyance to another
corporation or entity of the property of the Company as an entirety
or substantially as an entirety in connection with which the
Company is dissolved, the Holder of this Purchase Warrant shall
have the right thereafter (until the expiration of the right of
exercise of this Purchase Warrant) to receive upon the exercise
hereof, for the same aggregate Exercise Price payable hereunder
immediately prior to such event, the kind and amount of shares of
stock or other securities or property (including cash) receivable
upon such reclassification, reorganization, share reconstruction or
amalgamation, or consolidation, or upon a dissolution following any
such sale or transfer, by a Holder of the number of Shares of the
Company obtainable upon exercise of this Purchase Warrant
immediately prior to such event; and if any reclassification also
results in a change in Shares covered by Section 6.1.1 or 6.1.2,
then such adjustment shall be made pursuant to Sections 6.1.1,
6.1.2 and this Section 6.1.3. The provisions of this Section 6.1.3
shall similarly apply to successive reclassifications,
reorganizations, share reconstructions or amalgamations, or
consolidations, sales or other transfers.
6.1.4 Changes
in Form of Purchase Warrant. This form of Purchase Warrant
need not be changed because of any change pursuant to this Section
6.1, and Purchase Warrants issued after such change may state the
same Exercise Price and the same number of Shares as are stated in
the Purchase Warrants initially issued pursuant to this Agreement.
The acceptance by any Holder of the issuance of new Purchase
Warrants reflecting a required or permissive change shall not be
deemed to waive any rights to an adjustment occurring after the
Commencement Date or the computation thereof.
6.2
Substitute Purchase
Warrant. In case of any consolidation of the Company with,
or share reconstruction or amalgamation or merger of the Company
with or into, another corporation (other than a consolidation or
share reconstruction or amalgamation or merger which does not
result in any reclassification or change of the outstanding
Shares), the corporation formed by such consolidation or share
reconstruction or amalgamation shall execute and deliver to the
Holder a supplemental Purchase Warrant providing that the holder of
each Purchase Warrant then outstanding or to be outstanding shall
have the right thereafter (until the stated expiration of such
Purchase Warrant) to receive, upon exercise of such Purchase
Warrant, the kind and amount of shares of stock and other
securities and property receivable upon such consolidation or share
reconstruction or amalgamation, by a holder of the number of Shares
of the Company for which such Purchase Warrant might have been
exercised immediately prior to such consolidation, share
reconstruction or amalgamation or merger, sale or transfer. Such
supplemental Purchase Warrant shall provide for adjustments which
shall be identical to the adjustments provided for in this Section
6. The above provision of this Section shall similarly apply to
successive consolidations or share reconstructions or amalgamations
or mergers.
6.3
Elimination of Fractional
Interests. The Company shall not be required to issue
certificates representing fractions of Shares upon the exercise of
the Purchase Warrant, nor shall it be required to issue scrip or
pay cash in lieu of any fractional interests, it being the intent
of the parties that all fractional interests shall be eliminated by
rounding any fraction up or down, as the case may be, to the
nearest whole number of Shares or other securities, properties or
rights.
7.
Reservation. The
Company shall at all times reserve and keep available out of its
authorized Shares, solely for the purpose of issuance upon exercise
of the Purchase Warrants, such number of Shares or other
securities, properties or rights as shall be issuable upon the
exercise thereof. The Company covenants and agrees that, upon
exercise of the Purchase Warrants and payment of the Exercise Price
therefor, in accordance with the terms hereby, all Shares and other
securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable and not subject to preemptive
rights of any shareholder.
8.
Certain Notice
Requirements.
8.1 Holder’s
Right to Receive Notice. Nothing herein shall be construed
as conferring upon the Holders the right to vote or consent or to
receive notice as a shareholder for the election of directors or
any other matter, or as having any rights whatsoever as a
shareholder of the Company. If, however, at any time prior to the
expiration of the Purchase Warrants and their exercise, any of the
events described in Section 8.2 shall occur, then, in one or more
of said events, the Company shall deliver to each Holder a copy of
each notice relating to such events given to the other shareholders
of the Company at the same time and in the same manner that such
notice is given to the shareholders.
8.2 Events
Requiring Notice. The Company shall be required to give the
notice described in this Section 8 upon one or more of the
following events: (i) if the Company shall take a record of the
holders of its Shares for the purpose of entitling them to receive
a dividend or distribution payable otherwise than in cash, or a
cash dividend or distribution payable otherwise than out of
retained earnings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company, or (ii) the
Company shall offer to all the holders of its Shares any additional
shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or
any option, right or warrant to subscribe therefor.
8.3 Notice
of Change in Exercise Price. The Company shall, promptly
after an event requiring a change in the Exercise Price pursuant to
Section 6 hereof, send notice to the Holders of such event and
change (“Price
Notice”). The Price Notice shall describe the event
causing the change and the method of calculating same.
8.4 Transmittal
of Notices. All notices, requests, consents and other
communications under this Purchase Warrant shall be in writing and
shall be deemed to have been duly made when hand delivered, or
mailed by express mail or private courier service: (i) if to the
registered Holder of the Purchase Warrant, to the address of such
Holder as shown on the books of the Company, or (ii) if to the
Company, to following address or to such other address as the
Company may designate by notice to the Holders:
If to
the Holder:
Aegis
Capital Corp.,
000
Xxxxxxx Xxxxxx, 00xx Xxxxx,
New
York, NY 10019,
Attention: Global
Equity Markets
with a
copy (which shall not constitute notice) to:
Xxxxxx,
Xxxxxx & Xxxxxxxx, LLP
000
Xxxx Xxxxxx Xxxxx, 00xx Floor
Costa
Mesa, CA 92646
Attn:Xxxxxx X.
Xxxxxxx, Esq.
Fax
No.: (000) 000-0000
If to
the Company:
0000 Xxxxxxxxxx Xxxx, Xxxxx
000
Bethesda, Maryland
20814
Attention: Chief
Executive Officer
with a
copy (which shall not constitute notice) to:
Xxxxxxxxx Xxxx
Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx Floor
New
York, New York 10036
Attn:
Xxxxxx X. Xxxxxx, Esq.
Fax
No.: (000) 000-0000
9.
Miscellaneous.
9.1 Amendments.
The Company and Aegis may from time to time supplement or amend
this Purchase Warrant without the approval of any of the Holders in
order to cure any ambiguity, to correct or supplement any provision
contained herein that may be defective or inconsistent with any
other provisions herein, or to make any other provisions in regard
to matters or questions arising hereunder that the Company and
Aegus may deem necessary or desirable and that the Company and
Aegis deem shall not adversely affect the interest of the Holders.
All other modifications or amendments shall require the written
consent of and be signed by (i) the Company and (ii) the Holder(s)
of Purchase Warrants then-exercisable for at least a majority of
the Shares then-exercisable pursuant to all then-outstanding
Purchase Warrants.
9.2 Headings.
The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of
this Purchase Warrant.
9.3. Entire
Agreement. This Purchase Warrant (together with the other
agreements and documents being delivered pursuant to or in
connection with this Purchase Warrant) constitutes the entire
agreement of the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings of
the parties, oral and written, with respect to the subject matter
hereof.
9.4 Binding
Effect. This Purchase Warrant shall inure solely to the
benefit of and shall be binding upon, the Holder and the Company
and their permitted assignees, respective successors, legal
representative and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Purchase Warrant or any
provisions herein contained.
9.5 Governing
Law; Submission to Jurisdiction; Trial by Jury. This
Purchase Warrant shall be governed by and construed and enforced in
accordance with the laws of the State of California, without giving
effect to conflict of laws principles thereof. The Company hereby
agrees that any action, proceeding or claim against it arising out
of, or relating in any way to this Purchase Warrant shall be
brought and enforced in the courts located in Los Angeles,
California, or in the United States District Court located in Los
Angeles, California, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives
any objection to such exclusive jurisdiction and that such courts
represent an inconvenient forum. Any process or summons to be
served upon the Company may be served by transmitting a copy
thereof by registered or certified mail, return receipt requested,
postage prepaid, addressed to it at the address set forth in
Section 8 hereof. Such mailing shall be deemed personal service and
shall be legal and binding upon the Company in any action,
proceeding or claim. The Company and the Holder agree that the
prevailing party(ies) in any such action shall be entitled to
recover from the other party(ies) all of its reasonable
attorneys’ fees and expenses relating to such action or
proceeding and/or incurred in connection with the preparation
therefor. The Company (on its behalf and, to the extent permitted
by applicable law, on behalf of its stockholders and affiliates)
and the Holder hereby irrevocably waive, to the fullest extent
permitted by applicable law, any and all right to trial by jury in
any legal proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby.
9.6 Waiver,
etc. The failure of the Company or the Holder to at any time
enforce any of the provisions of this Purchase Warrant shall not be
deemed or construed to be a waiver of any such provision, nor to in
any way affect the validity of this Purchase Warrant or any
provision hereof or the right of the Company or any Holder to
thereafter enforce each and every provision of this Purchase
Warrant. No waiver of any breach, non-compliance or non-fulfillment
of any of the provisions of this Purchase Warrant shall be
effective unless set forth in a written instrument executed by the
party or parties against whom or which enforcement of such waiver
is sought; and no waiver of any such breach, non-compliance or
non-fulfillment shall be construed or deemed to be a waiver of any
other or subsequent breach, non-compliance or
non-fulfillment.
9.7 Exchange
Agreement. As a condition of the Holder’s receipt and
acceptance of this Purchase Warrant, Xxxxxx agrees that, at any
time prior to the complete exercise of this Purchase Warrant by
Holder, if the Company and Aegis enter into an agreement
(“Exchange
Agreement”) pursuant to which they agree that all
outstanding Purchase Warrants will be exchanged for securities or
cash or a combination of both, then Holder shall agree to such
exchange and become a party to the Exchange Agreement.
[Signature Page
Follows]
IN
WITNESS WHEREOF, the Company has caused this Purchase Warrant to be
signed by its duly authorized officer as of the 27th day of
November 2020.
By:
_________________________________
Name:
Title:
[Form
to be used to exercise Purchase Warrant]
Date:
__________, 20___
The
undersigned hereby elects irrevocably to exercise the Purchase
Warrant for ______ shares of common stock, par value $0.001 per
share (the “Shares”), of HF Enterprises Inc.,
a Delaware corporation (the “Company”), and hereby makes
payment of $____ (at the rate of $____ per Share) in payment of the
Exercise Price pursuant thereto. Please issue the Shares as to
which this Purchase Warrant is exercised in accordance with the
instructions given below and, if applicable, a new Purchase Warrant
representing the number of Shares for which this Purchase Warrant
has not been exercised.
or
The
undersigned hereby elects irrevocably to convert its right to
purchase ___ Shares of the Company under the Purchase Warrant for
______ Shares, as determined in accordance with the following
formula:
|
|
X
|
=
|
Y(A-B)
|
|
||
|
A
|
|
|||||
|
Where,
|
|
|
|
|||
|
|
X
|
=
|
The
number of Shares to be issued to Holder;
|
|||
|
|
Y
|
=
|
The
number of Shares for which the Purchase Warrant is being
exercised;
|
|||
|
|
A
|
=
|
The
fair market value of one Share which is equal to $_____;
and
|
|||
|
|
B
|
=
|
The
Exercise Price which is equal to $______ per share
|
|||
The
undersigned agrees and acknowledges that the calculation set forth
above is subject to confirmation by the Company and any
disagreement with respect to the calculation shall be resolved by
the Company in its sole discretion.
Please
issue the Shares as to which this Purchase Warrant is exercised in
accordance with the instructions given below and, if applicable, a
new Purchase Warrant representing the number of Shares for which
this Purchase Warrant has not been converted.
Signature
Signature
Guaranteed
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
Name:
(Print
in Block Letters)
Address:
NOTICE:
The signature to this form must correspond with the name as written
upon the face of the Purchase Warrant without alteration or
enlargement or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, or by a trust company or by a firm
having membership on a registered national securities
exchange.
[Form
to be used to assign Purchase Warrant]
ASSIGNMENT
(To be
executed by the registered Holder to effect a transfer of the
within Purchase Warrant):
FOR
VALUE RECEIVED, __________________ does hereby sell, assign and
transfer unto the right to purchase shares of Common Stock, par
value $0.001 per share, of HF Enterprises Inc., a Delaware
corporation (the “Company”), evidenced by the
Purchase Warrant and does hereby authorize the Company to transfer
such right on the books of the Company.
Dated:
__________, 20__
Signature
Signature
Guaranteed
NOTICE:
The signature to this form must correspond with the name as written
upon the face of the within Purchase Warrant without alteration or
enlargement or any change whatsoever, and must be guaranteed by a
bank, other than a savings bank, or by a trust company or by a firm
having membership on a registered national securities
exchange.
