Attached files
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EX-10.1 - FORM OF SECURITIES PURCHASE AGREEMENT - VistaGen Therapeutics, Inc. | ex10-1.htm |
EX-5.1 - OPINION ON LEGALITY - VistaGen Therapeutics, Inc. | ex5-1.htm |
8-K - CURRENT REPORT - VistaGen Therapeutics, Inc. | vtgn8k_jan242020.htm |
Exhibit
10.2
[FORM OF WARRANT]
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF
REQUESTED BY THE COMPANY), IN A CUSTOMARY FORM, THAT REGISTRATION
IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO
BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.
NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR
FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
THE
NUMBER OF SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF
PURSUANT TO SECTION 1(a) OF THIS WARRANT.
VistaGen Therapeutics, Inc.
Warrant To Purchase Common Stock
Warrant
No.: _
Date of
Issuance: January 24, 2020 (“Issuance Date”)
Initial
Exercise Date: July 24, 2020 (“Initial Exercise
Date”)
VistaGen
Therapeutics, Inc., a Nevada corporation (the “Company”), hereby certifies that,
for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, __________________, the registered
holder hereof or its permitted assigns (the “Holder”), 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 to Purchase Common Stock (including any Warrants to
Purchase Common Stock issued in exchange, transfer or replacement
hereof, the “Warrant”), at any time or times on
or after the Initial Exercise Date, but not after 11:59 p.m., New
York time, on the Expiration Date (as defined below), ______
(subject to adjustment as provided herein) fully paid and
non-assessable shares of Common Stock (as defined
below) (the
“Warrant
Shares”). Except as otherwise defined herein,
capitalized terms in this Warrant shall have the meanings set forth
in Section 17. This Warrant is the Warrant issued pursuant to
(i) Section 1 of that certain Securities Purchase Agreement, dated
as of January 24, 2020 (the “Subscription Date”), by and
between the Company and ____________________, as amended from time
to time (the “Securities
Purchase Agreement”).
-1-
1. EXERCISE
OF WARRANT.
(a) Mechanics of Exercise. Subject
to the terms and conditions hereof (including, without limitation,
the limitations set forth in Section 1(f)), this Warrant may
be exercised by the Holder on any day on or after the Initial
Exercise 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(d)). 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 or electronic mail
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”), which confirmation shall constitute an
instruction to the Transfer Agent to process such Exercise Notice
in accordance with the terms herein. On or before the second
(2nd)
Trading Day following the date on which the Company has received
such Exercise Notice (or such earlier date as required pursuant to
the 1934 Act or other applicable law, rule or regulation for the
settlement of a trade of such Warrant Shares initiated on the
applicable Exercise Date), the Company shall (i) provided that the
Transfer Agent is participating in The Depository Trust Company
(“DTC”) Fast
Automated Securities Transfer Program, 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 (ii) if the
Transfer Agent is not participating in the DTC Fast Automated
Securities Transfer Program, upon the request of the Holder, issue
and deliver (via reputable overnight courier) to the address as
specified in the Exercise Notice, a certificate, registered in the
name of the Holder or its designee, for the number of shares of
Common Stock to which the Holder shall be entitled pursuant to such
exercise. 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 and
upon surrender of this Warrant to the Company by the Holder, 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 7(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 transfer, stamp, issuance and similar taxes, costs and
expenses (including, without limitation, fees and expenses of the
Transfer Agent) that may be payable with respect to the issuance
and delivery of Warrant Shares upon exercise of this Warrant.
Notwithstanding the foregoing, except in the case where an exercise
of this Warrant is validly made pursuant to a Cashless Exercise,
the Company’s failure to deliver Warrant Shares to the Holder
on or prior to the later of (A) two (2) Trading Days after receipt
of the applicable Exercise Notice (or such earlier date as required
pursuant to the 1934 Act or other applicable law, rule or
regulation for the settlement of a trade of such Warrant Shares
initiated on the applicable Exercise Date) and (B) one (1) Trading
Day after the Company’s receipt of the Aggregate Exercise
Price (or valid notice of a Cashless Exercise) (such later date,
the “Share Delivery
Deadline”) shall not be deemed to be a breach of this
Warrant. From the Issuance Date through and including the
Expiration Date, the Company shall maintain a transfer agent that
participates in the DTC’s Fast Automated Securities Transfer
Program.
-2-
(b) Exercise Price. For purposes of
this Warrant, “Exercise
Price” means $[_], subject to adjustment as provided
herein.
(c) Company’s Failure to Timely
Deliver Securities. If the Company shall fail, for any
reason or for no reason, to issue to the Holder within three (3)
Trading Days after receipt of the applicable Exercise Notice, a
certificate for the number of shares of Common Stock to which the
Holder is entitled and register such shares of Common Stock on the
Company’s share register or to credit the Holder’s
balance account with DTC for such number of shares of Common Stock
to which the Holder is entitled upon the Holder’s exercise of
this Warrant (as the case may be) (a “Delivery Failure”), then, in
addition to all other remedies available to the Holder, (X) the
Company shall pay in cash to the Holder on each day after the Share
Delivery Deadline and during such Delivery Failure an amount equal
to 2% of the product of (A) the sum of the number of shares of
Common Stock not issued to the Holder on or prior to the Share
Delivery Deadline and to which the Holder is entitled, multiplied
by (B) any trading price of the Common Stock selected by the Holder
in writing as in effect at any time during the period beginning on
the applicable Exercise Date and ending on the applicable Share
Delivery Deadline, and (Y) the Holder, upon written notice to the
Company, may void its Exercise Notice with respect to, and retain
or have returned, as the case may be, any portion of this Warrant
that has not been exercised pursuant to such Exercise Notice;
provided that the voiding of an Exercise Notice shall not affect
the Company’s obligations to make any payments which have
accrued prior to the date of such notice pursuant to this Section
1(c) or otherwise. In addition to the foregoing, if on or prior to
the Share Delivery Deadline either (I) the Transfer Agent is not
participating in the DTC Fast Automated Securities Transfer
Program, the Company shall fail to issue and deliver to the Holder
(or its designee) a certificate and register such shares of Common
Stock on the Company’s share register or, if the Transfer
Agent is participating in the DTC Fast Automated Securities
Transfer Program, the Transfer Agent shall fail to credit the
balance account of the Holder or the Holder’s designee with
DTC for the number of shares of Common Stock to which the Holder is
entitled upon the Holder’s exercise hereunder or pursuant to
the Company’s obligation pursuant to clause (ii) below or
(II) a Notice Failure occurs, and if on or after such Share
Delivery Deadline the Holder purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of all or any portion of the
number of shares of Common Stock issuable upon such exercise that
the Holder is entitled to receive from the Company (a
“Buy-In”), then,
in addition to all other remedies available to the Holder, the
Company shall, within three (3) Business Days after the
Holder’s request and in the Holder’s discretion, either
(i) pay cash to the Holder in an amount equal to the Holder’s
total purchase price (including brokerage commissions and other
out-of-pocket expenses, if any) for the shares of Common Stock so
purchased (including, without limitation, by any other Person in
respect, or on behalf, of the Holder) (the “Buy-In Price”), at which point the
Company’s obligation to so issue and deliver such certificate
(and to issue such shares of Common Stock) or credit the balance
account of such Holder or such Holder’s designee, as
applicable, with DTC for the number of Warrant Shares to which the
Holder is entitled upon the Holder’s exercise hereunder (as
the case may be) (and to issue such Warrant Shares) shall
terminate, or (ii) promptly honor its obligation to so issue and
deliver to the Holder a certificate or certificates representing
such Warrant Shares or credit the balance account of such Holder or
such Holder’s designee, as applicable, with DTC for the
number of Warrant Shares to which the Holder is entitled upon the
Holder’s exercise hereunder (as the case may be) and pay cash
to the Holder in an amount equal to the excess (if any) of the
Buy-In Price over the product of (A) such number of Warrant Shares
multiplied by (B) the lowest Closing Sale Price of the Common Stock
on any Trading Day during the period commencing on the date of the
applicable Exercise Notice and ending on the date of such issuance
and payment under this clause (ii) (the “Buy-In Payment Amount”). Nothing
shall limit the Holder’s right to pursue any other remedies
available to it hereunder, at law or in equity, including, without
limitation, a decree of specific performance and/or injunctive
relief with respect to the Company’s failure to timely
deliver certificates representing shares of Common Stock (or to
electronically deliver such shares of Common Stock) upon the
exercise of this Warrant as required pursuant to the terms
hereof.
-3-
(d) Cashless Exercise.
Notwithstanding anything contained herein to the contrary (other
than Section 1(f) below), if at the time of exercise hereof a
registration statement is not effective (or the prospectus
contained therein is not available for use) for the resale by the
Holder of all of the Warrant Shares, then the Holder may, in its
sole discretion, exercise this Warrant in whole or in part by means
of a “cashless exercise” (a “Cashless Exercise”) in which the
Holder shall be entitled to receive a number of Warrant Shares
equal to the quotient obtained by dividing [(A-B) (X)] by (A),
where:
A= as
applicable: (i) the VWAP on the Trading Day immediately
preceding the date of the applicable Notice of Exercise if such
Notice of Exercise 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) at the option of the Holder, either (y) the
VWAP on the Trading Day immediately preceding the date of the
applicable Notice of Exercise or (z) the Bid Price of the
Common Stock on the principal Trading Market as reported by
Bloomberg L.P. as of the time of the Holder’s execution of
the applicable Notice of Exercise if such Notice of Exercise is
executed during “regular trading hours” on a Trading
Day and is delivered within two (2) hours thereafter
(including until two (2) hours after the close of
“regular trading hours” on a Trading Day) pursuant to
Section 1(a) hereof or (iii) the VWAP on the date of the
applicable Notice of Exercise if the date of such Notice of
Exercise is a Trading Day and such Notice of Exercise is both
executed and delivered pursuant to Section 1(a) hereof after
the close of “regular trading hours” on such Trading
Day.
B = the
Exercise Price then in effect for the applicable Warrant Shares at
the time of such exercise.
C = 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.
If the
Warrant Shares are issued in a Cashless Exercise, the parties
acknowledge and agree that in accordance with Section 3(a)(9) of
the 1933 Act, the Warrant Shares take on the characteristics of the
Warrants being exercised. For purposes of Rule 144(d) promulgated
under the 1933 Act, as in effect on the Subscription Date, it is
intended that the Warrant Shares issued in a Cashless Exercise
shall be deemed to have been acquired by the Holder, and the
holding period for the Warrant Shares shall be deemed to have
commenced, on the date this Warrant was originally issued pursuant
to the Securities Purchase Agreement. The Company agrees not to take any position
contrary to this Section 1(d).
(e) 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 accordance with
Section 13.
-4-
(f) Limitations on Exercises. The
Company shall not effect the exercise of any portion of this
Warrant, and the Holder shall not have the right to exercise any
portion of this Warrant, pursuant to the terms and conditions of
this Warrant and any such exercise shall be null and void and
treated as if never made, to the extent that after giving effect to
such exercise, the Holder together with the other Attribution
Parties collectively would beneficially own in excess of 4.99% (the
“Maximum
Percentage”) of the shares of Common Stock outstanding
immediately after giving effect to such exercise. For purposes of
the foregoing sentence, the aggregate number of shares of Common
Stock beneficially owned by the Holder and the other Attribution
Parties shall include the number of shares of Common Stock held by
the Holder and all other Attribution Parties plus the number of
shares of Common Stock issuable upon exercise of this Warrant with
respect to which the determination of such sentence is being made,
but shall exclude shares of Common Stock which would be issuable
upon (A) exercise of the remaining, unexercised portion of this
Warrant beneficially owned by the Holder or any of the other
Attribution Parties and (B) exercise or conversion of the
unexercised or unconverted portion of any other securities of the
Company (including, without limitation, any convertible notes or
convertible preferred stock or Warrants) beneficially owned by the
Holder or any other Attribution Party subject to a limitation on
conversion or exercise analogous to the limitation contained in
this Section 1(f). For purposes of this Section 1(f), beneficial
ownership shall be calculated in accordance with Section 13(d) of
the 1934 Act. For purposes of determining the number of outstanding
shares of Common Stock the Holder may acquire upon the exercise of
this Warrant without exceeding the Maximum Percentage, the Holder
may rely on the number of outstanding shares of Common Stock as
reflected in (x) the Company’s most recent Annual Report on
Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form
8-K or other public filing with the SEC, as the case may be, (y) a
more recent public announcement by the Company or (z) any other
written notice by the Company or the Transfer Agent, if any,
setting forth the number of shares of Common Stock outstanding (the
“Reported Outstanding Share
Number”). If the Company receives an Exercise Notice
from the Holder at a time when the actual number of outstanding
shares of Common Stock is less than the Reported Outstanding Share
Number, the Company shall (i) notify the Holder in writing of the
number of shares of Common Stock then outstanding and, to the
extent that such Exercise Notice would otherwise cause the
Holder’s beneficial ownership, as determined pursuant to this
Section 1(f), to exceed the Maximum Percentage, the Holder must
notify the Company of a reduced number of Warrant Shares to be
acquired pursuant to such Exercise Notice (the number of shares by
which such purchase is reduced, the “Reduction Shares”) and (ii) as
soon as reasonably practicable, the Company shall return to the
Holder any exercise price paid by the Holder for the Reduction
Shares. For any reason at any time, upon the written or oral
request of the Holder, the Company shall within one (1) Business
Day confirm orally and in writing or by electronic mail to the
Holder the number of shares of Common Stock then outstanding. 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
and any other Attribution Party since the date as of which the
Reported Outstanding Share Number was reported. In the event that
the issuance of shares of Common Stock to the Holder upon exercise
of this Warrant results in the Holder and the other Attribution
Parties being deemed to beneficially own, in the aggregate, more
than the Maximum Percentage of the number of outstanding shares of
Common Stock (as determined under Section 13(d) of the 1934 Act),
the number of shares so issued by which the Holder’s and the
other Attribution Parties’ aggregate beneficial ownership
exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed
null and void and shall be cancelled ab initio, and the Holder
shall not have the power to vote or to transfer the Excess Shares.
As soon as reasonably practicable after the issuance of the Excess
Shares has been deemed null and void, the Company shall return to
the Holder the exercise price paid by the Holder for the Excess
Shares. Upon delivery of a written notice to the Company, the
Holder may from time to time increase (with such increase not
effective until the sixty-first (61st) day after delivery
of such notice) or decrease the Maximum Percentage to any other
percentage not in excess of 9.99% as specified in such notice;
provided that (i) any such increase in the Maximum Percentage will
not be effective until the sixty-first (61st) day after such
notice is delivered to the Company and (ii) any such increase or
decrease will apply only to the Holder and the other Attribution
Parties and not to any other holder of Warrants that is not an
Attribution Party of the Holder. For purposes of clarity, the
shares of Common Stock issuable pursuant to the terms of this
Warrant in excess of the Maximum Percentage shall not be deemed to
be beneficially owned by the Holder for any purpose including for
purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No
prior inability to exercise this Warrant pursuant to this paragraph
shall have any effect on the applicability of the provisions of
this paragraph with respect to any subsequent determination of
exercisability. 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(f) to the extent necessary to
correct this paragraph or any portion of this paragraph which may
be defective or inconsistent with the intended beneficial ownership
limitation contained in this Section 1(f) or to make changes or
supplements necessary or desirable to properly give effect to such
limitation. The limitation contained in this paragraph may not be
waived and shall apply to a successor holder of this
Warrant.
-5-
(g) Reservation of
Shares.
(i) Required Reserve Amount. So
long as this Warrant remains outstanding, the Company shall at all
times keep reserved for issuance under this Warrant a number of
shares of Common Stock at least equal to 100% of the maximum number
of shares of Common Stock as shall be necessary to satisfy the
Company’s obligation to issue shares of Common Stock under
the Warrants then outstanding (without regard to any limitations on
exercise) (the “Required
Reserve Amount”); provided that at no time shall the
number of shares of Common Stock reserved pursuant to this Section
1(g)(i) be reduced other than proportionally in connection with any
exercise or redemption of Warrants or such other event covered by
Section 2(a) below. The Required Reserve Amount (including, without
limitation, each increase in the number of shares so reserved)
shall be allocated pro rata among the holders of the Warrants based
on number of shares of Common Stock issuable upon exercise of
Warrants held by each holder on the Closing Date (without regard to
any limitations on exercise) or increase in the number of reserved
shares, as the case may be (the “Authorized Share Allocation”). In
the event that a holder shall sell or otherwise transfer any of
such holder’s Warrants, each transferee shall be allocated a
pro rata portion of such holder’s Authorized Share
Allocation. Any shares of Common Stock reserved and allocated to
any Person which ceases to hold any Warrants shall be allocated to
the remaining holders of Warrants, pro rata based on the number of
shares of Common Stock issuable upon exercise of the Warrants then
held by such holders (without regard to any limitations on
exercise).
(ii) Insufficient Authorized Shares.
If, notwithstanding Section 1(g)(i) above, and not in limitation
thereof, at any time while any of the Warrants remain outstanding,
the Company does not have a sufficient number of authorized and
unreserved shares of Common Stock to satisfy its obligation to
reserve the Required Reserve Amount (an “Authorized Share Failure”), then
the Company shall immediately take all action necessary to increase
the Company’s authorized shares of Common Stock to an amount
sufficient to allow the Company to reserve the Required Reserve
Amount for all the Warrants then outstanding. Without limiting the
generality of the foregoing sentence, as soon as practicable after
the date of the occurrence of an Authorized Share Failure, but in
no event later than sixty (60) days after the occurrence of such
Authorized Share Failure, the Company shall hold a meeting of its
stockholders for the approval of an increase in the number of
authorized shares of Common Stock. In connection with such meeting,
the Company shall provide each stockholder with a proxy statement
and shall use its best efforts to solicit its stockholders’
approval of such increase in authorized shares of Common Stock and
to cause its board of directors to recommend to the stockholders
that they approve such proposal. In the event that the Company is
prohibited from issuing shares of Common Stock upon an exercise of
this Warrant due to the failure by the Company to have sufficient
shares of Common Stock available out of the authorized but unissued
shares of Common Stock (such unavailable number of shares of Common
Stock, the “Authorization
Failure Shares”), in lieu of delivering such
Authorization Failure Shares to the Holder, the Company shall pay
cash in exchange for the cancellation of such portion of this
Warrant exercisable into such Authorization Failure Shares at a
price equal to the sum of (i) the product of (x) such number of
Authorization Failure Shares and (y) the greatest Closing Sale
Price of the Common Stock on any Trading Day during the period
commencing on the date the Holder delivers the applicable Exercise
Notice with respect to such Authorization Failure Shares to the
Company and ending on the date of such issuance and payment under
this Section 1(f); and (ii) to the extent the Holder purchases (in
an open market transaction or otherwise) shares of Common Stock to
deliver in satisfaction of a sale by the Holder of Authorization
Failure Shares, any Buy-In Payment Amount, brokerage commissions
and other out-of-pocket expenses, if any, of the Holder incurred in
connection therewith. Nothing contained in this Section 1(g)(ii)
shall limit any obligations of the Company under any provision of
the Securities Purchase Agreement.
-6-
2. ADJUSTMENT
OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES.
The
Exercise Price and number of Warrant Shares issuable upon exercise
of this Warrant are subject to adjustment from time to time as set
forth in this Section 2.
(a) Stock Dividends and Splits.
Without limiting any provision of Section 2(b), Section 3 or
Section 4, if the Company, at any time on or after the date of
the Securities 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 (a) 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 and (b) the number of
Warrant Shares that may be purchased upon exercise of this Warrant
shall be increased or decreased proportionately, so that after such
adjustment the aggregate Exercise Price payable hereunder for the
adjusted number of Warrant Shares shall be the same as the
aggregate Exercise Price in effect immediately prior to such
adjustment (without regard to any limitations on exercise contained
herein). Any adjustment made pursuant to clause (i) of this
paragraph shall become effective immediately after the record date
for the determination of shareholders 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.
(b) Other Events. In the event that
the Company (or any Subsidiary (as defined in the Securities
Purchase Agreement)) shall take any action to which the provisions
hereof are not strictly applicable, or, if applicable, would not
operate to protect the Holder from dilution or if any event occurs
of the type contemplated by the provisions of this Section 2 but
not expressly provided for by such provisions (including, without
limitation, the granting of stock appreciation rights, phantom
stock rights or other rights with equity features), then the
Company’s board of directors shall in good faith determine
and implement an appropriate adjustment in the Exercise Price and
the number of Warrant Shares (if applicable) so as to protect the
rights of the Holder, provided that no such adjustment pursuant to
this Section 2(b) will increase the Exercise Price or decrease the
number of Warrant Shares as otherwise determined pursuant to this
Section 2, provided further that if the Holder does not accept such
adjustments as appropriately protecting its interests hereunder
against such dilution, then the Company’s board of directors
and the Holder shall agree, in good faith, upon an independent
investment bank of nationally recognized standing to make such
appropriate adjustments, whose determination shall be final and
binding absent manifest error and whose fees and expenses shall be
borne by the Company.
(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 issuance or sale of Common
Stock.
(d) Intentionally
omitted.
(e) Par Value. Notwithstanding
anything to the contrary in this Warrant, in no event shall the
Exercise Price be reduced below the par value of the
Company’s Common Stock.
-7-
3.
RIGHTS UPON DISTRIBUTION
OF ASSETS. In addition to any adjustments pursuant to
Section 2 above, if the Company shall declare or make any
dividend or other distribution of its assets (or rights to acquire
its assets) to holders of shares of Common Stock, by way of return
of capital or otherwise (including, without limitation, any
distribution of cash, stock or other securities, property, options,
evidence of indebtedness or any other assets by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of
arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder
shall be entitled to participate in such Distribution to the same
extent that the Holder would have participated therein if the
Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any
limitations or restrictions on exercise of this Warrant, including
without limitation, the Maximum Percentage) immediately before the
date on which a record is taken for such Distribution, or, if no
such record is taken, the date as of which the record holders of
shares of Common Stock are to be determined for the participation
in such Distribution (provided, however, that to the extent that
the Holder’s right to participate in any such Distribution
would result in the Holder and the other Attribution Parties
exceeding the Maximum Percentage, then the Holder shall not be
entitled to participate in such Distribution to the extent of the
Maximum Percentage (and shall not be entitled to beneficial
ownership of such shares of Common Stock as a result of such
Distribution (and beneficial ownership) to the extent of any such
excess) and the portion of such Distribution shall be held in
abeyance for the benefit of the Holder until such time or times, if
ever, as its right thereto would not result in the Holder and the
other Attribution Parties exceeding the Maximum Percentage, at
which time or times the Holder shall be granted such Distribution
(and any Distributions declared or made on such initial
Distribution or on any subsequent Distribution held similarly in
abeyance) to the same extent as if there had been no such
limitation).
4. PURCHASE RIGHTS; FUNDAMENTAL
TRANSACTIONS.
(a) Purchase Rights. In addition to
any adjustments pursuant to Section 2 above, if at any time
the Company grants, issues or sells any Options, Convertible
Securities or rights to purchase stock, Warrants, securities or
other property pro rata to the record holders of any class of
Common Stock (the “Purchase
Rights”), then the Holder will be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which the Holder could have acquired if the Holder
had held the number of shares of Common Stock acquirable upon
complete exercise of this Warrant (without regard to any
limitations or restrictions on exercise of this Warrant, including
without limitation, the Maximum Percentage) immediately before the
date on which a record is taken for the grant, issuance or sale of
such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be
determined for the grant, issuance or sale of such Purchase Rights
(provided,
however, that to
the extent that the Holder’s right to participate in any such
Purchase Right would result in the Holder and the other Attribution
Parties exceeding the Maximum Percentage, then the Holder shall not
be entitled to participate in such Purchase Right to the extent of
the Maximum Percentage (and shall not be entitled to beneficial
ownership of such shares of Common Stock as a result of such
Purchase Right (and beneficial ownership) to the extent of any such
excess) and such Purchase Right to such extent shall be held in
abeyance for the benefit of the Holder until such time or times, if ever, as its right
thereto would not result in the Holder and the other
Attribution Parties exceeding the
Maximum Percentage, at which time or times the Holder shall be
granted such right (and any Purchase Right granted, issued
or sold on such initial Purchase Right or on any subsequent
Purchase Right held similarly in abeyance) to the same extent as if there had been no such
limitation).
-8-
(b) Fundamental Transactions. The
Company shall not enter into or be party to a Fundamental
Transaction unless (i) the Successor Entity assumes in
writing all of the obligations of the Company under this Warrant
and the other Transaction Documents (as defined in the Securities
Purchase Agreement) in accordance with the provisions of this
Section 4(b) pursuant to written agreements in form and
substance satisfactory to the Holder and approved by the Holder
prior to such Fundamental Transaction, 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 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 (except such items
still issuable under Sections 3 and 4(a) above, which shall
continue to be receivable thereafter)) issuable upon the exercise
of this Warrant prior to the applicable Fundamental Transaction,
such shares of publicly traded 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. Notwithstanding the foregoing, and without limiting
Section 1(f) hereof, the Holder may elect, at its sole option, by
delivery of written notice to the Company to waive this
Section 4(b) to permit the Fundamental Transaction without the
assumption 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 (except such items
still issuable under Sections 3 and 4(a) above, which shall
continue to be receivable thereafter)) 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.
-9-
(c) 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 (provided that the Holder shall continue to be
entitled to the benefit of the Maximum Percentage, applied however
with respect to shares of capital stock registered under the 1934
Act and thereafter receivable upon exercise of this Warrant (or any
such other warrant)).
5. NONCIRCUMVENTION.
The
Company hereby covenants and agrees that the Company will not, by
amendment of its Certificate of Incorporation (as defined in the
Securities Purchase Agreement), Bylaws (as defined in the
Securities Purchase Agreement) or through any reorganization,
transfer of assets, consolidation, merger, scheme of arrangement,
dissolution, issuance 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 (a) 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, and (b) 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.
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 6, 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.
7. 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 7(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 7(d))
to the Holder representing the right to purchase the number of
Warrant Shares not being transferred.
-10-
(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 7(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 7(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 7(a) or Section 7(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.
8. NOTICES
Whenever
notice is required to be given under this Warrant, unless otherwise
provided herein, such notice shall be given in accordance with
Section 9(f) of the Securities Purchase Agreement. The Company
shall provide the Holder with prompt written notice of all actions
taken pursuant to this Warrant (other than the issuance of shares
of Common Stock upon exercise in accordance with the terms hereof),
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), (ii) at least ten Trading
Days prior to the date on which the Company closes its books or
takes a record (A) with respect to any dividend or distribution
upon the shares of Common Stock, (B) with respect to any grants,
issuances or sales of any Options, Convertible Securities or rights
to purchase stock, warrants, securities or other property to
holders of shares of Common Stock or (C) for determining rights to
vote with respect to any Fundamental Transaction, dissolution or
liquidation, provided in each case that such information shall be
made known to the public prior to or in conjunction with such
notice being provided to the Holder, and (iii) at least ten (10)
Trading Days prior to the consummation of any Fundamental
Transaction. 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
Securities Purchase Agreement) pursuant to a Current Report on Form
8-K. If the Company or any of its Subsidiaries provides material
non-public information to the Holder that is not simultaneously
filed in a Current Report on Form 8-K and the Holder has not agreed
to receive such material non-public information, the Company hereby
covenants and agrees that the Holder shall not have any duty of
confidentiality to the Company, any of its Subsidiaries or any of
their respective officers, directors, employees, Affiliates or
agents with respect to, or a duty to any of the foregoing not to
trade on the basis of, such material non-public information. 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.
-11-
9. AMENDMENT
AND WAIVER.
Except
as otherwise provided herein, the provisions of this Warrant (other
than Section 1(f)) 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. No waiver shall be effective
unless it is in writing and signed by an authorized representative
of the waiving party.
10. 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).
11. 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 Delaware, without
giving effect to any choice of law or conflict of law provision or
rule (whether of the State of Delaware or any other jurisdictions)
that would cause the application of the laws of any jurisdictions
other than the State of Delaware. The Company hereby irrevocably
waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy
thereof to the Company at the address set forth in Section 9(f) of
the Securities Purchase Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof. The Company hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in Wilmington,
Delaware, 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, to realize on any collateral or any
other security for such obligations, 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.
12. 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 (as defined in the Securities
Purchase Agreement) in such other Transaction Documents unless
otherwise consented to in writing by the Holder.
-12-
13. DISPUTE
RESOLUTION.
(a) Submission
to Dispute Resolution.
(i) In the case of a
dispute relating to the Exercise Price, the Closing Sale Price, or
fair market value or the arithmetic calculation of the number of
Warrant Shares (as the case may be) (including, without limitation,
a dispute relating to the determination of any of the foregoing),
the Company or the Holder (as the case may be) shall submit the
dispute to the other party via facsimile (A) if by the Company,
within two (2) Business Days after the occurrence of the
circumstances giving rise to such dispute or (B) if by the Holder,
at any time after the Holder learned of the circumstances giving
rise to such dispute. If the Holder and the Company are unable to
promptly resolve such dispute relating to such Exercise Price, such
Closing Sale Price or such fair market value or such arithmetic
calculation of the number of Warrant Shares (as the case may be),
at any time after the second (2nd) Business Day
following such initial notice by the Company or the Holder (as the
case may be) of such dispute to the Company or the Holder (as the
case may be), then the Holder may, at its sole option, select an
independent, reputable investment bank to resolve such
dispute.
(ii) The
Holder and the Company shall each deliver to such investment bank
(A) a copy of the initial dispute submission so delivered in
accordance with the first sentence of this Section 13 and (B)
written documentation supporting its position with respect to such
dispute, in each case, no later than 5:00 p.m. (New York time) by
the fifth (5th) Business Day
immediately following the date on which the Holder selected such
investment bank (the “Dispute Submission Deadline”) (the
documents referred to in the immediately preceding clauses (A) and
(B) are collectively referred to herein as the “Required Dispute Documentation”) (it being
understood and agreed that if either the Holder or the Company
fails to so deliver all of the Required Dispute Documentation by
the Dispute Submission Deadline, then the party who fails to so
submit all of the Required Dispute Documentation shall no longer be
entitled to (and hereby waives its right to) deliver or submit any
written documentation or other support to such investment bank with
respect to such dispute and such investment bank shall resolve such
dispute based solely on the Required Dispute Documentation that was
delivered to such investment bank prior to the Dispute Submission
Deadline). Unless otherwise agreed to in writing by both the
Company and the Holder or otherwise requested by such investment
bank, neither the Company nor the Holder shall be entitled to
deliver or submit any written documentation or other support to
such investment bank in connection with such dispute (other than
the Required Dispute Documentation).
(iii) The
Company and the Holder shall cause such investment bank to
determine the resolution of such dispute and notify the Company and
the Holder of such resolution no later than ten (10) Business Days
immediately following the Dispute Submission Deadline. The fees and
expenses of such investment bank shall be borne solely by the
Company, and such investment bank’s resolution of such
dispute shall be final and binding upon all parties absent manifest
error.
-13-
(b) Miscellaneous. The Company
expressly acknowledges and agrees that (i) this Section 13
constitutes an agreement to arbitrate between the Company and the
Holder (and constitutes an arbitration agreement) under the rules
then in effect under § 7501, et seq. of the New York Civil
Practice Law and Rules (“CPLR”) and that the Holder is
authorized to apply for an order to compel arbitration pursuant to
CPLR § 7503(a) in order to compel compliance with this Section
13, (ii) a dispute relating to the Exercise Price includes, without
limitation, disputes as to (A) whether an issuance or sale or
deemed issuance or sale of Common Stock occurred under Section
2(b), (B) the consideration per share at which an issuance or
deemed issuance of Common Stock occurred, and (C) whether an
agreement, instrument, security or the like constitutes and Option
or Convertible Security, (iii) the terms of this Warrant and each
other applicable Transaction Document shall serve as the basis for
the selected investment bank’s resolution of the applicable
dispute, such investment bank shall be entitled (and is hereby
expressly authorized) to make all findings, determinations and the
like that such investment bank determines are required to be made
by such investment bank in connection with its resolution of such
dispute (including, without limitation, determining (A) whether an
issuance or sale or deemed issuance or sale of Common Stock
occurred under Section 2(b), (B) the consideration per share at
which an issuance or deemed issuance of Common Stock occurred, and
(C) whether an agreement, instrument, security or the like
constitutes and Option or Convertible Security and in resolving
such dispute such investment bank shall apply such findings,
determinations and the like to the terms of this Warrant and any
other applicable Transaction Documents, (iv) the Holder (and only
the Holder), in its sole discretion, shall have the right to submit
any dispute described in this Section 13 to any state or federal
court sitting in The City of New York, Borough of Manhattan in lieu
of utilizing the procedures set forth in this Section 13 and (v)
nothing in this Section 13 shall limit the Holder from obtaining
any injunctive relief or other equitable remedies (including,
without limitation, with respect to any matters described in this
Section 13).
14. 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
and consequential 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
specific performance and/or temporary, preliminary and permanent
injunctive or other equitable relief from any court of competent
jurisdiction in any such case without the necessity of proving
actual damages and without posting a bond or other security. 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.
-14-
15. PAYMENT OF COLLECTION, ENFORCEMENT AND
OTHER COSTS. If (a) this Warrant is placed in the hands of
an attorney for collection or enforcement or is collected or
enforced through any legal proceeding or the holder otherwise takes
action to collect amounts due under this Warrant or to enforce the
provisions of this Warrant or (b) there occurs any bankruptcy,
reorganization, receivership of the company or other proceedings
affecting company creditors’ rights and involving a claim
under this Warrant, then the Company shall pay the costs incurred
by the Holder for such collection, enforcement or action or in
connection with such bankruptcy, reorganization, receivership or
other proceeding, including, without limitation, attorneys’
fees and disbursements.
16. TRANSFER.
Subject
to applicable laws, this Warrant may be offered for sale, sold,
transferred or assigned without the consent of the
Company.
For
purposes of this Warrant, the following terms shall have the
following meanings:
(a) “1933 Act” means the Securities Act
of 1933, as amended, and the rules and regulations
thereunder.
(b) “1934 Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
(c) “Affiliate” means, with respect to
any Person, any other Person that directly or indirectly controls,
is controlled by, or is under common control with, such Person, it
being understood for purposes of this definition that
“control” of a Person means the power directly or
indirectly either to vote 10% or more of the stock having ordinary
voting power for the election of directors of such Person or direct
or cause the direction of the management and policies of such
Person whether by contract or otherwise.
(d) “Attribution Parties” means,
collectively, the following Persons and entities: (i) any
investment vehicle, including, any funds, feeder funds or managed
accounts, currently, or from time to time after the Issuance Date,
directly or indirectly managed or advised by the Holder’s
investment manager or any of its Affiliates or principals, (ii) any
direct or indirect Affiliates of the Holder or any of the
foregoing, (iii) any Person acting or who could be deemed to be
acting as a Group together with the Holder or any of the foregoing
and (iv) any other Persons whose beneficial ownership of the
Company’s Common Stock would or could be aggregated with the
Holder’s and the other Attribution Parties for purposes of
Section 13(d) of the 1934 Act. For clarity, the purpose of the
foregoing is to subject collectively the Holder and all other
Attribution Parties to the Maximum Percentage.
(e) “Bid Price” means, for any security
as of the particular time of determination, the bid price for such
security on the Principal Market as reported by Bloomberg as of
such time of determination, or, if the Principal Market is not the
principal securities exchange or trading market for such security,
the bid price of such security on the principal securities exchange
or trading market where such security is listed or traded as
reported by Bloomberg as of such time of determination, or if the
foregoing does not apply, the bid price of such security in the
over-the-counter market on the electronic bulletin board for such
security as reported by Bloomberg as of such time of determination,
or, if no bid price is reported for such security by Bloomberg as
of such time of determination, the average of the bid prices of any
market makers for such security as reported in the “pink
sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC)
as of such time of determination. If the Bid Price cannot be
calculated for a security as of the particular time of
determination on any of the foregoing bases, the Bid Price of such
security as of such time of determination shall be the fair market
value as mutually determined by the Company and the Holder. If the
Company and the Holder are unable to agree upon the fair market
value of such security, then such dispute shall be resolved in
accordance with the procedures in Section 13. All such
determinations shall be appropriately adjusted for any stock
dividend, stock split, stock combination or other similar
transaction during such period.
-15-
(f) “Bloomberg” means Bloomberg,
L.P.
(g) “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.
(h) “Closing Sale Price” means, for any
security as of any date, the last closing trade price 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 trade price, then the last trade
price of such security prior to 4:00:00 p.m., New York time, as
reported by Bloomberg, or, if the Principal Market is not the
principal securities exchange or trading market for such security,
the last trade price 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 does not apply, the
last trade price of such security in the over-the-counter market on
the electronic bulletin board for such security as reported by
Bloomberg, or, if no last trade price is reported for such security
by Bloomberg, the average of the ask prices 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
Sale Price cannot be calculated for a security on a particular date
on any of the foregoing bases, the Closing Sale Price of such
security on such date shall be the fair market value as mutually
determined by the Company and the Holder. If the Company and the
Holder are unable to agree upon the fair market value of such
security, then such dispute shall be resolved in accordance with
the procedures in Section 13. All such determinations shall be
appropriately adjusted for any stock dividend, stock split, stock
combination or other similar transaction during such
period.
(i) “Common Stock” means (i) the
Company’s shares of common stock, $0.0001 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.
(j) “Convertible Securities” means any
stock or other security (other than Options) that is at any time
and under any circumstances, directly or indirectly, convertible
into, exercisable or exchangeable for, or which otherwise entitles
the holder thereof to acquire, any shares of Common
Stock.
(k) “Eligible Market” means the New
York Stock Exchange, the NYSE American, The Nasdaq Global Select
Market, The Nasdaq Global Market or the Principal
Market.
(l) “Expiration Date” means the date
that is the fifth (5th) anniversary of the
Initial Exercise Date or, if such date falls on a day other than a
Trading Day or on which trading does not take place on the
Principal Market (a “Holiday”), the next date that is
not a Holiday.
-16-
(m) “Fundamental
Transaction” means (A) that the Company shall,
directly or indirectly, including through subsidiaries, Affiliates
or otherwise, in one or more related transactions, (i) consolidate
or merge with or into (whether or not the Company is the surviving
corporation) another Subject Entity, or (ii) sell, assign,
transfer, convey or otherwise dispose of all or substantially all
of the properties or assets of the Company or any of its
“significant subsidiaries” (as defined in Rule 1-02 of
Regulation S-X) to one or more Subject Entities, or (iii) make, or
allow one or more Subject Entities to make, or allow the Company to
be subject to or have its Common Stock be subject to or party to
one or more Subject Entities making, a purchase, tender or exchange
offer that is accepted by the holders of at least either (x) 50% of
the outstanding shares of Common Stock, (y) 50% of the outstanding
shares of Common Stock calculated as if any shares of Common Stock
held by all Subject Entities making or party to, or Affiliated with
any Subject Entities making or party to, such purchase, tender or
exchange offer were not outstanding; or (z) such number of shares
of Common Stock such that all Subject Entities making or party to,
or Affiliated with any Subject Entity making or party to, such
purchase, tender or exchange offer, become collectively the
beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of
at least 50% of the outstanding shares of Common Stock, or (iv)
consummate a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with one or
more Subject Entities whereby all such Subject Entities,
individually or in the aggregate, acquire, either (x) at least 50%
of the outstanding shares of Common Stock, (y) at least 50% of the
outstanding shares of Common Stock calculated as if any shares of
Common Stock held by all the Subject Entities making or party to,
or Affiliated with any Subject Entity making or party to, such
stock purchase agreement or other business combination were not
outstanding; or (z) such number of shares of Common Stock such that
the Subject Entities become collectively the beneficial owners (as
defined in Rule 13d-3 under the 1934 Act) of at least 50% of the
outstanding shares of Common Stock, or (v) reorganize, recapitalize
or reclassify its Common Stock, (B) that the Company shall,
directly or indirectly, including through subsidiaries, Affiliates
or otherwise, in one or more related transactions, allow any
Subject Entity individually or the Subject Entities in the
aggregate to be or become the “beneficial owner” (as
defined in Rule 13d-3 under the 1934 Act), directly or indirectly,
whether through acquisition, purchase, assignment, conveyance,
tender, tender offer, exchange, reduction in outstanding shares of
Common Stock, merger, consolidation, business combination,
reorganization, recapitalization, spin-off, scheme of arrangement,
reorganization, recapitalization or reclassification or otherwise
in any manner whatsoever, of either (x) at least 50% of the
aggregate ordinary voting power represented by issued and
outstanding Common Stock, (y) at least 50% of the aggregate
ordinary voting power represented by issued and outstanding Common
Stock not held by all such Subject Entities as of the date of this
Warrant calculated as if any shares of Common Stock held by all
such Subject Entities were not outstanding, or (z) a percentage of
the aggregate ordinary voting power represented by issued and
outstanding shares of Common Stock or other equity securities of
the Company sufficient to allow such Subject Entities to effect a
statutory short form merger or other transaction requiring other
shareholders of the Company to surrender their shares of Common
Stock without approval of the shareholders of the Company or (C)
directly or indirectly, including through subsidiaries, Affiliates
or otherwise, in one or more related transactions, the issuance of
or the entering into any other instrument or transaction structured
in a manner to circumvent, or that circumvents, the intent of this
definition in which case this definition shall be construed and
implemented in a manner otherwise than in strict conformity with
the terms of this definition to the extent necessary to correct
this definition or any portion of this definition which may be
defective or inconsistent with the intended treatment of such
instrument or transaction.
(n) “Group” means a “group”
as that term is used in Section 13(d) of the 1934 Act and as
defined in Rule 13d-5 thereunder.
-17-
(o) “Options” means any rights,
warrants or options to subscribe for or purchase shares of Common
Stock or Convertible Securities.
(p) “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.
(q) “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.
(r) “Principal Market” means the The
Nasdaq Capital Market.
(s) “SEC”
means the United States Securities and Exchange Commission or the
successor thereto.
(t) “Subject Entity” means any
Person, Persons or Group or any Affiliate or associate of any such
Person, Persons or Group.
(u) “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.
(v) “Trading Day” means, as applicable,
(x) with respect to all price or trading volume determinations
relating to the Common Stock, 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 or (y) with
respect to all determinations other than price determinations
relating to the Common Stock, any day on which The New York Stock
Exchange (or any successor thereto) is open for trading of
securities.
(w) “VWAP” means, for any security as
of any date, the dollar volume-weighted average price for such
security on the Principal Market (or, if the Principal Market is
not the principal trading market for such security, then on the
principal securities exchange or securities market on which such
security is then traded) during the period beginning at 9:30:01
a.m., New York time, and ending at 4:00:00 p.m., New York time, as
reported by Bloomberg through its “HP” function (set to
weighted average) or, if the foregoing does not apply, the dollar
volume-weighted average price of such security in the
over-the-counter market on the electronic bulletin board for such
security during the period beginning at 9:30:01 a.m., New York
time, and ending at 4:00:00 p.m., New York time, as reported by
Bloomberg, or, if no dollar volume-weighted average price is
reported for such security by Bloomberg for such hours, the average
of the highest closing bid price and the lowest closing ask price
of any of the market makers for such security as reported in the
“pink sheets” by OTC Markets Group Inc. (formerly Pink
Sheets LLC). If the VWAP cannot be calculated for such security on
such date on any of the foregoing bases, the VWAP of such security
on such date shall be the fair market value as mutually determined
by the Company and the Holder. If the Company and the Holder are
unable to agree upon the fair market value of such security, then
such dispute shall be resolved in accordance with the procedures in
Section 13. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination,
recapitalization or other similar transaction during such
period.
[Signature
Page Follows]
-18-
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.
VISTAGEN
THERAPEUTICS, INC.
By:
Name:
Title:
-19-
EXHIBIT A
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE
THIS
WARRANT
TO PURCHASE COMMON STOCK
VISTAGEN THERAPEUTICS, INC.
The
undersigned holder hereby elects to exercise the Warrant to
Purchase Common Stock No. _______ (the “Warrant”) of VistaGen
Therapeutics, Inc., a Nevada corporation (the “Company”) as specified below.
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
Aggregate 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 this Exercise Notice
was executed by the Holder at __________ [a.m.][p.m.] on the date
set forth below.
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, __________ shares of Common Stock in accordance with
the terms of the Warrant. Delivery shall be made to Holder, or for
its benefit, as follows:
☐
Check here if requesting delivery as a certificate to the following
name and to the following address:
Issue
to:
|
|
|
|
|
|
☐
Check here if requesting delivery by Deposit/Withdrawal at
Custodian as follows:
DTC
Participant:
|
|
|
DTC
Number:
|
|
|
Account
Number:
|
|
|
|
|
Date:
_____________
__,
Name of
Registered Holder
|
By: Name:
Title:
Tax
ID:____________________________
Facsimile:__________________________
E-mail
Address:_____________________
|
A-1
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 _________,
201_, from the Company and acknowledged and agreed to by
_______________.
VISTAGEN
THERAPEUTICS, INC.
By:
Name:
Title:
B-2