Tenax Therapeutics, Inc. and Direct Transfer LLC, as Warrant Agent Warrant Agency Agreement Dated as of December __, 2018 WARRANT AGENCY AGREEMENT
Exhibit
4.5
and
Direct
Transfer LLC, as
Warrant
Agent
Dated
as of December __, 2018
WARRANT
AGENCY AGREEMENT, dated as of December __, 2018
(“Agreement”),
between Tenax Therapeutics, Inc., a Delaware corporation (the
“Company”), and Direct
Transfer LLC, a Delaware limited liability company (the
“Warrant
Agent”).
W I T N
E S S E T H
WHEREAS, pursuant
to a registered offering by the Company of shares of Series A
convertible preferred stock (the “Preferred Stock”) that
are convertible into shares of common stock, par value
$0.0001
per share (the “Common Stock”), and
Warrants (as defined below), pursuant to an effective registration
statement on Form S-1 (File No. 333-228212) (the
“Registration
Statement”), the Company wishes to issue Warrants in
book entry form entitling the respective holders of the Warrants
(the “Holders”, which term
shall include a Holder’s transferees, successors and assigns
and “Holder” shall include, if the Warrants are held in
“street name”, a Participant (as defined below) or a
designee appointed by such Participant) to purchase an aggregate of
up to _______ shares of Common Stock underlying the Series 1
Warrants (as defined below) and up to ________ shares of Common
Stock underlying the Series 2 Warrants (as defined below) upon the
terms and subject to the conditions hereinafter set forth (the
“Offering”);
WHEREAS, the shares
of Preferred Stock and Warrants to be issued in connection with the
Offering shall be immediately separable and will be issued
separately, but will be purchased together in the Offering;
and
WHEREAS, the
Company wishes the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange, exercise and
replacement of the Warrants and, in the Warrant Agent’s
capacity as the Company’s transfer agent, the delivery of the
Warrant Shares (as defined below).
NOW,
THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as
follows:
Section
1. Certain
Definitions. For purposes of this Agreement, the following
terms have the meanings indicated:
(a)
“Business
Day” means any day except any Saturday, any Sunday,
any day which is a federal legal holiday in the United States or
any day on which the Nasdaq Stock Market is authorized or required
by law or other governmental action to close.
(b)
“Close of
Business” on any given date means 5:00 p.m., New York
City time, on such date; provided, however, that if such date is
not a Business Day it means 5:00 p.m., New York City time, on the
next succeeding Business Day.
(c)
“Person” means an
individual, corporation, association, partnership, limited
liability company, joint venture, trust, unincorporated
organization, government or political subdivision thereof or
governmental agency or other entity.
(d)
“Series 1
Warrants” means Series 1 Common Stock purchase
warrants of the Company with a term of exercise of two (2) years
following the Initial Exercise Date.
(e)
“Series 2
Warrants” means Series 2 Common Stock purchase
warrants of the Company with a term of exercise of five (5) years
following the Initial Exercise Date.
(f)
“Series 1 Warrant
Certificate” means a certificate in substantially the
form attached as Exhibit
1 hereto, representing such number of Warrant Shares as is
indicated therein, provided that any reference to the delivery of a
Series 1 Warrant Certificate in this Agreement shall include
delivery of notice from the Depositary or a Participant (each as
defined below) of the transfer or exercise of Series 1 Warrant in
the form of a Series 1 Global Warrant (as defined
below).
(g)
“Series 2 Warrant
Certificate” means a certificate in substantially the
form attached as Exhibit
1 hereto, representing such number of Warrant Shares as is
indicated therein, provided that any reference to the delivery of a
Series 2 Warrant Certificate in this Agreement shall include
delivery of notice from the Depositary or a Participant (each as
defined below) of the transfer or exercise of Series 2 Warrant in
the form of a Series 2 Global Warrant (as defined
below)
(h)
“Warrant
Certificates” means, collectively, the Series 1
Warrant Certificate and the Series 2 Warrant Certificate and, each,
a “Warrant
Certificate”.
(i)
“Warrant
Shares” means the shares of Common Stock underlying
the Warrants and issuable upon exercise of the
Warrants.
(j)
“Warrants” means,
collectively, the Series 1 Warrants and the Series 2 Warrants and,
each, a “Warrant”.
All
other capitalized terms used but not otherwise defined herein shall
have the meaning ascribed to such terms in the Warrant
Certificates.
Section
2. Appointment of Warrant
Agent. The Company hereby appoints the Warrant Agent to act
as agent for the Company in accordance with the express terms or
conditions hereof (and no implied terms and conditions), and the
Warrant Agent hereby accepts such appointment. The Company may from
time to time appoint such Co-Warrant Agents as it may, in its sole
discretion, deem necessary or desirable. The Warrant Agent shall have no duty
to supervise, and shall in no event be liable for, the acts or
omissions of any such co-Warrant Agent. In the event the Company
appoints one or more co-Warrant Agents, the respective duties of
the Warrant Agent and any co-Warrant Agent shall be as the Company
shall reasonably determine, provided that such duties and
determination are consistent with the terms and provisions of this
Agreement.
Section
3. Global
Warrants.
(a) The
Series 1 Warrants and the Series 2 Warrants, respectively, shall be
issuable in book entry form (the “Series 1 Global Warrant”
and the “Series 2
Global Warrant”, respectively, and, collectively, the
“Global
Warrants” and, each, a “Global Warrant”). All of
the Series 1 Warrants and the Series 2 Warrants, respectively,
shall initially be represented by one or more Series 1 Global
Warrants and Series 2 Global Warrants, respectively, deposited with
the Warrant Agent and registered in the name of Cede & Co., a
nominee of The Depository Trust Company (the “Depositary”), or as
otherwise directed by the Depositary. Ownership of beneficial
interests in the Series 1 Warrants and the Series 2 Warrants,
respectively, shall be shown on, and the transfer of such ownership
shall be effected through, records maintained by (i) the Depositary
or its nominee for each Global Warrant or (ii) institutions that
have accounts with the Depositary (such institution, with respect
to a Warrant in its account, a “Participant”).
(b) If
the Depositary subsequently ceases to make its book-entry
settlement system available for the Warrants, the Company may
instruct the Warrant Agent regarding other arrangements for
book-entry settlement. In the event that the Warrants are not
eligible for, or it is no longer necessary to have the Warrants
available in, book-entry form, the Warrant Agent shall provide
written instructions to the Depositary to deliver to the Warrant
Agent for cancellation each Global Warrant, and the Company shall
instruct the Warrant Agent in writing to deliver to each Holder a
Warrant Certificate.
(c) A
Holder has the right to elect at any time or from time to time a
Warrant Exchange (as defined below) pursuant to a Warrant
Certificate Request Notice (as defined below). Upon written notice
by a Holder to the Warrant Agent for the exchange of some or all of
such Holder’s Global Warrants for a Series 1 Warrant
Certificate or a Series 2 Warrant Certificate, as applicable,
evidencing the same number of Warrants, which request shall be in
the form attached hereto as Annex A (a “Warrant Certificate Request
Notice” and the date of delivery of such Warrant
Certificate Request Notice by the Holder, the “Warrant Certificate Request Notice
Date” and the deemed surrender upon delivery by the
Holder of a number of Global Warrants for the same number of
Warrants evidenced by a Warrant Certificate, a “Warrant Exchange”), the
Warrant Agent shall promptly effect the Warrant Exchange and shall
promptly issue and deliver, at the expense of the Company, to the
Holder a Series 1 Warrant Certificate or a Series 2 Warrant
Certificate, as applicable, for such number of Warrants in the name
set forth in the Warrant Certificate Request Notice. Such Series 1
Warrant Certificate or a Series 2 Warrant Certificate, as
applicable, shall be dated the original issue date of the Warrants
and shall be executed by manual signature by an authorized
signatory of the Company. In connection with a Warrant Exchange,
the Company agrees to deliver, or to direct the Warrant Agent to
deliver, the Series 1 Warrant Certificate or a Series 2 Warrant
Certificate, as applicable, to the Holder within three (3) Business
Days of the Warrant Certificate Request Notice pursuant to the
delivery instructions in the Warrant Certificate Request Notice
(“Warrant
Certificate Delivery Date”). Notwithstanding anything
herein to the contrary, the Company shall act as warrant agent with
respect to any physical Series 1 Warrant Certificate or Series 2
Warrant Certificate issued pursuant to this section. If the Company
fails for any reason to deliver to the Holder the Series 1 Warrant
Certificate or the Series 2 Warrant Certificate subject to the
Warrant Certificate Request Notice by the Warrant Certificate
Delivery Date, the Company shall pay to the Holder, in cash, as
liquidated damages and not as a penalty, for each $1,000 of Warrant
Shares evidenced by such Series 1 Warrant Certificate or Series 2
Warrant Certificate (based on the VWAP (as defined in the Warrants)
of the Common Stock on the Warrant Certificate Request Notice
Date), $10 per Business Day for each Business Day after such
Warrant Certificate Delivery Date until such Series 1 Warrant
Certificate or Series 2 Warrant Certificate, as applicable, is
delivered or, prior to delivery of such Series 1 Warrant
Certificate or Series 2 Warrant Certificate, the Holder rescinds
such Warrant Exchange. In no event shall the Warrant Agent be
liable for the Company’s failure to deliver the Series 1
Warrant Certificate or the Series 2 Warrant Certificate by the
Warrant Certificate Delivery Date. The Company covenants and agrees
that, upon the date of delivery of the Warrant Certificate Request
Notice, the Holder shall be deemed to be the holder of the Series 1
Warrant Certificate or Series 2 Warrant Certificate, as applicable,
and, notwithstanding anything to the contrary set forth herein, the
Series 1 Warrant Certificate or Series 2 Warrant Certificate shall
be deemed for all purposes to contain all of the terms and
conditions of the Series 1 Warrants or Series 2 Warrants, as
applicable, evidenced by such Series 1 Warrant Certificate or
Series 2 Warrant Certificate, as applicable, and the terms of this
Agreement, other than Sections 3(c) and 9 herein, shall not apply
to the Warrants evidenced by the Series 1 Warrant Certificate or
the Series 2 Warrant Certificate, as applicable.
Section
4. Form of Warrant
Certificates. The Warrant Certificates, together with the
form of election to purchase Common Stock (“Exercise Notice”) and the
form of assignment to be printed on the reverse thereof, shall be
in the form of Exhibit
1 hereto.
Section
5. Countersignature and
Registration. The Warrant Certificates shall be executed on
behalf of the Company by its Chief Executive Officer, Chief
Financial Officer or Vice President, either manually or by
facsimile signature, and have affixed thereto the Company’s
seal or a facsimile thereof which shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually
or by facsimile signature. The Warrant Certificates shall be
countersigned by the Warrant Agent by either manually or by
facsimile signature and shall not be valid for any purpose unless
so countersigned. In case any officer of the Company who shall have
signed any of the Warrant Certificates shall cease to be such
officer of the Company before countersignature by the Warrant Agent
and issuance and delivery by the Company, such Warrant
Certificates, nevertheless, may be countersigned by the Warrant
Agent, issued and delivered with the same force and effect as
though the person who signed such Warrant Certificate had not
ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by any person
who, at the actual date of the execution of such Warrant
Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this
Agreement any such person was not such an officer.
The
Warrant Agent will keep or cause to be kept, at its office
designated for such purposes, books for registration and transfer
of the Warrant Certificates issued hereunder. Such books shall show
the names and addresses of the respective Holders of the Warrant
Certificates, the number of warrants evidenced on the face of each
of such Warrant Certificate and the date of each of such Warrant
Certificate. The Warrant Agent will create a special account for
the issuance of Warrant Certificates.
Section
6. Transfer, Split Up,
Combination and Exchange of Warrant Certificates; Mutilated,
Destroyed, Lost or Stolen Warrant Certificates. With respect
to the Series 1 Global Warrant and the Series 2 Global Warrant,
respectively, subject to the provisions of the Series 1 Warrant
Certificate and the Series 2 Warrant Certificate, respectively, and
the last sentence of this first paragraph of Section 6 and subject
to applicable law, rules or regulations, or any “stop
transfer” instructions the Company may give to the Warrant
Agent, at any time after the closing date of the Offering, and at
or prior to the Close of Business on the Termination Date (as such
term is defined in the Warrant Certificate), any Warrant
Certificate or Warrant Certificates or Global Warrant or Global
Warrants may be transferred, split up, combined or exchanged for
another Warrant Certificate or Warrant Certificates or Global
Warrant or Global Warrants, entitling the Holder to purchase a like
number of shares of Common Stock as the Warrant Certificate or
Warrant Certificates or Global Warrant or Global Warrants
surrendered then entitled such Holder to purchase. Any Holder
desiring to transfer, split up, combine or exchange any Warrant
Certificate or Global Warrant shall make such request in writing
delivered to the Warrant Agent, and shall surrender the Warrant
Certificate or Warrant Certificates, together with the required
form of assignment and certificate duly executed and properly
completed and such other
documentation as the Warrant Agent may reasonably request, to be
transferred, split up, combined or exchanged at the office of the
Warrant Agent designated for such purpose, provided that no such
surrender is applicable to the Holder of a Global Warrant. Any
requested transfer of Warrants, whether in book-entry form or
certificate form, shall be accompanied by evidence of authority of
the party making such request that may be reasonably
required by the Warrant Agent. Thereupon the Warrant Agent shall,
subject to the last sentence of this first paragraph of Section 6,
countersign and deliver to the Person entitled thereto a Warrant
Certificate or Warrant Certificates, as the case may be, as so
requested. The Company may require payment from the Holder of a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination or
exchange of Warrant Certificates. The Warrant Agent shall not have any
duty or obligation to take any action under any section of this
Agreement that requires the payment of taxes and/or charges unless
and until it is satisfied that all such payments have been
made.
Upon
receipt by the Warrant Agent of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of a Warrant
Certificate, which evidence shall include an affidavit of loss, or
in the case of mutilated certificates, the certificate or portion
thereof remaining, and, in case of loss, theft or destruction, of
indemnity or security reasonably acceptable to the Company and the
Warrant Agent, and satisfaction of any other reasonable
requirements established by Section 8-405 of the Uniform Commercial
Code as in effect in the State of Delaware, and reimbursement to
the Company and the Warrant Agent of all reasonable expenses
incidental thereto, and upon surrender to the Warrant Agent and
cancellation of the Warrant Certificate if mutilated, the Company
will make and deliver a new Warrant Certificate of like tenor to
the Warrant Agent for delivery to the Holder in lieu of the Warrant
Certificate so lost, stolen, destroyed or mutilated.
Section
7. Exercise of Warrants;
Exercise Price; Termination Date.
(a) The
Series 1 Warrants and the Series 2 Warrants shall be exercisable
commencing on the Initial Exercise Date. The Series 1 Warrants and
the Series 2 Warrants shall cease to be exercisable and shall
terminate and become void, and all rights thereunder and under this
Agreement shall cease, at or prior to the Close of Business on the
Termination Date (as such term is defined in the Series 1 Warrant
Certificate and the Series 2 Warrant Certificate, respectively).
Subject to the foregoing and to Section 7(b) below, the Holder of a
Series 1 Warrant or a Series 2 Warrant, as applicable, may exercise
the Series 1 Warrant and the Series 2 Warrant, as applicable, in
whole or in part upon surrender of the Series 1 Warrant Certificate
or the Series 2 Warrant Certificate, as applicable, if required,
with the properly completed and duly executed Exercise
Notice and payment of the
Exercise Price (unless exercised via a cashless exercise), which
may be made, at the option of the Holder, by wire transfer or by
certified or official bank check in United States dollars, to the
Warrant Agent at the office of the Warrant Agent designated for
such purposes. In the case of the Holder of a Global Warrant, the
Holder shall deliver the duly executed Exercise Notice and the
payment of the Exercise Price as described herein. Notwithstanding
any other provision in this Agreement, a holder whose interest in a
Global Warrant is a beneficial interest in a Global Warrant held in
book-entry form through the Depositary (or another established
clearing corporation performing similar functions), shall effect
exercises by delivering to the Depositary (or such other clearing
corporation, as applicable) the appropriate instruction form for
exercise, complying with the procedures to effect exercise that are
required by the Depositary (or such other clearing corporation, as
applicable). The Company acknowledges that the bank accounts
maintained by the Warrant Agent in connection with the services
provided under this Agreement will be in its name and that the
Warrant Agent may receive investment earnings in connection with
the investment at Warrant Agent risk and for its benefit of funds
held in those accounts from time to time. Neither the Company nor
the Holders will receive interest on any deposits or Exercise
Price. No ink-original Exercise Notice shall be required, nor shall
any medallion guarantee (or other type of guarantee or
notarization) of any Exercise Notice be required.
(b)
Upon receipt of an Exercise Notice for a cashless exercise pursuant
to Section 2(c) of the Warrant Certificates (each, a
“Cashless Exercise”), the Warrant Agent shall deliver a
copy of the Exercise Notice to the Company and request from the
Company, and the Company shall promptly calculate and transmit to
the Warrant Agent in writing, the number of Warrant Shares issuable
in connection with such Cashless Exercise. The Warrant Agent shall
have no obligation under this Agreement to calculate, the number of
Warrant Shares issuable in connection with a Cashless Exercise nor
shall the Warrant agent have any duty or obligation to investigate
or confirm whether the Company’s determination of the number
of Warrant Shares issuable upon such exercise, pursuant to this
Section 7, is accurate or correct.
(c)
Upon the Warrant Agent’s receipt of a Series 1 Warrant
Certificate or a Series 2 Warrant Certificate, as applicable, at or
prior to the Close of Business on the Termination Date set forth in
such Series 1 Warrant Certificate or Series 2 Warrant Certificate,
as applicable, with the executed Exercise Notice and payment of the
Exercise Price for the shares to be purchased (other than in the
case of a Cashless Exercise) and an amount equal to any applicable
tax, or governmental charge referred to in Section 6 by wire
transfer, or by certified check or bank draft payable to the order
of the Company (or, in the case of the Holder of a Global Warrant,
the delivery of the executed Exercise Notice and the payment of the
Exercise Price (other than in the case of a Cashless Exercise) and
any other applicable amounts as set forth herein), the Warrant
Agent shall cause the Warrant Shares underlying such Series 1
Warrant Certificate or Series 2 Warrant Certificate, as applicable,
or Series 1 Global Warrant or Series 2 Global Warrant, as
applicable, to be delivered to or upon the order of the Holder of
such Series 1 Warrant Certificate or Series 2 Warrant Certificate,
as applicable, or Series 1 Global Warrant or Series 2 Global
Warrant, as applicable, registered in such name or names as may be
designated by such Holder, no later than the Warrant Share Delivery
Date (as such term is defined in the Series 1 Warrant Certificate
or Series 2 Warrant Certificate, as applicable). If the Company is
then a participant in the DWAC system of the Depositary and either
(A) there is an effective registration statement permitting the
issuance of the Warrant Shares to or resale of the Warrant Shares
by Holder or (B) the Warrant is being exercised via Cashless
Exercise, then the certificates for Warrant Shares shall be
transmitted by the Warrant Agent to the Holder by crediting the
account of the Holder’s broker with the Depositary through
its DWAC system. For the avoidance of doubt, if the Company becomes
obligated to pay any amounts to any Holders pursuant to Section
2(d)(i) or 2(d)(iv) of the Series 1 Warrant Certificate or Series 2
Warrant Certificate, as applicable, such obligation shall be solely
that of the Company and not that of the Warrant Agent.
Notwithstanding anything else to the contrary in this Agreement,
except in the case of a Cashless Exercise, if any Holder fails to
duly deliver payment to the Warrant Agent of an amount equal to the
aggregate Exercise Price of the Warrant Shares to be purchased upon
exercise of such Holder’s Warrant as set forth in Section
7(a) hereof by the Warrant Share Delivery Date, the Warrant Agent
will not obligated to deliver such Warrant Shares (via DWAC or
otherwise) until following receipt of such payment, and the
applicable Warrant Share Delivery Date shall be deemed extended by
one day for each day (or part thereof) until such payment is
delivered to the Warrant Agent.
(d) The
Warrant Agent shall deposit all funds received by it in payment of
the Exercise Price for all Warrants in the account of the Company
maintained with the Warrant Agent for such purpose (or to such
other account as directed by the Company in writing) and shall
advise the Company via email at the end of each day on which
exercise notices are received or funds for the exercise of any
Warrant are received of the amount so deposited to its
account.
(e) In
case the Holder of any Warrant Certificate shall exercise fewer
than all Warrants evidenced thereby and surrenders such Warrant
Certificate in connection with such partial exercise, a new Warrant
Certificate evidencing the number of Warrants equivalent to the
number of Warrants remaining unexercised may be issued by the
Warrant Agent to the Holder of such Warrant Certificate or to his
duly authorized assigns in accordance with Section 2(d)(ii) of the
Warrant Certificate, subject to the provisions of Section 6
hereof.
Section
8. Cancellation and
Destruction of Warrant Certificates. All Warrant
Certificates surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered to the
Company or to any of its agents, be delivered to the Warrant Agent
for cancellation or in canceled form, or, if surrendered to the
Warrant Agent, shall be canceled by it, and no Warrant Certificates
shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall deliver
to the Warrant Agent for cancellation and retirement, and the
Warrant Agent shall so cancel and retire, any other Warrant
Certificate purchased or acquired by the Company otherwise than
upon the exercise thereof. The Warrant Agent shall deliver all
canceled Warrant Certificates to the Company, or shall, at the
written request of the Company, destroy such canceled Warrant
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company, subject to any applicable law,
rule or regulation requiring the Warrant Agent to retain such
canceled certificates.
Section
9. Certain
Representations; Reservation and Availability of Shares of Common
Stock or Cash.
(a)
This Agreement has been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and delivery
hereof by the Warrant Agent, constitutes a valid and legally
binding obligation of the Company enforceable against the Company
in accordance with its terms, and the Warrants have been duly
authorized, executed and issued by the Company and, assuming due
execution thereof by the Warrant Agent pursuant hereto and payment
therefor by the Holders as provided in the Registration Statement,
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms and
entitled to the benefits hereof; in each case except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally or by general equitable
principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
(b) As
of the date hereof, the authorized capital stock of the Company
consists of (i) 400,000,000 shares of Common Stock, of which
_______ shares of Common Stock are issued and outstanding, and
______ shares of Common Stock are reserved for issuance upon
exercise of the Warrants, and (ii) 10,000,000 shares of preferred
stock, of which ____ shares are issued and outstanding designated
as Series A Convertible Preferred Stock, and ______ shares of
Common Stock are reserved for issuance upon conversion of the
Preferred Stock. Except as disclosed in the Registration Statement,
there are no other outstanding obligations, warrants, options or
other rights to subscribe for or purchase from the Company any
class of capital stock of the Company.
(c) The
Company covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued shares of Common
Stock or its authorized and issued shares of Common Stock held in
its treasury, free from preemptive rights, the number of shares of
Common Stock that will be sufficient to permit the exercise in full
of all outstanding Warrants.
(d) The
Warrant Agent will create a special account for the issuance of
Common Stock upon the exercise of Warrants.
(e) The
Company further covenants and agrees that it will pay when due and
payable any and all federal and state transfer taxes and charges
which may be payable in respect of the original issuance or
delivery of the Warrant Certificates or certificates evidencing
Common Stock upon exercise of the Warrants. The Company shall not,
however, be required to pay any tax or governmental charge which
may be payable in respect of any transfer involved in the transfer
or delivery of Warrant Certificates or the issuance or delivery of
certificates for Common Stock in a name other than that of the
Holder of the Warrant Certificate evidencing Warrants surrendered
for exercise or to issue or deliver any certificate for shares of
Common Stock upon the exercise of any Warrants until any such tax
or governmental charge shall have been paid (any such tax or
governmental charge being payable by the Holder of such Warrant
Certificate at the time of surrender) or until it has been
established to the Company’s and the Warrant Agent’s
reasonable satisfaction that no such tax or governmental charge is
due.
Section
10. Common Stock Record
Date. Each Person in whose name any certificate for shares
of Common Stock is issued (or to whose broker’s account is
credited shares of Common Stock through the DWAC system) upon the
exercise of Warrants shall for all purposes be deemed to have
become the holder of record for the Common Stock represented
thereby on, and such certificate shall be dated, the date on which
submission of the Exercise Notice was made, provided that the
Warrant Certificate evidencing such Warrant was duly surrendered
(but only if required herein) and payment of the Exercise Price
(and any applicable transfer taxes) was received on or prior to the
Warrant Share Delivery Date; provided, however, that, if the date of
submission of the Exercise Notice is a date upon which the Common
Stock transfer books of the Company are closed, such Person shall
be deemed to have become the record holder of such shares on, and
such certificate shall be dated, the next succeeding day on which
the Common Stock transfer books of the Company are
open.
Section
11. Adjustment of Exercise
Price, Number of Shares of Common Stock or Number of the Company
Warrants. The Exercise Price, the number of shares covered
by each Warrant and the number of Warrants outstanding are subject
to adjustment from time to time as provided in Section 3 of the
Series 1 Warrant Certificate or the Series 2 Warrant Certificate,
as applicable. In the event that at any time, as a result of an
adjustment made pursuant to Section 3 of the Series 1 Warrant
Certificate or the Series 2 Warrant Certificate, as applicable, the
Holder of any Warrant thereafter exercised shall become entitled to
receive any shares of capital stock of the Company other than
shares of Common Stock, thereafter the number of such other shares
so receivable upon exercise of any Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the
shares contained in Section 3 of the Warrant Certificate, and the
provisions of Sections 7, 9 and 13 of this Agreement with respect
to the shares of Common Stock shall apply on like terms to any such
other shares. All Warrants originally issued by the Company
subsequent to any adjustment made to the Exercise Price pursuant to
the Series 1 Warrant Certificate or the Series 2 Warrant
Certificate, as applicable, shall evidence the right to purchase,
at the adjusted Exercise Price, the number of shares of Common
Stock purchasable from time to time hereunder upon exercise of the
Warrants, all subject to further adjustment as provided
herein.
Section
12. Certification of
Adjusted Exercise Price or Number of Shares of Common Stock.
Whenever the Exercise Price or the number of shares of Common Stock
issuable upon the exercise of each Series 1 Warrant Certificate or
the Series 2 Warrant Certificate, as applicable, is adjusted as
provided in Section 11 or 13, the Company shall (a) promptly
prepare a certificate setting forth the Exercise Price of each
Series 1 Warrant Certificate or the Series 2 Warrant Certificate,
as applicable, as so adjusted, and a brief, reasonably detailed
statement of the facts accounting for such adjustment, (b) promptly
file with the Warrant Agent and with each transfer agent for the
Common Stock a copy of such certificate and (c) instruct the
Warrant Agent, at the Company’s expense, to send a brief
summary thereof to each Holder of a Series 1 Warrant Certificate or
the Series 2 Warrant Certificate, as applicable.
Section
13. Fractional Shares of
Common Stock.
(a) The
Company shall not issue fractions of Warrants or distribute Warrant
Certificates which evidence fractional Warrants. Whenever any
fractional Warrant would otherwise be required to be issued or
distributed, the actual issuance or distribution shall reflect a
rounding of such fraction to the nearest whole Warrant (rounded
down).
(b) The
Company shall not issue fractions of shares of Common Stock upon
exercise of Warrants or distribute stock certificates which
evidence fractional shares of Common Stock. Whenever any fraction
of a share of Common Stock would otherwise be required to be issued
or distributed, the actual issuance or distribution in respect
thereof shall be made in accordance with Section 2(d)(v) of the
Warrant Certificate.
Section
14. Conditions of the
Warrant Agent’s Obligations. The Warrant Agent accepts
its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the Holders from time
to time of the Warrant shall be subject:
(a)
Compensation and
Indemnification. The Company agrees promptly to pay the Warrant
Agent the compensation detailed on Exhibit 2 hereto for all
services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including reasonable
counsel fees) incurred without gross negligence, bad faith or
willful misconduct by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without gross
negligence, bad faith or willful misconduct on the part of the
Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, including the reasonable costs and
expenses of defending against any claim of such
liability.
(b)
Agent for the
Company. In acting under this Warrant Agreement and in connection
with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the Holders of
Warrant Certificates or beneficial owners of Warrants.
(c)
Counsel. The
Warrant Agent may consult with counsel satisfactory to it, which
may include counsel for the Company, and the written advice of such
counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with the advice of such
counsel.
(d)
Documents. The
Warrant Agent shall be protected and shall incur no liability for
or in respect of any action taken or omitted by it in reliance upon
any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed
by it to be genuine and to have been presented or signed by the
proper parties.
(e)
Certain
Transactions. The Warrant Agent, and its officers, directors and
employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or
as depositary, trustee or agent for, any committee or body of
Holders of Warrant Securities or other obligations of the Company
as freely as if it were not the Warrant Agent hereunder. Nothing in
this Warrant Agreement shall be deemed to prevent the Warrant Agent
from acting as trustee under any indenture to which the Company is
a party.
(f)
No Liability for
Interest. Unless otherwise agreed with the Company, the Warrant
Agent shall have no liability for interest on any monies at any
time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g)
No Liability for
Invalidity. The Warrant Agent shall have no liability with respect
to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature
thereon).
(h)
No Responsibility
for Representations. The Warrant Agent shall not be responsible for
any of the recitals or representations herein or in the Warrant
Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i)
No Implied
Obligations. The Warrant Agent shall be obligated to perform only
such duties as are herein and in the Warrants specifically set
forth and no implied duties or obligations shall be read into this
Agreement or the Warrants against the Warrant Agent. The Warrant
Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability,
the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the
Company of any of the Warrants authenticated by the Warrant Agent
and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrants.
The Warrant Agent shall have no duty or responsibility in case of
any default by the Company in the performance of its covenants or
agreements contained herein or in the Warrants or in the case of
the receipt of any written demand from a Holder of a Warrant
Certificate with respect to such default, including, without
limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings
at law.
Section
15. Purchase or
Consolidation or Change of Name of Warrant Agent. Any Person
into which the Warrant Agent or any successor Warrant Agent may be
merged or with which it may be consolidated, or any Person
resulting from any merger or consolidation to which the Warrant
Agent or any successor Warrant Agent shall be party, or any Person
succeeding to the stock transfer or other shareholder services
business of the Warrant Agent or any successor Warrant Agent, shall
be the successor to the Warrant Agent under this Agreement without
the execution or filing of any paper or any further act on the part
of any of the parties hereto, provided that such Person would be
eligible for appointment as a successor Warrant Agent under the
provisions of Section 17. In case at the time such successor
Warrant Agent shall succeed to the agency created by this Agreement
any of the Warrant Certificates shall have been countersigned but
not delivered, any such successor Warrant Agent may adopt the
countersignature of the predecessor Warrant Agent and deliver such
Warrant Certificates so countersigned; and in case at that time any
of the Warrant Certificates shall not have been countersigned, any
successor Warrant Agent may countersign such Warrant Certificates
either in the name of the predecessor Warrant Agent or in the name
of the successor Warrant Agent; and in all such cases such Warrant
Certificates shall have the full force provided in the Warrant
Certificates and in this Agreement.
In case
at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrant Certificates shall have been
countersigned but not delivered, the Warrant Agent may adopt the
countersignature under its prior name and deliver Warrant
Certificates so countersigned; and in case at that time any of the
Warrant Certificates shall not have been countersigned, the Warrant
Agent may countersign such Warrant Certificates either in its prior
name or in its changed name; and in all such cases such Warrant
Certificates shall have the full force provided in the Warrant
Certificates and in this Agreement.
Section
16. Duties of Warrant
Agent. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following express
terms and conditions (and no implied terms and conditions), by all
of which the Company, by its acceptance hereof, shall be bound and
shall not assume any obligations or relationship of agency or trust
with any of the Holders of the Warrants or any other
Person:
(a) The
Warrant Agent may consult with legal counsel selected by it (who
may be legal counsel for the Company), and the opinion and advice
of such counsel shall be full and complete authorization and
protection to the Warrant Agent as to any action taken or omitted
by it in good faith and in accordance with such opinion or
advice.
(b)
Whenever in the performance of its duties under this Agreement the
Warrant Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may
be deemed to be conclusively proved and established by a
certificate signed by the Chief Executive Officer, Chief Financial
Officer or Vice President of the Company; and such certificate
shall be full authorization and protection to the Warrant Agent and
the Warrant Agent shall incur no liability for or in respect of any
action taken, suffered or omitted to be taken in good faith by it
under the provisions of this Agreement in reliance upon such
certificate. The Warrant Agent shall have no duty to act without
such a certificate as set forth in this Section 16(b).
(c)
Subject to the limitation set forth in Section 14, the Warrant
Agent shall be liable hereunder only for its own gross negligence,
bad faith or willful misconduct, of for a breach by it of this
Agreement (each as determined in a final, non-appealable judgment
of a court of competent jurisdiction).
(d) The
Warrant Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in
the Warrant Certificates (including in the case of any notation in
book entry form to reflect ownership), except its countersignature
thereof, by the Company or be required to verify the same, but all
such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The
Warrant Agent shall not have any liability or be under any
responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution hereof by
the Warrant Agent) or in respect of the validity or execution of
any Warrant Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Warrant
Certificate; nor shall it be responsible for the adjustment of the
Exercise Price or the making of any change in the number of shares
of Common Stock required under the provisions of Section 11 or 13
or responsible for the manner, method or amount of any such change
or adjustment or the ascertaining of the existence of facts that
would require any such adjustment or change (except with respect to
the exercise of Warrants evidenced by Warrant Certificates after
actual notice of any adjustment of the Exercise Price); nor shall
it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any shares of
Common Stock to be issued pursuant to this Agreement or any Warrant
Certificate or as to whether any shares of Common Stock will, when
issued, be duly authorized, validly issued, fully paid and
nonassessable.
(f)
Each party hereto agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and
assurances as may reasonably be required by the other party hereto
for the carrying out or performing by any party of the provisions
of this Agreement.
(g) The
Warrant Agent is hereby authorized to accept instructions with
respect to the performance of its duties hereunder from the Chief
Executive Officer, Chief Financial Officer or Vice President of the
Company, and to apply to such officers for advice or instructions
in connection with its duties, and it shall not be liable and shall
be indemnified and held harmless for any action taken or suffered
to be taken by it in good faith in accordance with instructions of
any such officer, provided Warrant Agent carries out such
instructions without gross negligence, bad faith or willful
misconduct.
(h) The
Warrant Agent and any shareholder, director, officer or employee of
the Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or contract
with or lend money to the Company or otherwise act as fully and
freely as though it were not Warrant Agent under this Agreement.
Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other
Person.
(i) The
Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or
by or through its attorney or agents, and the Warrant Agent shall
not be answerable or accountable for any act, default, neglect or
misconduct of any such attorney or agents or for any loss to the
Company resulting from any such act, default, neglect or
misconduct, absent gross negligence or bad faith in the selection
and continued employment thereof (which gross negligence and bad
faith must be determined by a final, non-appealable judgment of a
court of competent jurisdiction).
This
Section 16 shall survive the expiration of the Warrants, the
termination of this Agreement and the resignation, replacement or
removal of the Warrant Agent. The costs and expenses incurred in
enforcing this right of indemnification shall be paid by the
Company.
Section
17. Change of Warrant
Agent. The Warrant Agent may resign and be discharged from
its duties under this Agreement upon 30 days’ notice in
writing sent to the Company and, in the event that the Warrant
Agent or one of its affiliates is not also the transfer agent for
the Company, to each transfer agent of the Common Stock. In the
event the transfer agency relationship in effect between the
Company and the Warrant Agent terminates, the Warrant Agent will be
deemed to have resigned automatically and be discharged from its
duties under this Agreement as of the effective date of such
termination, and the Company shall be responsible for sending any
required notice thereunder. The Company may remove the Warrant
Agent or any successor Warrant Agent upon 30 days’ notice in
writing, sent to the Warrant Agent or successor Warrant Agent, as
the case may be, and to each transfer agent of the Common Stock,
and to the Holders of the Warrant Certificates. If the Warrant
Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the
Warrant Agent. If the Company shall fail to make such appointment
within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the
resigning or incapacitated Warrant Agent or by the Holder of a
Warrant Certificate (who shall, with such notice, submit his
Warrant Certificate for inspection by the Company), then the Holder
of any Warrant Certificate may apply to any court of competent
jurisdiction for the appointment of a new Warrant Agent, provided
that, for purposes of this Agreement, the Company shall be deemed
to be the Warrant Agent until a new warrant agent is appointed. Any
successor Warrant Agent, whether appointed by the Company or by
such a court, shall be a Person, other than a natural person,
organized and doing business under the laws of the United States or
of a state thereof, in good standing, which is authorized under
such laws to exercise stock transfer powers and is subject to
supervision or examination by federal or state authority and which
has at the time of its appointment as Warrant Agent a combined
capital and surplus of at least $50,000,000. After appointment, the
successor Warrant Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally
named as Warrant Agent without further act or deed; but the
predecessor Warrant Agent shall deliver and transfer to the
successor Warrant Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose but such predecessor Warrant Agent
shall not be required to make any additional expenditure (without
prompt reimbursement by the Company) or assume any additional
liability in connection with the foregoing. Not later than the
effective date of any such appointment, the Company shall file
notice thereof in writing with the predecessor Warrant Agent and
each transfer agent of the Common Stock, and mail a notice thereof
in writing to the Holders of the Warrant Certificates. However,
failure to give any notice provided for in this Section 17, or any
defect therein, shall not affect the legality or validity of the
resignation or removal of the Warrant Agent or the appointment of
the successor Warrant Agent, as the case may be.
Section
18. Issuance of New
Warrant Certificates. Notwithstanding any of the provisions
of this Agreement or of the Warrants to the contrary, the Company
may, at its option, issue new Warrant Certificates evidencing
Warrants in such form as may be approved by its Board of Directors
to reflect any adjustment or change in the Exercise Price per share
and the number or kind or class of shares of stock or other
securities or property purchasable under the several Warrant
Certificates made in accordance with the provisions of this
Agreement.
Section
19. Notices.
Notices or demands authorized by this Agreement to be given or made
(i) by the Warrant Agent or by the Holder of any Warrant
Certificate to or on the Company, (ii) by the Company or by the
Holder of any Warrant Certificate to or on the Warrant Agent or
(iii) by the Company or the Warrant Agent to the Holder of any
Warrant Certificate, shall be deemed given when in writing (a) on
the date delivered, if delivered personally, (b) on the first
Business Day following the deposit thereof with Federal Express or
another recognized overnight courier, if sent by Federal Express or
another recognized overnight courier, (c) on the fourth Business
Day following the mailing thereof with postage prepaid, if mailed
by registered or certified mail (return receipt requested), and (d)
the date of transmission, if such notice or communication is
delivered via facsimile or e-mail attachment at or prior to 5:30
p.m. (New York City time) on a Business Day and (e) the next
Business Day after the date of transmission, if such notice or
communication is delivered via facsimile or e-mail attachment on a
day that is not a Business Day or later than 5:30 p.m. (New York
City time) on any Business Day, in each case to the parties at the
following addresses (or at such other address for a party as shall
be specified by like notice):
(a)
If to the Company,
to:
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
E-mail:
▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
(b)
If to the Warrant
Agent, to:
Direct
Transfer LLC
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
For any
notice delivered by email to be deemed given or made, such notice
must be followed by notice sent by overnight courier service to be
delivered on the next Business Day following such email, unless the
recipient of such email has acknowledged via return email receipt
of such email.
(c) If
to the Holder of any Warrant Certificate, to the address of such
Holder as shown on the registry books of the Company. Any notice
required to be delivered by the Company to the Holder of any
Warrant may be given by the Warrant Agent on behalf of the Company.
Notwithstanding any other provision of this Agreement, where this
Agreement provides for notice of any event to a Holder of any
Warrant, such notice shall be sufficiently given if given to the
Depositary (or its designee) pursuant to the procedures of the
Depositary or its designee.
Section
20. Supplements and
Amendments.
(a) The
Company and the Warrant Agent may from time to time supplement or
amend this Agreement without the approval of any Holders of Global
Warrants in order to (i) add to the covenants and agreements of the
Company for the benefit of the Holders of the Global Warrants, (ii)
to surrender any rights or power reserved to or conferred upon the
Company in this Agreement, (iii) to cure any ambiguity, (iv) to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, or (v) to make any
other provisions with regard to matters or questions arising
hereunder which the Company and the Warrant Agent may deem
necessary or desirable, provided that such addition,
correction or surrender shall not adversely affect the interests of
the Holders of the Global Warrants or Warrant Certificates in any
material respect.
(b) In
addition to the foregoing, with the consent of Holders of Warrants
entitled, upon exercise thereof, to receive not less than a
majority of the shares of Common Stock issuable thereunder, the
Company and the Warrant Agent may modify this Agreement for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or modifying in
any manner the rights of the Holders of the Global Warrants;
provided,
however, that no
modification of the terms (including but not limited to the
adjustments described in Section 11) upon which the Warrants are
exercisable or reducing the percentage required for consent to
modification of this Agreement may be made without the consent of
the Holder of each outstanding warrant certificate affected
thereby; provided
further,
however, that no
amendment hereunder shall affect any terms of any Warrant
Certificate issued in a Warrant Exchange. As a condition precedent
to the Warrant Agent’s execution of any amendment, the
Company shall deliver to the Warrant Agent a certificate from a
duly authorized officer of the Company that states that the
proposed amendment complies with the terms of this Section
20. No supplement or
amendment to this Agreement shall be effective unless duly executed
by the Warrant Agent.
Section
21. Successors. All
covenants and provisions of this Agreement by or for the benefit of
the Company or the Warrant Agent shall bind and inure to the
benefit of their respective successors and assigns
hereunder.
Section
22. Benefits of this
Agreement. Nothing in this Agreement shall be construed to
give any Person other than the Company, the Holders of Warrant
Certificates and the Warrant Agent any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be
for the sole and exclusive benefit of the Company, the Warrant
Agent and the Holders of the Warrant Certificates.
Section
23. Governing Law;
Jurisdiction. This Agreement and each Warrant Certificate
issued hereunder shall be governed by, and construed in accordance
with, the laws of the State of New York without giving effect to
the conflicts of law principles thereof. Each party to this Agreement hereby
agrees that any action, proceeding or claim against it arising out
of or relating in any way to this Agreement shall be brought and
enforced in the courts of the State of New York or the United
States District Court for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall
be exclusive. Each party to this Agreement hereby waives any
objection to such exclusive jurisdiction and that such courts
represent an inconvenience forum.
Section
24. Counterparts.
This Agreement may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but
one and the same instrument. A signature to this Agreement
transmitted electronically shall have the same authority, effect
and enforceability as an original signature.
Section
25. Captions. The
captions of the sections of this Agreement have been inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section
26. Information.
The Company agrees to promptly provide to the Holders of the
Warrants any information it provides to the holders of the Common
Stock, except to the extent any such information is publicly
available on the ▇▇▇▇▇ system (or any successor thereof) of the
Securities and Exchange Commission.
Section
27. Severability.
Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provisions or the
remaining provisions of this Agreement; provided, however, that if
such prohibited and invalid provision shall adversely affect the
rights, immunities, liabilities, duties or obligations of the
Warrant Agent, the Warrant Agent shall be entitled to resign
immediately upon written notice to the Company.
Section
28. Force Majeure.
Notwithstanding anything to the contrary contained herein, the
Warrant Agent will not be liable for any delays or failures in
performance resulting from acts beyond its reasonable control
including, without limitation, acts of God, terrorist acts,
shortage of supply, breakdowns or malfunctions, interruptions or
malfunction of computer facilities, or loss of data due to power
failures or mechanical difficulties with information storage or
retrieval systems, labor difficulties, war, or civil unrest, it
being understood that the Warrant Agent shall use reasonable best
efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the
circumstances.
Section
29. Entire
Agreement. The parties hereto acknowledge that there are no
agreements or understandings, written or oral, between them with
respect to matters contemplated hereunder other than as set forth
herein and the Warrant Certificates, that this Agreement and the
Warrant Certificates contain the entire agreement between them with
respect to the subject matter hereof and thereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above
written.
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By:
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Name
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Title
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DIRECT
TRANSFER LLC
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By:
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Name: ▇▇▇▇▇
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Title:
VP Stock Transfer
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Annex A: Form of Warrant Certificate Request Notice
WARRANT
CERTIFICATE REQUEST NOTICE
To:
Direct Transfer LLC as Warrant Agent for Tenax Therapeutics, Inc.
(the “Company”)
The
undersigned Holder of [Series 1] [Series 2] Common Stock Purchase
Warrants (“Warrants”) in the form of [Series 1] [Series
2] Global Warrants issued by the Company hereby elects to receive a
Warrant Certificate evidencing the Warrants held by the Holder as
specified below:
1.
Name of Holder of
[Series 1] [Series 2] Warrants in form of Global Warrants:
___________________________
2.
Name of Holder in
[Series 1] [Series 2] Warrant Certificate (if different from name
of Holder of [Series 1] [Series 2] Warrants in form of Global
Warrants): ________________________________
3.
Number of [Series
1] [Series 2] Warrants in name of Holder in form of Global
Warrants: ___________________
4.
Number of [Series
1] [Series 2] Warrants for which [Series 1] [Series 2] Warrant
Certificate shall be issued: __________________
5.
Number of [Series
1] [Series 2] Warrants in name of Holder in form of Global Warrants
after issuance of [Series 1] [Series 2] Warrant Certificate, if
any: ___________
6.
[Series 1] [Series
2] Warrant Certificate shall be delivered to the following
address:
______________________________
______________________________
______________________________
______________________________
The
undersigned hereby acknowledges and agrees that, in connection with
this Warrant Exchange and the issuance of the Warrant Certificate,
the Holder is deemed to have surrendered the number of Warrants in
form of Global Warrants in the name of the Holder equal to the
number of Warrants evidenced by the Warrant
Certificate.
[SIGNATURE OF
HOLDER]
Name of
Investing Entity:
____________________________________________________
Signature of Authorized Signatory of Investing
Entity: ______________________________
Name of
Authorized Signatory:
________________________________________________
Title
of Authorized Signatory:
_________________________________________________
Date:
_______________________________________________________________
Exhibit 1: Form of Series [1]/[2] Warrant Certificate
Exhibit 2: Schedule of Fees