CORMEDIX INC. Warrant To Purchase Common Stock
Exhibit 4.15
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY
AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN
SECURED BY SUCH SECURITIES.
Warrant To Purchase Common Stock
Warrant
No.:
This
Warrant to Purchase Common Stock (including any Warrants to
Purchase Common Stock issued in exchange, transfer or replacement
hereof, the “Warrant”) of CorMedix Inc. (the “Company”) is issued this __ day of
November, 2017 (the “Issuance
Date”) to [ ] (the “Holder”) pursuant to that certain
Backstop Agreement, dated the Issuance Date (the
“Backstop
Agreement”). The Company hereby certifies that, for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Holder or its permitted assigns
is entitled, subject to the terms set forth below, to purchase from
the Company, at the Exercise Price (as defined below) then in
effect, upon exercise of this Warrant, at any time or times on or
after the Issue Date (the “Initial Exercisability Date”), but
not after 11:59 p.m., New York time, on the Expiration Date (as
defined below), a number of shares of Common Stock equal to [ ]% of
the Aggregate Warrant Amount (subject to adjustment as provided
herein) fully paid and nonassessable shares of Common Stock (as
defined below) (the
“Warrant
Shares”).
Except
as otherwise defined herein or in the Backstop Agreement,
capitalized terms in this Warrant shall have the meanings set forth
in Section 14.
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(e)), this Warrant may be exercised by the Holder on
any day on or after the Initial Exercisability Date, in whole or in
part, by delivery (whether via facsimile or otherwise) of a written
notice, in the form attached hereto as Exhibit A
(the “Exercise
Notice”), of the Holder’s election to exercise
this Warrant. Within one (1) Trading Day following an exercise of
this Warrant as aforesaid, the Holder shall deliver payment to the
Company of an amount equal to the Exercise Price in effect on the
date of such exercise multiplied by the number of Warrant Shares as
to which this Warrant was so exercised (the “Aggregate Exercise Price”) in cash
or via wire transfer of immediately available funds if the Holder
did not notify the Company in such Exercise Notice that such
exercise was made pursuant to a Cashless Exercise (as defined in
Section 1(c)). The Holder shall not be required to deliver the
original of this Warrant in order to effect an exercise hereunder.
Execution and delivery of an Exercise Notice with respect to less
than all of the Warrant Shares shall have the same effect as
cancellation of the original of this Warrant and issuance of a new
Warrant evidencing the right to purchase the remaining number of
Warrant Shares. Execution and delivery of an Exercise Notice for
all of the then-remaining Warrant Shares shall have the same effect
as cancellation of the original of this Warrant after delivery of
the Warrant Shares in accordance with the terms hereof. On or
before the first (1st) Trading Day
following the date on which the Company has received an Exercise
Notice, the Company shall transmit by facsimile an acknowledgment
of confirmation of receipt of such Exercise Notice, in the form
attached hereto as Exhibit B,
to the Holder and the Company’s transfer agent (the
“Transfer
Agent”). On or before the second (2nd) Trading Day
following the date on which the Company has received such Exercise
Notice, the Company shall (X) provided that the Transfer Agent is
participating in The Depository Trust Company (“DTC”) Fast Automated Securities
Transfer Program and provided the shares of Common Stock which the
Holder is entitled to are registered on an effective registration
statement or may be sold without any restriction under Rule 144,
upon the request of the Holder, credit such aggregate number of
shares of Common Stock to which the Holder is entitled pursuant to
such exercise to the Holder’s or its designee’s balance
account with DTC through its Deposit/Withdrawal at Custodian
system, or (Y) if the Transfer Agent is not participating in the
DTC Fast Automated Securities Transfer Program, issue and deliver
to the Holder or, at the Holder’s instruction pursuant to the
Exercise Notice, the Holder’s agent or designee, in each
case, sent by reputable overnight courier to the address as
specified in the applicable Exercise Notice, a certificate,
registered in the Company’s share register in the name of the
Holder or its designee (as indicated in the applicable Exercise
Notice), for the number of shares of Common Stock to which the
Holder is entitled pursuant to such exercise, which may contain a
restrictive legend if required to comply with applicable securities
laws. Upon delivery of an Exercise Notice, the Holder shall be
deemed for all corporate purposes to have become the holder of
record of the Warrant Shares with respect to which this Warrant has
been exercised, irrespective of the date such Warrant Shares are
credited to the Holder’s DTC account or the date of delivery
of the certificates evidencing such Warrant Shares (as the case may
be). If this Warrant is submitted in connection with any exercise
pursuant to this Section 1(a) and the number of Warrant Shares
represented by this Warrant submitted for exercise is greater than
the number of Warrant Shares being acquired upon an exercise, then,
at the request of the Holder, the Company shall as soon as
practicable and in no event later than three (3) Business Days
after any exercise and at its own expense, issue and deliver to the
Holder (or its designee) a new Warrant (in accordance with
Section 6(d) representing the right to purchase the number of
Warrant Shares purchasable immediately prior to such exercise under
this Warrant, less the number of Warrant Shares with respect to
which this Warrant is exercised. No fractional shares of Common
Stock are to be issued upon the exercise of this Warrant, but
rather the number of shares of Common Stock to be issued shall be
rounded up to the nearest whole number. The Company shall pay any
and all taxes and fees which may be payable with respect to the
issuance and delivery of Warrant Shares upon exercise of this
Warrant.
(b) Exercise
Price. For purposes of this Warrant, “Exercise Price” means $0.001 per
share, subject to adjustment as provided herein.
(c) Cashless
Exercise. The Holder may, in its sole discretion, exercise
this Warrant in whole or in part and, in lieu of making the cash
payment otherwise contemplated to be made to the Company upon such
exercise in payment of the Aggregate Exercise Price, elect instead
to receive upon such exercise the “Net Number” of
shares of Common Stock determined according to the following
formula (a “Cashless
Exercise”):
Net
Number = (A x B) - (A x
C)
B
For
purposes of the foregoing formula:
A
=
the total number of
shares with respect to which this Warrant is then being
exercised.
B
=
as applicable: (i)
the Closing Sale Price of the Common Stock on the Trading Day
immediately preceding the date of the applicable Exercise Notice if
such Exercise Notice is (1) both executed and delivered pursuant to
Section 1(a) hereof on a day that is not a Trading Day or (2) both
executed and delivered pursuant to Section 1(a) hereof on a Trading
Day prior to the opening of “regular trading hours” (as
defined in Rule 600(b)(64) of Regulation NMS promulgated under the
federal securities laws) on such Trading Day, (ii) the Closing Bid
Price of the Common Stock as of the time of the Holder’s
execution of the applicable Exercise Notice if such Exercise Notice
is executed during “regular trading hours” on a Trading
Day and is delivered within two (2) hours thereafter pursuant to
Section 1(a) hereof or (iii) the Closing Sale Price of the Common
Stock on the date of the applicable Exercise Notice if the date of
such Exercise Notice is a Trading Day and such Exercise Notice is
both executed and delivered pursuant to Section 1(a) hereof after
the close of “regular trading hours” on such Trading
Day
C
=
the Exercise Price
then in effect for the applicable Warrant Shares at the time of
such exercise.
(d) Disputes.
In the case of a dispute as to the determination of the Exercise
Price or the arithmetic calculation of the number of Warrant Shares
to be issued pursuant to the terms hereof, the Company shall
promptly issue to the Holder the number of Warrant Shares that are
not disputed and resolve such dispute in good faith.
(e) Limitations
on Exercises.
(i) Beneficial
Ownership. Notwithstanding anything to the contrary
contained in this Warrant, this Warrant shall not be exercisable by
the Holder hereof to the extent (but only to the extent) that after
giving effect to such exercise the Holder (together with any of its
affiliates) would beneficially own in excess of 9.99% (the
“Maximum
Percentage”) of the Common Stock. To the extent
the above limitation applies, the determination of whether this
Warrant shall be exercisable (vis-à-vis other convertible,
exercisable or exchangeable securities owned by the Holder or any
of its affiliates) and of which such securities shall be
convertible, exercisable or exchangeable (as the case may be, as
among all such securities owned by the Holder) shall, subject to
such Maximum Percentage limitation, be determined on the basis of
the first submission to the Company for conversion, exercise or
exchange (as the case may be). 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. For the purposes
of this paragraph, beneficial ownership and all determinations and
calculations (including, without limitation, with respect to
calculations of percentage ownership) shall be determined in
accordance with Section 13(d) of the 1934 Act (as defined in
the Backstop Agreement) and the rules and regulations promulgated
thereunder. The provisions of this paragraph shall be implemented
in a manner otherwise than in strict conformity with the terms of
this paragraph to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Maximum
Percentage beneficial ownership limitation herein contained or to
make changes or supplements necessary or desirable to properly give
effect to such Maximum Percentage limitation. The limitations
contained in this paragraph shall apply to a successor Holder of
this Warrant. 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 to the Holder the number of
shares of Common Stock then outstanding, including by virtue of any
prior conversion or exercise of convertible or exercisable
securities into Common Stock, including, without limitation,
pursuant to this Warrant or securities issued pursuant to the
Backstop Agreement. By written notice to the Company, any Holder
may increase or decrease the Maximum Percentage to any other
percentage specified in such notice; provided that (i) any such
increase will not be effective until the 61st day after such notice
is delivered to the Company, and (ii) any such increase or decrease
will apply only to the Holder sending such notice.
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(ii) Principal
Market Regulation. The Company shall not issue any shares of
Common Stock upon the exercise of this Warrant (the
“Backstop
Warrants”) if the issuance of such shares of Common
Stock and the conversion of any Backstop Shares defined in and
issued pursuant to the Backstop Agreement or otherwise pursuant to
the terms of the Backstop Shares) would exceed the aggregate number
of shares of Common Stock which the Company may issue upon exercise
or conversion (as the case may be) of the Backstop Warrants and the
Backstop Shares without breaching the Company’s obligations
under the rules or regulations of the Principal Market (the number
of shares which may be issued without violating such rules and
regulations, the “Exchange
Cap”), except that such limitation shall not apply in
the event that the Company (A) obtains the approval of its
stockholders as required by the applicable rules of the Principal
Market for issuances of shares of Common Stock in excess of such
amount or (B) obtains a written opinion from outside counsel to the
Company that such approval is not required, which opinion shall be
reasonably satisfactory to the Holder or (C) obtain a waiver from
the Principal Market of the applicable rules of such Principal
Market for the issuance of shares of Common Stock in excess of such
amount. Until such approval or such written opinion is obtained,
the Holder shall not be issued in the aggregate, upon conversion or
exercise (as the case may be) of any Backstop Shares or any of the
Backstop Warrants, shares of Common Stock in an amount greater than
the Exchange Cap. In the event that the Holder shall sell or
otherwise transfer any of the Holder’s Backstop Warrants, the
restrictions of the prior sentence shall apply to such
transferee.
2.
ADJUSTMENT OF EXERCISE PRICE OF WARRANT SHARES. The Exercise Price of this Warrant, but
not the number of Warrant Shares issuable hereunder, is subject to
adjustment from time to time as set forth in this
Section 2.
(a) Stock
Dividends and Splits. If the Company, at any time on or
after the date of the Backstop Agreement, (i) pays a stock dividend
on one or more classes of its then outstanding shares of Common
Stock or otherwise makes a distribution on any class of capital
stock that is payable in shares of Common Stock, (ii) subdivides
(by any stock split, stock dividend, recapitalization or otherwise)
one or more classes of its then outstanding shares of Common Stock
into a larger number of shares or (iii) combines (by combination,
reverse stock split or otherwise) one or more classes of its then
outstanding shares of Common Stock into a smaller number of shares,
then in each such case the Exercise Price shall be multiplied by a
fraction of which the numerator shall be the number of shares of
Common Stock outstanding immediately before such event and of which
the denominator shall be the number of shares of Common Stock
outstanding immediately after such event. Any adjustment made
pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution, and
any adjustment pursuant to clause (ii) or (iii) of this paragraph
shall become effective immediately after the effective date of such
subdivision or combination. If any event requiring an adjustment
under this paragraph occurs during the period that an Exercise
Price is calculated hereunder, then the calculation of such
Exercise Price shall be adjusted appropriately to reflect such
event.
(b) Number
of Warrant Shares. Regardless of any adjustment to the
Exercise Price pursuant to paragraph (a) of this Section 2,
the number of Warrant Shares that may be purchased upon exercise of
this Warrant shall not be increased or decreased.
(c) Calculations.
All calculations under this Section 2 shall be made by
rounding to the nearest cent or the nearest 1/100th of a share, as
applicable. The number of shares of Common Stock outstanding at any
given time shall not include shares owned or held by or for the
account of the Company, and the disposition of any such shares
shall be considered an issue or sale of Common Stock.
3.
NONCIRCUMVENTION. The Company
hereby covenants and agrees that the Company will not, by amendment
of its Certificate of Incorporation (as defined in the Backstop
Agreement), Bylaws (as defined in the Backstop Agreement) or
through any reorganization, transfer of assets, consolidation,
merger, scheme of arrangement, dissolution, issue or sale of
securities, or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of this Warrant,
and will at all times in good faith carry out all the provisions of
this Warrant and take all action as may be required to protect the
rights of the Holder. Without limiting the generality of the
foregoing, the Company (i) shall not increase the par value of
any shares of Common Stock receivable upon the exercise of this
Warrant above the Exercise Price then in effect, (ii) shall
take all such actions as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock upon the exercise of this
Warrant, and (iii) shall, so long as this Warrant is outstanding,
take all action necessary to reserve and keep available out of its
authorized and unissued shares of Common Stock, solely for the
purpose of effecting the exercise of this Warrant, the maximum
number of shares of Common Stock as shall from time to time be
necessary to effect the exercise of this Warrant to the extent
outstanding (without regard to any limitations on
exercise).
3
4.
FUNDAMENTAL
TRANSACTIONS.
(a) Fundamental
Transactions. (1) The Company shall not enter into or be
party to a Fundamental Transaction unless (i) the Successor Entity
(if different than the Company) assumes in writing all of the
obligations of the Company under this Warrant in accordance with
the provisions of this Section 4(a) including agreements to
deliver to the Holder in exchange for this Warrant a security of
the Successor Entity evidenced by a written instrument
substantially similar in form and substance to this Warrant,
including, without limitation, which is exercisable for a
corresponding number of shares of capital stock equivalent to the
shares of Common Stock acquirable and receivable upon exercise of
this Warrant (without regard to any limitations on the exercise of
this Warrant) prior to such Fundamental Transaction, and with an
exercise price which applies the exercise price hereunder to such
shares of capital stock (but taking into account the relative value
of the shares of Common Stock pursuant to such Fundamental
Transaction and the value of such shares of capital stock, such
adjustments to the number of shares of capital stock and such
exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such
Fundamental Transaction) and (ii) the Successor Entity
(including its Parent Entity) is a publicly traded corporation
whose common stock is quoted on or listed for trading on an
Eligible Market. Upon the consummation of each Fundamental
Transaction, the Successor Entity shall succeed to, and be
substituted for (so that from and after the date of the applicable
Fundamental Transaction, the provisions of this Warrant and the
other Transaction Documents referring to the “Company”
shall refer instead to the Successor Entity), and may exercise
every right and power of the Company and shall assume all of the
obligations of the Company under this Warrant and the other
Transaction Documents with the same effect as if such Successor
Entity had been named as the Company herein. Upon consummation of
each Fundamental Transaction, the Successor Entity (if different
from the Company) shall deliver to the Holder confirmation that
there shall be issued upon exercise of this Warrant at any time
after the consummation of the applicable Fundamental Transaction,
in lieu of the shares of Common Stock (or other securities, cash,
assets or other property) issuable upon the exercise of this
Warrant prior to the applicable Fundamental Transaction, such
shares of common stock (or its equivalent) of the Successor Entity
(including its Parent Entity) which the Holder would have been
entitled to receive upon the happening of the applicable
Fundamental Transaction had this Warrant been exercised immediately
prior to the applicable Fundamental Transaction (without regard to
any limitations on the exercise of this Warrant), as adjusted in
accordance with the provisions of this Warrant. In addition to and
not in substitution for any other rights hereunder, prior to the
consummation of each Fundamental Transaction pursuant to which
holders of shares of Common Stock are entitled to receive
securities or other assets with respect to or in exchange for
shares of Common Stock (a “Corporate Event”), the Company
shall make appropriate provision to insure that the Holder will
thereafter have the right to receive upon an exercise of this
Warrant at any time after the consummation of the applicable
Fundamental Transaction but prior to the Expiration Date, in lieu
of the shares of the Common Stock (or other securities, cash,
assets or other property) issuable upon the exercise of the Warrant
prior to such Fundamental Transaction, such shares of stock,
securities, cash, assets or any other property whatsoever
(including warrants or other purchase or subscription rights) which
the Holder would have been entitled to receive upon the happening
of the applicable Fundamental Transaction had this Warrant been
exercised immediately prior to the applicable Fundamental
Transaction (without regard to any limitations on the exercise of
this Warrant). Provision made pursuant to the preceding sentence
shall be in a form and substance reasonably satisfactory to the
Holder.
(2)
Notwithstanding the provisions of Section 4(a)(1), the Company
shall have the right to require that Holder waive the requirements
of Section 4(a)(1) (the “Waiver”) in a Fundamental
Transaction in which the definitive documentation relating to such
Fundamental Transaction provides that to the extent this Warrant is
“in the money” (by reference to the purchase price per
share of Common Stock in such Fundamental Transaction (such price
the, “Fundamental Transaction
Per Share Price”)), the Buyer shall receive proceeds
equal to the product of (a) the number of shares of Common Stock
into which this Warrant is exercisable and (b) the difference
between the Fundamental Transaction Per Share Price and the
Exercise Price (the “Fundamental Transaction Amount”).
Notwithstanding anything to the contrary in this Section 4(a), but
subject to Section 1(e)(i), until such time that the Holder
receives the Fundamental Transaction Amount (at which point this
Warrant shall be cancelled), this Warrant may be exercised, in
whole or in part, by the Holder (x) prior to consummation of the
applicable Fundamental Transaction, into Common Stock pursuant to
Section 1, or (y) upon (which may be expressly conditioned upon the
consummation of the applicable Fundamental Transaction) or after
the consummation of the applicable Fundamental Transaction, into
any such shares of stock, securities, cash, assets or any other
property whatsoever (including warrants or other purchase or
subscription rights, if applicable) which the Holder would have
been entitled to receive upon the happening of such Fundamental
Transaction had the Warrant been exercised immediately prior to the
consummation of such Fundamental Transaction. The Holder and
the Company acknowledge and agree that the provisions of Section
4(a)(1) shall be of no further force or effect to the extent that
the Buyer exercises its cashless exercise rights pursuant to
Section 1(c) hereof prior to the consummation of a Fundamental
Transaction.
(b) Application.
The provisions of this Section 4 shall apply similarly and
equally to successive Fundamental Transactions and Corporate Events
and shall be applied as if this Warrant (and any such subsequent
warrants) were fully exercisable and without regard to any
limitations on the exercise of this Warrant (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)).
4
5.
WARRANT HOLDER NOT DEEMED A STOCKHOLDER. Except as
otherwise specifically provided herein, the Holder, solely in its
capacity as a holder of this Warrant, shall not be entitled to vote
or receive dividends or be deemed the holder of share capital of
the Company for any purpose, nor shall anything contained in this
Warrant be construed to confer upon the Holder, solely in its
capacity as the Holder of this Warrant, any of the rights of a
stockholder of the Company or any right to vote, give or withhold
consent to any corporate action (whether any reorganization, issue
of stock, reclassification of stock, consolidation, merger,
conveyance or otherwise), receive notice of meetings, receive
dividends or subscription rights, or otherwise, prior to the
issuance to the Holder of the Warrant Shares which it is then
entitled to receive upon the due exercise of this Warrant. In
addition, nothing contained in this Warrant shall be construed as
imposing any liabilities on the Holder to purchase any securities
(upon exercise of this Warrant or otherwise) or as a stockholder of
the Company, whether such liabilities are asserted by the Company
or by creditors of the Company. Notwithstanding this
Section 5, the Company shall provide the Holder with copies of
the same notices and other information given to the stockholders of
the Company generally, contemporaneously with the giving thereof to
the stockholders.
6.
REISSUANCE OF
WARRANTS.
(a) Transfer
of Warrant. If this Warrant is to be transferred, the Holder
shall surrender this Warrant to the Company, whereupon the Company
will forthwith issue and deliver upon the order of the Holder a new
Warrant (in accordance with Section 6(d)), registered as the
Holder may request, representing the right to purchase the number
of Warrant Shares being transferred by the Holder and, if less than
the total number of Warrant Shares then underlying this Warrant is
being transferred, a new Warrant (in accordance with
Section 6(d)) to the Holder representing the right to purchase
the number of Warrant Shares not being transferred.
(b) Lost,
Stolen or Mutilated Warrant. Upon receipt by the Company of
evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant (as to which a written
certification and the indemnification contemplated below shall
suffice as such evidence), and, in the case of loss, theft or
destruction, of any indemnification undertaking by the Holder to
the Company in customary and reasonable form and, in the case of
mutilation, upon surrender and cancellation of this Warrant, the
Company shall execute and deliver to the Holder a new Warrant (in
accordance with Section 6(d)) representing the right to
purchase the Warrant Shares then underlying this
Warrant.
(c) Exchangeable
for Multiple Warrants. This Warrant is exchangeable, upon
the surrender hereof by the Holder at the principal office of the
Company, for a new Warrant or Warrants (in accordance with
Section 6(d)) representing in the aggregate the right to
purchase the number of Warrant Shares then underlying this Warrant,
and each such new Warrant will represent the right to purchase such
portion of such Warrant Shares as is designated by the Holder at
the time of such surrender; provided, however, no warrants for
fractional shares of Common Stock shall be given.
(d) Issuance
of New Warrants. Whenever the Company is required to issue a
new Warrant pursuant to the terms of this Warrant, such new Warrant
(i) shall be of like tenor with this Warrant, (ii) shall represent,
as indicated on the face of such new Warrant, the right to purchase
the Warrant Shares then underlying this Warrant (or in the case of
a new Warrant being issued pursuant to Section 6(a) or Section
6(c), the Warrant Shares designated by the Holder which, when added
to the number of shares of Common Stock underlying the other new
Warrants issued in connection with such issuance, does not exceed
the number of Warrant Shares then underlying this Warrant), (iii)
shall have an issuance date, as indicated on the face of such new
Warrant which is the same as the Issuance Date, and (iv) shall have
the same rights and conditions as this Warrant.
5
7.
NOTICES. Whenever notice
is required to be given under this Warrant, unless otherwise
provided herein, such notice shall be given in accordance with
Section 7(f) of the Backstop Agreement. The Company shall
provide the Holder with prompt written notice of all actions taken
pursuant to this Warrant, including in reasonable detail a
description of such action and the reason therefor. Without
limiting the generality of the foregoing, the Company will give
written notice to the Holder (i) immediately upon each adjustment
of the Exercise Price and the number of Warrant Shares, setting
forth in reasonable detail, and certifying, the calculation of such
adjustment(s). To the extent that any notice provided hereunder
constitutes, or contains, material, non-public information
regarding the Company or any of its Subsidiaries, the Company shall
simultaneously file such notice with the SEC (as defined in the
Backstop Agreement) pursuant to a Current Report on Form 8-K. It is
expressly understood and agreed that the time of execution
specified by the Holder in each Exercise Notice shall be definitive
and may not be disputed or challenged by the Company.
8.
AMENDMENT AND WAIVER. Except as
otherwise provided herein, the provisions of this Warrant may be
amended and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only
if the Company has obtained the written consent of the Holder. The
Holder shall be entitled, at its option, to the benefit of any
amendment of (i) any other similar warrant issued under the
Backstop Agreement or (ii) any other similar warrant. No waiver
shall be effective unless it is in writing and signed by an
authorized representative of the waiving party.
9.
SEVERABILITY. If any provision
of this Warrant is prohibited by law or otherwise determined to be
invalid or unenforceable by a court of competent jurisdiction, the
provision that would otherwise be prohibited, invalid or
unenforceable shall be deemed amended to apply to the broadest
extent that it would be valid and enforceable, and the invalidity
or unenforceability of such provision shall not affect the validity
of the remaining provisions of this Warrant so long as this Warrant
as so modified continues to express, without material change, the
original intentions of the parties as to the subject matter hereof
and the prohibited nature, invalidity or unenforceability of the
provision(s) in question does not substantially impair the
respective expectations or reciprocal obligations of the parties or
the practical realization of the benefits that would otherwise be
conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable
provision(s) with a valid provision(s), the effect of which comes
as close as possible to that of the prohibited, invalid or
unenforceable provision(s).
6
10.
GOVERNING LAW. This Warrant
shall be governed by and construed and enforced in accordance with,
and all questions concerning the construction, validity,
interpretation and performance of this Warrant shall be governed
by, the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other
than the State of New York. The Company hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts
sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or
with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Nothing contained
herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. Nothing contained herein
shall be deemed or operate to preclude the Holder from bringing
suit or taking other legal action against the Company in any other
jurisdiction to collect on the Company’s obligations to the
Holder or to enforce a judgment or other court ruling in favor of
the Holder. THE COMPANY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
11.
CONSTRUCTION; HEADINGS. This Warrant
shall be deemed to be jointly drafted by the Company and the Holder
and shall not be construed against any Person as the drafter
hereof. The headings of this Warrant are for convenience of
reference and shall not form part of, or affect the interpretation
of, this Warrant. Terms used in this Warrant but defined in the
other Transaction Documents shall have the meanings ascribed to
such terms on the Closing Date in such other Transaction Documents
unless otherwise consented to in writing by the
Holder.
12.
REMEDIES, CHARACTERIZATION, OTHER OBLIGATIONS, BREACHES AND
INJUNCTIVE RELIEF. The remedies
provided in this Warrant shall be cumulative and in addition to all
other remedies available under this Warrant and the other
Transaction Documents, at law or in equity (including a decree of
specific performance and/or other injunctive relief), and nothing
herein shall limit the right of the Holder to pursue actual damages
for any failure by the Company to comply with the terms of this
Warrant. The Company covenants to the Holder that there shall be no
characterization concerning this instrument other than as expressly
provided herein. Amounts set forth or provided for herein with
respect to payments, exercises and the like (and the computation
thereof) shall be the amounts to be received by the Holder and
shall not, except as expressly provided herein, be subject to any
other obligation of the Company (or the performance thereof). The
Company acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to the Holder and that the
remedy at law for any such breach may be inadequate. The Company
therefore agrees that, in the event of any such breach or
threatened breach, the holder of this Warrant shall be entitled, in
addition to all other available remedies, to an injunction
restraining any breach, without the necessity of showing economic
loss and without any bond or other security being required. The
Company shall provide all information and documentation to the
Holder that is requested by the Holder to enable the Holder to
confirm the Company’s compliance with the terms and
conditions of this Warrant (including, without limitation,
compliance with Section 2 hereof). The issuance of shares and
certificates for shares as contemplated hereby upon the exercise of
this Warrant shall be made without charge to the Holder or such
shares for any issuance tax or other costs in respect thereof,
provided that the Company shall not be required to pay any tax
which may be payable in respect of any transfer involved in the
issuance and delivery of any certificate in a name other than the
Holder or its agent on its behalf.
7
13.
TRANSFER. This Warrant may
be offered for sale, sold, transferred or assigned without the
consent of the Company.
14.
CERTAIN DEFINITIONS. For purposes of
this Warrant, the following terms shall have the following
meanings:
(a) “Aggregate
Warrant Amount” means a number equal to (A) $500,000
divided by (b) $0.5278 minus (B) the product of (a) 50% of the
amount in sub-clause (A) and (b) (i) solely to the extent raised
from Persons other than the Backstop Investors and their respective
affiliates, up to $3 million of any cash proceeds described in
clause (A)(3) of the definition of Purchase Maximum actually
received by the Company on or prior to December 24, 2017 divided by
(ii) $3 million.
(b) “Bloomberg”
means Bloomberg, L.P.
(c) “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.
(d)
“Change of
Control” means any Fundamental Transaction other than
(i) any merger of the Company or any of its, direct or indirect,
wholly-owned Subsidiaries with or into any of the foregoing
Persons, (ii) any reorganization, recapitalization or
reclassification of the shares of Common Stock in which holders of
the Company’s voting power immediately prior to such
reorganization, recapitalization or reclassification continue after
such reorganization, recapitalization or reclassification to hold
publicly traded securities and, directly or indirectly, are, in all
material respects, the holders of the voting power of the surviving
entity (or entities with the authority or voting power to
elect the members of the board of directors (or their equivalent if
other than a corporation) of such entity or entities) after such
reorganization, recapitalization or reclassification, or (iii)
pursuant to a migratory merger effected solely for the purpose of
changing the jurisdiction of incorporation of the Company or any of
its Subsidiaries.
(e) “Closing
Bid Price” and “Closing Sale Price” means, for any
security as of any date, the last closing bid price and last
closing trade price, respectively, for such security on the
Principal Market, as reported by Bloomberg, or, if the Principal
Market begins to operate on an extended hours basis and does not
designate the closing bid price or the closing trade price (as the
case may be) then the last bid price or last trade price,
respectively, of such security prior to 4:00:00 p.m., New York City
time, as reported by Bloomberg, or, if the Principal Market is not
the principal securities exchange or trading market for such
security, the last closing bid price or last trade price,
respectively, of such security on the principal securities exchange
or trading market where such security is listed or traded as
reported by Bloomberg, or if the foregoing do not apply, the last
closing bid price or last trade price, respectively, of such
security in the over-the-counter market on the electronic bulletin
board for such security as reported by Bloomberg, or, if no closing
bid price or last trade price, respectively, is reported for such
security by Bloomberg, the average of the bid prices, or the ask
prices, respectively, of any market makers for such security as
reported in the “pink sheets” by OTC Markets Group Inc.
(formerly Pink Sheets LLC). If the Closing Bid Price or the Closing
Sale Price cannot be calculated for a security on a particular date
on any of the foregoing bases, the Closing Bid Price or the Closing
Sale Price (as the case may be) of such security on such date shall
be the fair market value as mutually determined by the Company and
the Holder. All such determinations shall be appropriately adjusted
for any stock dividend, stock split, stock combination or other
similar transaction during such period.
8
(f) “Common
Stock” means (i) the Company’s shares of
common stock, $0.001 par value per share, and (ii) any capital
stock into which such common stock shall have been changed or any
share capital resulting from a reclassification of such common
stock.
(g) “Eligible
Market” means The New York Stock Exchange, the NYSE
American, the Nasdaq Global Select Market, the Nasdaq Global Market
or the Principal Market.
(h) “Expiration
Date” means the date that is the three year
anniversary of the Initial Exercisability Date, or, if such date
falls on a day other than a Business Day or on which trading does
not take place on the Principal Market (a “Holiday”), the next date that is
not a Holiday.
(i) “Fundamental
Transaction” means that (i) the Company or any of its
Subsidiaries shall, directly or indirectly, in one or more related
transactions, (1) consolidate or merge with or into (whether or not
the Company or any of its Subsidiaries is the surviving
corporation) any other Person, or (2) sell, lease, license, assign,
transfer, convey or otherwise dispose of all or substantially all
of its respective properties or assets to any other Person, or (3)
support any other Person in making a purchase, tender or exchange
offer that is accepted by the holders of more than 50% of the
outstanding shares of Voting Stock of the Company (not including
any shares of Voting Stock of the Company held by the Person or
Persons making or party to, or associated or affiliated with the
Persons making or party to, such purchase, tender or exchange
offer), or (4) consummate a stock or share purchase agreement or
other business combination (including, without limitation, a
reorganization, recapitalization, spin-off or scheme of
arrangement) with any other Person whereby such other Person
acquires more than 50% of the outstanding shares of Voting Stock of
the Company (not including any shares of Voting Stock of the
Company held by the other Person or other Persons making or party
to, or associated or affiliated with the other Persons making or
party to, such stock or share purchase agreement or other business
combination).
(j) “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.
(k) “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.
(l) “Principal
Market” means the NYSE American.
9
(m)
“Subsidiary”
means any Person in which the Company, directly or indirectly, (i)
owns any of the outstanding capital stock or holds any equity or
similar interest of such Person or (ii) controls or operates all or
any part of the business, operations or administration of such
Person, and all of the foregoing.
(n) “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.
(o) “Trading
Day” means any day on which the Common Stock is traded
on the Principal Market, or, if the Principal Market is not the
principal trading market for the Common Stock, then on the
principal securities exchange or securities market on which the
Common Stock is then traded, provided that “Trading
Day” shall not include any day on which the Common Stock is
scheduled to trade on such exchange or market for less than 4.5
hours or any day that the Common Stock is suspended from trading
during the final hour of trading on such exchange or market (or if
such exchange or market does not designate in advance the closing
time of trading on such exchange or market, then during the hour
ending at 4:00:00 p.m., New York time) unless such day is otherwise
designated as a Trading Day in writing by the Holder.
(p) “Voting
Stock” of a Person means capital stock of such Person
of the class or classes pursuant to which the holders thereof have
the general voting power to elect, or the general power to appoint,
at least a majority of the board of directors, managers or trustees
of such Person (irrespective of whether or not at the time capital
stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
[signature
page follows]
10
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.
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By:
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Name:
▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
Chief Executive Officer
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[signature page to
warrant]
EXHIBIT A
EXERCISE NOTICE
TO
BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
WARRANT TO PURCHASE
COMMON STOCK
The
undersigned holder hereby exercises the right to purchase
_________________ of the shares of Common Stock
(“Warrant
Shares”) of CorMedix Inc., a Delaware corporation (the
“Company”),
evidenced by Warrant to Purchase Common Stock No. _______ (the
“Warrant”).
Capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Warrant.
1. Form
of Exercise Price. The Holder intends that payment of the
Exercise Price shall be made as:
____________
a
“Cash
Exercise” with respect to _________________ Warrant
Shares; and/or
____________
a
“Cashless
Exercise” with respect to _______________ Warrant
Shares.
In the
event that the Holder has elected a Cashless Exercise with respect
to some or all of the Warrant Shares to be issued pursuant hereto,
the Holder hereby represents and warrants that (i) this Exercise
Notice was executed by the Holder at __________ [a.m.][p.m.] on the
date set forth below and (ii) if applicable, the Closing Bid Price
as of such time of execution of this Exercise Notice was
$________.
2. Payment
of Exercise Price. In the event that the Holder has elected
a Cash Exercise with respect to some or all of the Warrant Shares
to be issued pursuant hereto, the Holder shall pay the Aggregate
Exercise Price in the sum of $___________________ to the Company in
accordance with the terms of the Warrant.
3. Delivery
of Warrant Shares. The Company shall deliver to Holder, or
its designee or agent as specified below, __________ Warrant Shares
in accordance with the terms of the Warrant. Delivery shall be made
to Holder, or for its benefit, to the following address or DTC
Account number:
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Date:
___________________ ___, _________
_____________________________________
Name of
Registered Holder
By:
__________________________________
EXHIBIT B
ACKNOWLEDGMENT
The
Company hereby acknowledges this Exercise Notice and hereby directs
______________ to issue the above indicated number of shares of Common Stock
in accordance with the Transfer Agent Instructions dated _________,
20__, from the Company and acknowledged and agreed to by
_______________.