Form of Representative’s Warrant
Exhibit
4.6
Form of Representative’s Warrant
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH
SECURITIES UNDER THE SECURITIES ACT AND ALL APPLICABLE STATE
SECURITIES LAWS OR AN EXEMPTION THEREFROM.
THIS WARRANT IS SUBJECT TO RESTRICTIONS ON TRANSFER AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED, OR BE THE
SUBJECT OF ANY HEDGING, SHORT SALE, DERIVATIVE, PUT, OR CALL
TRANSACTION THAT WOULD RESULT IN THE EFFECTIVE ECONOMIC DISPOSITION
OF THIS WARRANT OR THE SHARES ACQUIRABLE UPON EXERCISE HEREOF,
OTHER THAN IN COMPLIANCE WITH THE 180 DAY LOCK-UP PERIOD OF RULE
5110(G) OF THE FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC. AND
SECTION 7 HEREOF.
WARRANT
To Subscribe for and Purchase
Shares
of Common Stock of
Date:
[_________], 2019
THIS
CERTIFIES THAT, for value received, Northland Securities, Inc., or
its registered assigns (herein referred to as the
“Purchaser” or
“holder”), is
entitled to subscribe for and purchase from Super League Gaming,
Inc., a Delaware corporation (herein called the “Company”), ____________
(____________) shares (the “Shares”) of common stock, par
value $0.001 per share (the “Common Stock”), of the Company
(subject to adjustment as noted below) at the exercise price of
$[____] per Share (the “Warrant Purchase Price”) (subject
to adjustment as noted below). This Warrant may only be exercised
during the Exercise Period specified herein. This Warrant has been
issued pursuant to the Underwriting Agreement, dated [______],
2019, between the Company and the Purchaser and Lake Street Capital
Markets, LLC as the representatives of the several underwriters
listed in Schedule
I thereto, in connection with a public offering (the
“Offering”) of
[_______] shares of Common Stock.
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This
Warrant is subject to the following provisions, terms and
conditions:
1. The
Warrant exercise period (the “Exercise Period”) for this
Warrant shall begin the effective date of the Offering and shall
end on the fifth (5th) anniversary of the
effective date of the Offering. As used herein, the
“effective date of the Offering” means [_______], 2019.
2. The
rights represented by this Warrant may be exercised, in whole or in
part, by the holder hereof as follows:
(a) The
holder hereof shall deliver to the Company written notice of
exercise of this Warrant and in connection therewith shall
surrender this Warrant (properly endorsed if required) at the
principal office of the Company and pay the Warrant Purchase Price
for such Shares as provided for herein.
(a) The
holder hereof shall pay the Warrant Purchase Price (i) in
immediately available funds or (ii) by “cashless
exercise,” in which event the Company shall issue to the
holder hereof a number of Shares determined as
follows:
X = Y *
[(A-B)/A]
where:
X = the
number of Shares to be issued to the holder.
Y = the
total number of Shares with respect to which this Warrant is being
exercised.
A = the
fair market value of one Share at the time the “cashless
exercise” election is made.
B = the
Warrant Purchase Price then in effect for the Shares at the
“cashless exercise” election is made.
For
purposes of this Warrant, the fair market value of one Share as of
a particular date shall be determined as follows: (i) if the Common
Stock is traded on a U.S. national securities exchange, the value
shall be deemed to be the average of the closing prices of the
Common Stock on such exchange over the 10-Trading Day period ending
on the Trading Day prior to the net exercise election; (ii) if
clause (i) is not applicable, the value shall be deemed to be the
average of the closing bid or sale prices (whichever is applicable)
of the Common Stock on the principal securities exchange or
securities market on which the Common Stock trades over the
10-Trading Day period ending on the Trading Day prior to the net
exercise election; and (iii) if none of the foregoing is
applicable, the value shall be the fair market value of one share
of Common Stock mutually agreed upon by the holder and the Company;
provided, that if the Company and the holder are unable to agree
upon the fair market value of a Share, then the board of directors
of the Company shall use its good faith judgment to determine the
fair market value, and such determination shall be binding upon all
parties absent demonstrable error.
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For
purposes of this Warrant, “Trading Day” means any day on
which the Common Stock is traded on a U.S. stock exchange or, if
inapplicable, the principal securities exchange or securities
market on which the Common Stock is then traded.
(b) Upon
exercise of this Warrant, the Company shall promptly (but in no
event later than two Trading Days after the date this Warrant is
exercised in accordance with its terms) issue or cause to be issued
and cause to be delivered to or upon the written order of the
holder and in such name or names as the holder may designate
(provided that, if the holder directs the Company to deliver a
certificate for the Shares in a name other than that of the holder
or an affiliate (as defined in Rule 405 under the Securities Act of
1933, as amended (the “Securities Act”)) of the holder,
it shall deliver to the Company on the date of exercise an opinion
of counsel reasonably satisfactory to the Company to the effect
that the issuance of such Shares in such other name may be made
pursuant to an available exemption from the registration
requirements of the Securities Act and all applicable state
securities or blue sky laws), a certificate for the Shares issuable
upon such exercise or credit for such Shares through the facilities
of The Depository Trust Company (“DTC”) to the account designated
by the holder (with any restrictive legends required by applicable
securities laws). The form of delivery of the Shares acquired upon
exercise will be at the election of the holder, subject to the
other terms of this Warrant. The holder, or any person permissibly
so designated by the holder to receive the Shares acquired upon
exercise hereof, shall be deemed to have become the holder of
record of such Shares as of the date notice of exercise and payment
of the applicable Warrant Purchase Price is made in accordance with
the terms hereof.
(c) If
by the fifth Trading Day after the date this Warrant is exercised
in accordance with this Section 2 the Company fails to
deliver the required number of Shares in the manner required
pursuant to Section 2(c), then, in
addition to any other remedy the holder may have at law or in
equity (including a decree of specific performance or injunctive
relief), the holder hereof will have the right to rescind such
exercise.
(d) In
the event that this Warrant has not been exercised prior to the end
of the Exercise Period and the fair market value of one Share as
determined in accordance with the provisions hereof exceeds the
Warrant Purchase Price on the last day of the Exercise Period, on
such date this Warrant will be automatically exercised pursuant to
the cashless exercise provisions set forth in Section 2(b); provided, that
the holder hereof, upon the request of the Company, must surrender
to the Company this Warrant within 30 days of a request for
delivery of thereof by the Company. If the holder hereof does not
surrender this Warrant within such time period, this Warrant will
be deemed to not have been exercised under this Section 2(e) and will terminate
and no longer be exercisable.
3. The
Company represents and warrants that this Warrant has been duly
authorized by all necessary corporate action, has been duly
executed and delivered and is a legal and binding obligation of the
Company, enforceable against the Company in accordance with the
terms of this Warrant, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles
of equity. The Company covenants and agrees that all Shares which
may be issued upon the exercise of the rights represented by this
Warrant according to the terms hereof have been duly authorized and
will, upon issuance and payment therefor, be validly issued and
fully paid. The Company further covenants and agrees that during
the period within which the rights represented by this Warrant may
be exercised, the Company will at all times have authorized, and
reserved for the purpose of issue upon exercise of the subscription
rights evidenced by this Warrant, a sufficient number of its shares
of Common Stock to provide for the exercise of the rights
represented by this Warrant, free from preemptive rights or other
actual contingent purchase rights other than those held by a holder
of this Warrant (as a result of holding this Warrant).
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4. The
Company will pay any documentary stamp taxes attributable to the
issuance of Shares upon the exercise of this Warrant; provided, however, that the Company
shall not be required to pay any tax which may be payable in
respect of any transfer involved in the registration of any
certificates for Warrants, or Shares issued upon exercise of this
Warrant, in a name other than that of the Purchaser. The Purchaser
shall be responsible for all other tax liability that may arise as
a result of holding or transferring this Warrant or receiving
Shares upon exercise hereof.
5. The
above provisions are, however, subject to the
following:
(a) The
Warrant Purchase Price shall, from and after the date of issuance
of this Warrant, be subject to adjustment from time to time as
hereinafter provided. Upon each adjustment of the Warrant Purchase
Price, the holder of this Warrant shall thereafter be entitled to
purchase, at the Warrant Purchase Price resulting from such
adjustment, the number of Shares obtained by multiplying the
Warrant Purchase Price in effect immediately prior to such
adjustment by the number of Shares purchasable pursuant hereto
immediately prior to such adjustment and dividing the product
thereof by the Warrant Purchase Price resulting from such
adjustment.
(b) In
case the Company shall at any time subdivide its outstanding shares
of Common Stock into a greater number of shares, the Warrant
Purchase Price in effect immediately prior to such subdivision
shall be proportionately reduced, and conversely, in case the
outstanding shares of Common Stock shall be combined into a smaller
number of shares, the Warrant Purchase Price in effect immediately
prior to such combination shall be proportionately
increased.
(c) If
any capital reorganization or reclassification of the capital stock
of the Company, shall be effected in such a way that holders of
Common Stock shall be entitled to receive stock or securities with
respect to or in exchange for Common Stock, then, as a condition of
such reorganization, reclassification or consolidation, lawful and
adequate provision shall be made whereby the holder hereof shall
thereafter have the right to purchase and receive, upon the basis
and upon the terms and conditions specified in this Warrant and in
lieu of the Shares immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby, such
shares of stock or securities as may be issued or payable with
respect to or in exchange for a number of Shares equal to the
number of Shares immediately theretofore purchasable and receivable
upon the exercise of the rights represented hereby had such
reorganization, reclassification or consolidation not taken place,
and in any such case appropriate provision shall be made with
respect to the rights and interests of the holder of this Warrant
to the end that the provisions hereof (including without limitation
provisions for adjustments of the warrant purchase price and of the
number of shares purchasable upon the exercise of this Warrant)
shall thereafter be applicable, as nearly as may be, in relation to
any shares of stock or securities thereafter deliverable upon the
exercise hereof.
(d) Upon
any adjustment of the Warrant Purchase Price or any adjustment of
any material terms hereof, then and in each such case an officer of
the Company shall, as soon as practicable after the occurrence of
any event that requires an adjustment or readjustment, give signed
written notice thereof, by first–class mail, postage prepaid,
addressed to the registered holder of this Warrant at the address
of such holder as shown on the books of the Company, which notice
shall state the Warrant Purchase Price resulting from such
adjustment, any material change in the terms of the Warrant, and
the increase or decrease, if any, in the number of Shares
purchasable at such price upon the exercise of this Warrant,
setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based.
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(e) If
at any time during the Exercise Period:
(i) there
shall be any capital reorganization, or reclassification of the
capital stock of the Company; or
(ii) there
shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then,
in any one or more of said cases, the Company shall give written
notice, by first–class mail, postage prepaid, addressed to
the registered holder of this Warrant at the address of such holder
as shown on the books of the Company, of the date on which (A) the
books of the Company shall close or a record shall be taken for
such distribution or subscription rights, or (B) such
reorganization, reclassification or consolidation, dissolution,
liquidation or winding up, or conversion or redemption shall take
place, as the case may be. Such notice shall also specify the date
as of which the holders of capital stock of record shall
participate in such distribution or subscription rights, or shall
be entitled to exchange their capital stock for securities or other
property deliverable upon such reorganization, reclassification,
consolidation, dissolution, liquidation or winding up, or
conversion or redemption, as the case may be. Such written notice
shall be given at least 20 days prior to the action in question and
not less than 20 days prior to the record date or the date on which
the Company’s transfer books are closed in respect
thereto.
(f) If
any event occurs as to which in the opinion of the Board of
Directors of the Company the other provisions of this Section 5 are not strictly
applicable or if strictly applicable would not fairly protect the
purchase rights of the holder of this Warrant or of the Common
Stock in accordance with the essential intent and principles of
such provisions, then the Board of Directors shall make an
adjustment in the application of such provisions, in accordance
with such essential intent and principles, so as to protect such
purchase rights as aforesaid.
6. This
Warrant shall not entitle the holder hereof to any voting rights or
other rights as a shareholder of the Company.
7. This
Warrant is exchangeable, upon the surrender hereof by the holder
hereof at the principal office of the Company, for new Warrants of
like tenor representing in the aggregate the right to subscribe for
and purchase the number of shares which may be subscribed for and
purchased hereunder, each of such new Warrants to represent the
right to subscribe for and purchase such number of shares as shall
be designated by said holder hereof at the time of such surrender.
Subject to compliance with applicable securities laws and the other
terms of this Warrant, this Warrant may be assigned or transferred
by the holder and this Warrant shall be binding on and inure to the
benefit of the parties hereto and their respective transferees,
successors and assigns. Notwithstanding the foregoing, pursuant to
Rule 5110(g) of the Financial Industry Regulatory Authority, Inc.
(“FINRA”), this
Warrant shall not be sold during the Offering, or sold,
transferred, assigned, pledged, or hypothecated, or be the subject
of any hedging, short sale, derivative, put, or call transaction
that would result in the effective economic disposition of this
Warrant or the Shares acquirable upon exercise hereof, by any
person for a period of 180 days immediately following the effective
date of the Offering, except as provided in paragraph (g)(2) of
Rule 5110(g) of the FINRA.
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8. Each
certificate for the securities purchased under this Warrant shall
bear a legend as follows unless such securities have been
registered under the Securities Act of 1933, as amended (the
“Act”):
“The
securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the
“Act”), or applicable state law. Neither the securities
nor any interest therein may be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement
under the Act, or pursuant to an exemption from registration under
the Act and applicable state law which, in the opinion of counsel
to the Company, is available.”
The
securities evidenced by this Warrant shall not be transferred
unless and until: (i) the Company has received the opinion of
counsel for the Holder that the securities may be transferred
pursuant to an exemption from registration under the Act and
applicable state securities laws, the availability of which is
established to the reasonable satisfaction of the counsel of the
Company, or (ii) a registration statement relating to the offer and
sale of such securities has been filed by the Company and declared
effective by the U.S. Securities and Exchange Commission and
compliance with applicable state securities law has been
established.
9. The
Company will not be required upon the exercise of this Warrant to
issue fractions of Shares, but may, at its option, either (a)
purchase such fraction for an amount in cash equal to the current
value of such fraction computed on the basis of the closing market
price of the Common Stock as quoted on the principal exchange or
trading facility on which the Common Stock is traded on the Trading
Day immediately preceding the day upon which this Warrant was
surrendered for exercise in accordance with Section 2 hereof, or (b) issue
the required Share. By accepting this Warrant, the holder hereof
expressly waives any right to receive any fractional share upon
exercise of a Warrant, except as expressly provided in this
Section
9.
10. If
this Warrant is exercised for less than all of the then-current
number of Shares purchasable hereunder, then the Company shall,
concurrently with the issue of the Shares purchased by the holder
hereof upon such exercise in accordance with Section 2, issue a new warrant
exercisable for the remaining number of Shares purchasable under
this Warrant.
11. Upon
receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant and
security reasonably satisfactory to it, the Company shall execute
and deliver a new warrant of like tenor as the Warrant so lost,
stolen, destroyed or mutilated.
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12. This
Warrant shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without giving
effect to conflict of laws principles thereof. The Company and the
holder agree that the prevailing party(ies) in any action or
proceeding arising out of or relating to this Warrant shall be
entitled to recover from the other party(ies) all of its reasonable
attorneys’ fees and expenses relating to such action or
proceeding and/or incurred in connection with the preparation
therefor.
13. All
modifications or amendments of this Warrant shall require the
written consent of and be signed by the party against whom
enforcement of the modification or amendment is
sought.
14. This
Warrant (together with the other agreements and documents being
delivered pursuant to or in connection with this Warrant)
constitutes the entire agreement of the parties hereto with respect
to the subject matter hereof, and supersedes all prior agreements
and understandings of the parties, oral and written, with respect
to the subject matter hereof.
15. This
Warrant shall inure solely to the benefit of and shall be binding
upon, the holder and the Company and their permitted assignees,
respective successors, legal representative and assigns, and no
other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by
virtue of this Warrant or any provisions herein
contained.
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IN
WITNESS WHEREOF, Super League Gaming, Inc. has caused this Warrant
to be signed by its duly authorized officer and this Warrant to be
dated as of the date set forth above.
By:
___________________________________
Name:
▇▇▇ ▇▇▇▇
Title:
Chief Executive Officer, President and Chair
of the
Board
Acknowledged
and agreed:
Northland Securities, Inc.
By:
__________________________________
Name:
Title:
Lake Street Capital Markets, LLC
By:
___________________________________
Name:
Title:
SUBSCRIPTION FORM
To be Executed by the Holder of this Warrant if such
Holder
Desires
to Exercise this Warrant in Whole or in Part
To:
Super League
Gaming, Inc. (the “Company”)
The
undersigned ___________________________________
Please insert Social Security or other
identifying
number of Subscriber:
_______________________________
hereby
irrevocably elects to exercise the right of purchase represented by
this Warrant for, and to purchase thereunder, ___________ shares of
Common Stock (the “Shares”) provided for
therein.
Payment
of the Warrant Purchase Price for the Shares shall take the form of
[Check the applicable box below]:
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☐
Immediately
available U.S. funds; or
☐
the cancellation of
such number of Shares as is necessary to satisfy the Warrant
Purchase Price with respect to the exercise of the number of Shares
set forth above in accordance with the formula set forth in
Section 2(b) of the
Warrant.
The
undersigned requests that such Shares be registered in the name of
the undersigned or in such other name specified below:
Name:
The
Shares shall be delivered as follows:
and, if
such number of Shares does not constitute all shares purchasable
under the Warrant, that a new Warrant for the balance remaining of
such shares be registered in the name of, and delivered to, the
undersigned at the address stated above.
Unless
the undersigned has selected the “cashless exercise”
option provided for in Section 2(b) of the Warrant,
the undersigned hereby represents and warrants that the undersigned
is acquiring the Shares for its own account for investment purposes
only, and not for resale or with a view to distribution of such
shares or any part thereof.
Dated:
__________________
Name of
Holder:
Signature
Title