**Exhibit 4.2**

 

THE REGISTERED HOLDER OF THIS PURCHASE WARRANT BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFEROR ASSIGN THIS PURCHASE WARRANT EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE WARRANT AGREES THAT IT WILLNOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE WARRANT FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING THEDATE OF THE UNDERWRITING AGREEMENT (DEFINED BELOW) TO ANYONE OTHER THAN (I) THINKEQUITY, A DIVISION OF FORDHAM FINANCIALMANAGEMENT, INC., OR AN UNDERWRITER OR A SELECTED DEALER IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICEROR PARTNER OF THINKEQUITY, A DIVISION OF FORDHAM FINANCIAL MANAGEMENT, INC., OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER.

 

THIS PURCHASE WARRANT IS NOT EXERCISABLEPRIOR TO JANUARY 29, 2021. VOID AFTER 5:00 P.M., EASTERN TIME, JANUARY 28, 2025.

 

**WARRANT TO PURCHASE COMMON STOCK**

 

**ANNOVIS BIO, INC.**

 

Warrant Shares: 100,000

 

Initial Exercise Date: January 29, 2021

 

THIS WARRANT TO PURCHASECOMMON STOCK (the “Warrant”) certifies that, for value received, ThinkEquity, a division of Fordham FinancialManagement, Inc. or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitationson exercise and the conditions hereinafter set forth, at any time on or after January 29, 2021 (the “Initial ExerciseDate”) and, in accordance with FINRA Rule 5110(f)(2)(G)(i), prior to at 5:00 p.m. (New York time) on the date(such date, the “Termination Date”) that is five (5) years following the effective date of the offering, but not thereafter, to subscribe for and purchase from Annovis Bio, Inc., a Delaware corporation (the “Company”),up to 100,000 shares of Common Stock, par value $0.0001 per share, of the Company (the “Warrant Shares”), assubject to adjustment hereunder. The purchase price of one share of Common Stock under this Warrant shall be equal to the ExercisePrice, as defined in Section 2(b).

 

Section 1.          Definitions.In addition to the terms defined elsewhere in this Agreement, the following terms have the meanings indicated in this Section 1:

 

“Affiliate”means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under commoncontrol with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.

 

“BusinessDay” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States orany day on which banking institutions in the State of New York are authorized or required by law or other governmental action toclose.

 

“Commission”means the United States Securities and Exchange Commission.

 

 

 

 

“ExchangeAct” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

“Person”means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liabilitycompany, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

 

“Rule 144”means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpretedfrom time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purposeand effect as such Rule.

 

“SecuritiesAct” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“Trading Day”means a day on which the New York Stock Exchange is open for trading.

 

“Trading Market”means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question:the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York StockExchange (or any successors to any of the foregoing).

 

“VWAP”means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock thenlisted or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearestpreceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based ona Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b)  if OTCQB or OTCQX isnot a Trading Market, the volume weighted average price of a share of Common Stock for such date (or the nearest preceding date)on the OTCQB or OTCQX as applicable, (c) if Common Stock is not then listed or quoted for trading on the OTCQB or OTCQX andif prices for Common Stock are then reported in the “Pink Sheets” published by OTC Markets Group, Inc. (or a similarorganization or agency succeeding to its functions of reporting prices), the most recent bid price per share of Common Stock soreported, or (d) in all other cases, the fair market value of the Common Stock as determined by an independent appraiser selectedin good faith by the Holder and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.

 

Section 2.          Exercise.

 

a.        Exerciseof the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the InitialExercise Date and on or before the Termination Date by delivery to the Company (or such other office or agency of the Company asit may designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company)of a duly executed facsimile copy (or e-mail attachment) of the Notice of Exercise Form annexed hereto. Within two (2) TradingDays following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the shares specifiedin the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashlessexercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-originalNotice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Noticeof Exercise form be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrenderthis Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has beenexercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within five (5) TradingDays of the date the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchasesof a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding numberof Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder andthe Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shalldeliver any objection to any Notice of Exercise Form within three (3) Business Days of receipt of such notice. **TheHolder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph,following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunderat any given time may be less than the amount stated on the face hereof.**

** **

 

 

 

b.        ExercisePrice. The exercise price per share of the Common Stock under this Warrant shall be **$7.50**, subject to adjustment hereunder(the “Exercise Price”).

 

c.        CashlessExercise. If at any time on or after the Initial Exercise Date, there is no effective registration statement registering, orthe prospectus contained therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may alsobe exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitledto receive the number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:

 

(A) =the VWAP on the Trading Day immediately preceding the date on which Holder elects to exercise this Warrant by means of a “cashlessexercise,” as set forth in the applicable Notice of Exercise;

 

(B) =the Exercise Price of this Warrant, as adjusted hereunder; and

 

(X) =the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrantif such exercise were by means of a cash exercise rather than a cashless exercise.

 

IfWarrant Shares are issued in such a “cashless exercise,” the parties acknowledge and agree that in accordance withSection 3(a)(9) of the Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrantsbeing exercised, and the holding period of the Warrants being exercised may be tacked on to the holding period of the Warrant Shares.  TheCompany agrees not to take any position contrary to this Section 2(c).

 

Notwithstanding anythingherein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant tothis Section 2(c).

 

d.        Mechanicsof Exercise.

 

i.           Deliveryof Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by its transferagent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The DepositoryTrust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participantin such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares toor resale of the Warrant Shares by Holder, or (B) the Warrant Shares are eligible for resale by the Holder without volumeor manner-of-sale limitations pursuant to Rule 144 and, in either case, the Warrant Shares have been sold by the Holder priorto the Warrant Share Delivery Date (as defined below), and otherwise by physical delivery of a certificate, registered in the Company’sshare register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuantto such exercise to the address specified by the Holder in the Notice of Exercise by the date that is two (2) Trading Daysafter the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”).If the Warrant Shares can be delivered via DWAC, the transfer agent shall have received from the Company, at the expense of theCompany, any legal opinions or other documentation required by it to deliver such Warrant Shares without legend (subject to receiptby the Company of reasonable back up documentation from the Holder, including with respect to affiliate status) and, if applicableand requested by the Company prior to the Warrant Share Delivery Date, the transfer agent shall have received from the Holder aconfirmation of sale of the Warrant Shares (provided the requirement of the Holder to provide a confirmation as to the sale ofWarrant Shares shall not be applicable to the issuance of unlegended Warrant Shares upon a cashless exercise of this Warrant ifthe Warrant Shares are then eligible for resale pursuant to Rule 144(b)(1)). The Warrant Shares shall be deemed to have beenissued, and Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of suchshares for all purposes, as of the date the Warrant has been exercised, with payment to the Company of the Exercise Price (or bycashless exercise, if permitted) and all taxes required to be paid by the Holder, if any, pursuant to Section 2(d)(vi) priorto the issuance of such shares, having been paid. If the Company fails for any reason to deliver to the Holder the Warrant Sharessubject to a Notice of Exercise by the second Trading Day following the Warrant Share Delivery Date, the Company shall pay to theHolder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (basedon the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per TradingDay on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day after the second Trading Day followingsuch Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise.

 

 

 

 

ii.          Deliveryof New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holderand upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrantevidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shallin all other respects be identical with this Warrant.

 

iii.         RescissionRights. If the Company fails to cause its transfer agent to deliver to the Holder the Warrant Shares pursuant to Section 2(d)(i) bythe Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise; provided, however,that the Holder shall be required to return any Warrant Shares or Common Stock subject to any such rescinded exercise notice concurrentlywith the return to Holder of the aggregate Exercise Price paid to the Company for such Warrant Shares and the restoration of Holder’sright to acquire such Warrant Shares pursuant to this Warrant (including, issuance of a replacement warrant certificate evidencingsuch restored right).

 

iv.        Compensationfor Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder,if the Company fails to cause its transfer agent to transmit to the Holder the Warrant Shares pursuant to an exercise on or beforethe Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transactionor otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of asale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”),then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchaseprice (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtainedby multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection withthe exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and(B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for whichsuch exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of sharesof Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder.For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to anattempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, underclause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shallprovide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of theCompany, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies availableto it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief withrespect to the Company’s failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuantto the terms hereof.

 

 

 

 

v.          NoFractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exerciseof this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, theCompany shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fractionmultiplied by the Exercise Price or round up to the next whole share.

 

vi.         Charges,Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax orother incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by theCompany, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder;provided, however, that in the event that Warrant Shares are to be issued in a name other than the name of the Holder,this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by theHolder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer taxincidental thereto. The Company shall pay all transfer agent fees required for same-day processing of any Notice of Exercise andall fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required forsame-day electronic delivery of the Warrant Shares.

 

vii.        Closingof Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of thisWarrant, pursuant to the terms hereof.

 

viii.      Signature.This Section 2 and the exercise form attached hereto set forth the totality of the procedures required of the Holder in orderto exercise this Purchase Warrant.  Without limiting the preceding sentences, no ink-original exercise form shall be required,nor shall any medallion guarantee (or other type of guarantee or notarization) of any exercise form be required in order to exercisethis Purchase Warrant.  No additional legal opinion, other information or instructions shall be required of the Holder toexercise this Purchase Warrant.  The Company shall honor exercises of this Purchase Warrant and shall deliver Shares underlyingthis Purchase Warrant in accordance with the terms, conditions and time periods set forth herein.

 

 

 

 

e.        Holder’sExercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exerciseany portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance afterexercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any otherPersons acting as a group together with the Holder or any of the Holder’s Affiliates), would beneficially own in excess ofthe Beneficial Ownership Limitation (as defined below).  For purposes of the foregoing sentence, the number of shares of CommonStock beneficially owned by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon exerciseof this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stockwhich would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by theHolder or any of its Affiliates and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securitiesof the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exerciseanalogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates.  Except as set forthin the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance withSection 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged bythe Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) ofthe Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extentthat the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable(in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Warrant is exercisableshall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’sdetermination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates)and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Companyshall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any groupstatus as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules andregulations promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares ofCommon Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’smost recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcementby the Company or (C) a more recent written notice by the Company or the Company’s transfer agent setting forth thenumber of shares of Common Stock outstanding.  Upon the written or oral request of a Holder, the Company shall within twoTrading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding.  In any case,the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securitiesof the Company, including this Warrant, by the Holder or its Affiliates since the date as of which such number of outstanding sharesof Common Stock was reported. The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares ofthe Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise ofthis Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions ofthis Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares ofthe Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrantheld by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial OwnershipLimitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions ofthis paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) tocorrect this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitationherein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitationscontained in this paragraph shall apply to a successor holder of this Warrant.

 

Section 3.          CertainAdjustments.

 

a.        StockDividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwisemakes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payablein shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company uponexercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines(including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issuesby reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Priceshall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares,if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstandingimmediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjustedsuch that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shallbecome effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distributionand shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.For the purposes of clarification, the Exercise Price of this Warrant will not be adjusted in the event that the Company or anysubsidiary thereof, as applicable, sells or grants any option to purchase, or sell or grant any right to reprice, or otherwisedispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or CommonStock Equivalents, at an effective price per share less than the Exercise Price then in effect.

 

 

 

 

b.        [RESERVED]

 

c.        SubsequentRights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants,issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to therecord holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitledto acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquiredif the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard toany limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the dateon which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date asof which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights(provided, however, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holderexceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to suchextent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such PurchaseRight to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result inthe Holder exceeding the Beneficial Ownership Limitation).

 

d.        ProRata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend (otherthan cash dividends) or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock,by way of return of capital or otherwise (including, without limitation, any distribution of shares or other securities, propertyor options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction)(a "Distribution"), at any time after the issuance of this Warrant, then, in each such case, the Holder shallbe entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holderhad held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitationson exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a recordis taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stockare to be determined for the participation in such Distribution (provided, however, to the extent that the Holder'sright to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then theHolder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares ofCommon Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance forthe benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the BeneficialOwnership Limitation). To the extent that this Warrant has not been partially or completely exercised at the time of such Distribution,such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the Holder has exercised this Warrant.

 

 

 

 

e.        FundamentalTransaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or morerelated transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directlyor indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantiallyall of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offeror exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permittedto sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% ormore of the outstanding Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effectsany reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to whichthe Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directlyor indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination(including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person or groupof Persons whereby such other Person or group acquires more than 50% of the outstanding shares of Common Stock (not including anyshares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the otherPersons making or party to, such stock or share purchase agreement or other business combination) (each a “FundamentalTransaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for eachWarrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction,at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the numberof shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, andany additional consideration (the “Alternate Consideration”) receivable by holders of Common Stock as a resultof such Fundamental Transaction for each share of Common Stock for which this Warrant is exercisable immediately prior to suchFundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposesof any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Considerationbased on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction,and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relativevalue of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities,cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the AlternateConsideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause anysuccessor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”)to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuantto written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonabledelay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for thisWarrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to thisWarrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity)equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitationson the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise pricehereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant tosuch Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exerciseprice being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such FundamentalTransaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such FundamentalTransaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such FundamentalTransaction, the provisions of this Warrant 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 Warrantwith the same effect as if such Successor Entity had been named as the Company herein.

 

 

 

 

f.         Calculations.All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case maybe. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a givendate shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.

 

g.        Noticeto Holder.

 

i.           Adjustmentto Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shallpromptly mail to the Holder a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to thenumber of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.

 

ii.          Noticeto Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form)on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock,(C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchaseany shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be requiredin connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any saleor transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stockis converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution,liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be mailed a notice to theHolder at its last address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to theapplicable record or effective date hereinafter specified, stating (x) the date on which a record is to be taken for the purposeof such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holdersof the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determinedor (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to becomeeffective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchangetheir shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation,merger, sale, transfer or share exchange; provided that the failure to provide such notice or any defect therein shall not affectthe validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunderconstitutes, or contains, material, non-public information regarding the Company or any of its subsidiaries, the Company shallsimultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitledto exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggeringsuch notice except as may otherwise be expressly set forth herein.

 

Section 4.         Transferof Warrant.

 

a.        Transferability.Pursuant to FINRA Rule 5110(g)(1), neither this Warrant nor any Warrant Shares issued upon exercise of this Warrant shallbe sold, transferred, assigned, pledged, or hypothecated, or be the subject of any hedging, short sale, derivative, put, or calltransaction that would result in the effective economic disposition of the securities by any person for a period of 180 days immediatelyfollowing the date of effectiveness or commencement of sales of the offering pursuant to which this Warrant is being issued, exceptthe transfer of any security:

 

 

 

 

i.           byoperation of law or by reason of reorganization of the Company;

 

ii.          toany FINRA member firm participating in the offering and the officers or partners thereof, if all securities so transferred remainsubject to the lock-up restriction in this Section 4(a) for the remainder of the time period;

 

iii.         ifthe aggregate amount of securities of the Company held by the Holder or related person do not exceed 1% of the securities beingoffered;

 

iv.         thatis beneficially owned on a pro-rata basis by all equity owners of an investment fund, provided that no participating member managesor otherwise directs investments by the fund, and participating members in the aggregate do not own more than 10% of the equityin the fund; or

 

v.          theexercise or conversion of any security, if all securities received remain subject to the lock-up restriction in this Section 4(a) forthe remainder of the time period.

 

Subject to the foregoingrestriction, any applicable securities laws and the conditions set forth in Section 4(d), this Warrant and all rights hereunder(including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrantat the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantiallyin the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxespayable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and delivera new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specifiedin such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned,and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be requiredto physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holdershall surrender this Warrant to the Company within three (3) Trading Days of the date the Holder delivers an assignment formto the Company assigning this Warrant full. The Warrant, if properly assigned in accordance herewith, may be exercised by a newholder for the purchase of Warrant Shares without having a new Warrant issued.

 

b.        NewWarrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of theCompany, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed bythe Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved insuch division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrantsto be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initialissuance date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuantthereto.

 

c.        WarrantRegister. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “WarrantRegister”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registeredHolder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, andfor all other purposes, absent actual notice to the contrary.

 

 

 

 

d.        Representationby the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon anyexercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or fordistributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securitieslaw, except pursuant to sales registered or exempted under the Securities Act.

 

Section 5.          RegistrationRights.

 

a.        DemandRegistration.

 

i.          Grant of Right. The Company, upon written demand (a “Demand Notice”) of the Holder(s) of at least 51% ofthe Warrants (“Majority Holders”), agrees to register on Form S-3, on one occasion, all or any portion of theshares of Common Stock underlying the Warrants (collectively, the “Registrable Securities”). On such occasion, theCompany will file a registration statement with the Commission covering the Registrable Securities within sixty (60) days afterreceipt of a Demand Notice and use its best efforts to have the registration statement declared effective promptly thereafter,subject to compliance with review by the Commission; provided, however, that the Company shall not be required to comply with aDemand Notice if the Company has filed a registration statement with respect to which the Holder is entitled to piggyback registrationrights pursuant to Section 5.b hereof and either: (i) the Holder has elected to participate in the offering covered bysuch registration statement or (ii) if such registration statement relates to an underwritten primary offering of securitiesof the Company, until the offering covered by such registration statement has been withdrawn or until thirty (30) days after suchoffering is consummated. The demand for registration may be made at any time during a period of four (4) years beginning onthe Initial Exercise Date. The Company covenants and agrees to give written notice of its receipt of any Demand Notice by any Holder(s) toall other registered Holders of the Warrants and/or the Registrable Securities within ten (10) days after the date of thereceipt of any such Demand Notice.

 

ii.         Terms. The Company shall bear all fees and expenses, except that the Holders included in such registration statement shallbear expense of up to $10,000 pro rata for their portion of the Registrable Securities included in such registration statement,attendant to the registration of the Registrable Securities pursuant to Section 5.a.i, but the Holders shall pay any and allunderwriting commissions and the expenses of any legal counsel selected by the Holders to represent them in connection with thesale of the Registrable Securities. The Company agrees to use its best efforts to cause the filing required herein to become effectivepromptly and to qualify or register the Registrable Securities in such States as are reasonably requested by the Holder(s); provided,however, that in no event shall the Company be required to register the Registrable Securities in a State in which such registrationwould cause: (i) the Company to be obligated to register or license to do business in such State or submit to general serviceof process in such State or (ii) the principal shareholders of the Company to be obligated to escrow their shares of capitalstock of the Company. The Company shall cause any registration statement filed pursuant to the demand right granted under Section 5.a.ito remain effective for a period of at least twelve (12) consecutive months after the date that the Holders of the RegistrableSecurities covered by such registration statement are first given the opportunity to sell all of such securities. The Holders shallonly use the prospectuses provided by the Company to sell the shares of Common Stock covered by such registration statement, andwill immediately cease to use any prospectus furnished by the Company if the Company advises the Holder that such prospectus mayno longer be used due to a material misstatement or omission. Notwithstanding the provisions of this Section 5.a.ii, the Holdershall be entitled to a demand registration under this Section 5.a.ii on only one (1) occasion and such demand registrationright shall terminate on the fifth anniversary of the effective date of the offering in accordance with FINRA Rule 5110(f)(2)(G)(iv).

 

 

 

 

b.       “Piggy-Back”Registration.

 

i.           Grantof Right. The Holder shall have the right, for a period of no more than two (2) years from the Initial Exercise Date inaccordance with FINRA Rule 5110(f)(2)(G)(v), to include the Registrable Securities as part of any other registration of securitiesfiled by the Company (other than in connection with a transaction contemplated by Rule 145(a) promulgated under the SecuritiesAct or pursuant to Form S-8 or any equivalent form); provided, however, that if, solely in connection with any primary underwrittenpublic offering for the account of the Company, the managing underwriter(s) thereof shall, in its reasonable discretion, imposea limitation on the number of shares of Common Stock which may be included in the Registration Statement because, in such underwriter(s)’judgment, marketing or other factors dictate such limitation is necessary to facilitate public distribution, then the Company shallbe obligated to include in such Registration Statement only such limited portion of the Registrable Securities with respect towhich the Holder requested inclusion hereunder as the underwriter shall reasonably permit. Any exclusion of Registrable Securitiesshall be made pro rata among the Holders seeking to include Registrable Securities in proportion to the number of Registrable Securitiessought to be included by such Holders; provided, however, that the Company shall not exclude any Registrable Securities unlessthe Company has first excluded all outstanding securities, the holders of which are not entitled to inclusion of such securitiesin such Registration Statement or are not entitled to pro rata inclusion with the Registrable Securities.

 

ii.          Terms.The Company shall bear all fees and expenses attendant to registering the Registrable Securities pursuant to Section 5.a.ihereof, but the Holders shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Holdersto represent them in connection with the sale of the Registrable Securities. In the event of such a proposed registration, theCompany shall furnish the then Holders of outstanding Registrable Securities with not less than thirty (30) days written noticeprior to the proposed date of filing of such registration statement. Such notice to the Holders shall continue to be given foreach registration statement filed by the Company during the two (2) year period following the Initial Exercise Date untilsuch time as all of the Registrable Securities have been sold by the Holder. The holders of the Registrable Securities shall exercisethe “piggy-back” rights provided for herein by giving written notice within ten (10) days of the receipt of theCompany’s notice of its intention to file a registration statement. Except as otherwise provided in this Warrant, there shallbe no limit on the number of times the Holder may request registration under this Section 5.a.ii; provided, however, thatsuch registration rights shall terminate on the second anniversary of the Initial Exercise Date.

 

c.        GeneralTerms.

 

i.           Indemnification.The Company shall indemnify the Holder(s) of the Registrable Securities to be sold pursuant to any registration statementhereunder and each person, if any, who controls such Holders within the meaning of Section 15 of the Securities Act or Section 20(a) ofthe Exchange Act against all loss, claim, damage, expense or liability (including all reasonable attorneys’ fees and otherexpenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may becomesubject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement but only to the sameextent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters containedin Section 5.a of the Underwriting Agreement (as defined below). The Holder(s) of the Registrable Securities to be soldpursuant to such registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company,against all loss, claim, damage, expense or liability (including all reasonable attorneys’ fees and other expenses reasonablyincurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the SecuritiesAct, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holders, or their successors orassigns, in writing, for specific inclusion in such registration statement to the same extent and with the same effect as the foregoingprovisions.

 

 

 

 

ii.          Exerciseof Warrants. Nothing contained in this Warrant shall be construed as requiring the Holder(s) to exercise their Warrantsprior to or after the initial filing of any registration statement or the effectiveness thereof.

 

iii.         DocumentsDelivered to Holders. The Company shall furnish to each Holder participating in any of the foregoing offerings and to eachunderwriter of any such offering, if any, a signed counterpart, addressed to such Holder or underwriter, of: (i) an opinionof counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwrittenpublic offering, an opinion dated the date of the closing under any underwriting agreement related thereto), and (ii) a “coldcomfort” letter dated the effective date of such registration statement (and, if such registration includes an underwrittenpublic offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent registeredpublic accounting firm which has issued a report on the Company’s financial statements included in such registration statement,in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein)and, in the case of such accountants’ letter, with respect to events subsequent to the date of such financial statements,as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to underwriters inunderwritten public offerings of securities. The Company shall also deliver promptly to each Holder participating in the offeringrequesting the correspondence and memoranda described below and to the managing underwriter, if any, copies of all correspondencebetween the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission orits staff with respect to the registration statement and permit each Holder and underwriter to do such investigation, upon reasonableadvance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessaryto comply with applicable securities laws or rules of FINRA. Such investigation shall include access to books, records andproperties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonableextent and at such reasonable times as any such Holder shall reasonably request.

 

iv.         UnderwritingAgreement. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their RegistrableSecurities and may, at their option, require that any or all the representations, warranties and covenants of the Company to orfor the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be requiredto make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to suchHolders, their Warrant ADSs and their intended methods of distribution.

 

v.          Documentsto be Delivered by Holder(s). Each of the Holder(s) participating in any of the foregoing offerings shall furnish to theCompany a completed and executed questionnaire provided by the Company requesting information customarily sought of selling securityholders.

 

vi.         Damages.Should the registration or the effectiveness thereof required by Sections 5.a hereof be delayed by the Company or the Company otherwisefails to comply with such provisions, the Holder(s) shall, in addition to any other legal or other relief available to theHolder(s), be entitled to obtain specific performance or other equitable (including injunctive) relief against the threatened breachof such provisions or the continuation of any such breach, without the necessity of proving actual damages and without the necessityof posting bond or other security.

 

Section 6.          Miscellaneous.

 

a.        NoRights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting rights, dividends or other rightsas a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i).

 

 

 

 

b.        Loss,Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonablysatisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any certificate relating to the Warrant Shares,and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated,the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu ofsuch Warrant or stock certificate.

 

c.        Saturdays,Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right requiredor granted herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeedingTrading Day.

 

d.        AuthorizedShares. The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissuedCommon Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchaserights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to itsofficers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under thisWarrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issuedas provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon whichthe Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchaserights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for suchWarrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes,liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurringcontemporaneously with such issue).

 

Except and to the extentas waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificateof incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securitiesor any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but willat all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessaryor appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generalityof the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable thereforupon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriatein order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrantand (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatorybody having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.

 

Before taking any actionwhich would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any publicregulatory body or bodies having jurisdiction thereof.

 

e.         Jurisdiction.All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordancewith the provisions of the underwriting agreement, dated January 29, 2020, by and between the Company and ThinkEquity, a divisionof Fordham Financial Management, Inc., as representatives of the underwriters set forth therein (the “Underwriting Agreement”).

 

 

 

 

f.         Restrictions.The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder doesnot utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.

 

g.        Nonwaiverand Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operateas a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provisionof this Warrant or the Underwriting Agreement, if the Company willfully and knowingly fails to comply with any provision of thisWarrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficientto cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings,incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedieshereunder.

 

h.        Notices.Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be deliveredin accordance with the notice provisions of the Underwriting Agreement.

 

i.         Limitationof Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchaseWarrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holderfor the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Companyor by creditors of the Company.

 

j.         Remedies.The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitledto specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensationfor any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assertthe defense in any action for specific performance that a remedy at law would be adequate.

 

k.        Successorsand Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inureto the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assignsof Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant andshall be enforceable by the Holder or holder of Warrant Shares.

 

l.         Amendment.This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the MajorityHolders.

 

m.       Severability.Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicablelaw, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffectiveto the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisionsof this Warrant.

 

n.        Headings.The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part ofthis Warrant.

 

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*(Signature Page Follows)*

 

 

 

 

IN WITNESS WHEREOF, theCompany has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.