dmtk-ex410_7.htm



Exhibit 4.10

OMNIBUS WARRANT AMENDMENT

THIS OMNIBUS WARRANT AMENDMENT (this “Omnibus Warrant Amendment”) is made and entered into as of March 30, 2020, by and between DermTech, Inc., a Delaware corporation (the “Company”), and Paulson Investment Company, LLC (“Holder”). 

RECITALS

WHEREAS, the Company previously issued to Holder (i) those certain warrants to purchase shares of common stock of the Company as set forth on Schedule A hereto (the “2016 Warrants”), and (ii) those certain warrants to purchase shares of Common Stock of the Company as set forth on Schedule B hereto (the “2017-18 Warrants,” and, together with the 2016 Warrants, the “Warrants”);

WHEREAS, the Company and Holder wish to amend the Warrants to (a) revise the net formula used to calculate the number of shares to be issued pursuant to a net exercise of the Warrants and (b) add registration rights for the Holder;

WHEREAS, pursuant to Section 11(a) of the Warrants, each of the Warrants may be amended by a written instrument referencing such Warrant and signed by the Company and Holder; and

WHEREAS, the Company and Holder desire to amend the Warrants as set forth herein.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants contained herein and in the Warrants, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:

1.Amendment to 2017-18 Warrants to Renumber Sections 2(b) through 2(f). Sections 2(b), 2(c), 2(d), 2(e), and 2(f) of each of the 2017-18 Warrants are hereby labeled as Sections 2(c), 2(d), 2(e), 2(f), and 2(g), respectively.

2.Amendment to the 2017-18 Warrants to Add New Section 2(b). After giving effect to the renumbering set forth in Item 1 of this Omnibus Warrant Amendment, Section 2 of each of the 2017-18 Warrants is hereby amended to add a new Subsection 2(b), which shall read as follows:

“(b) Net Issue Exercise. In lieu of exercising this Warrant pursuant to Section 2(a)(ii), if the fair market value of one Share is greater than the Exercise Price (at the date of calculation as set forth below), the Holder may elect to receive a number of Shares equal to the value of this Warrant (or of any portion of this Warrant being canceled) by surrender of this Warrant at the principal office of the Company (or such other office or agency as the Company may designate) together with a properly completed and executed Notice of Exercise reflecting such election, in which event the Company shall issue to the Holder that number of Shares computed using the following formula:

X=        Y (A – B)

                          A

 



 

Where:

 


	
X
	
=
	
 
	
The number of Shares to be issued to the Holder

	
Y
	
=
	
 
	
The number of Shares purchasable under this Warrant or, if a portion of the Warrant is being exercised, the portion of the Warrant being canceled (at the date of such calculation)

	
A
	
=
	
 
	
The fair market value of one Share (at the date of such calculation)

	
B
	
=
	
 
	
The Exercise Price (as adjusted to the date of such calculation)




 

For purposes of the calculation above, the fair market value of one Share shall be determined by the Board of Directors of the Company, acting in good faith; provided, however, that where a public market exists for the Company’s common stock at the time of such exercise, the fair market value per Share shall be the closing bid price of the common stock or the closing price quoted on the national securities exchange on which the common stock is listed, as applicable, on the first trading day preceding the date of determination of fair market value.”

3.Amendment to 2016 Warrants to Amend Section 2(b). Section 2(b) of each of the 2016 Warrants is hereby amended and restated in its entirety to read as follows:

“(b) Net Issue Exercise. In lieu of exercising this Warrant pursuant to Section 2(a)(ii), if the fair market value of one Share is greater than the Exercise Price (at the date of calculation as set forth below), the Holder may elect to receive a number of Shares equal to the value of this Warrant (or of any portion of this Warrant being canceled) by surrender of this Warrant at the principal office of the Company (or such other office or agency as the Company may designate) together with a properly completed and executed Notice of Exercise reflecting such election, in which event the Company shall issue to the Holder that number of Shares computed using the following formula:

X=        Y (A – B)

                          A

Where:

 


	
X
	
=
	
 
	
The number of Shares to be issued to the Holder

	
Y
	
=
	
 
	
The number of Shares purchasable under this Warrant or, if a portion of the Warrant is being exercised, the portion of the Warrant being canceled (at the date of such calculation)

	
A
	
=
	
 
	
The fair market value of one Share (at the date of such calculation)

	
B
	
=
	
 
	
The Exercise Price (as adjusted to the date of such calculation)




 

 



 

For purposes of the calculation above, the fair market value of one Share shall be determined by the Board of Directors of the Company, acting in good faith; provided, however, that where a public market exists for the Company’s common stock at the time of such exercise, the fair market value per Share shall be the closing bid price of the common stock or the closing price quoted on the national securities exchange on which the common stock is listed, as applicable, on the first trading day preceding the date of determination of fair market value.”

4.Amendment to Each of the Warrants to Add New Section 12.  A new Section 12 is hereby added to each of the Warrants and shall read as follows:

“12.Registration Rights.  If (but without any obligation to do so) the Company proposes to register (including, for this purpose, a registration effected by the Company for stockholders other than the Holder) any of its common stock under the Securities Act in connection with the public offering of such securities solely for cash (other than in an Excluded Registration (as defined below)), the Company shall, at such time, promptly give the Holder written notice of such registration.  Upon the written request of the Holder given within twenty (20) days after such notice is given by the Company, the Company shall use commercially reasonable efforts to cause to be registered under the Securities Act all of the Shares then issuable upon exercise of this Warrant that the Holder has requested to be included in such registration.  The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 12 before the effective date of such registration, whether or not the Holder has elected to include any Shares in such registration.  The expenses of registering the Shares pursuant to this Section 12 shall be borne by the Company; provided, that, the Company shall have no obligation to pay for the fees or expenses of Holder’s counsel in connection with such registration.  For purposes of this Section 12, an “Excluded Registration” means (i) a registration relating to the sale or grant of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, equity incentive or similar plan; (ii) a registration relating to an SEC Rule 145 transaction; (iii) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Shares; (iv) a registration in which the only Company common stock being registered is common stock issuable upon conversion of debt securities that are also being registered; or (v) a registration involving an underwriting of shares of the Company’s capital stock.”

5.Warrant Schedule.  Holder acknowledges and agrees that, pursuant to Section 6 of each of the Warrants, the exercise price and number of shares of Company common stock underlying the Warrants, in each case as reflected on Schedule A and Schedule B hereto, as applicable, have been correctly adjusted to reflect the effects of (i) the business combination by and among the Company (formerly known as Constellation Alpha Capital Corp.), DermTech Operations, Inc. (formerly known as DermTech, Inc.), and DT Merger Sub, Inc., that occurred on August 29, 2019 (the “Business Combination”), and (ii) a one-for-two reverse stock split of the Company’s common stock that occurred following the Business Combination on August 29, 2019.

6.Effect of Amendment. Except as expressly modified by this Omnibus Warrant Amendment, the Warrants shall remain unmodified and in full force and effect.

7.Governing Law. This Omnibus Warrant Amendment shall be governed by and construed under the laws of the State of California in all respects as such laws are applied to agreements among California residents entered into and performed entirely within California, without giving effect to conflict of law principles thereof.

 



 

8.Counterparts. This Omnibus Warrant Amendment may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

9.Electronic and Facsimile Signatures. Any signature page delivered electronically or by facsimile (including without limitation transmission by .pdf) shall be binding to the same extent as an original signature page, with regard to any agreement subject to the terms hereof or any amendment hereto.  

10.Headings. The headings contained in this Omnibus Warrant Amendment are for reference purposes only and shall not affect in any way the meaning or interpretation of this Omnibus Warrant Amendment.

[SIGNATURE PAGES FOLLOW]

 

 



 

IN WITNESS WHEREOF, the parties hereto have executed this Omnibus Warrant Amendment as of the date first set forth above.

 


	
COMPANY:

	
 

	
DERMTECH, INC.

	
 
	
 

	
By:
	
/s/ Kevin Sun

	
 
	
 

	
Name:
	
Kevin Sun

	
 
	
 

	
Title:
	
CFO




 

 

 

[SIGNATURE PAGE TO OMNIBUS WARRANT AMENDMENT]



 

IN WITNESS WHEREOF, the parties hereto have executed this Omnibus Warrant Amendment as of the date first set forth above.

 


	
HOLDER:

	
 

	
PAULSON INVESTMENT COMPANY, LLC

	
 
	
 

	
By:
	
/s/ Alex Winks

	
 
	
 

	
Name:
	
Alex Winks

	
 
	
 

	
Title:
	
President and CFO




 

 

 

[SIGNATURE PAGE TO OMNIBUS WARRANT AMENDMENT]



 

SCHEDULE A

 

2016 WARRANT SCHEDULE

 


						
	
Warrant No.
	
Warrant

Issue Date
	
Pre-Business

Combination and

Pre-Reverse Split

Share Amount
	
Post-Business

Combination and

Post-Reverse Split

Share Amount
	
Pre-Business

Combination and

Pre-Reverse Split

Exercise Price
	
Post-Business

Combination and

Post-Reverse Split

Exercise Price

	
PA-Series C 001
	
12/29/2016
	
 181 
	
 106 
	
$5.54
	
$9.54

	
PA-Series C 002
	
12/29/2016
	
 37 
	
 22 
	
$5.54
	
$9.54

	
PA-Series C 003
	
12/29/2016
	
 15 
	
 9 
	
$5.54
	
$9.54

	
PA-Series C 004
	
12/29/2016
	
 33 
	
 20 
	
$5.54
	
$9.54

	
PA-Series C 005
	
12/29/2016
	
 15 
	
 9 
	
$5.54
	
$9.54

	
PA-Series C 006
	
12/29/2016
	
 3,571 
	
 2,074 
	
$5.54
	
$9.54

	
PA-Series C 007
	
12/29/2016
	
 348 
	
 203 
	
$5.54
	
$9.54

	
PA-Series C 008
	
12/29/2016
	
 271 
	
 158 
	
$5.54
	
$9.54

	
PA-Series C 009
	
12/29/2016
	
 40 
	
 24 
	
$5.54
	
$9.54

	
PA-Series C 010
	
12/29/2016
	
 293 
	
 171 
	
$5.54
	
$9.54

	
PA-Series C 011
	
12/29/2016
	
 341 
	
 199 
	
$5.54
	
$9.54

	
PA-Series C 012
	
12/29/2016
	
 37 
	
 22 
	
$5.54
	
$9.54

	
PA-Series C 013
	
12/29/2016
	
 322 
	
 188 
	
$5.54
	
$9.54

	
PA-Series C 014
	
12/29/2016
	
 37 
	
 22 
	
$5.54
	
$9.54

	
PA-Series C 015
	
12/29/2016
	
 97 
	
 57 
	
$5.54
	
$9.54

	
PA-Series C 016
	
12/29/2016
	
 662 
	
 385 
	
$5.54
	
$9.54

	
PA-Series C 017
	
12/29/2016
	
 777 
	
 452 
	
$5.54
	
$9.54

	
PA-Series C 018
	
12/29/2016
	
 777 
	
 452 
	
$5.54
	
$9.54

	
PA-Series C 019
	
12/29/2016
	
74
	
43
	
$5.54
	
$9.54

	
PA-Series C 020
	
12/29/2016
	
458
	
266
	
$5.54
	
$9.54

	
PA-Series C 021
	
12/29/2016
	
15
	
9
	
$5.54
	
$9.54

	
PA-Series C 022
	
12/29/2016
	
15
	
9
	
$5.54
	
$9.54

	
PA-Series C 023
	
12/29/2016
	
90
	
53
	
$5.54
	
$9.54

	
PA-Series C 024
	
12/29/2016
	
37
	
22
	
$5.54
	
$9.54

	
PA-Series C 025
	
12/29/2016
	
37
	
22
	
$5.54
	
$9.54




A-1



 


						
	
Warrant No.
	
Warrant

Issue Date
	
Pre-Business

Combination and

Pre-Reverse Split

Share Amount
	
Post-Business

Combination and

Post-Reverse Split

Share Amount
	
Pre-Business

Combination and

Pre-Reverse Split

Exercise Price
	
Post-Business

Combination and

Post-Reverse Split

Exercise Price

	
PA-Series C 026
	
12/29/2016
	
74
	
43
	
$5.54
	
$9.54

	
PA-Series C 027
	
12/29/2016
	
30
	
18
	
$5.54
	
$9.54

	
PA-Series C 028
	
12/29/2016
	
3,571
	
2,074
	
$5.54
	
$9.54

	
PA-Series C 029
	
12/29/2016
	
37
	
22
	
$5.54
	
$9.54

	
PA-Series C 030
	
12/29/2016
	
19
	
12
	
$5.54
	
$9.54

	
PA-Series C 031
	
12/29/2016
	
74
	
43
	
$5.54
	
$9.54

	
PA-Series C 032
	
12/29/2016
	
1,239
	
720
	
$5.54
	
$9.54

	
PA-Series C 033
	
12/29/2016
	
2,061
	
1,197
	
$5.54
	
$9.54

	
PA-Series C 034
	
12/29/2016
	
17
	
10
	
$5.54
	
$9.54

	
PA-Series C 035
	
12/29/2016
	
3,571
	
2,074
	
$5.54
	
$9.54

	
PA-Series C 036
	
12/29/2016
	
1,323
	
769
	
$5.54
	
$9.54

	
PA-Series C 037
	
12/29/2016
	
324
	
189
	
$5.54
	
$9.54

	
PA-Series C 038
	
12/29/2016
	
19
	
12
	
$5.54
	
$9.54

	
PA-Series C 039
	
12/29/2016
	
348
	
203
	
$5.54
	
$9.54

	
PA-Series C 040
	
12/29/2016
	
1,334
	
775
	
$5.54
	
$9.54

	
PA-Series C 041
	
12/29/2016
	
15
	
9
	
$5.54
	
$9.54

	
PA-Series C 042
	
12/29/2016
	
3
	
2
	
$5.54
	
$9.54

	
PA-Series C 043
	
12/29/2016
	
37
	
22
	
$5.54
	
$9.54




 

A-2



 

SCHEDULE B

 

2017-18 WARRANT SCHEDULE

 


						
	
Warrant No.
	
Warrant

Issue Date
	
Pre-Business

Combination and Pre-Reverse Split

Share Amount
	
Post-Business

Combination and

Post-Reverse Split

Share Amount
	
Pre-Business

Combination and

Pre-Reverse Split

Exercise Price
	
Post-Business

Combination and

Post-Reverse Split

Exercise Price

	
PA-Series C 043
	
12/31/2017
	
 497 
	
 289 
	
$5.54
	
$9.54

	
PA-Series C 044
	
12/31/2017
	
 8,439 
	
 4,901 
	
$5.54
	
$9.54

	
PA-Series C 045
	
12/31/2017
	
 126 
	
 74 
	
$5.54
	
$9.54

	
PA-Series C 046
	
12/31/2017
	
 452 
	
 263 
	
$5.54
	
$9.54

	
PA-Series C 047
	
12/31/2017
	
 958 
	
 557 
	
$5.54
	
$9.54

	
PA-Series C 048
	
12/31/2017
	
 786 
	
 457 
	
$5.54
	
$9.54

	
PA-Series C 049
	
12/31/2017
	
 542 
	
 315 
	
$5.54
	
$9.54

	
PA-Series C 050
	
12/31/2017
	
 786 
	
 457 
	
$5.54
	
$9.54

	
PA-Series C 051
	
12/31/2017
	
 580 
	
 337 
	
$5.54
	
$9.54

	
PA-Series C 052
	
12/31/2017
	
 497 
	
 289 
	
$5.54
	
$9.54

	
PA-Series C 053
	
12/31/2017
	
 145 
	
 85 
	
$5.54
	
$9.54

	
PA-Series C 054
	
12/31/2017
	
 8,439 
	
 4,901 
	
$5.54
	
$9.54

	
PA-Series C 055
	
12/31/2017
	
 773 
	
 449 
	
$5.54
	
$9.54

	
PA-Series C 056
	
12/31/2017
	
 8,439 
	
 4,901 
	
$5.54
	
$9.54

	
PA-Series C 057
	
12/31/2017
	
 980 
	
 570 
	
$5.54
	
$9.54

	
PA-Series C 058
	
12/31/2017
	
 6,635 
	
 3,854 
	
$5.54
	
$9.54

	
PA-Series C 059
	
12/31/2017
	
 893 
	
 519 
	
$5.54
	
$9.54

	
PA-Series C 060
	
12/31/2017
	
 2,469 
	
 1,434 
	
$5.54
	
$9.54

	
PA-Series C 061
	
12/31/2017
	
 993 
	
 577 
	
$5.54
	
$9.54

	
PA-Series C 062
	
12/31/2017
	
 8,924 
	
 5,183 
	
$5.54
	
$9.54

	
PA-Series C 063
	
5/31/2018
	
 462 
	
 269 
	
$5.54
	
$9.54

	
PA-Series C 064
	
5/31/2018
	
 8,113 
	
 4,712 
	
$5.54
	
$9.54

	
PA-Series C 065
	
5/31/2018
	
 786 
	
 457 
	
$5.54
	
$9.54

	
PA-Series C 066
	
5/31/2018
	
 190 
	
 111 
	
$5.54
	
$9.54

	
PA-Series C 067
	
5/31/2018
	
 832 
	
 484 
	
$5.54
	
$9.54




B-1



 


						
	
Warrant No.
	
Warrant

Issue Date
	
Pre-Business

Combination and Pre-Reverse Split

Share Amount
	
Post-Business

Combination and

Post-Reverse Split

Share Amount
	
Pre-Business

Combination and

Pre-Reverse Split

Exercise Price
	
Post-Business

Combination and

Post-Reverse Split

Exercise Price

	
PA-Series C 068
	
5/31/2018
	
 2,906 
	
 1,688 
	
$5.54
	
$9.54

	
PA-Series C 069
	
5/31/2018
	
 462 
	
 269 
	
$5.54
	
$9.54

	
PA-Series C 070
	
5/31/2018
	
 109 
	
 64 
	
$5.54
	
$9.54

	
PA-Series C 071
	
5/31/2018
	
 8,113 
	
 4,712 
	
$5.54
	
$9.54

	
PA-Series C 072
	
5/31/2018
	
 4,263 
	
 2,476 
	
$5.54
	
$9.54

	
PA-Series C 073
	
5/31/2018
	
 8,113 
	
 4,712 
	
$5.54
	
$9.54

	
PA-Series C 074
	
5/31/2018
	
 5,704 
	
 3,313 
	
$5.54
	
$9.54

	
PA-Series C 075
	
5/31/2018
	
 832 
	
 484 
	
$5.54
	
$9.54

	
PA-Series C 076
	
5/31/2018
	
 924 
	
 537 
	
$5.54
	
$9.54

	
PA-Series C 077
	
5/31/2018
	
 8,309 
	
 4,826 
	
$5.54
	
$9.54




 

B-2