ex4-2





 











Exhibit 4.2



 



THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SUCH
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.

 


	

Dated:
[_____ , 2019/2020]


 

	


Warrant Number: W-___


 








WARRANT TO PURCHASE

 


COMMON
STOCK OF

 


AZURRX
BIOPBARMA, INC.

 


This
certifies that _____________________,
or its permitted assigns (each a “Holder”), for value
received, is entitled to purchase, at an exercise price per share
equal to $[__] (the “Exercise Price”) from
AZURRX BIOPHARMA, INC., a Delaware corporation (the
“Company”), [up to that
number of fully paid and nonassessable shares of the
Company’s Common Stock, $.0001 par value (“Common Stock”) equal to
the quotient obtained in accordance with the following
calculation:

 


	

Number
of Shares of Common Stock Issuable Upon Exercise of Each
Warrant


 

	

 

 


=


 

	

Number
of Conversion Shares Issuable upon Conversion of the Note x
50%


 

 







This
Warrant shall be exercisable at any time from time to time from and
after the date hereof (such date being referred to herein as the
“Initial Exercise
Date”) up to and including 5:00 p.m. (Eastern Time) on
[______, 2024/2025] (the “Expiration Date”). For
purposes of this Warrant, the term “Note” shall mean
the note issued to the original Holder of this Warrant pursuant to
the terms of that certain Convertible Note and Warrant Purchase
Agreement, dated as of [_____ , 2019/2020],, by and among the
Company and the lenders set forth on the signature pages thereto
(the “Agreement”).]1

 


[up to
that number of fully paid and nonassessable shares of the
Company’s Common Stock, $.0001 par value (“Common Stock”) equal to
the quotient obtained in accordance with the following
calculation:

 


	

Number
of Shares of Common Stock Issuable Upon Exercise of Each
Warrant


 

	

 


=

	

Number
of Conversion Shares Issuable upon Conversion of the Note x
50%


 







 


Commencing six (6)
months from the date hereof (such date being referred to herein as
the “Initial
Exercise Date”) this Warrant shall be exercisable at
any time from time to time up to and including 5:00 p.m. (Eastern
Time) on [______, 2024/2025] (the “Expiration Date”). For
purposes of this Warrant, the term “Note” shall mean
the note issued to the original Holder of this Warrant pursuant to
the terms of that certain Convertible Note and Warrant Purchase
Agreement, dated as of [_____ , 2019/2020], by and among the
Company and the lenders set forth on the signature pages thereto
(the “Agreement”).]2

 


 



1 Insert in Note
Warrants for December 20, 2019 closing.






 




 

-1-








 






 


[up to
[____] fully paid and nonassessable shares of the Company’s
Common Stock, $.0001 par value (“Common
Stock”).

 


This
Warrant shall be exercisable at any time from time to time from and
after the date that is six (6) months from the date hereof (such
date being referred to herein as the “Initial Exercise Date”)
up to and including 5:00 p.m. (Eastern Time) on [_____], 2024/2025
(the “Expiration
Date”)]3

 


1. Method of Exercise. The Holder
hereof may exercise this Warrant, in whole or in part, by the
surrender of this Warrant (with the Form of Subscription attached
hereto duly completed and executed) at the principal office of the
Company, and by the payment to the Company of an amount of
consideration therefor equal to the Exercise Price in effect on the
date of such exercise multiplied by the number of shares of Common
Stock with respect to which this Warrant is then being exercised,
payable at such Holder’s election (i) by certified or
official bank check or by wire
transfer to an account designated by the Company, (ii) by
“cashless exercise” in accordance with the provisions
of Section 2, but only until the date that a registration statement
under the Securities Act of 1933, as amended (“Securities Act”)
providing for the resale of the shares of Common Stock issuable
upon exercise of this Warrant has been declared effective by the
Securities and Exchange Commission, or (iii) by a combination of
the foregoing methods of payment selected by the Holder of this
Warrant.

 


2. Cashless Exercise.
Notwithstanding any provisions herein to the contrary, commencing
six (6) months from the Initial Exercise Date if (i) the closing
price for a share of Common Stock as reported by the Nasdaq Capital
Market, or other Eligible Securities Market, as defined below
(“Per Share Closing
Price”), is greater than the Exercise Price (at the
date of calculation as set forth below) and (ii) a registration
statement under the Securities Act providing for the resale of the
Warrant Shares has not been declared effective by the Securities
and Exchange Commission within 180 days from the date of this
Warrant, in lieu of exercising this Warrant by payment of cash, the
Holder may exercise this Warrant by a cashless exercise and shall
receive the number of shares of Common Stock equal to an amount (as
determined below) by surrender of this Warrant at the principal
office of the Company together with the properly endorsed Form of
Subscription in which event the Company shall issue to the Holder a
number of shares of Common Stock computed using the following
formula:

 


X = Y -
(A)(Y)


B

 



Where                                 


X
=


the number of
shares of Common Stock to be issued to the Holder.





 



Y
= 

the number of
shares of Common Stock purchasable upon exercise of all of the
Warrant or, if only a portion of the Warrant is being exercised,
the portion of the Warrant being exercised.





 



A
= 

the Exercise
Price.





 



B
= 

the average Per
Share Closing Price of one share of Common Stock for the previous
five (5) consecutive trading days ending on the date immediately
preceding the date of the exercise of the Warrant being
exercised.





 


3. [Holder’s Exercise
Limitations. The Company shall not effect any exercise of
this Warrant, and a Holder shall not have the right to exercise any
portion of this Warrant, pursuant to Section 1 and/or Section 2 or
otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Form of Subscription,
the Holder (together with the Holder’s Affiliates, and any
other Persons acting as a group together with the Holder or any of
the Holder’s Affiliates) (such Persons, “Attribution
Parties”), would beneficially own in excess of the Beneficial
Ownership Limitation (as defined below).  For purposes of the
foregoing sentence, the number of shares of Common Stock
beneficially owned by the Holder and its Affiliates and Attribution
Parties shall include the number of shares of Common Stock issuable
upon exercise of this Warrant with respect to which such
determination is being made, but shall exclude the number of shares
of Common Stock which would be issuable upon (i) exercise of the
remaining, nonexercised portion of this Warrant beneficially owned
by the Holder or any of its Affiliates (or Attribution Parties) and
(ii) exercise or conversion of the unexercised or nonconverted
portion of any other securities of the Company (including, without
limitation, any other Common Stock equivalents) subject to a
limitation on conversion or exercise analogous to the limitation
contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties.  Except as set forth in the
preceding sentence, for purposes of this Section 3, beneficial
ownership shall be calculated in accordance with Section 13(d) of
the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is
not representing to the Holder that such calculation is in
compliance with Section 13(d) of the Exchange Act and the Holder is
solely responsible for any schedules required to be filed in
accordance therewith. To the extent that the limitation contained
in this Section 3 applies, the determination of whether this
Warrant is exercisable (in relation to other securities owned by
the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable shall be in the
sole discretion of the Holder, and the submission of a Form of
Subscription shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other
securities owned by the Holder together with any Affiliates and
Attribution Parties) and of which portion of this Warrant is
exercisable, in each case subject to the Beneficial Ownership
Limitation, and the Company shall have no obligation to verify or
confirm the accuracy of such determination. In addition, a
determination as to any group status as contemplated above shall be
determined in accordance with Section 13(d) of the Exchange Act and
the rules and regulations promulgated thereunder. For purposes of
this Section 3, in determining the number of outstanding shares of
Common Stock, a Holder may rely on the number of outstanding shares
of Common Stock as reflected in (A) the Company’s most recent
periodic or annual report filed with the Commission, as the case
may be, (B) a more recent public announcement by the Company or (C)
a more recent written notice by the Company or the Transfer Agent
setting forth the number of shares of Common Stock
outstanding.  Upon the written or oral request of a Holder,
the Company shall within two (2) trading 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 securities of the Company, including this
Warrant, by the Holder or its Affiliates or Attribution Parties
since the date as of which such number of outstanding shares of
Common Stock was reported. The “Beneficial Ownership
Limitation” shall be 4.99% of the number of shares of the
Common Stock outstanding immediately after giving effect to the
issuance of shares of Common Stock issuable upon exercise of this
Warrant. The Holder, upon notice to the Company, may increase or
decrease the Beneficial Ownership Limitation provisions of this
Section 3, provided that the Beneficial Ownership Limitation in no
event exceeds 9.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of
shares of Common Stock upon exercise of this Warrant held by the
Holder and the provisions of this Section 3 shall continue to
apply. Any such increase in the Beneficial Ownership Limitation
will not be effective until the 61st day after such
notice is delivered to the Company. The provisions of this
paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 3 to
correct this paragraph (or any portion hereof) which may be
defective or inconsistent with the intended Beneficial Ownership
Limitation herein contained or to make changes or supplements
necessary or desirable to properly give effect to such limitation.
The limitations contained in this paragraph shall apply to a
successor holder of this Warrant.]4

 


 



2 Insert in Note
Warrants for closings between December 24, 2019 and January 9.
2020.



3
Insert
into Placement Agent Warrants.


 


 




 

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4. Shares to be Fully Paid; Reservation
of Shares. The Company covenants and agrees that all shares
of Common Stock which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable and free
from all preemptive rights of any shareholder and free of all
taxes, liens and charges with respect to the issue thereof. 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 or transfer upon exercise of the subscription
rights evidenced by this Warrant, a sufficient number of shares of
authorized but unissued shares of Common Stock.

 


5. Adjustment of Exercise Price and
Number of Shares. The Exercise Price and the number of
shares purchasable upon the exercise of this Warrant shall be
subject to adjustment from time to time upon the occurrence of
certain events described in this Section 5. Upon each adjustment of
the Exercise Price, the Holder of this Warrant shall thereafter be
entitled to purchase, at the Exercise Price resulting from such
adjustment, the number of shares obtained by multiplying the
Exercise 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
Exercise Price resulting from such adjustment.

 


5.1 Subdivision or Combination of
Stock. In case the Company shall at any time subdivide its
outstanding shares of Common Stock into a greater number of shares,
the Exercise Price in effect immediately prior to such subdivision
shall be proportionately reduced, and conversely, in case the
outstanding shares of the Common Stock of the Company shall be
combined into a smaller number of shares, the Exercise Price in
effect immediately prior to such combination shall be
proportionately increased.

 


5.2 Reclassification. If any
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, securities, or other assets or property,
then, as a condition of such reclassification, lawful and adequate
provisions shall be made whereby the Holder hereof shall thereafter
have the right to purchase and receive (in lieu of the shares of
the Common Stock immediately theretofore purchasable and receivable
upon the exercise of the rights represented hereby) such shares of
stock, securities or other assets or property as may be issued or
payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such
Common Stock immediately theretofore purchasable and receivable
upon the exercise of the rights represented hereby. In any
reclassification described above, 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 Exercise Price and of
the number of shares purchasable and receivable upon the exercise
of this Warrant) shall thereafter be applicable, as nearly as may
be, in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise hereof.

 


5.3 Notice of Adjustment. Upon any
adjustment of the Exercise Price or any increase or decrease in the
number of shares purchasable upon the exercise of this Warrant, the
Company shall give 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.
The notice shall be signed by the Company’s chief financial
officer and shall state the Exercise Price resulting from such
adjustment 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.

 



4  Insert into in Note
Warrants for closings between December 24, 2019 and January 9. 2020
and Placement Agent Warrants.


 




 

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5.4 Other Notices. If at any
time:

 


(1) the Company shall
declare any cash dividend upon its Common Stock;

 


(2) there shall occur a
(i) sale of all or substantially all of the assets of the Company
by means of a transaction or series of related transactions, or
(ii) transaction or sale whereby stockholders of record as
constituted immediately prior to such acquisition or sale will,
immediately after such acquisition or sale (by virtue of securities
issued as consideration for the Company’s acquisition or sale
or otherwise) hold at less than 50% of the voting power of the
surviving or acquiring entity (any such transaction, a
“Change of
Control”);

 


(3) there shall be a
voluntary or involuntary dissolution, liquidation or winding-up of
the Company; or

 


(4) there shall be an
initial public offering of the Company’s equity
securities;

 


then,
in any one or more of said cases, the Company shall give, by first
class mail, postage prepaid, addressed to the Holder of this
Warrant at the address of such Holder as shown on the books of the
Company, (a) at least twenty (20) days prior written notice of the
date on which the books of the Company shall close or a record
shall be taken for such dividend or for determining rights to vote
in respect of any such Change of Control or dissolution,
liquidation or winding-up, and (b) in the case of any such Change
of Control or dissolution, liquidation, winding-up or initial
public offering, at least twenty (20) days prior written notice of
the date when the same shall take place; provided, however, that
the Holder shall make a best efforts attempt to respond to such
notice as early as possible after the receipt thereof. Any notice
given in accordance with the foregoing clause (a) shall also
specify, in the case of any such dividend, the date on which the
holders of Common Stock shall be entitled thereto. Any notice given
in accordance with the foregoing clause (b) shall also specify the
date on which the holders of Common Stock shall be entitled to
exchange their Common Stock for securities or other property
deliverable upon such Change of Control, dissolution, liquidation,
winding-up, conversion or initial public offering, as the case may
be.

 


6. No Voting or Dividend Rights.
Nothing contained in this Warrant shall be construed as conferring
upon the Holder hereof the right to vote or to consent to receive
notice as a shareholder of the Company or any other matters or any
rights whatsoever as a shareholder of the Company. No dividends or
interest shall be payable or accrued in respect of this Warrant or
the interest represented hereby or the shares purchasable hereunder
until, and only to the extent that, this Warrant shall have been
exercised.

 


7. Warrants Transferable. Subject
to compliance with applicable federal and state securities laws,
this Warrant and all rights hereunder may be transferred, in whole
or in part, without charge to the holder hereof (except for
transfer taxes), upon surrender of this Warrant properly endorsed.
Each taker and holder of this Warrant, by taking or holding the
same, consents and agrees that this Warrant, when endorsed in
blank, shall be deemed negotiable, and that the holder hereof, when
this Warrant shall have been so endorsed, may be treated by the
Company, at the Company’s option, and all other persons
dealing with this Warrant as the absolute owner hereof for any
purpose and as the person entitled to exercise the rights
represented by this Warrant, or to the transfer hereof on the books
of the Company and notice to the contrary notwithstanding; but
until such transfer on such books, the Company may treat the
registered owner hereof as the owner for all purposes.

 


 




 

-4-








 






 


8. Lost Warrants. Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft,
destruction, or mutilation of this Warrant and, in the case of any
such loss, theft or destruction, upon receipt of an indemnity
reasonably satisfactory to the Company, or in the case of any such
mutilation upon surrender and cancellation of such Warrant, the
Company, at its expense, will make and deliver a new Warrant, of
like tenor, in lieu of the lost, stolen, destroyed or mutilated
Warrant.

 


9. Modification and Waiver. Any
term of this Warrant may be amended and the observance of any term
of this Warrant may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the
written consent of the Company and the Holder hereof. Any amendment
or waiver effected in accordance with this paragraph shall be
binding upon the Company and the Holder.

 


10. Notices. All notices and other
communications from the Company to the Holder, or vice versa, shall
be deemed delivered and effective when given personally or mailed
by first-class registered or certified mail, postage prepaid, at
such address as may have been furnished to the Company or the
Holder, as the case may be, in writing by the Company or such
holder from time to time.

 


11. Titles and Subtitles; Governing Law;
Venue. The titles and subtitles used in this Warrant are
used for convenience only and are not to be considered in
construing or interpreting this Agreement. This Warrant is to be
construed in accordance with and governed by the internal laws of
the State of Delaware without giving effect to any choice of law
rule that would cause the application of the laws of any
jurisdiction other than the internal laws of the State of Delaware
to the rights and duties of the Company and the Holder. All
disputes and controversies arising out of or in connection with
this Warrant shall be resolved exclusively by the state and federal
courts located in the State of New York, and each of the Company
and the Holder hereto agrees to submit to the jurisdiction of said
courts and agrees that venue shall lie exclusively with such
courts.

 


12. Definition of Warrant Shares.
For purposes of this Agreement, “Warrant Shares” shall
mean the number of shares of the Company’s Common Stock
issuable upon exercise of this Warrant.

 



[Signature Page Follows]

 




 

-5-








 






IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its officers, thereunto duly authorized as of the date
first above written.

 


AzurRx
BioPharma, Inc.

 



By:                                                           






James
Sapirstein


Chief
Executive Officer


 

 




[Signature
Page to Warrant]


 

-6-








 










 



FORM OF SUBSCRIPTION

 


(To be
signed only upon exercise of Warrant)

 


To:
AZURRX BIOPHARMA, INC.

 


The
undersigned, the holder of a right to purchase shares of Common
Stock of AzurRx BioPharma, Inc. (the “Company”) pursuant to
that certain Warrant to Purchase Common Stock of AzurRx BioPharma,
Inc. Number CSW-___ (the “Warrant”), dated as of
[_____ , 2019/2020] hereby irrevocably elects to exercise the
purchase right represented by such Warrant for, and to purchase
thereunder, __________________________ (_________) shares of Common
Stock of the Company and herewith makes payment of
________________________ Dollars ($__________) therefor in
cash.

 


The
undersigned represents that it is acquiring such securities for its
own account for investment and not with a view to or for sale in
connection with any distribution thereof and in order to induce the
issuance of such securities makes to the Company, as of the date
hereof, the representations and warranties set forth in
Section 3 of the Convertible Note and Warrant Purchase
Agreement, dated as of [_____ , 2019/2020], by and among the
Company and the Purchasers listed on Exhibit A thereto.

 


DATED:
________________

 


[WARRANT
HOLDER]


 


 



By:                                                       







Name:                                                                 







Its:                                                       






 

 


 

 




 

-7-








 










 



ACKNOWLEDGMENT

 


To:
[WARRANT
HOLDER]

 


The
undersigned hereby acknowledges that as of the date hereof,
__________________ (___________) shares of Common Stock remain
subject to the right of purchase in favor of _____________ pursuant
to that certain Warrant to Purchase Common Stock of AzurRx
BioPharma, Inc., number CSW-___ dated as of [_____ ,
2019/2020].

 


DATED:
________________

 


AzurRx
BioPharma, Inc.


 



By:                                                       






 


Name: 


 



Its:                                                       






 




 

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