Attached files
Exhibit 10.5
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.
THIS WARRANT AND THE SHARES PURCHASABLE HEREUNDER ARE SUBJECT TO
RESTRICTIONS ON TRANSFER CONTAINED IN THAT CERTAIN SUBSCRIPTION
AGREEMENT EFFECTIVE OCTOBER __, 2018, WHICH RESTRICTIONS ON
TRANSFER ARE INCORPORATED HEREIN BY REFERENCE.
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Dated:
October __, 2018
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Warrant Number: CSW-___
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WARRANT TO PURCHASE
COMMON STOCK
OF
VISTAGEN THERAPEUTICS, INC.
This
certifies that _____________, or his/her/its permitted
assigns (each a “Holder”), for value received, is
entitled to purchase, at an exercise price equal to $____ per share
(the “Exercise
Price”) from VISTAGEN THERAPEUTICS, INC., a Nevada
corporation (the “Company”), up to __________________ (______)
shares of fully paid and nonassessable shares of the
Company’s Common Stock, $0.001 par value (“Common Stock”).
This
Warrant shall be exercisable at any time from time to time on or
after the date hereof (such date being referred to herein as the
“Initial Exercise
Date”) up to and including 5:00 p.m. (Pacific Time)
October __, 2022, the four-year anniversary of the Initial Exercise
Date.
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 by certified or
official bank check or by wire
transfer to an account designated by the
Company.
2.
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.
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3.
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 3. 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.
3.1
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.
3.2
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.
3.3
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.
3.4
Other Notices. If
at any time:
(1)
the Company shall declare any cash dividend upon its Common
Stock;
(2)
there shall be a Change of Control; or
(3)
there shall be a voluntary or involuntary dissolution, liquidation
or winding-up of the Company;
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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, or winding-up, 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, or conversion, as
the case may be.
4.
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.
5.
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 the prior written
consent of the Company and, thereafter, upon surrender of this
Warrant properly endorsed and compliance with the provisions of
this Warrant. 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.
6.
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.
7.
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 affected in
accordance with this Section 7 shall be binding upon the Company
and the Holder.
8.
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.
9.
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 Warrant. This Warrant is to be
construed in accordance with and governed by the internal laws of
the State of California 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
California 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 San Mateo County in the State of California, 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.
10.
Definition of Warrant
Shares. For purposes of this Warrant, “Warrant
Shares” shall mean the number of shares of the
Company’s Common Stock issuable upon exercise of this
Warrant.
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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.
VistaGen
Therapeutics, Inc.
By:
Jerrold
D. Dotson
Chief
Financial Officer
[Signature
Page to Warrant]
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FORM OF SUBSCRIPTION
(To be
signed only upon exercise of Warrant)
To:
VISTAGEN THERAPEUTICS, INC.
The
undersigned, the holder of a right to purchase shares of Common
Stock of VistaGen Therapeutics, Inc. (the “Company”) pursuant to that
certain Warrant to Purchase Common Stock of VistaGen Therapeutics,
Inc. Number CSW-___ (the “Warrant”), dated as of
October __, 2018 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 the Unit
Subscription Agreement, effective as of October __, 2018, by and
among the Company and the Holder.
DATED:
________________
[HOLDER]
By:
Name:
Its:
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ACKNOWLEDGMENT
To:
[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 VistaGen
Therapeutics, Inc., number CSW-___ dated as of October __,
2018.
DATED:
________________
VistaGen
Therapeutics, Inc.
By:
Name:
Its:
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Warrant Receipt
The
undersigned, ___________, does hereby acknowledge receipt of
Warrant Number CSW-___ dated, October __, 2018, representing
____________ (_____) shares of the Common Stock Warrants of
VistaGen Therapeutics, Inc.
IN
WITNESS WHEREOF, the undersigned has executed this Receipt as of
the date set forth below.
Type:
Common Stock
Warrants
Warrant
Number:
CSW-___
Number of
Shares:
_______
Name:
Date:
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