Exhibit 4.6
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AS SET FORTH IN SECTIONS 6.3 AND 6.4 BELOW, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND LAWS OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY, SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
AMENDED AND RESTATED WARRANT TO PURCHASE STOCK
This AMENDED AND RESTATED WARRANT TO PURCHASE STOCK (as amended and in effect from time to time, this “Warrant”) is issued as of the issue date set forth on Schedule I hereto (the “Issue Date”) by the company set forth on Schedule I hereto (the “Company”) to in connection with that certain Loan and Security Agreement dated as of August 6, 2021 between them (as amended and/or modified and in effect from time to time, including without limitation by that certain First Amendment to Loan and Security Agreement of even date herewith, the “Loan Agreement”). This Warrant amends, restates and replaces that certain Warrant to Purchase Stock issued by Ziopharm Oncology, Inc., a Delaware corporation to (the “Original Warrant”) on August 6, 2021. The parties agree as follows:
SCHEDULE I. WARRANT PROVISIONS.
Warrant Section | Warrant Provision |
Recitals – “Issue Date” | December 28, 2021. |
Recitals – “Company” | ZIOPHARM ONCOLOGY, INC., a Delaware corporation. |
1.1 – “Class” | Common Stock, $0.001 par value per share. |
1.1 – “Exercise Price” | $1.16 per Share. |
1.2– “Shares” |
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4.1 – Share percentage as of the Issue Date | % of the Company’s total fully-diluted issued and outstanding shares of capital stock. |
6.1(a) – “Expiration Date” | August 6, 2031. |
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X = Y(A-B)/A
where:
X = the number of Shares to be issued to Holder;
Y = the number of Shares with respect to which this Warrant is being exercised (inclusive of the Shares surrendered to the Company in payment of the aggregate Exercise Price);
A = the fair market value (as determined pursuant to Section 2.3 below) of one Share; and
B = the Exercise Price.
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then, in connection with each such event, the Company shall give Holder (pursuant to Section 6.5 below):
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Holder represents and warrants to, and agrees with, the Company as follows:
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THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AS SET FORTH IN THAT CERTAIN AMENDED AND RESTATED WARRANT TO PURCHASE STOCK ISSUED BY THE ISSUER TO DATED DECEMBER 28, 2021, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND LAWS OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER, SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
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All notices to the Company shall be addressed as follows until Holder receives notice of a change in address:
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[Signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Amended and Restated Warrant to Purchase Stock to be executed by their duly authorized representatives effective as of the Issue Date written above.
COMPANY: | |
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ZIOPHARM ONCOLOGY, INC. | |
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By: |
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Name: | Kevin Boyle Sr. |
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Title: | Chief Executive Officer |
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By: |
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Name: |
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Title: |
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APPENDIX 1
Form of Notice of Exercise of Warrant
[ ] Check in the amount of $________ payable to the order of the Company enclosed herewith
[ ] Wire transfer of immediately available funds to the Company’s account
[ ] Cashless exercise pursuant to Section 2.2 of the Warrant, resulting in the issuance of __________________ shares of the Common Stock of the Company
[ ] Other [Describe] __________________________________________
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Holder’s Name
___________________________________________
___________________________________________
(Address)
HOLDER | |
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By: |
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Name: |
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Title: |
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(Date): |
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