Pre-Effective Amendment to Registration Statement by a Foreign Issuer — Form F-1 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: F-1/A Pre-Effective Amendment to Registration Statement HTML 1.43M
by a Foreign Issuer
2: EX-1.1 Underwriting Agreement or Conflict Minerals Report HTML 252K
3: EX-4.2 Instrument Defining the Rights of Security Holders HTML 96K
4: EX-4.3 Instrument Defining the Rights of Security Holders HTML 215K
5: EX-4.4 Instrument Defining the Rights of Security Holders HTML 93K
6: EX-4.5 Instrument Defining the Rights of Security Holders HTML 92K
7: EX-5.1 Opinion of Counsel re: Legality HTML 16K
8: EX-8.1 Opinion of Counsel re: Tax Matters HTML 12K
9: EX-23.1 Consent of Expert or Counsel HTML 6K
‘EX-4.4’ — Instrument Defining the Rights of Security Holders
Form of Underwriter's Warrant (Common Share Warrant)
THE REGISTERED HOLDER OF THIS UNDERWRITER'S WARRANT BY ITS ACCEPTANCE HEREOF, AGREES THAT THIS UNDERWRITER'S WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED, OR BE THE SUBJECT OF ANY HEDGING, SHORT SALE, DERIVATIVE, PUT, OR CALL TRANSACTION THAT WOULD RESULT IN THE EFFECTIVE ECONOMIC DISPOSITION OF SUCH SECURITIES BY ANY PERSON FOR A PERIOD OF ONE
HUNDRED AND EIGHTY (180) DAYS IMMEDIATELY FOLLOWING THE DATE OF EFFECTIVENESS OF THE PUBLIC OFFERING OF THE COMPANY'S SECURITIES PURSUANT TO REGISTRATION STATEMENT NO. 333-245405 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION, EXCEPT IN
ACCORDANCE WITH FINRA RULE 5110(g)(2).
THIS UNDERWITER'S WARRANT IS NOT EXERCISABLE PRIOR TO [________________]1. VOID AFTER 5:00 P.M., EASTERN TIME, [___________________]2.
UNDERWRITER'S WARRANT TO PURCHASE COMMON SHARE WARRANTS
PYXIS TANKERS INC.
Common Share Warrants or Warrant Securities: [_______]3
Initial Exercise Date: [______] 2021
THIS UNDERWRITER'S WARRANT TO PURCHASE COMMON SHARE WARRANTS (the "UnderwriterWarrant") certifies that, for value received, ThinkEquity, a
division of Fordham Financial Management, Inc., or its assigns (the "Holder") is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after ____, 2021 (the "Initial
Exercise Date") and, in accordance with FINRA Rule 5110(f)(2)(G)(i), prior to at 5:00 p.m. (New York time) on the date that is five (5) years following the Effective Date (the "Termination Date") but not thereafter, to subscribe for and
purchase from Pyxis Tankers Inc., a corporation formed under the laws of the Republic of the Marshall Islands (the "Company"), up to ______ warrants to purchase common shares, par value $0.001 per share, of the Company (interchangeably, the "Common
Share Warrants" or "Warrant Securities"), as subject to adjustment hereunder. The purchase price of one Common Share Warrant under this Underwriter's Warrant shall be equal to the Exercise Price, as defined in Section 2(b). The Common
Share Warrants issued upon exercise of this Underwriter's Warrant will be governed by that certain Warrant Agency Agreement between us and VStock Transfer, LLC, as warrant agent (the "Warrant Agent"), dated
[____], 2020. It is intended that the Common Share Warrants issued upon exercise of this Underwriter's Warrant will be listed on the Nasdaq Capital Market under the symbol "PXSAW."
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 common control with a Person, as such
terms are used in and construed under Rule 405 under the Securities Act.
"Business Day" means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed;
1 Date that is 180 days from the Effective Date of the Registration Statement
2 Date that is five (5) years from the Effective Date of the Registration Statement
3 1% of the number of Common Share Warrants sold in the Offering.
provided that banks shall not be deemed to be authorized or obligated to be closed due to a "shelter in place,""non-essential employee" or similar closure of physical branch locations at the direction
of any governmental authority if such banks' electronic funds transfer systems (including for wire transfers) are open for use by customers on such day.
"Commission" means the United States Securities and Exchange Commission.
"Common Share Equivalents" means any securities of the Company or its subsidiaries that would entitle the holder thereof to acquire at any time Common
Shares, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares.
"Common Shares" means the Company's common shares, par value $0.001 per share.
"Effective Date" means the effective date of the registration statement on Form F-1 (File No. 333-245405) including any related prospectus or prospectuses,
for the registration of the Company's securities under the Securities Act, that the Company has filed with the Commission.
"Exchange Act" 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 liability company, 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 interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
"Series A Preferred Shares" means the Company's 7.75% Series A Cumulative Convertible Preferred Shares, par value $0.001 per share.
"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 7.75% Series A Cumulative Convertible Shares and Common Shares are listed or quoted for trading
on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange (or any successors to any of the foregoing).
"Underwriting Agreement" means that certain Underwriting Agreement, dated as of [____], 2020, by and between, the Company and ThinkEquity, a division of Fordham Financial
Management, Inc., as representatives of the underwriters set forth therein.
"VWAP" means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Share Warrants are then listed or quoted on a Trading
Market, the
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daily volume weighted average price of the Common Share Warrants for such date (or the nearest preceding date) on the Trading Market on which the Common Share Warrants are then listed or quoted as
reported by Bloomberg L.P. (based on a 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 is not a Trading Market, the volume weighted average price of a Common Share Warrant for such date (or the
nearest preceding date) on the OTCQB or OTCQX as applicable, (c) if the Common Share Warrants are not then listed or quoted for trading on the OTCQB or OTCQX and if prices for Common Shares are then reported in the "Pink Sheets" published by OTC
Markets Group, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Common Share Warrants so reported, or (d) in all other cases, the fair market value of the Common Share Warrant as
determined by an independent appraiser selected in 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) Exercise of the purchase rights represented by this Underwriter's Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or
before the Termination Date by delivery to the Company (or such other office or agency of the Company as it 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) Trading Days following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the shares specified in the
applicable Notice of Exercise by wire transfer or cashier's check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise
shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this
Underwriter's Warrant to the Company until the Holder has purchased all of the Warrant Securities available hereunder and the Underwriter's Warrant has been exercised in full, in which case, the Holder shall surrender this Underwriter's Warrant to the
Company for cancellation within five (5) Trading Days of the date the final Notice of Exercise is delivered to the Company. Partial exercises of this Underwriter's Warrant resulting in purchases of a portion of the total number of Warrant Securities
available hereunder shall have the effect of lowering the outstanding number of Warrant Securities purchasable hereunder in an amount equal to the applicable number of Warrant Securities purchased. The Holder and the Company shall maintain records
showing the number of Warrant Securities purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise Form within two (2) Business Days of receipt of such notice. The
Holder and any assignee, by acceptance of this Underwriter's Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Securities
hereunder, the number of Warrant Securities available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b) Exercise Price. The exercise price per Common Share Warrant under this Underwriter's Warrant shall be $0.01, subject to
adjustment hereunder (the "Exercise Price"). The Common Share Warrant underlying this Underwriter Warrant shall have the same terms and conditions of the Public Warrants (as such term is defined in the Underwriting Agreement) sold pursuant to
the Underwriting Agreement, including, the initial Exercise Price (as such term is defined in the Public Warrant) of the Common Share Warrants shall be $1.40 per each common share, par value $0.01, underlying
such Common Share Warrant.
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c) Cashless Exercise. If at any time on or after the Initial Exercise Date, there is no effective registration statement registering, or the prospectus contained therein is
not available for the issuance of the Warrant Securities to the Holder, then this Underwriter's Warrant may also be exercised, in whole or in part, at such time by means of a "cashless exercise" in which the Holder shall be entitled to receive the
number of Warrant Securities 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 Underwriter's Warrant by means of a "cashless exercise," as set forth in the applicable
Notice of Exercise;
(B) =
the Exercise Price of this Underwriter's Warrant, as adjusted hereunder; and
(X) =
the number of Warrant Securities that would be issuable upon exercise of this Underwriter's Warrant in accordance with the terms of this Underwriter's Warrant if such exercise were by means
of a cash exercise rather than a cashless exercise.
If Warrant Securities are issued in such a "cashless exercise," the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant
Securities shall take on the registered characteristics of the Underwriter's Warrants being exercised, and the holding period of the Underwriter's Warrants being exercised may be tacked on to the holding period of the Warrant Securities. The Company
agrees not to take any position contrary to this Section 2(c).
Notwithstanding anything herein to the contrary, on the Termination Date, this Underwriter's Warrant shall be automatically exercised via cashless exercise pursuant to this Section
2(c).
d) Mechanics of Exercise.
i. Delivery of Warrant Securities Upon Exercise. The Company shall cause the Warrant Securities purchased hereunder to be transmitted by its transfer agent to the Holder by crediting the
account of the Holder's or its designee's balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system ("DWAC") if the Company is then a participant in such system and either (A) there is an effective
registration statement permitting the issuance of the Warrant Securities to or resale of the Warrant Securities by Holder, or (B) the Warrant Securities are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule
144 and, in either case, the Warrant Securities have been sold by the Holder prior to the Warrant Securities Delivery Date (as defined below), and otherwise by physical delivery of a certificate, registered in the Company's share register in the name
of the Holder or its designee, for the number of Warrant Securities to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is two (2) Trading Days after the delivery
to the Company of the Notice of Exercise (such date, the "Warrant Securities Delivery Date"). If the Warrant Securities can be delivered via DWAC, the transfer agent shall have received from the Company, at the expense of the Company, any legal
opinions or other documentation required by it to deliver such Warrant Securities without legend (subject to receipt by the Company of reasonable back up documentation from the Holder, including with respect to affiliate status) and, if applicable and
requested by the Company prior to the Warrant Securities Delivery Date, the transfer agent shall have received from the Holder a confirmation of sale of the Warrant Securities (provided the requirement of the Holder to provide a confirmation as to the
sale of Warrant Securities shall not be applicable to the issuance of unlegended Warrant Securities upon a cashless exercise of this Underwriter's Warrant if the Warrant Securities are then eligible for resale pursuant to Rule 144(b)(1)). The Warrant
Securities shall be deemed to have been issued, and Holder or any other person so designated to be named
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therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date the Underwriter's Warrant has been exercised, with payment to the Company of the Exercise Price (or by cashless
exercise, if permitted) and all taxes required to be paid by the Holder, if any, pursuant to Section 2(d)(vi) prior to the issuance of such shares, having been paid. If the Company fails for any reason to deliver to the Holder the Warrant Securities
subject to a Notice of Exercise by the second Trading Day following the Warrant Securities Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Securities subject to such
exercise (based on the VWAP of the Common Share Warrant on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading
Day after the second Trading Day following such Warrant Securities Delivery Date until such Warrant Securities are delivered or Holder rescinds such exercise.
ii. Delivery of New Warrants Upon Exercise. If this Underwriter's Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this
Underwriter's Warrant certificate, at the time of delivery of the Warrant Securities, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Securities called for by this Underwriter's Warrant, which
new Warrant shall in all other respects be identical with this Underwriter's Warrant.
iii. Rescission Rights. If the Company fails to cause its transfer agent to deliver to the Holder the Warrant Securities pursuant to Section 2(d)(i) by the Warrant Securities 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 Securities or Common Shares subject to any such rescinded exercise notice concurrently with the
return to Holder of the aggregate Exercise Price paid to the Company for such Warrant Securities and the restoration of Holder's right to acquire such Warrant Securities pursuant to this Underwriter's Warrant (including, issuance of a replacement
warrant certificate evidencing such restored right).
iv. Compensation for Buy-In on Failure to Timely Deliver Warrant Securities 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 Securities pursuant to an exercise on or before the Warrant Securities Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or
the Holder's brokerage firm otherwise purchases, Common Share Warrants to deliver in satisfaction of a sale by the Holder of the Warrant Securities 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 purchase price (including brokerage commissions, if any) for the Common Share Warrants so purchased exceeds (y) the amount obtained by multiplying (1) the number of
Common Share Warrants that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, provided
that such Holder provides reasonable evidence of the date and time of such sell order and (B) at the option of the Holder, either reinstate the portion of the Underwriter's Warrant and equivalent number of Common Share Warrants for which such
exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of Common Share Warrants that would have been issued had the Company timely complied with its exercise and delivery obligations
hereunder. For example, if the Holder purchases Common Share Warrants having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Common Share Warrants with an aggregate sale price giving rise to such purchase
obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the
Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder's right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company's failure to timely
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deliver Common Share Warrants upon exercise of the Underwriter's Warrant as required pursuant to the terms hereof.
v. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Underwriter's Warrant. If, by reason of any adjustment
made pursuant to Section 3, a Holder would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round down to the nearest whole number of Warrant Securities to be issued to
such Holder.
vi. Charges, Taxes and Expenses. Issuance of Warrant Securities shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance
of such Warrant Securities, all of which taxes and expenses shall be paid by the Company, and such Warrant Securities 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 Securities are to be issued in a name other than the name of the Holder, this Underwriter's Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and
the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all transfer agent fees required for same-day processing of any Notice of Exercise and all
fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Securities.
vii. Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Underwriter's Warrant, 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 order to exercise this Underwriter's 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 exercise this Underwriter's Warrant. No
additional legal opinion, other information or instructions shall be required of the Holder to exercise this Purchase Warrant. The Company shall honor exercises of this Underwriter's Warrant and shall deliver Shares underlying this Underwriter's
Warrant in accordance with the terms, conditions and time periods set forth herein.
e) Holder's Exercise Limitations. The Company shall not effect any exercise of this Underwriter's Warrant, and a Holder shall not have the right to exercise any portion of this Underwriter's
Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, 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), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). Except as set forth in the preceding sentence, for purposes of this Section 2(e), 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 2(e) applies, the determination of
whether this Underwriter's Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Underwriter's Warrant is exercisable shall be in the sole discretion of the Holder, and
the submission of a Notice of Exercise shall be deemed to be the Holder's determination of whether this Underwriter's Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this
Underwriter's 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
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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 2(e), in determining the number of outstanding Common Shares, a Holder may rely on the number of outstanding Common Shares 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 Company's transfer agent setting forth the number of Common Shares outstanding. Upon the written or oral request of a
Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder the number of Common Shares then outstanding. In any case, the number of outstanding Common Shares shall be determined after giving effect to the conversion
or exercise of securities of the Company, including this Underwriter's Warrant, by the Holder or its Affiliates since the date as of which such number of outstanding Common Shares was reported. The "Beneficial Ownership Limitation" shall be
9.99% of the number of shares of the Common Shares outstanding immediately after giving effect to the issuance of Common Shares issuable upon exercise of all warrants held by the Holder. The Holder, upon notice to the Company, may increase or decrease
the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Shares outstanding immediately after giving effect to the issuance of
Common Shares upon exercise of all warrants held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any 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 2(e) 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 Underwriter's Warrant.
Section 3. Certain Adjustments.
a) Stock Dividends and Splits. If the Company, at any time while this Underwriter's Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on
shares of its Common Shares or any other equity or equity equivalent securities payable in Common Shares (which, for avoidance of doubt, shall not include any Common Shares issued by the Company upon exercise of this Underwriter's Warrant), (ii)
subdivides outstanding Common Shares into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding Common Shares into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Shares
any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of Common Shares (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of Common Shares outstanding immediately after such event, and the number of shares issuable upon exercise of this Underwriter's Warrant shall be proportionately adjusted such that the aggregate Exercise
Price of this Underwriter's Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or
distribution and 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 Underwriter's Warrant will not be adjusted in the
event that the Company or any Subsidiary thereof, as applicable, sells or grants any option to purchase, or sell or grant any right to reprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other
disposition) any Common Shares or Common Share Equivalents, at an effective price per share less than the Exercise Price then in effect.
b) [RESERVED]
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c) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells any Common Share Equivalents or rights to
purchase stock, warrants, securities or other property pro rata to the record holders of any class of Common Shares (the "Purchase Rights"), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the
aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of Common Shares acquirable upon complete exercise of this Underwriter's Warrant (without regard to any limitations on exercise hereof, including without
limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Shares
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 Holder exceeding the Beneficial Ownership Limitation, then
the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such Common Shares as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for
the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro Rata Distributions. During such time as this Underwriter's Warrant is outstanding, if the Company shall declare or make any dividend (other than cash dividends) or other distribution of
its assets (or rights to acquire its assets) to holders of Common Shares, by way of return of capital or otherwise (including, without limitation, any distribution of shares or other securities, property or 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 Underwriter's Warrant, then, in each such case, the Holder shall be entitled to participate
in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of Common Shares acquirable upon complete exercise of this Underwriter's Warrant or the Warrant Securities (without regard to any
limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of
Common Shares are to be determined for the participation in such Distribution (provided, however, to the extent that the Holder's right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any Common Shares as a result of such Distribution to such extent) and the portion of such Distribution shall be
held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). To the extent that this Underwriter's 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 Underwriter's Warrant.
e) Fundamental Transaction. If, at any time while this Underwriter's Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or
consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of
related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Shares are permitted to sell, tender or exchange their
shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Shares, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification,
reorganization or recapitalization of the Common Shares or any compulsory share exchange pursuant to which all outstanding Common Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or
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
group of Persons whereby such other Person or
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group acquires more than 50% of the outstanding Common Shares (not including any Common Shares held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or
party to, such stock or share purchase agreement or other business combination) (each a "Fundamental Transaction"), then, upon any subsequent exercise of this Underwriter's Warrant, the Holder shall have the right to receive, for each Warrant
Security 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 Underwriter's Warrant),
the number of Common Shares of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the "Alternate Consideration") receivable by holders of Common Shares as a result of
such Fundamental Transaction for each Common Share for which this Underwriter's Warrant or the Warrant Securities is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this
Underwriter's Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share
of Common Shares in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If
holders of Common Shares 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 Alternate Consideration it receives upon any exercise of this
Underwriter's Warrant following such Fundamental Transaction. The Company shall cause any successor 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 Underwriter's Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements prior to or during such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in
exchange for this Underwriter's Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Underwriter's Warrant which is exercisable for a corresponding number of shares of capital
stock of such Successor Entity (or its parent entity) equivalent to the Common Shares acquirable and receivable upon exercise of this Underwriter's Warrant (without regard to any limitations on the exercise of this Underwriter's Warrant) prior to such
Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Common Shares pursuant to such Fundamental Transaction and the value of
such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Underwriter's Warrant immediately prior to the consummation of such Fundamental Transaction),
and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental
Transaction, the provisions of this Underwriter's 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
Underwriter's Warrant with 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 may be. For purposes of this Section 3, the number of
Common Shares deemed to be issued and outstanding as of a given date shall be the sum of the number of Common Shares (excluding treasury shares, if any) issued and outstanding.
g) Notice to Holder.
i. Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly send to the Holder(either via mail or e-mail) a
notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of
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Warrant Securities and setting forth a brief statement of the facts requiring such adjustment. Provided, however, that the Company may satisfy this notice requirement in this Section 4.4(a) by filing such notice with
the Commission pursuant to a Report on Form 6-K.
ii. Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Shares, (B) the Company shall declare a special
nonrecurring cash dividend on or a redemption of the Common Shares, (C) the Company shall authorize the granting to all holders of the Common Shares rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any
rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Shares, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of
the assets of the Company, or any compulsory share exchange whereby the Common Shares are 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 delivered by mail, facsimile or email to the Holder at its last mailing address, facsimile number or email address as it shall appear upon the Warrant Register of the Company, at
least five (5) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a
record is not to be taken, the date as of which the holders of the Common Shares of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Shares of record shall be entitled to exchange their shares of the Common Shares for
securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the
validity of the corporate action required to be specified in such notice. To the extent that any notice required to be provided hereunder constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the
Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 6-K. Provided such notice occurs prior to the Termination Date, the Holder shall remain entitled to exercise this Underwriter's Warrant during the
period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section 4. Transfer of Warrant.
a) Transferability. Pursuant to FINRA Rule 5110(g)(1), neither this Underwriter's Warrant nor any Warrant Securities issued upon exercise of this Underwriter's Warrant shall be sold,
transferred, assigned, pledged, or hypothecated, or be the subject of any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of 180 days
immediately following the date of effectiveness or commencement of sales of the offering pursuant to which this Underwriter's Warrant is being issued, except the transfer of any security:
i. by operation of law or by reason of reorganization of the Company;
ii. to any FINRA member firm participating in the offering and the officers or partners thereof, if all securities so transferred remain subject to the lock-up restriction in this Section 4(a) for the
remainder of the time period;
iii. if the aggregate amount of securities of the Company held by the Holder or related person do not exceed 1% of the securities being offered;
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iv. that is beneficially owned on a pro-rata basis by all equity owners of an investment fund, provided that no participating member manages or otherwise directs investments by the fund, and
participating members in the aggregate do not own more than 10% of the equity in the fund; or
v. the exercise or conversion of any security, if all securities received remain subject to the lock-up restriction in this Section 4(a) for the remainder of the time period.
Subject to the foregoing restriction, any applicable securities laws and the conditions set forth in Section 4(d), this Underwriter's Warrant and all rights hereunder (including, without limitation,
any registration rights) are transferable, in whole or in part, upon surrender of this Underwriter's Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Underwriter's Warrant substantially
in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and
deliver a new Underwriter's Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the
portion of this Underwriter's Warrant not so assigned, and this Underwriter's Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Underwriter's Warrant to
the Company unless the Holder has assigned this Underwriter's Warrant in full, in which case, the Holder shall surrender this Underwriter's Warrant to the Company within three (3) Trading Days of the date the Holder delivers an assignment form to the
Company assigning this Underwriter's Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Securities without having a new Warrant issued.
b) New Warrants. This Underwriter's Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Underwriter's Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Underwriter's Warrant or Underwriter's Warrants in exchange for the Underwriter's Warrant or Underwriter's Warrants to be divided or combined in accordance with such notice. All Underwriter's
Warrants issued on transfers or exchanges shall be dated the initial issuance date of this Underwriter's Warrant and shall be identical with this Underwriter's Warrant except as to the number of Warrant Securities issuable pursuant thereto.
c) Warrant Register. The Company shall register this Underwriter's Warrant, upon records to be maintained by the Company for that purpose (the "Warrant Register"), in the name of the
record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Underwriter's Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
d) Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Underwriter's Warrant and, upon any exercise hereof, will acquire the
Warrant Securities issuable upon such exercise, for its own account and not with a view to or for distributing or reselling such Warrant Securities or any part thereof in violation of the Securities Act or any applicable state securities law, except
pursuant to sales registered or exempted under the Securities Act.
Section 5. Registration Rights.
5.1 [RESERVED].
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5.2 "Piggy-Back" Registration.
5.2.1 Grant of Right. If at any time on or after the Initial Exercise Date, there is no effective registration statement registering, or the prospectus contained therein is not available for
the issuance of the Warrant Securities to the Holder or if Rule 144 is not available to the Holder without any volume or other limitations, the Holder shall have the right, for a period of no more than three (3) years from the Initial Exercise Date,
which is in accordance with applicable FINRA rules, to include the Warrant Securities as part of any other registration of securities filed by the Company (other than in connection with a transaction contemplated by Rule 145(a) promulgated under the
Securities Act or pursuant to Form S-8 or any equivalent form); provided, however, that if, solely in connection with any primary underwritten public offering for the account of the Company, the managing underwriter(s) thereof shall, in its reasonable
discretion, impose a limitation on the number of Warrant Securities 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 shall be obligated to include in such Registration Statement only such limited portion of the Warrant Securities with respect to which the Holder requested inclusion hereunder as the underwriter shall reasonably permit.
Any exclusion of Warrant Securities shall be made pro rata among the Holders seeking to include Warrant Securities in proportion to the number of Warrant Securities sought to be included by such Holders; provided, however, that the Company shall not
exclude any Warrant Securities unless the Company has first excluded all outstanding securities, the holders of which are not entitled to inclusion of such securities in such Registration Statement or are not entitled to pro rata inclusion with the
Warrant Securities.
5.2.2 Terms. The Company shall bear all fees and expenses attendant to registering the Registrable Securities pursuant to Section 5.2.1 hereof, but the Holders shall pay any and all
underwriting commissions and the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities. In the event of such a proposed registration, the Company shall furnish the then Holders
of outstanding Registrable Securities with not less than thirty (30) days written notice prior to the proposed date of filing of such registration statement. Such notice to the Holders shall continue to be given for each registration statement filed by
the Company during the three (3) year period following the Initial Exercise Date until such time as all of the Registrable Securities have been sold by the Holder. The holders of the Registrable Securities shall exercise the "piggy-back" rights
provided for herein by giving written notice within ten (10) days of the receipt of the Company's notice of its intention to file a registration statement. Except as otherwise provided in this Underwriter's Warrant, there shall be no limit on the
number of times the Holder may request registration under this Section 5.2.2; provided, however, that such registration rights shall terminate on the third anniversary of the Initial Exercise Date.
5.3 General Terms
5.3.1 Indemnification. The Company shall indemnify the Holder(s) of the Warrant Securities to be sold pursuant to any registration statement hereunder and each person, if any, who controls
such Holders within the meaning of Section 15 of the Securities Act or Section 20 (a) of the Exchange Act against all loss, claim, damage, expense or liability (including all reasonable attorneys' fees and other expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same
effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters contained in Section 5.1 of the Underwriting Agreement. The Holder(s) of the Warrant Securities to be sold pursuant 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 reasonably incurred in investigating, preparing or
defending against any claim whatsoever) to which they may become subject under the Securities Act, the Exchange Act or otherwise, arising from information furnished by or
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on behalf of such Holders, or their successors or assigns, in writing, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Section 5.2 of the
Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company.
5.3.2 Exercise of Warrants. Nothing contained in this Underwriter's Warrant shall be construed as requiring the Holder(s) to exercise their Underwriter's Warrants prior to or after the initial
filing of any registration statement or the effectiveness thereof.
5.3.3 Documents Delivered to Holders. The Company shall furnish to each Holder participating in any of the foregoing offerings and to each underwriter of any such offering, if any, a signed
counterpart, addressed to such Holder or underwriter, of: (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date
of the closing under any underwriting agreement related thereto), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of
the closing under the underwriting agreement) signed by the independent registered public 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 in underwritten public offerings of securities. The Company shall also deliver promptly to each Holder participating in the offering requesting the correspondence and
memoranda described below and to the managing underwriter, if any, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to
the registration statement and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the registration statement as it deems reasonably necessary to comply
with applicable securities laws or rules of FINRA. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable
extent and at such reasonable times as any such Holder shall reasonably request.
5.3.4 Underwriting Agreement. If applicable, the Company shall enter into an underwriting agreement with the managing underwriter(s).Such agreement shall be reasonably satisfactory in form and
substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing
underwriter. If applicable. the Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the
Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as
they may relate to such Holders, their Warrant Securities and their intended methods of distribution.
5.3.5 Documents to be Delivered by Holder(s). Each of the Holder(s) participating in any of the foregoing offerings shall furnish to the Company a completed and executed questionnaire provided
by the Company requesting information customarily sought of selling security holders.
5.3.6 Damages. Should the registration or the effectiveness thereof required by Section 5.2 hereof be delayed by the Company or the Company otherwise fails to comply with such provisions, the
Holder(s) shall, in addition to any other legal or other relief available to the Holder(s), be entitled to obtain specific performance or other equitable (including injunctive) relief against the threatened breach of such provisions
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or the continuation of any such breach, without the necessity of proving actual damages and without the necessity of posting bond or other security.
Section 6. Miscellaneous.
a) No Rights as Stockholder Until Exercise. This Underwriter's Warrant does not entitle the Holder to any voting rights, dividends or other rights as 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 reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Underwriter's Warrant or any certificate relating to the Warrant Securities, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Underwriter's Warrant, shall
not include the posting of any bond), and upon surrender and cancellation of such Underwriter's Warrant or stock certificate, if mutilated, the Company will make and deliver a new Underwriter's Warrant or stock certificate of like tenor and dated as of
such cancellation, in lieu of such Underwriter's 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 required or granted herein shall not be a Trading Day, then, such
action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized Shares.
The Company covenants that, during the period the Underwriter's Warrant is outstanding, it will reserve from its authorized and unissued Common Shares a sufficient number of shares to provide for the
issuance of the Warrant Securities upon the exercise of any purchase rights under this Underwriter's Warrant. The Company further covenants that its issuance of this Underwriter's Warrant shall constitute full authority to its officers who are charged
with the duty of issuing the necessary Warrant Securities upon the exercise of the purchase rights under this Underwriter's Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Securities may be
issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the 7.75% Series A Cumulative Convertible Preferred Shares, the Common Share Warrants and the Common Shares may be
listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Underwriter's Warrant will, upon exercise of the purchase rights represented by this Underwriter's Warrant and
payment for such Warrant 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 occurring contemporaneously with such issue).
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Underwriter's Warrant, but will at 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 necessary or appropriate to protect the rights of Holder as set forth in this Underwriter's Warrant against impairment. Without limiting
the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary
or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Underwriter's Warrant and (iii) use commercially reasonable efforts to
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obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Underwriter's Warrant.
Before taking any action which would result in an adjustment in the number of Warrant Securities for which this Underwriter's 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 public regulatory body or bodies having jurisdiction thereof.
e) Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Underwriter's Warrant shall be determined in accordance with the provisions of the
Underwriting Agreement.
f) Restrictions. The Holder acknowledges that the Warrant Securities acquired upon the exercise of this Underwriter's Warrant, if not registered, and the Holder does not utilize cashless
exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the
Holder's rights, powers or remedies. Without limiting any other provision of this Underwriter's Warrant or the Underwriting Agreement, if the Company willfully and knowingly fails to comply with any provision of this Underwriter's Warrant, which
results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to 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 remedies hereunder.
h) Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered in accordance with the notice provisions of the
Underwriting Agreement.
i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Underwriter's Warrant to purchase Warrant Securities, and no enumeration
herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Share Warrantor as a stockholder of the Company, whether such liability is asserted by the Company or 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 entitled to specific performance of its rights under this
Underwriter's Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Underwriter's Warrant and hereby agrees to waive and not to assert the
defense in any action for specific performance that a remedy at law would be adequate.
k) Successors and Assigns. Subject to applicable securities laws, this Underwriter's Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon
the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Underwriter's Warrant are intended to be for the benefit of any Holder from time to time of this Underwriter's Warrant and
shall be enforceable by the Holder or holder of Warrant Shares.
l) Amendment. This Underwriter's Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
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m) Severability. Wherever possible, each provision of this Underwriter's Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of
this Underwriter's Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of
this Underwriter's Warrant.
n) Headings. The headings used in this Underwriter's Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Underwriter's Warrant.
********************
(Signature Page Follows)
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IN WITNESS WHEREOF, the Company has caused this Underwriter's Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
PYXIS TANKERS INC.
By:
Name: Valentios Valentis
Title: Chairman and Chief Executive Officer
17
NOTICE OF EXERCISE
TO:
PYXIS TANKERS INC.
_________________________
(1) The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the
exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
☐ in lawful money of the United States; or
☐ if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in
subsection 2(c), to exercise this Underwriter's Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please register and issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the following DWAC Account Number or by physical delivery of a certificate to:
_______________________________
_______________________________
_______________________________
(4) Accredited Investor. If the Underwriter's Warrant is being exercised via cash exercise, the undersigned is an "accredited investor" as defined in Regulation D promulgated under the
Securities Act of 1933, as amended
[SIGNATURE OF HOLDER]
Name of Investing Entity: _______________________________________________________________
Signature of Authorized Signatory of Investing Entity: _________________________________________
Name of Authorized Signatory: ___________________________________________________________
Title of Authorized Signatory: ____________________________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Underwriter's Warrant, without alteration or enlargement or any change whatsoever. Officers of corporations and
those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant.
