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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 1/12/22 Nommi, Inc. 1-A/A 17:1.3M Toppan Merrill/FA |
Document/Exhibit Description Pages Size
1: 1-A/A Pre-Qualification Amendment to Offering Statement HTML 6K
-- primary_doc.xml
2: PART II AND III Offering Statement - Parts II and III HTML 379K
3: EX1A-1 UNDR AGMT Exhibit 1.1 HTML 36K
4: EX1A-2A CHARTER Exhibit 2.1 HTML 38K
6: EX1A-2A CHARTER Exhibit 2.3 HTML 40K
5: EX1A-2B BYLAWS Exhibit 2.2 HTML 66K
7: EX1A-3 HLDRS RTS Exhibit 3.1 HTML 41K
8: EX1A-4 SUBS AGMT Exhibit 4.1 HTML 54K
9: EX1A-6 MAT CTRCT Exhibit 6.1 HTML 39K
10: EX1A-6 MAT CTRCT Exhibit 6.2 HTML 19K
11: EX1A-6 MAT CTRCT Exhibit 6.3 HTML 19K
12: EX1A-6 MAT CTRCT Exhibit 6.4 HTML 60K
13: EX1A-6 MAT CTRCT Exhibit 6.5 HTML 22K
14: EX1A-6 MAT CTRCT Exhibit 6.6 HTML 22K
15: EX1A-11 CONSENT Exhibit 11.1 HTML 8K
16: EX1A-11 CONSENT Exhibit 11.2 HTML 7K
17: EX1A-12 OPN CNSL Exhibit 12.1 HTML 9K
Exhibit 3.1
Execution Copy
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
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Warrant No. CF-1 |
Date of Issuance: __________ Number of Shares of Warrant Stock: 3,329,670 |
NOMMI, INC.
Warrant
Nommi, Inc., a Delaware corporation (the “Company”), for value received, hereby certifies that SN Robotic Venture, LLC, or its registered assigns (the “Registered Holder”), is entitled, subject to the terms set forth below, to purchase from the Company, at any time after the date hereof and on or before the Expiration Date (as defined in Section 5) the number of shares set forth above of Class F Stock of the Company at a price of $0.0001 per share (subject to adjustment as provided herein). The shares purchasable upon exercise of this Warrant, and the purchase price per share, as adjusted from time to time pursuant to the provisions of this Warrant, are hereinafter referred to as the “Warrant Stock” and the “Purchase Price,” respectively.
This Warrant is issued pursuant to, and is subject to the terms and conditions of, the Note and Warrant Purchase Agreement dated as of even date with the date of issuance first set forth above between the Company, the Registered Holder, and certain other purchasers thereto (the “Purchase Agreement”).
1. Number of Shares. Subject to the terms and conditions hereinafter set forth, the Registered Holder is entitled, upon surrender of this Warrant, to purchase from the Company the number of shares (subject to adjustment as provided herein) of Warrant Stock first set forth above.
2. Exercise.
(a) Manner of Exercise. This Warrant may be exercised by the Registered Holder, in whole or in part, by surrendering this Warrant, with the purchase/exercise form appended hereto as Exhibit A duly executed by such Registered Holder or by such Registered Holder’s duly authorized attorney, at the principal office of the Company, or at such other office or agency as the Company may designate, accompanied by payment in full of the Purchase Price payable in respect of the number of shares of Warrant Stock purchased upon such exercise. The Purchase Price may be paid by cash, check, wire transfer, or by the surrender of promissory notes or other instruments representing indebtedness of the Company to the Registered Holder.
(b) Effective Time of Exercise. Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business on the day on which this Warrant shall have been surrendered to the Company as provided in Section 2(a). At such time, the person or persons in whose name or names any certificate (electronic or physical) for Warrant Stock shall be issuable upon such exercise as provided in Section 2(d) shall be deemed to have become the holder or holders of record of the Warrant Stock referred to in such certificate (electronic or physical).
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(c) Net Issue Exercise.
(i) In lieu of exercising this Warrant in the manner provided in Section 2(a), the Registered Holder may elect to receive shares equal to the value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the principal office of the Company together with notice of such election on the purchase/exercise form appended hereto as Exhibit A duly executed by such Registered Holder or such Registered Holder’s duly authorized attorney, in which event the Company shall issue to such Registered Holder a number of shares of Warrant Stock computed using the following formula:
| X = | Y (A - B) |
| A |
| Where | X = | The number of shares of Warrant Stock to be issued to the Registered Holder. |
| Y = | The number of shares of Warrant Stock purchasable under this Warrant (at the date of such calculation). |
| A = | The fair market value of one share of Warrant Stock (at the date of such calculation). |
| B = | The Purchase Price (as adjusted to the date of such calculation). |
(ii) For purposes of this Section 2(c), the fair market value of Warrant Stock on the date of calculation shall mean:
(A) if the exercise is in connection with an initial public offering of the Company’s Common Stock, and if the Company’s Registration Statement relating to such public offering has been declared effective by the Securities and Exchange Commission, then the fair market value of a share of Warrant Stock shall be the initial “Price to Public” per share of Common Stock specified in the final prospectus with respect to the offering for the number of shares of Common Stock into which one share of Warrant Stock is then convertible;
(B) if this Warrant is exercised after, and not in connection with, the Company’s initial public offering, and if the Company’s Common Stock is traded on a securities exchange or actively traded over-the-counter:
(1) if the Company’s Common Stock is traded on a securities exchange, the fair market value of one share of Warrant Stock shall be deemed to be the average of the closing prices over a thirty (30) day period ending three days before date of calculation for the number of shares of Common Stock into which one share of Warrant Stock is then convertible; or
(2) if the Company’s Common Stock is actively traded over-the-counter, the fair market value of one share of Warrant Stock shall be deemed to be the average of the closing bid or sales price (whichever is applicable) over the thirty (30) day period ending three days before the date of calculation for the number of shares of Common Stock into which one share of Warrant Stock is then convertible; or
(C) if neither (A) nor (B) is applicable, the fair market value of Warrant Stock shall be at the highest price per share which the Company could obtain on the date of calculation from a willing buyer (not a current employee or director) for shares of Warrant Stock sold by the Company, from authorized but unissued shares, as determined in good faith by the Board of Directors of the Company (the “Board of Directors”), unless the Company is at such time subject to an acquisition as described in Section 6(b), in which case the fair market value of Warrant Stock shall be deemed to be the value received by the holders of such stock pursuant to such acquisition.
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(d) Delivery to Holder. As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within ten (10) days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or as such Holder (upon payment by such Holder of any applicable transfer taxes) may direct:
(i) a certificate (electronic or physical) for the number of shares of Warrant Stock to which such Registered Holder shall be entitled, and
(ii) in case such exercise is in part only, a new warrant or warrants (dated the date hereof) of like tenor, calling in the aggregate on the face or faces thereof for the number of shares of Warrant Stock equal (without giving effect to any adjustment therein) to the number of such shares called for on the face of this Warrant minus the number of such shares purchased by the Registered Holder upon such exercise as provided in Sections 2(a) or 2(c).
3. Adjustments.
(a) Stock Splits and Dividends. If the Company’s outstanding shares of the same class as the Warrant Stock shall be subdivided into a greater number of shares or a dividend in the Company’s shares of the same class as the Warrant Stock shall be paid in respect of the Company’s shares of the same class as the Warrant Stock, the Purchase Price in effect immediately prior to such subdivision or at the record date of such dividend shall simultaneously with the effectiveness of such subdivision or immediately after the record date of such dividend be proportionately reduced. If the Company’s outstanding shares of the same class as the Warrant Stock shall be combined into a smaller number of shares, the Purchase Price in effect immediately prior to such combination shall, simultaneously with the effectiveness of such combination, be proportionately increased. When any adjustment is required to be made in the Purchase Price, the number of shares of Warrant Stock purchasable upon the exercise of this Warrant shall be changed to the number determined by dividing (i) an amount equal to the number of shares issuable upon the exercise of this Warrant immediately prior to such adjustment, multiplied by the Purchase Price in effect immediately prior to such adjustment, by (ii) the Purchase Price in effect immediately after such adjustment.
(b) Reclassification, Etc. In case there occurs any reclassification or change of the outstanding securities of the Company or of any reorganization of the Company (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) or any similar corporate reorganization on or after the date hereof, then and in each such case the Registered Holder, upon the exercise hereof at any time after the consummation of such reclassification, change, or reorganization shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, the stock or other securities or property to which such Holder would have been entitled upon such consummation if such Holder had exercised this Warrant immediately prior thereto, all subject to further adjustment pursuant to the provisions of this Section 3.
(c) Adjustment Certificate. When any adjustment is required to be made in the Warrant Stock or the Purchase Price pursuant to this Section 3, the Company shall promptly mail to the Registered Holder a certificate setting forth (i) a brief statement of the facts requiring such adjustment, (ii) the Purchase Price after such adjustment and (iii) the kind and amount of stock or other securities or property into which this Warrant shall be exercisable after such adjustment.
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4. Transfers.
(a) Unregistered Security. Each holder of this Warrant acknowledges that none of the Company’s securities (including this Warrant and the Warrant Stock and the shares issuable upon conversion thereof) have been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this Warrant or any Warrant Stock issued upon its exercise (or any securities issued by the Company upon conversion or exchange thereof) in the absence of (i) an effective registration statement under the Securities Act as to the sale of any such securities and registration or qualification of such securities under any applicable U.S. federal or state securities law then in effect, or (ii) an opinion of counsel, satisfactory to the Company, that such registration and qualification are not required. Each certificate or other instrument for Warrant Stock issued upon the exercise of this Warrant (and any securities issued by the Company upon conversion or exchange thereof) shall bear a legend substantially to the foregoing effect.
(b) Transferability. Subject to the provisions of Section 4(a) hereof and to the “Lockup” provisions in the Purchase Agreement, this Warrant is not transferable without the prior written consent of the Company, unless to an Affiliate of the Registered Holder which Affiliate has agreed in writing to be bound to this Warrant as an original holder hereof. “Affiliate” means any other person or entity who directly or indirectly, controls, is controlled by or is under common control with such party, including, without limitation, any general partner, managing member, officer, director or trustee of such party, or any venture capital fund or registered investment company now or hereafter existing which is controlled by one or more general partners, managing members or investment advisers of, or shares the same management company or investment adviser with, such party.
(c) Warrant Register. The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.
5. Termination. This Warrant (and the right to purchase securities upon exercise hereof) shall terminate upon the earliest to occur of the following (the “Expiration Date”):
(a) 90 calendar days after the date of issuance first set forth above, or
(b) the closing of a firm commitment underwritten public offering pursuant to a registration statement under the Securities Act, or
(c) the sale, conveyance or disposal of all or substantially all of the Company’s property or business or the Company’s merger with or into or consolidation with any other corporation (other than a wholly-owned subsidiary of the Company) or any other transaction or series of related transactions in which more than fifty percent (50%) of the voting securities of the Company is disposed of, provided that this Section 5(c) shall not apply to a merger effected exclusively for the purpose of changing the domicile of the Company or to an equity financing in which the Company is the surviving corporation.
6. Reservation of Stock. The Company will at all times reserve and keep available, solely for the issuance and delivery upon the exercise of this Warrant, such shares of Warrant Stock and other stock, securities and property, as from time to time shall be issuable upon the exercise of this Warrant.
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7. Replacement of 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 loss, theft or destruction) upon delivery of an indemnity agreement (with surety if reasonably required) in an amount reasonably satisfactory to the Company, or (in the case of mutilation) upon surrender and cancellation of this Warrant, the Company will issue, in lieu thereof, a new Warrant of like tenor.
8. No Rights as Stockholder. Until the exercise of this Warrant, the Registered Holder of this Warrant shall not have or exercise any rights by virtue hereof as a stockholder of the Company.
9. No Fractional Shares. No fractional shares of Warrant Stock will be issued in connection with any exercise hereunder. In lieu of any fractional shares which would otherwise be issuable, the Company shall pay cash equal to the product of such fraction multiplied by the fair market value of one share of Warrant Stock on the date of exercise, as determined in good faith by the Board of Directors.
10. Attorney’s Fees. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of any of this Warrant, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
11. Tax Covenant. The Board of Directors has determined that the fair market value of the a single share of the Company’s Common Stock is $0.0104 per share. Prior to such time that the Company or its respective affiliates take any position with respect to the income tax treatment of this Warrant on an income tax return (including any information return), the Company shall consult with the Holder on such income tax treatment. To the extent the Company and Holder agree upon such income tax treatment, unless otherwise required pursuant to a determination by a taxing authority, neither the Company nor Holder will take (or cause or permit their respective affiliates to take) any position inconsistent therewith, whether in connection with filing any tax return, in any audit or other proceeding, or otherwise. In the event that the Company and Holder are unable to agree upon such income tax treatment, each of the Company and Holder (and their respective affiliates) shall be permitted to treat the Warrant for income tax purposes in such a manner as it determines to be appropriate in its sole discretion; provided that under no circumstances shall the Company take a contrary position with respect to the fair market value of the Class F Stock.
12. Miscellaneous.
(a) Governing Law. The validity, interpretation, construction and performance of this Warrant, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the state of Delaware, without giving effect to principles of conflicts of law.
(b) Entire Agreement. This Warrant sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof.
(c) Amendments and Waivers. No modification of or amendment to this Warrant, nor any waiver of any rights under this Warrant, shall be effective unless in writing signed by the Company and the Registered Holder. No delay or failure to require performance of any provision of this Warrant shall constitute a waiver of that provision as to that or any other instance.
(d) Successors and Assigns. The terms and conditions of this Warrant shall inure to the benefit of and be binding upon the respective successors and assigns of the parties.
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(e) Notices. Any notice, demand or request required or permitted to be given under this Warrant shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent address set forth in the Company’s books and records.
(f) Severability. If one or more provisions of this Warrant are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from this Warrant, (b) the balance of this Warrant shall be interpreted as if such provision were so excluded and (c) the balance of this Warrant shall be enforceable in accordance with its terms.
(g) Construction. This Warrant is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Warrant shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.
(h) Counterparts. This Warrant may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company and the Holder have executed this Warrant as of the date first set forth above.
| the company: | ||
| NOMMI, INC. | ||
| By: | ||
| Name: James B. Jordan | ||
| Title: Chief Executive Officer | ||
| Address/email: | ||
| email: | ||
ACCEPTED AND AGREED:
The holder:
SN Robotics Venture, LLC
| By: |
| Name: | ||
| Title: |
| Address: | ||
| Email: | ||
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EXHIBIT A
PURCHASE/EXERCISE FORM
| To: | Nommi, Inc. | Dated: |
The undersigned, pursuant to the provisions set forth in the attached Warrant No. ____, hereby irrevocably elects to (a) purchase ____________________ shares of the capital stock covered by such Warrant and herewith makes payment of $____________________, representing the full purchase price for such shares at the price per share provided for in such Warrant, or (b) exercise such Warrant for ____________________ shares purchasable under the Warrant pursuant to the Net Issue Exercise provisions of Section 2(c) of such Warrant.
The undersigned acknowledges that it has reviewed the representations and warranties of the Purchasers set forth in the Purchase Agreement (as defined in the Warrant) and by its signature below hereby makes such representations and warranties to the Company. Defined terms contained in such representations and warranties shall have the meanings assigned to them in the Purchase Agreement, provided that the term “Purchaser” shall refer to the undersigned and the term “Securities” shall refer to the Warrant Stock (and any securities issued by the Company upon conversion or exchange thereof).
The undersigned further acknowledges that it has reviewed the “Lockup” provisions as set forth in the Purchase Agreement and agrees to be bound by such provisions.
Acknowledged and agreed to by the Holder:
| (Holder) | |
| By: | ||
| (Signature) | ||
| Name: | ||
| Title: |
| Address: | ||
| Email: | ||
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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 9/29/22 Nommi, Inc. 1-SA 6/30/22 1:218K Toppan Merrill/FA |