UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): May 22, 2020
JAGUAR HEALTH, INC.
(Exact name of registrant as specified in
its charter)
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Delaware
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001-36714
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46-2956775
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(State or other jurisdiction of
incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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201 Mission Street, Suite 2375
San Francisco, California
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94105
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including
area code: (415) 371-8300
Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see
General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of
the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company x
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Stock, Par Value $0.0001 Per Share
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JAGX
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The NASDAQ Capital Market
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Item 1.01 Entry into a Material Definitive Agreement
Warrant Exercise Price Reduction
As
previously reported, on July 23, 2019, Jaguar Health, Inc. (the “Company”) consummated a registered public offering
of (i) 2,886,500 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”),
(ii) 10,787 shares of Series B Convertible Preferred Stock, par value $0.0001 per share, (iii) warrants to purchase up to
8,280,000 shares of Common Stock that expire on the earlier of (A) five (5) years from the date of issuance and (B) 30
calendar days following the public announcement of Positive Interim Results (as defined in Registration Statement on Form S-1
(File No. 333-231399) and an additional registration statement filed pursuant to Rule 462(b) of the Securities Act of 1933,
as amended, together, the “Registration Statement”) related to the diarrhea results from the HALT-D investigator initiated
trial if and only if in those 30 calendar days (x) the volume weighted average price of Common Stock (“VWAP”)
exceeds 115% of the exercise price of such warrant for any 20 consecutive trading days (the “Measurement Period”) and
(y) the average dollar daily volume for such Measurement Period exceeds $500,000 per trading day (the “Series 1
Warrants”), and (iv) warrants to purchase up to 8,280,000 shares of Common Stock that expire on the first date on the earlier
of (A) 5 years from the date of issuance and (B) 30 calendar days following the public announcement by the Company that
a pivotal phase 3 clinical trial using crofelemer (Mytesi, or the same or similar product with a different name) for the treatment
of cancer therapy related diarrhea in humans has met its primary endpoint in accordance with the protocol if and only if in those
30 calendar days (x) the VWAP exceeds 150% of the exercise price of such warrant for the Measurement Period after such public
announcement and (y) the average dollar daily volume for such Measurement Period exceeds $500,000 per trading day (the “Series 2
Warrants”, and together with the Series 1 Warrants, the “Original Warrants”).
As previously reported, on September 24, 2019, the Company reduced
the exercise price of all the Series 1 Warrants outstanding from $2.00 per share to $1.40 per share by notifying American Stock
Transfer & Trust Company, LLC (“AST”) pursuant to the terms of the Warrant Agency Agreement, dated as of May 6,
2019, by and between the Company and AST (the “Warrant Agency Agreement”).
On
May 22, 2020, the Company reduced the exercise price of (i) all the Series 1 Warrants outstanding from $1.40 per share to $0.49
per share, (ii) all the Series 2 Warrants outstanding from $2.00 per share to $0.49 per share, and (iii) all the warrants to purchase
Common Stock previously issued in private placements by the Company in March through June of 2019 (the “Bridge Warrants”)
outstanding from $2.00 per share to $0.49 per share. The reduction in exercise price of the Series 1 Warrants and Series 2 Warrants
went into effect by notifying AST pursuant to the terms of the Warrant Agency Agreement, and the reduction in the exercise price
of the Bridge Warrants went into effect by notifying the holders of the Bridge Warrants.
The issuance of the Original Warrants to the public and the
issuance of the Common Stock upon exercise thereof have been registered on the Registration Statement previously filed with and
declared effective by the Securities and Exchange Commission (the “SEC”). A prospectus supplement relating to the reduction
of the exercise prices for the Original Warrants will be filed with the SEC.
The offer and sale of shares of Common Stock underlying the
Bridge Warrants has been registered on the Company’s registration statement on Form S-1 (File No. 333-233989), which was
previously filed and declared effective by the SEC.
The full text of the notices of reduction in the exercise prices
of the Series 1 Warrants and the Series 2 Warrants and the form of notice of reduction of the Bridge Warrants are attached hereto
as Exhibits 99.1, 99.2 and 99.3, respectively, and are incorporated herein by reference.
Warrant Exercise Inducement Letters and Issuance of Series
3 Warrants
On May 22, 2020, the Company entered
into warrant exercise inducement offer letters (“Inducement Letters”) with certain holders of Series 1 Warrants,
Series 2 Warrants, and Bridge Warrants (collectively, the “Exercising Holders”) pursuant to which such holders
agreed to exercise for cash Series 1 Warrants to purchase 4,572,040 shares of Common Stock, Series 2 Warrants to purchase
4,005,062 shares of Common Stock, and Bridge Warrants to purchase 93,750 shares of Common Stock in exchange for the
Company’s agreement to issue new Series 3 warrants to purchase up to 8,670,852 shares of Common Stock (the
“Series 3 Warrants”) to such holders as an inducement for the exercise of the Series 1 Warrants, Series 2
Warrants and Bridge Warrants by such holders (the “Warrant Exercise Transaction”) . The Company expects to
receive aggregate gross proceeds of approximately $ 4.25 million from the exercise of the Original Warrants and the Bridge
Warrants by such holders.
The Series 3 Warrants will have an exercise
price of $0.53 per share and will be exercisable beginning the earlier of (i) six months from the issuance date and (ii) receipt
of the requisite Stockholder Approval (defined hereafter) and ending five years thereafter. The Series 3 Warrants will have a
cashless exercise feature wherein, following the requisite Stockholder Approval, each such Series 3 Warrant will be exercisable
into 1.0 share of Common Stock for no consideration (the “Alternate Cashless Exercise”). The Company is required to
hold a special meeting of stockholders to seek approval of the Alternate Cashless Exercise (“Stockholder Approval”)
no later than 60 calendar days following May 22, 2020 and call a meeting every 90 days thereafter to the extent Stockholder Approval
is not obtained, which requirement will continue until the earlier of the date that Stockholder Approval is obtained or the Series
3 Warrants are no longer outstanding. The Company also agreed to file a registration statement covering the resale of the shares
of Common Stock issued or issuable upon the exercise of the Series 3 Warrants no later than 30 days following the date of the
Inducement Letters. Each of the Exercising Holders has a right to purchase its pro rata portion of new shares of Common Stock
and other securities offered by the Company in subsequent financings, subject to limited exceptions related to non-capital raising
circumstances, which right terminates on the earlier of the first anniversary of the date of the Inducement Letters and the consummation
of a transaction resulting in a change of control of the Company.
The
foregoing description of the Inducement Letters and form of Series 3 Warrant does not purport to be complete and is qualified
in its entirety by reference to the Series 3 Warrant and forms of Inducement Letters, copies of which are filed herewith as
Exhibit 4.1, 10.1 and Exhibit 10.2, respectively, and incorporated herein by reference. For
further discussion of the terms of the Original Warrants and the Bridge Warrants, see the
Company’s Current Reports on Form 8-K, filed with the SEC on March
22, 2019 and July 23, 2019, respectively, which are incorporated herein by
reference.
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Item 3.02
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Unregistered Sales of Equity Securities
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The
information contained above in Item 1.01 is hereby incorporated by reference into this Item 3.02 in its entirety. The Series 3
Warrants were issued in reliance upon an exemption from registration pursuant to 4(a)(2) under the Securities Act of
1933, as amended, and Rule 506 of Regulation D promulgated thereunder.
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Item 3.03
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Material Modification of Rights of Security Holders
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The disclosure set forth under Item 1.01 is incorporated herein
by reference into this Item 3.03 in its entirety.
Item 8.01 Other Events.
On May 22, 2020, the Company issued a press release announcing
the Warrant Exercise Transaction. A copy of the press release is furnished as Exhibit 99.4 and incorporated herein by reference.
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Item 9.01
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Financial Statements and Exhibits
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(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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JAGUAR HEALTH, INC.
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Date:
May 22, 2020
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By:
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/s/ Lisa A. Conte
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Name: Lisa A. Conte
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Title: Chief Executive Officer & President
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Exhibit 4.1
NEITHER THIS SECURITY
NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
SERIES 3 COMMON STOCK PURCHASE WARRANT
JAGUAR
HEALTH, Inc.
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Warrant Shares: ______________
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Issue Date: May __, 2020
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THIS SERIES 3 COMMON
STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _______________________ 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 the earlier of (1) the date Stockholder Approval (as defined in the Inducement Offer Letter)
is obtained or (2) November __, 2020 (the “Initial Exercise Date”) and on or prior to the Termination Date (as
defined in Section 1 below) but not thereafter, to subscribe for and purchase from Jaguar Health, Inc., a Delaware corporation
(the “Company”), up to _________________ shares (as subject to adjustment hereunder, the “Warrant Shares”)
of the Company’s common stock (“Common Stock”). The purchase price of one share of Common Stock under
this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, 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.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the
Common Stock is then listed or quoted on a Trading Market, the closing bid price of the Common Stock for the Trading Day in
question (or the nearest preceding Trading Day until the close of the current Trading Day) on the Trading Market on which the
Common Stock is 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 the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common
Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock 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 share of the Common Stock so reported, or (d) in all other
cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by
the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or
any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to
close.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, 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
Stock.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Inducement
Offer Letter” means the Letter Agreement titled “Inducement Offer to Exercise Common Stock Purchase Warrants”,
dated as of even date herewith, between the Company and the Holder.
“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.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Termination
Date” means 5:00 p.m. (New York City time) on the fifth (5th) anniversary of the Initial Exercise Date.
“Trading
Day” means a day on which the Common Stock is traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading
on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select
Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
“Transfer
Agent” means American Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing address
of 59 Maiden Lane, New York, New York and a facsimile number of (718) 234-5001, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date(or the nearest preceding
Trading Day) on the Trading Market on which the Common Stock is 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 the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as
applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock
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 share of the Common Stock so reported, or (d) in all
other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith
by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.
“Warrants”
means this Warrant and other Common Stock Purchase Warrants issued by the Company pursuant to the Inducement Offer Letters.
Section 2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this 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 in the form annexed hereto (the “Notice of Exercise”). Within the earlier of (i) two (2) Trading
Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein)
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)(i) or 2(c)(ii) 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 Warrant to the Company until the Holder has purchased all of the Warrant Shares
available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the
Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the
Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares
available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an
amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing
the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice
of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of
the Warrant Shares hereunder, the number of Warrant Shares 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 share of the Common Stock under this Warrant shall be $0.53, subject to adjustment hereunder
(the “Exercise Price”).
c)
(i) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for the issuance of the Warrant Shares to the Holder, then this 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 a number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = as applicable:
(i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise
is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and
delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of
the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the
Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s
execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours”
on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular
trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of
Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant
to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day;
(B) = the
Exercise Price of this Warrant, as adjusted hereunder; and
(X) =
the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant
if such exercise were by means of a cash exercise rather than a cashless exercise.
In connection
with clause (ii) in (A) above, upon written request of the Company, the Holder will provide evidence reasonably acceptable to the
Company of the Bid Price of the Common Stock on the principal Trading Market that was reported by Bloomberg L.P. as of the time
of the Holder’s execution of the applicable Notice of Exercise.
If Warrant
Shares are issued in a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities
Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not to
take any position contrary to this Section 2(c).
Without limiting
the rights of a Holder to receive Warrant Shares on a “cashless exercise” and without limiting without limiting the
liquidated damages provision in Section 2(d)(i) and the buy-in provision in Section 2(d)(iv), in no event will the Company be required
to net cash settle a Warrant exercise.
(ii) Alternate
Cashless Exercise. In addition, a cashless exercise may occur after Stockholder Approval (as defined in the Inducement Offer
Letter) is obtained (the “Alternate Cashless Exercise”). In such event, in lieu of the formula, the aggregate
number of Warrant Shares issuable in such Alternate Cashless Exercise pursuant to any given Notice of Exercise electing to effect
an Alternate Cashless Exercise shall equal the product of (x) the aggregate number of Warrant Shares that would be issuable upon
exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather
than a cashless exercise and (y) 1.0. The Company may not issue any shares of Common Stock upon an Alternate Cashless Exercise
unless and until such date that the Company has obtained the Stockholder Approval.
If Warrant
Shares are issued in an Alternate Cashless Exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9)
of the Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company
agrees not to take any position contrary to this Section 2(c).
Without limiting
the rights of a Holder to receive Warrant Shares on an Alternate Cashless Exercise and without limiting the liquidated damages
provision in Section 2(d)(i) and the buy-in provision in Section 2(d)(iv), in no event will the Company be required to net cash
settle a Warrant exercise.
d)
Mechanics of Exercise.
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i.
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Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the 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 Shares to or resale of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise or Alternate Cashless Exercise, 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 Shares 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 the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company, and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise or Alternate Cashless Exercise) is received within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share 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 Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
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ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at
the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver
to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant,
which new Warrant shall in all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares
pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise by
written notice to the Company given no later than the Trading Day immediately following the Warrant Share Delivery Date.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder,
if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share 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, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares 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 shares of Common
Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares 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, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent
number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver
to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise
and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000
to cover a Buy-In with respect to an attempted exercise of shares of Common Stock 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 deliver shares of Common Stock upon
exercise of the 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 Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such
exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount
equal to such fraction multiplied by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares 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 Shares, all of which taxes and expenses
shall be paid by the Company, and such Warrant Shares 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 Shares are to be issued in a name other
than the name of the Holder, this 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 Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely
exercise of this Warrant, pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to
exercise any portion of this Warrant, pursuant to Section 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 (such
Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as
defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the
Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon exercise
of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common
Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by
the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted
portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to
a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any
of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section
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 Warrant is exercisable (in relation to other securities owned by the Holder
together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the
sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any
Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the
Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such
determination and shall have no liability for exercises of this Warrant that are not in compliance with the Beneficial
Ownership Limitation, provided this limitation of liability shall not apply if the Holder has detrimentally relied on
outstanding share information provided by the Company or the Transfer Agent. 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 shares of
Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s
most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by
the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of
Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within two Trading Days
confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the
number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of
securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as
of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership
Limitation” shall be 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the
number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock
issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial
Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds
9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of
Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 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 Warrant.
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or
otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent
securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock
issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number
of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number
of shares, or (iv) issues by reclassification of shares of the Common Stock 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 shares of
Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall
be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon
exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this 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.
b) 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 Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata
to the record holders of any class of shares of Common Stock (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 shares of Common Stock acquirable upon complete exercise of this 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 shares of Common Stock are to be determined for the grant, issue or sale of such Purchase
Rights (provided, however, that, 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 shares of Common Stock 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).
c) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of
capital or otherwise (including, without limitation, any distribution of cash, stock 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 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 shares of Common Stock acquirable upon complete exercise of this Warrant
(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 shares of Common Stock 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 shares of Common Stock 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 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 Warrant.
d) Fundamental
Transaction. If, at any time while this Warrant is outstanding, either (i) a merger or consolidation is consummated in
which the Company is a constituent party or a subsidiary of the Company is a constituent party and the Company issues shares
of its capital stock pursuant to such merger or consolidation, except any such merger or consolidation involving the Company
or a subsidiary in which the shares of capital stock of the Company outstanding immediately prior to such merger or
consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent,
immediately following such merger or consolidation, at least a majority, by voting power, of the capital stock of (A) the
surviving or resulting corporation, or (B) if the surviving or resulting corporation is a wholly owned subsidiary of another
corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting
corporation or (ii) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of
related transactions, by the Company or any subsidiary of the Company of all or substantially all the assets of the Company
and its subsidiaries taken as a whole, or the sale or disposition (whether by merger, consolidation or otherwise) of Napo
Pharmaceuticals, Inc. (or any successor in interest) or one or more other subsidiaries of the Company if substantially all of
the assets of the Company and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries is consummated,
except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the
Company (each, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the
Holder shall have the right to receive, for each Warrant Share 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 Warrant), (x) the number of shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, (y) excluding, however, any portion of the consideration
payable to stockholders of the Company that is payable only upon satisfication of contingencies (such consideration described
in clause (y), the “Contingent Consideration”) potentially receivable as a result of such Fundamental
Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to
such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant).
Notwithstanding anything to the contrary, in the event of a Fundamental Transaction other than one in which a Successor
Entity (as defined below) that is a publicly traded corporation whose stock is quoted or listed on a Trading Market assumes
this Warrant such that the Warrant shall be exercisable for the publicly traded common stock of such Successor Entity and
only if such Fundamental Transaction is within the Company’s control, the Company or any Successor Entity (as defined
below) shall, at the Holder’s option, exercisable no less than ten (10) Trading Days prior to the consummation of the
Fundamental Transaction, purchase this Warrant from the Holder by paying to the Holder within 30 days after consummation of
such Fundamental Transaction an amount of cash equal to the Black Scholes Value of the remaining unexercised portion of this
Warrant on the date of the consummation of such Fundamental Transaction, excluding for the avoidance of any doubt the amount
of any Contingent Consideration for purposes of calculating the Black Scholes Value; provided, however, if the
Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of
Directors, Holder shall not have the option to require the Company to purchase its Warrant; provided further, however
in no event shall the Black Scholes Value of the remaining unexercised portion of this Warrant include the cash value of the
Contingent Consideration that a holder of the number of shares of Common Stock for which the remaining unexercised portion of
this Warrant is exercisable immediately prior to such Fundamental Transaction would be eligible to receive in connection with
such Fundamental Transaction. Any cash payment will be made by wire transfer of immediately available funds within five
Business Days of the Holder’s election (or, if later, on the effective date of the Fundamental Transaction).
“Black Scholes Value” as qualified above means the value of this Warrant based on the Black and Scholes
Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”)
determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a
risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public
announcement of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the
greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of the Trading Day immediately
following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such
calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any
non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the greater of (x) the last VWAP
immediately prior public announcement of such Fundamental Transaction and (y) the last VWAP immediately prior to the
consummation of such Fundamental Transaction, excluding for the avoidance of doubt in the case of each of clause (C)(i) and
(C)(ii) above any Contingent Consideration being offered and (D) a remaining option time equal to the time between the date
of the public announcement of the closing of the applicable Fundamental Transaction and the Termination Date. 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 Warrant except
for this Section 3(d), the liquidated damages provision in Section 2(d)(i) above and Section 2(d)(iv) above in accordance
with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the
Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option
of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of
shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable
and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this 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 shares of Common Stock pursuant to such Fundamental Transaction and
the value of such shares of capital stock (excluding any Contingent Consideration), such number of shares of capital stock
and such exercise price being for the purpose of protecting the economic value of this 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 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 Warrant with the same effect as if such Successor Entity had
been named as the Company herein. Notwithstanding anything to the contrary in this Section 3(d) or anywhere else in this
Warrant, in no event shall the Company or any Successor Entity have any obligation or liability to purchase or redeem this
Warrant or any underlying securities therein or set aside of funds for any of the foregoing until all shares of Series A
Convertible Participating Preferred Stock of the Company have been redeemed or converted or otherwise cease to exist and the
provisions set forth in Section 3 of the Company’s Certificate of Designation of Series A Convertible Participating
Preferred Stock are no longer applicable.
e) 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 shares of Common Stock deemed to be issued and outstanding
as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) 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 deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment
and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
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 Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock,
(C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any rights, (D) the Company effects a Fundamental Transaction, or (E)
a voluntary or involuntary liquidation, dissolution or winding up of the Company is consummated, then, in each case, the
Company shall cause to be delivered by facsimile or email to the Holder at its last facsimile number or email address as it
shall appear upon the Warrant Register of the Company, at least 10 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 Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or
(y) the date on which such Fundamental Transaction is expected to become effective or close, and the date as of which it is
expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for
securities, cash or other property deliverable upon such Fundamental Transaction; 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 provided in this Warrant 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 8-K. The Holder shall remain entitled to exercise this 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) Transfer
Restrictions. The Holder understands that: (i) the Warrants have not been and are not being registered under the Securities
Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently
registered thereunder, or (B) the Holder shall have delivered to the Company an opinion of counsel, in a form reasonably
acceptable to the Company, to the effect that such Warrants to be sold, assigned or transferred may be sold, assigned or transferred
pursuant to Rule 144, as amended, promulgated under the Securities Act (or a successor rule thereto) (“Rule 144”)
or an exemption from such registration, (ii) any sale of the Warrants made in reliance on Rule 144 may be made only in accordance
with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Warrants under circumstances in which
the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities
Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the Commission
thereunder, and (iii) neither the Company nor any other Person is under any obligation to register the Warrants under the
Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.
b) Transferability.
This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or
in part, subject to any restrictions on such transfer set forth in Section 4(a), upon surrender of this Warrant at the
principal office of the Company or its designated agent, together with a written assignment of this 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 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 Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the
contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned
this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of
the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if
properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having
a new Warrant issued.
c) New Warrants. If this Warrant is not held in global form through DTC (or any successor depositary), this 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 Warrants are to be issued, signed by the Holder or its agent
or attorney. Subject to compliance with Section 4(b), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined
in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of this
Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
d) Warrant Register. The Company shall register this 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 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.
Section 5. Miscellaneous.
a) No Rights as Stockholder Until Exercise. This 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), except as expressly
set forth in Section 3.
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 Warrant or any stock certificate relating
to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it
(which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such
Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like
tenor and dated as of such cancellation, in lieu of such 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 Business Day, then, such action may be taken or such right may be exercised
on the next succeeding Business Day.
d) Authorized Shares.
The Company covenants
that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient
number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged
with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such Warrant Shares 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 Common Stock may be
listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented
by this Warrant will, upon exercise of the purchase rights represented by this 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
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 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 Warrant
and (iii) use commercially reasonable efforts to 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 Warrant.
Before taking
any action which would result in an adjustment in the number of Warrant Shares for which this 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 Warrant
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to
the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal
courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either
party shall commence an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action,
suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such action or proceeding.
f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this 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 Warrant, if the Company willfully and knowingly fails to comply with any provision of this
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 notices, consents, waivers or other document or communications
required or permitted to be given or delivered under the terms of this Warrant must be in writing and will be deemed to have been
delivered: (i) upon receipt, if delivered personally; (ii) when sent, if sent by facsimile (provided confirmation of transmission
is mechanically or electronically generated and kept on file by the sending party); (iii) when sent, if sent by e-mail (provided
that such sent e-mail is kept on file (whether electronically or otherwise) by the sending party and the sending party does not
receive an automatically generated message from the recipient’s e-mail server that such e-mail could not be delivered to
such recipient) and (iv) if sent by overnight courier service, one (1) Trading Day after deposit with an overnight courier service
with next day delivery specified, in each case, properly addressed to the party to receive the same. If notice is given by facsimile
or email, a copy of such notice shall be dispatched no later than the next business day by first class mail, postage prepaid.
The addresses, facsimile numbers and e-mail addresses for such communications shall be:
If to the Company:
Jaguar Health
Inc.
201 Mission
Street, Suite 2375
San Francisco,
California 94105
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Attention:
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Lisa A. Conte
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Chief Executive Officer and President
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With a copy (for
informational purposes only) to:
Reed Smith LLP
1510 Page Mill Road, Suite 110
Palo Alto, CA 94304
E-mail: dreinke@reedsmith.com
Attention:
Donald C. Reinke
If
to a Holder, to its address, facsimile number or e-mail address set forth herein or on the books and records of the Company.
Or,
in each of the above instances, to such other address, facsimile number or e-mail address and/or to the attention of such other
Person as the recipient party has specified by written notice given to each other party at least five (5) days prior to the effectiveness
of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication,
(B) mechanically or electronically generated by the sender’s facsimile machine containing the time, date and recipient facsimile
number or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or
receipt from an overnight courier service in accordance with clause (i), (ii) or (iv) above, respectively. A copy of the e-mail
transmission containing the time, date and recipient e- mail address shall be rebuttable evidence of receipt by e-mail in accordance
with clause (iii) above.
i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise
this Warrant to purchase Warrant Shares, 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 Stock or 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 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 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 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 Warrant are intended to be for the benefit of any Holder from time to time
of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
l) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the
Company, on the one hand, and the Holder or the beneficial owner of this Warrant, on the other hand.
m) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this 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 Warrant.
n) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose,
be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the
Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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JAGUAR HEALTH, inc.
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By:
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Name:
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Title:
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NOTICE OF EXERCISE
To: JAGUAR
HEALTH, 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 subsection 2(c)(i) or 2(c)(ii), to exercise
this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise or Alternate Cashless
Exercise procedures set forth in subsection 2(c)(i) or 2(c)(ii).
(3)
Please 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:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
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Name of Investing Entity:
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Signature of Authorized Signatory of Investing Entity:
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Name of Authorized Signatory:
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Title of Authorized Signatory:
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ASSIGNMENT FORM
(To assign the
foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED,
the foregoing Warrant and all rights evidenced thereby are hereby assigned to
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Name:
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(Please Print)
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Address:
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(Please Print)
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Phone Number:
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Email Address:
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Dated: _______________ __, ______
Exhibit 10.1
JAGUAR HEALTH, INC.
May ___,
2020
Holder of Common Stock Purchase Warrant
Re: Inducement
Offer to Exercise Common Stock Purchase Warrants
Dear Holder:
Jaguar Health, Inc.
(the “Company”) is pleased to offer to you the opportunity to exercise all of the Series 1 Common Stock Purchase
Warrants (CUSIP 47010C 110) (the “Series 1 Warrants”) and/or the Series 2 Common Stock Purchase Warrants (CUSIP
47010C 128) (the “Series 2 Warrants” and, together with the Series 1 Warrants, the “Existing Warrants”))
of the Company set forth on the signature page hereto currently held by you (the “Holder”). The Existing Warrants
and the shares underlying the Existing Warrants (“Existing Warrant Shares”) have been registered pursuant to
registration statements on Form S-1 (File No. 333-231399 and No. 333-232715) (together, the “Registration Statement”)
and were issued pursuant to that certain Underwriting Agreement, dated as of July 19, 2019 (the “Underwriting Agreement”).
The Registration Statement is currently effective and, upon exercise of the Existing Warrants pursuant to this letter agreement
(this “Agreement”), will be effective for the issuance or sale, as the case may be, of the Existing Warrant
Shares. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Underwriting Agreement.
In consideration for
exercising some or all of the Existing Warrants held by you and as set forth on the signature page hereto pursuant to the terms
of this Agreement (the “Warrant Exercise”), the Company hereby offers to issue you or your designees a new Series
3 Common Stock Purchase Warrant (each, a “New Warrant” and collectively, the “New Warrants”)
to purchase up to a number of shares of Common Stock equal to 100% of the number of Existing Warrant Shares issued pursuant
to each Warrant Exercise, which New Warrant (as defined below) shall be substantially in the form as set forth in Annex A
hereto. The New Warrants will be initially exercisable beginning on the earlier of (1) the date upon which Stockholder Approval
(as defined below) is obtained or (2) six months following the date of issuance, have a term of exercise of 5 years thereafter,
and an exercise price equal to $0.53, subject to adjustment as provided in the New Warrants. Additionally the New Warrants shall
have a cashless exercise feature, wherein, following Stockholder Approval (as defined below), each New Warrant shall be exercisable
into one (1.0) share of Common Stock (subject to adjustment in the exercise price of the New Warrants as provided in the New Warrants)
for no consideration (the “Alternate Cashless Exercise”). A Warrant Exercise shall be effected through
the delivery by the Holder to the Company of a Notice of Exercise of an Existing Warrant.
The New Warrant
certificates will be delivered within two Business Days following each Warrant Exercise pursuant to this Agreement.
Notwithstanding anything herein to the contrary, in the event a Warrant Exercise would otherwise cause the Holder to exceed
the beneficial ownership limitations (“Beneficial Ownership Limitation”) set forth in Section 2(e) of the
Existing Warrants, the Company shall only issue such number of Existing Warrant Shares to the Holder that would not cause the
Holder to exceed the maximum number of Existing Warrant Shares permitted thereunder with the balance to be held in abeyance
until notice from the Holder that the balance (or portion thereof) may be issued in compliance with such limitations, which
abeyance shall be evidenced through the Existing Warrants which shall be deemed prepaid thereafter, and exercised pursuant to
a Notice of Exercise in the Existing Warrant (provided no additional exercise shall be payable). The parties hereby agree
that the Beneficial Ownership Limitation for purposes of the Existing Warrant is as set forth on the Holder’s signature
page hereto.
Expressly subject to
the paragraph immediately following this paragraph below, Holder may accept this offer by signing this Agreement below and effect
each Warrant Exercise by delivering one or more Notice of Exercises from time to time on or before 8:30 a.m. ET on May 22, 2020
(the “Termination Date”). Holder agrees to furnish to the Company a completed questionnaire in the form attached
as Annex B hereto within seven (7) days following the date hereof (a “Selling Stockholder Questionnaire”).
Holder further agrees that it shall not be entitled to be named as a selling stockholder in the registration statement described
in Section (i) of Annex C or use the prospectus contained in such registration statement for offers and resales of New Warrant
Shares at any time, unless Holder has returned to the Company a completed and signed Selling Stockholder Questionnaire in the time
frame described in the previous sentence.
Additionally, the Company
agrees to the representations, warranties and covenants set forth on Annex C attached hereto.
From the date hereof
until the 60th day following the later of (a) Stockholder Approval, and (b) the effectiveness of the registration statement
covering the resale of the shares underlying the New Warrants, (the “Standstill Period”) other than in respect
of an Exempt Issuance (as defined below), neither the Company nor any subsidiary of the Company shall issue, enter into any agreement
to issue or announce the issuance or proposed issuance of any shares of Common Stock or any securities of the Company or any subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock (“Common Stock Equivalents”), 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 Stock, other than the offer and
issuance of the New Warrant Shares to Other Holders (defined below) (the “Standstill”). For purposes of clarity,
pursuant to the Standstill, no shares of Common Stock or Common Stock Equivalents shall be issued in connection with a Section
3(a)(9) exchange, a Section 3(a)(10) settlement, or any other similar settlement or exchange.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or Common Stock Equivalents, options, or other equity
awards to employees, officers, directors, or consultants of the Company pursuant to any stock or option plan or other equity
award plan duly adopted for such purpose by a majority of the non-employee members of the Board of Directors or a majority of
the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise or
exchange of or conversion of any securities exercisable or exchangeable for or convertible into shares of Common Stock issued
and outstanding on the date of this Agreement, solely at the election of the holder, provided that such securities have not
been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price,
exchange price or conversion price of such securities (except for such decreases in exercise, exchange or conversion price in
accordance with the terms of such securities) or to extend the term of such securities (c) an issuance of shares of Common
Stock under the Company’s equity line pursuant to the equity purchase agreement, dated March 24, 2020, between the
Company and Oasis Capital LLC (provided that, in the case of this clause (c), the issuance price of the Common Stock is equal
to or greater than $1.00 per share) and (d) securities pursuant to acquisitions or strategic transactions approved by a
majority of the disinterested directors of the Company, provided that such securities are issued as “restricted
securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any
registration statement in connection therewith within the Standstill Period, and provided that any such issuance shall only
be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or
an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional
benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing
securities primarily for the purpose of raising capital or to an entity whose primary business is investing in
securities.
On or before 9:00 a.m.
ET on May 22, 2020, the Company shall issue a press release disclosing all material terms of the transactions contemplated hereunder.
From and after the issuance of such press release, the Company represents to you that it shall have publicly disclosed all material,
non-public information delivered to you by the Company, or any of their respective officers, directors, employees or agents in
connection with the transactions contemplated hereunder. In addition, effective upon the issuance of such press release, the Company
acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between
the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one
hand, and you and your Affiliates on the other hand, shall terminate. The Company represents, warrants and covenants that, upon
acceptance of this offer and delivery of a Notice of Exercise, the shares underlying the Existing Warrants shall be issued free
of any legends or restrictions on resale by Holder and all of the Existing Warrant Shares shall be delivered electronically through
the Depository Trust Company within 1 Business Day of the date the Company receives the applicable Warrants Exercise Price, subject
to the Beneficial Ownership Limitation (or “deliver versus payment” if coordinated through Ladenburg Thalmann &
Co. Inc.). The terms of the Existing Warrants, including but not limited to the obligations to deliver the Existing Warrant Shares,
shall otherwise remain in effect (including but not limited to any liquidated damages and compensation in the event of late delivery
of the Existing Warrant Shares).
The Company
covenants that it shall use commercially reasonable efforts to hold a special meeting of stockholders (which may also be at
the annual meeting of stockholders) at the earliest practical date after the date hereof, and in any event on or before the
60th calendar day following May 22, 2020, with the recommendation of the Company’s Board of Directors that
a proposal allowing for the Alternate Cashless Exercise be approved pursuant to the rules and regulations of the NASDAQ
Capital Market, and the Company shall solicit proxies from its stockholders in connection therewith in the same manner as all
other management proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in
favor of such proposal. If the Company does not obtain stockholder approval (“Stockholder Approval”) at
the first meeting, the Company shall use commercially reasonable efforts to call a meeting every 90 days thereafter to seek
Stockholder Approval until the earlier of the date Stockholder Approval is obtained or the New Warrants are no longer
outstanding.
Additionally, the Company
shall file with the Securities and Exchange Commission a prospectus supplement to the Prospectus dated July 19, 2019 relating to
the recent reduction to the exercise price of all of the Existing Warrants outstanding, and in addition shall file a Current Report
on Form 8-K disclosing the material terms of the transactions contemplated hereby, which shall include this form of Agreement.
The Company acknowledges
and agrees that the obligations of the Holders under this Agreement are several and not joint with the obligations of any other
holder or any other holders of Warrants to Purchase Common Stock of the Company (each, an “Other Holder”) under
any other agreement related to the exercise of such warrants (“Other Warrant Exercise Agreement”), and the Holder
shall not be responsible in any way for the performance of the obligations of any Other Holder or under any such Other Warrant
Exercise Agreement. Nothing contained in this Agreement, and no action taken by the Holders pursuant hereto, shall be deemed to
constitute the Holder and the Other Holders as a partnership, an association, a joint venture or any other kind of entity, or create
a presumption that the Holder and the Other Holders are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated by this Agreement and the Company acknowledges that the Holder and the Other Holders are not acting
in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement or any Other Warrant
Exercise Agreement. The Company and the Holder confirm that the Holder has independently participated in the negotiation of the
transactions contemplated hereby with the advice of its own counsel and advisors. The Holder shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary
for any Other Holder to be joined as an additional party in any proceeding for such purpose.
If a Holder exercises more than
1,000,000 Existing Warrants, then, from the date hereof until the earlier of (i) the date that is one year from the date
hereof, and (ii) the consummation of a transaction resulting in a Change of Control of the Company, upon any issuance by the
Company or any of its Subsidiaries of New Securities for cash consideration, Indebtedness or a combination of units thereof
(a “Subsequent Financing”), subject to any prior such rights previously granted by the Company, such
Holder shall have the right to participate in up to an amount of the Subsequent Financing equal to 100% of such
Holder’s Pro Rata Portion of the Subsequent Financing on the same terms, conditions and price provided for in the
Subsequent Financing. At least two (2) Trading Days prior to the closing of the Subsequent Financing, the Company shall
deliver to each Holder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”),
which Pre-Notice shall ask such Holder if it wants to review the details of such financing (such additional notice, a
“Subsequent Financing Notice”). Upon the request of a Holder, and only upon a request by such Holder, for
a Subsequent Financing Notice, the Company shall promptly, but no later than six (6) hours after such request, deliver a
Subsequent Financing Notice to such Purchaser. The Subsequent Financing Notice shall describe in reasonable detail the
proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Person or
Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet or similar
document relating thereto as an attachment. Any Holder desiring to participate in such Subsequent Financing must provide
written notice to the Company by not later than 8:30 a.m. (New York City time) on the Trading Day following receipt of the
Subsequent Financing Notice. For purposes of this paragraph:
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(a)
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“Change of Control” means, with respect to the Company, (i) a merger, consolidation, share exchange or other
similar transaction involving the Company and any third party where the Company is not the surviving entity, or (ii) the acquisition
by a third party, or a group of third parties acting in concert, of more than fifty percent (50%) of the outstanding voting equity
securities of the Company. For the purpose of this definition of Change of Control, (A) the term “group” includes any
group acting for the purpose of acquiring, holding, or disposing of securities within the meaning of Section 13(d) and 14(d) of
the United States Securities Exchange Act of 1934 and Rule 13d-5(b)(1) under the said Act), (B) the foregoing clauses do not include
any sale or transfer solely to an affiliate of the Company.
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(b)
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“New Securities” means any Common Stock or Common Stock Equivalents; provided, however, that the term “New
Securities” does not include:
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i.
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shares of Common Stock (and/or options, warrants or rights therefor) granted or issued hereafter to employees, officers, directors,
contractors, consultants, or advisers to, the Company or any subsidiary pursuant to incentive agreements, stock purchase or stock
option plans, stock bonuses or awards, warrants, contracts or other arrangements that are approved by the Board of Directors;
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ii.
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shares of Common Stock or preferred stock issued or issuable (or options, warrants or rights therefor) in connection with strategic
transactions involving the Company and other entities approved by a majority of the disinterested directors of the Company, including
without limitation joint ventures, equipment, manufacturing, marketing, distribution, technology transfer or development arrangements;
provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration
rights that require or permit the filing of any registration statement in connection therewith during the Standstill Period, and
provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its
subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall
provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which
the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing
in securities.
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iii.
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shares of Common Stock or preferred stock (or options, warrants or rights therefor) issued pursuant to the acquisition of another
corporation or entity by the Company by consolidation, merger, purchase of all or substantially all of the assets, or other reorganization
in which the Company acquires, in a single transaction or series of related transactions, all or substantially all of the assets
of such other corporation or entity or fifty percent (50%) or more of the voting
power of such other corporation or entity or fifty percent (50%) or more of the equity ownership of such other entity; provided
that such transaction or series of transactions has been approved by a majority of the disinterested directors of the Company,
or pursuant to the purchase of less than a fifty percent (50%) equity ownership in connection with a joint venture or other strategic
arrangement or other commercial relationship, provided such an arrangement is approved by a majority of the disinterested directors
of the Company; provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry
no registration rights that require or permit the filing of any registration statement in connection therewith during the Standstill
Period, and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or
through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company
and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction
in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business
is investing in securities.
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iv.
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shares of Common Stock or preferred stock issuable upon exercise of any options, warrants or rights to purchase any securities
of the Company outstanding as of the date hereof and any securities issuable upon the conversion or exercise thereof, provided
that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease
the exercise price, exchange price or conversion price of such securities (except for such decreases in exercise, exchange or conversion
price in accordance with the terms of such securities) or to extend the term of such securities;
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v.
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shares of Common Stock or preferred stock (or options, warrants or rights therefor) issued or issuable in a sale, lease, transfer,
exclusive license or other disposition, in a single transaction or series of related transactions, by the Company or any subsidiary
of the Company of all or substantially all the assets of the Company and its subsidiaries taken as a whole, or the sale or disposition
(whether by merger, consolidation or otherwise) of Napo Pharmaceuticals, Inc. (or any successor in interest) or one or more other
subsidiaries of the Company if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held
by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly
owned subsidiary of the Company; or
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vi.
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shares of Common Stock issuable under the Company’s equity line pursuant to the equity purchase agreement, dated March
24, 2020, between the Company and Oasis Capital LLC (including any extensions such equity line).
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(c)
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“Pro Rata Portion” means, for purposes of the participation right of the Holder in a Subsequent Financing,
a fraction, the numerator of which is the aggregate number of Existing Warrant Shares issued to the Holder pursuant to Warrant
Exercise(s) under this Agreement and the denominator of which is the aggregate number of Existing Warrant Shares issued to Holder pursuant to Warrant Exercise(s)
under this Agreement and Other Holders pursuant to Warrant Exercises under Other Warrant Exercise Agreements.
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The Company hereby
represents and warrants as of the date hereof and covenants and agrees from and after the date hereof until 12 months following
the end of the Standstill Period (the “MFN Period”), that none of the terms offered to any Other Holder with
respect to any Other Warrant Exercise Agreement (or any amendment, modification or waiver thereof including Other Warrant Exercise
Agreements signed concurrently with this Agreement), is or will be more favorable to such Other Holder than those of the Holder
and this Agreement. If, and whenever on or after the date hereof during the MFN Period, the Company enters into an Other Warrant
Exercise Agreement, then (i) the Company shall provide notice thereof to the Holder promptly following the occurrence thereof and
(ii) the terms and conditions of this Agreement shall be, without any further action by the Holder or the Company, automatically
amended and modified in an economically and legally equivalent manner such that the Holder shall receive the benefit of the more
favorable terms and/or conditions (as the case may be) set forth in such Other Warrant Exercise Agreement (including the issuance
of additional Existing Warrant Shares), provided that upon written notice to the Company at any time the Holder may elect not to
accept the benefit of any such amended or modified term or condition, in which event the term or condition contained in this Agreement
shall apply to the Holder as it was in effect immediately prior to such amendment or modification as if such amendment or modification
never occurred with respect to the Holder. The provisions of this paragraph shall apply similarly and equally to each Other Warrant
Exercise Agreement.
***************
Within one Business
Day from the Holder’s execution of this Agreement and delivery of a Notice of Exercise, the Holder shall make available for
“Delivery Versus Payment” to the Company immediately available funds equal to the sum of (a) the number of Series 1
Warrants being exercised multiplied by $0.49 and (b) the number of Series 2 Warrants being exercised multiplied by $0.49
(collectively, the “Exercise Amount”) and the Company shall deliver the Existing Warrant Shares via “Delivery
Versus Payment” to the Holder and shall deliver the New Warrant certificates registered in the name of the Holder.
Please do not hesitate
to call me if you have any questions.
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Sincerely yours,
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JAGUAR HEALTH, INC.
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By:
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Name: Lisa A. Conte
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Title: Chief Executive Officer
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Accepted and Agreed to:
Name of Holder: ________________________________________________________
Signature of Authorized Signatory of
Holder: _________________________________
Name of Authorized Signatory: ______________________________________________
Title of Authorized Signatory: ________________________________________________
Existing Series 1 Warrant Shares to be
exercised: ______________
Existing Series 2 Warrant Shares to be
exercised: ______________
Beneficial Ownership Limitation Existing
Series 1 Warrant: [4.99%/9.99%]
Beneficial Ownership Limitation Existing
Series 2 Warrant: [4.99%/9.99%]
Beneficial Ownership Limitation New Series
3 Warrant: [4.99%/9.99%]
DTC Instructions:
[NOTE THAT HOLDERS MUST DELIVER A NOTICE
OF EXERCISE FOR EACH WARRANT EXERCISE]
Annex A
[TO INSERT FORM OF NEW WARRANT]
Annex B
Form of Selling Stockholder Questionnaire
Jaguar
health, inc.
Selling Stockholder Notice and Questionnaire
The undersigned beneficial
owner of securities of Jaguar Health, Inc., a Delaware corporation (the “Company”), understands that the Company
intends to file with the Securities and Exchange Commission (the “Commission”) a registration statement on Form
S-3 (the “Registration Statement”) for the registration and resale under the Securities Act of 1933, as amended
(the “Securities Act”), of shares of the Company’s common stock issuable upon exercise of a warrant (the
“Registrable Securities”) issued pursuant to the Inducement Offer Letter, dated May ___, 2020, between the Company
and the undersigned (the “Inducement Offer Letter”). The undersigned understands that, pursuant to the Inducement
Offer Letter, the undersigned will be named as a selling stockholder (the “Selling Stockholder”) in the prospectus
that forms a part of the Registration Statement, and the Company will use the information that the undersigned provides in this
questionnaire to ensure the accuracy of the Registration Statement and the prospectus.
Please
note that if the entity completing this questionnaire is not a natural person, in addition to disclosing any material relationships
between the Company and that entity, you should also provide relevant information about any persons (whether they are entities
or natural persons) who exercise discretionary control over the entity completing this questionnaire, and who have had a material
relationship with the registrant or any of its predecessors or affiliates within the past three years.
Certain legal consequences
arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling stockholder in the Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial
owner of the Company’s securities acknowledges that by completing, dating, executing and returning this questionnaire to
the Company, the undersigned is giving written notice to the Company of its desire to have the securities disclosed in response
to Question 4(b) of this questionnaire included in the Registration Statement.
The undersigned hereby provides the following
information to the Company and represents and warrants that such information is accurate:
QUESTIONNAIRE
Please
answer every question. If the answer to any question is “none” or “not applicable,” please so state.
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(a)
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Full Legal Name of Selling Stockholder
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(b)
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Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities
are held:
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(c)
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Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly
alone or with others has power to vote or dispose of the securities covered by this Questionnaire):
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2. Address for Notices to Selling
Stockholder:
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Telephone:
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Fax:
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Email:
______________________________________________________________
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3. Broker-Dealer Status:
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(a)
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Are you a broker-dealer?
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Note:
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In
general, the Company will be required to identify any registered broker-dealer or an affiliate as an underwriter in the prospectus.
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(b)
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If “yes” to Section 3(a), did you receive your Registrable Securities as compensation
for investment banking services to the Company?
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(c)
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Are you an affiliate of a broker-dealer? If “Yes”, please identify the registered broker-dealer(s),
describe the nature of the affiliation(s) and answer subsection (d).
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(d)
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If you are an affiliate of a broker-dealer, do you certify that you purchased the Registrable Securities
in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements
or understandings, directly or indirectly, with any person to distribute the Registrable Securities?
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4. Beneficial Ownership of Securities
of the Company Owned by the Selling Stockholder.
This question covers beneficial
ownership of the Company’s securities. Please consult Appendix A to this Questionnaire for information as to the meaning
of “beneficial ownership.” State (a) the number of shares of the Company’s common stock (including any shares
issuable upon exercise of warrants or other convertible securities) that the selling securityholder beneficially owned as of the
date this Questionnaire is signed and (b) the number of such shares of the Company’s common stock (including any shares issuable
upon exercise of warrants or other convertible securities) that the selling securityholder wishes to have registered for resale
in the Registration Statement:
(a) Number
of shares of common stock and other equity securities owned (including any shares issuable upon exercise of warrants or other convertible
securities):
(b) Number of shares of common
stock and other equity securities owned (including any shares issuable upon exercise of warrants or other convertible securities)
to be registered for resale in the Registration Statement:
(c) In
addition to the securities identified in paragraphs (a) and (b) of this question, please identify any additional equity securities
of the Company as to which there is any arrangement under which you have the right to receive any economic benefits of those securities.
5. Relationships with the Company:
Except as set forth below,
neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the
equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company
(or its predecessors or affiliates) during the past three years.
State any exceptions here:
The undersigned agrees
to promptly notify the Company of any material inaccuracies or changes in the information provided herein that may occur subsequent
to the date hereof at any time while the Registration Statement remains effective; provided, that the undersigned shall not be
required to notify the Company of any changes to the number of securities held or owned by the undersigned or its affiliates.
By
signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through
5 and the inclusion of such information in the Registration Statement and the related prospectus and any amendments or supplements
thereto. The undersigned understands that such information will be relied upon by the Company in
connection with the preparation or amendment of the Registration Statement and the related prospectus and any amendments or supplements
thereto.
IN WITNESS WHEREOF
the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person
or by its duly authorized agent.
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Date:
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Beneficial Owner:
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By:
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Name:
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Title:
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PLEASE FAX A COPY (OR EMAIL A .PDF COPY)
OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO: JWolin@jaguar.health with a copy to CHo@reedsmith.com
APPENDIX A
DEFINITION OF “BENEFICIAL OWNERSHIP”
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1.
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A “Beneficial Owner” of a security includes any person who, directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise has or shares:
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(a) Voting power which includes
the power to vote, or to direct the voting of, such security; and/or
(b) Investment power which includes
the power to dispose, or direct the disposition of, such security.
Please note that either voting
power or investment power, or both, is sufficient for you to be considered the beneficial owner of shares.
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2.
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Any person who, directly or indirectly, creates or uses a trust, proxy, power of attorney, pooling
arrangement or any other contract, arrangement or device with the purpose or effect of divesting such person of beneficial ownership
of a security or preventing the vesting of such beneficial ownership as part of a plan or scheme to evade the reporting requirements
of the federal securities acts shall be deemed to be the beneficial owner of such security.
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3.
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Notwithstanding the provisions of paragraph (1), a person is deemed to be the “beneficial
owner” of a security if that person has the right to acquire beneficial ownership of such security within 60 days, including
but not limited to any right to acquire: (a) through the exercise of any option, warrant or right; (b) through the conversion of
a security; (c) pursuant to the power to revoke a trust, discretionary account or similar arrangement; or (d) pursuant to the automatic
termination of a trust, discretionary account or similar arrangement; provided, however, any person who acquires a security or
power specified in (a), (b) or (c) above, with the purpose or effect of changing or influencing the control of the issuer, or in
connection with or as a participant in any transaction having such purpose or effect, immediately upon such acquisition shall be
deemed to be the beneficial owner of the securities which may be acquired through the exercise or conversion of such security or
power.
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Annex C
Representations, Warranties and Covenants
of the Company. The Company hereby makes the following representations and warranties to the undersigned:
(a)
Affirmation of Prior Representations, Warranties and Covenants. The Company hereby represents and warrants to the
undersigned that the Company’s representations and warranties as set forth in Section 3 of the Underwriting Agreement, dated
as of July 19, 2019 (the “Underwriting Agreement”), together with any updates in the Company’s SEC Reports
subsequent to the Underwriting Agreement, are true and correct as of the date hereof and have been fully performed as of the date
hereof. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Underwriting Agreement.
(b)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, its board
of directors or its stockholders in connection therewith. This Agreement has been duly executed by the Company and, when delivered
in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by
laws relating to the availability of specific performance, injunctive relief or other equitable remedies, and (iii) insofar as
indemnification and contribution provisions may be limited by applicable law.
(c) No
Conflicts. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the
Company’s certificate or articles of incorporation, bylaws or other organizational or charter documents; or (ii)
conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or assets of the Company in connection with, or give to others
any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any
material agreement, credit facility, debt or other material instrument (evidencing Company debt or otherwise) or other
material understanding to which such Company is a party or by which any property or asset of the Company is bound or
affected; or (iii) subject to any required approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company is
subject (including federal and state securities laws and regulations), or by which any property or asset of the Company is
bound or affected, except, in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to
result in a Material Adverse Effect (as defined in the Underwriting Agreement).
(d)
Issuance of the New Warrants. The issuance of the New Warrants is duly authorized and, upon the execution of this
Agreement by the undersigned, will be duly and validly issued, fully paid and nonassessable, free and clear of all liens imposed
by the Company. The shares of Common Stock issuable upon exercise (including cashless exercise) of the New Warrants (the “New
Warrant Shares”), when issued in accordance with the terms of the New Warrants, will be validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized capital stock
a number of shares of Common Stock for issuance of the New Warrant Shares in full.
(e)
Equal Consideration. Except as set forth in this Agreement and the transactions described in the Company’s
Current Reports on Form 8-K filed on February 28, 2020 and March 26, 2020, no consideration has been offered or paid to any person
to amend or consent to a waiver, modification, forbearance or otherwise of any provision of any of the Underwriting Agreement or
the Existing Warrants.
(f)
Legends and Transfer Restrictions.
(i)
The New Warrants and New Warrant Shares may only be disposed of in compliance with state and federal securities laws. In
connection with any transfer of New Warrants or New Warrant Shares other than pursuant to an effective registration statement or
Rule 144, to the Company or to an Affiliate of a undersigned or in connection with a pledge as contemplated in Section 4.1(b),
the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably
acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect
that such transfer does not require registration of such transferred New Warrants and New Warrant Shares under the Securities Act.
As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement.
(ii)
The undersigned agrees to the imprinting, so long as is required by this Section (i), of a legend on any of the New Warrants
and New Warrant Shares in the following form:
NEITHER THIS
SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS
SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
The
Company acknowledges and agrees that the undersigned may from time to time pledge pursuant to a bona fide margin agreement with
a registered broker-dealer or grant a security interest in some or all of the New Warrants to a financial institution that is an
“accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions
of this Agreement and, if required under the terms of such arrangement, the undersigned may transfer pledged or secured New Warrants
to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion
of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be
required of such pledge. At the appropriate undersigned’s expense, the Company will execute and deliver such reasonable documentation
as a pledgee or secured party of New Warrants may reasonably request in connection with a pledge or transfer of the New Warrants
or New Warrant Shares.
(iii)
Certificates evidencing the New Warrant Shares shall not contain any legend (including the legend set forth in Section
(f)(ii) hereof), (i) while a registration statement covering the resale of such security is effective under the Securities
Act, (ii) following any sale of such New Warrant Shares pursuant to Rule 144, (iii) if such New Warrant Shares are eligible
for sale under Rule 144, or (iv) if such legend is not required under applicable requirements of the Securities Act
(including judicial interpretations and pronouncements issued by the staff of the Commission). The Company shall cause its
counsel to issue a legal opinion to its transfer agent if required by the transfer agent to effect the removal of the legend
hereunder. If all or any portion of a New Warrant is exercised at a time when there is an effective registration statement to
cover the resale of the New Warrant Shares, or if such New Warrant Shares may be sold under Rule 144 and the Company is then
in compliance with the current public information required under Rule 144, or if the New Warrant Shares may be sold under
Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule
144 as to such New Warrant Shares or if such legend is not otherwise required under applicable requirements of the Securities
Act (including judicial interpretations and pronouncements issued by the staff of the Commission) then such New Warrant
Shares shall be issued free of all legends. The Company agrees that following such time as such legend is no longer required
under this Section (f), it will, no later than three Trading Days following the delivery by a undersigned to the Company (or
its transfer agent) of a certificate representing New Warrant Shares, as the case may be, issued with a restrictive legend
(such third Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to the
undersigned a certificate representing such shares that is free from all restrictive and other legends. The Company may not
make any notation on its records or give instructions to the transfer agent that enlarge the restrictions on transfer set
forth in this Section (f). Certificates for New Warrant Shares subject to legend removal hereunder shall be transmitted by
the Transfer Agent to the undersigned by crediting the account of the undersigned’s prime broker with the Depository
Trust Company System as directed by the undersigned.
(iv) In
addition to such undersigned’s other available remedies, the Company shall pay to an undersigned, in cash, (i) as partial
liquidated damages and not as a penalty, for each $1,000 of New Warrant Shares (based on the VWAP of the Common Stock on the date
such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c),
$10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each
Trading Day after the Legend Removal Date until such certificate is delivered without a legend and (ii) if the Company fails to
(a) issue and deliver (or cause to be delivered) to a undersigned by the Legend Removal Date a certificate representing the Securities
so delivered to the Company by such undersigned that is free from all restrictive and other legends and (b) if after the Legend
Removal Date such undersigned purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction
of a sale by such undersigned of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of
Common Stock equal to all or any portion of the number of shares of Common Stock that such undersigned anticipated receiving from
the Company without any restrictive legend, then, an amount equal to the excess of such undersigned’s total purchase price
(including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including
brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A)
such number of New Warrant Shares that the Company was required to deliver to such undersigned by the Legend Removal Date multiplied
by (B) the lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery
by such undersigned to the Company of the applicable New Warrant Shares (as the case may be) and ending on the date of such delivery
and payment under this clause (ii).
(g) Public
Information Failure. At any time during the period commencing from the six (6) month anniversary of the date hereof and
ending at such time that all of the New Warrant Shares may be sold without the requirement for the Company to be in
compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall
fail for any reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer
described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set
forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to the undersigned’s
other available remedies, the Company shall pay to the undersigned, in cash, as partial liquidated damages and not as a
penalty, by reason of any such delay in or reduction of its ability to sell the New Warrant Shares, an amount in cash equal
to two percent (2.0%) of the aggregate Exercise Price of the New Warrant of the undersigned’s Securities on the day of
a Public Information Failure and on every thirtieth (30th) day (pro-rated for periods totaling less than thirty days)
thereafter until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such public
information is no longer required for the undersigned to transfer the New Warrant Shares pursuant to Rule 144. The payments
to which the undersigned shall be entitled pursuant to this Section (g) are referred to herein as “Public Information
Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar
month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the
event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make
Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the
rate of 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit the undersigned’s
right to pursue actual damages for the Public Information Failure, and the undersigned shall have the right to pursue all
remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or
injunctive relief.
(h)
Listing of Common Stock. The Company shall apply to list or quote all of the New Warrant Shares on the Trading Market
and promptly secure the listing of all of the New Warrant Shares on such Trading Market.
(i)
Registration Statement. As soon as practicable (and in any event within 30 calendar days of the date of this Agreement),
the Company shall file a registration statement on Form S-3 (or other appropriate form if the Company is not then S-3 eligible)
providing for the resale by the Holders of the New Warrant Shares issued and issuable upon exercise of the New Warrants.
The Company shall use commercially reasonable efforts to cause such registration to become effective within 45 days following the
date hereof and to keep such registration statement effective at all times until the earlier of (A) the time that no Holder owns
any New Warrants or New Warrant Shares issuable upon exercise thereof and (B) the time that
all of the remaining New Warrants or New Warrant Shares issuable upon exercise thereof are eligible to be sold by the Holders without
compliance with the volume limitations or public information requirements of Rule 144.
Exhibit 10.2
JAGUAR HEALTH, INC.
May 22, 2020
Holder of Common Stock Purchase Warrant
Re: Inducement
Offer to Exercise Common Stock Purchase Warrants
Dear Holder:
Jaguar Health, Inc.
(the “Company”) is pleased to offer to you the opportunity to exercise all of the Common Stock Purchase Warrants
(the “Bridge Warrants”) of the Company set forth on the signature page hereto currently held by you (the “Holder”)
that were issued pursuant to that certain Securities Purchase Agreement entered into by the Company and Holder on _____ __, 2019
(the “Purchase Agreement”). The shares underlying the Bridge Warrants (“Bridge Warrant Shares”)
have been registered pursuant to the registration statement on Form S-1 (File No. 333-233989)(the “Registration Statement”).
The Registration Statement is currently effective and, upon exercise of the Bridge Warrants pursuant to this letter agreement (this
“Agreement”), will be effective for the issuance or sale, as the case may be, of the Bridge Warrant Shares.
Capitalized terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement.
In consideration for
exercising some or all of the Bridge Warrants held by you and as set forth on the signature page hereto pursuant to the terms of
this Agreement (the “Warrant Exercise”), the Company hereby offers to issue you or your designees a new Series
3 Common Stock Purchase Warrant (each, a “New Warrant” and collectively, the “New Warrants”)
to purchase up to a number of shares of Common Stock equal to 100% of the number of Bridge Warrant Shares issued pursuant
to each Warrant Exercise, which New Warrant (as defined below) shall be substantially in the form as set forth in Annex A
hereto. The New Warrants will be initially exercisable beginning on the earlier of (1) the date upon which Stockholder Approval
(as defined below) is obtained or (2) six months following the date of issuance, have a term of exercise of 5 years thereafter,
and an exercise price equal to $0.53, subject to adjustment as provided in the New Warrants. Additionally the New Warrants shall
have a cashless exercise feature, wherein, following Stockholder Approval (as defined below), each New Warrant shall be exercisable
into one (1.0) share of Common Stock (subject to adjustment in the exercise price of the New Warrants as provided in the New Warrants)
for no consideration (the “Alternate Cashless Exercise”). A Warrant Exercise shall be effected through
the delivery by the Holder to the Company of a Notice of Exercise of a Bridge Warrant.
The New Warrant
certificates will be delivered within two Business Days (defined hereafter) following each Warrant Exercise pursuant to this
Agreement. For purposes of this Agreement, “Business Day” means any day except Saturday, any Sunday, any day
which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are
authorized or required by law or other governmental action to close. Notwithstanding anything herein to the contrary, in the
event a Warrant Exercise would otherwise cause the Holder to exceed the beneficial ownership limitations
(“Beneficial Ownership Limitation”) set forth in Section 1(d) of the Bridge Warrants, the Company shall
only issue such number of Bridge Warrant Shares to the Holder that would not cause the Holder to exceed the maximum number of
Bridge Warrant Shares permitted thereunder with the balance to be held in abeyance until notice from the Holder that the
balance (or portion thereof) may be issued in compliance with such limitations, which abeyance shall be evidenced through the
Bridge Warrants which shall be deemed prepaid thereafter, and exercised pursuant to a Notice of Exercise in the Bridge
Warrant (provided no additional exercise shall be payable).
Expressly subject to
the paragraph immediately following this paragraph below, Holder may accept this offer by signing this Agreement below and effect
each Warrant Exercise by delivering one or more Notice of Exercises from time to time on or before 8:30 a.m. ET on May 22, 2020
(the “Termination Date”). Holder agrees to furnish to the Company a completed questionnaire in the form attached
as Annex B hereto within seven (7) days following the date hereof (a “Selling Stockholder Questionnaire”).
Holder further agrees that it shall not be entitled to be named as a selling stockholder in the registration statement described
in Section (i) of Annex C or use the prospectus contained in such registration statement for offers and resales of New Warrant
Shares at any time, unless Holder has returned to the Company a completed and signed Selling Stockholder Questionnaire in the time
frame described in the previous sentence.
Additionally, the Company
agrees to the representations, warranties and covenants set forth on Annex C attached hereto.
From the date hereof
until the 60th day following the later of (a) Stockholder Approval and (b) the effectiveness of the registration statement
covering the resale of the shares underlying the New Warrants (the “Standstill Period”) other than in respect
of an Exempt Issuance (as defined below), neither the Company nor any subsidiary of the Company shall issue, enter into any agreement
to issue or announce the issuance or proposed issuance of any shares of Common Stock or any securities of the Company or any subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock (“Common Stock Equivalents”), 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 Stock, other than the offer and
issuance of the New Warrant Shares to Other Holders (defined below) (the “Standstill”). For purposes of clarity, pursuant
to the Standstill, no shares of Common Stock or Common Stock Equivalents shall be issued in connection with a Section 3(a)(9) exchange,
a Section 3(a)(10) settlement, or any other similar settlement or exchange.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or Common Stock Equivalents, options, or other equity
awards to employees, officers, directors, or consultants of the Company pursuant to any stock or option plan or other equity
award plan duly adopted for such purpose by a majority of the non-employee members of the Board of Directors or a majority of
the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise or
exchange of or conversion of any securities exercisable or exchangeable for or convertible into shares of Common Stock issued
and outstanding on the date of this Agreement, solely at the election of the holder, provided that such securities have not
been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price,
exchange price or conversion price of such securities (except for such decreases in exercise, exchange or conversion price in
accordance with the terms of such securities) or to extend the term of such securities (c) an issuance of shares of Common
Stock under the Company’s equity line pursuant to the equity purchase agreement, dated March 24, 2020, between the
Company and Oasis Capital LLC (provided that, in the case of this clause (c), the issuance price of the Common Stock is equal
to or greater than $1.00 per share) and (d) securities pursuant to acquisitions or strategic transactions approved by a
majority of the disinterested directors of the Company, provided that such securities are issued as “restricted
securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any
registration statement in connection therewith within the Standstill Period, and provided that any such issuance shall only
be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or
an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional
benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing
securities primarily for the purpose of raising capital or to an entity whose primary business is investing in
securities.
On or before 9:00 a.m.
ET on May 22, 2020, the Company shall issue a press release disclosing all material terms of the transactions contemplated hereunder.
From and after the issuance of such press release, the Company represents to you that it shall have publicly disclosed all material,
non-public information delivered to you by the Company, or any of their respective officers, directors, employees or agents in
connection with the transactions contemplated hereunder. In addition, effective upon the issuance of such press release, the Company
acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between
the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one
hand, and you and your Affiliates on the other hand, shall terminate. The Company represents, warrants and covenants that, upon
acceptance of this offer and delivery of a Notice of Exercise, the shares underlying the Bridge Warrants shall be issued free of
any legends or restrictions on resale by Holder and all of the Bridge Warrant Shares shall be delivered electronically through
the Depository Trust Company within 1 Business Day of the date the Company receives the applicable Warrants Exercise Price, subject
to the Beneficial Ownership Limitation (or “deliver versus payment” if coordinated through Ladenburg Thalmann &
Co. Inc.). The terms of the Bridge Warrants, including but not limited to the obligations to deliver the Bridge Warrant Shares,
shall otherwise remain in effect (including but not limited to any liquidated damages and compensation in the event of late delivery
of the Bridge Warrant Shares).
The Company covenants
that it shall use commercially reasonable efforts to hold a special meeting of stockholders (which may also be at the annual meeting
of stockholders) at the earliest practical date after the date hereof, and in any event on or before the 60th calendar
day following May 22, 2020, with the recommendation of the Company’s Board of Directors that a proposal allowing for the
Alternate Cashless Exercise be approved pursuant to the rules and regulations of the NASDAQ Capital Market, and the Company shall
solicit proxies from its stockholders in connection therewith in the same manner as all other management proposals in such proxy
statement and all management-appointed proxyholders shall vote their proxies in favor of such proposal. If the Company does not
obtain stockholder approval (“Stockholder Approval”) at the first meeting, the Company shall use commercially
reasonable efforts to call a meeting every 90 days thereafter to seek Stockholder Approval until the earlier of the date Stockholder
Approval is obtained or the New Warrants are no longer outstanding.
Additionally, the Company
shall file with the Securities and Exchange Commission a Current Report on Form 8-K disclosing the material terms of the transactions
contemplated hereby, which shall include this form of Agreement.
The Company acknowledges
and agrees that the obligations of the Holders under this Agreement are several and not joint with the obligations of any other
holder or any other holders of Warrants to Purchase Common Stock of the Company (each, an “Other Holder”) under
any other agreement related to the exercise of such warrants (“Other Warrant Exercise Agreement”), and the Holder
shall not be responsible in any way for the performance of the obligations of any Other Holder or under any such Other Warrant
Exercise Agreement. Nothing contained in this Agreement, and no action taken by the Holders pursuant hereto, shall be deemed to
constitute the Holder and the Other Holders as a partnership, an association, a joint venture or any other kind of entity, or create
a presumption that the Holder and the Other Holders are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated by this Agreement and the Company acknowledges that the Holder and the Other Holders are not acting
in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement or any Other Warrant
Exercise Agreement. The Company and the Holder confirm that the Holder has independently participated in the negotiation of the
transactions contemplated hereby with the advice of its own counsel and advisors. The Holder shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary
for any Other Holder to be joined as an additional party in any proceeding for such purpose.
If
a Holder exercises more than 1,000,000 Warrants to Purchase Common Stock of the Company in the aggregate, including Bridge
Warrants and any other warrants exercised by Holder pursuant to any Other Warrant Exercise Agreement that is executed
concurrently with this Agreement, then, from the date hereof until the earlier of (i) the date that is one year from the date
hereof and (ii) the consummation of a transaction resulting in a Change of Control of the Company, upon any issuance by the
Company or any of its Subsidiaries of New Securities for cash consideration, Indebtedness or a combination of units thereof
(a “Subsequent Financing”), subject to any prior such rights previously granted by the Company, such
Holder shall have the right to participate in up to an amount of the Subsequent Financing equal to 100% of such
Holder’s Pro Rata Portion of the Subsequent Financing on the same terms, conditions and price provided for in the
Subsequent Financing. At least two (2) Trading Days prior to the closing of the Subsequent Financing, the Company shall
deliver to each Holder a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”),
which Pre-Notice shall ask such Holder if it wants to review the details of such financing (such additional notice, a
“Subsequent Financing Notice”). Upon the request of a Holder, and only upon a request by such Holder, for
a Subsequent Financing Notice, the Company shall promptly, but no later than six (6) hours after such request, deliver a
Subsequent Financing Notice to such Purchaser. The Subsequent Financing Notice shall describe in reasonable detail the
proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Person or
Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet or similar
document relating thereto as an attachment. Any Holder desiring to participate in such Subsequent Financing must provide
written notice to the Company by not later than 8:30 a.m. (New York City time) on the Trading Day following receipt of the
Subsequent Financing Notice. For purposes of this paragraph:
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(a)
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“Change of Control” means, with respect to the Company, (i) a merger, consolidation, share exchange or other
similar transaction involving the Company and any third party where the Company is not the surviving entity, or (ii) the acquisition
by a third party, or a group of third parties acting in concert, of more than fifty percent (50%) of the outstanding voting equity
securities of the Company. For the purpose of this definition of Change of Control, (A) the term “group” includes any
group acting for the purpose of acquiring, holding, or disposing of securities within the meaning of Section 13(d) and 14(d) of
the United States Securities Exchange Act of 1934 and Rule 13d-5(b)(1) under the said Act), (B) the foregoing clauses do not include
any sale or transfer solely to an affiliate of the Company.
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(b)
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“New Securities” means any Common Stock or Common Stock Equivalents; provided, however, that the term “New
Securities” does not include:
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i.
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shares of Common Stock (and/or options, warrants or rights therefor) granted or issued hereafter to employees, officers, directors,
contractors, consultants, or advisers to, the Company or any subsidiary pursuant to incentive agreements, stock purchase or stock
option plans, stock bonuses or awards, warrants, contracts or other arrangements that are approved by the Board of Directors;
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ii.
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shares of Common Stock or preferred stock issued or issuable (or options, warrants or rights therefor) in connection with strategic
transactions involving the Company and other entities approved by a majority of the disinterested directors of the Company, including
without limitation joint ventures, equipment, manufacturing, marketing, distribution, technology transfer or development arrangements;
provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration
rights that require or permit the filing of any registration statement in connection therewith during the Standstill Period, and
provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its
subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall
provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which
the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing
in securities.
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iii.
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shares of Common Stock or preferred stock (or options, warrants or rights therefor) issued pursuant to the acquisition of another
corporation or entity by the Company by consolidation, merger, purchase of all or substantially all of the assets, or other reorganization
in which the Company acquires, in a single transaction or series of related transactions, all or substantially all of the assets
of such other corporation or entity or fifty percent (50%) or more of the voting power of such other corporation or entity or
fifty percent (50%) or more of the equity ownership of such other entity; provided that such transaction or series of transactions
has been approved by a majority of the disinterested directors of the Company, or pursuant to the purchase of less than a fifty
percent (50%) equity ownership in connection with a joint venture or other strategic arrangement or other commercial relationship,
provided such an arrangement is approved by a majority of the disinterested directors of the Company; provided that such securities
are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit
the filing of any registration statement in connection therewith during the Standstill Period, and provided that any such issuance
shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company
or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional
benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
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iv.
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shares of Common Stock or preferred stock issuable upon exercise of any options, warrants or rights to purchase any securities
of the Company outstanding as of the date hereof and any securities issuable upon the conversion or exercise thereof, provided
that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease
the exercise price, exchange price or conversion price of such securities (except for such decreases in exercise, exchange or conversion
price in accordance with the terms of such securities) or to extend the term of such securities;
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v.
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shares of Common Stock or preferred stock (or options, warrants or rights therefor) issued or issuable in a sale, lease, transfer,
exclusive license or other disposition, in a single transaction or series of related transactions, by the Company or any subsidiary
of the Company of all or substantially all the assets of the Company and its subsidiaries taken as a whole, or the sale or disposition
(whether by merger, consolidation or otherwise) of Napo Pharmaceuticals, Inc. (or any successor in interest) or one or more other
subsidiaries of the Company if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held
by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly
owned subsidiary of the Company; or
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vi.
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shares of Common Stock issuable under the Company’s equity line pursuant to the equity purchase agreement, dated March
24, 2020, between the Company and Oasis Capital LLC (including any extensions such equity line).
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(c)
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“Pro Rata Portion” means, for purposes of the participation right of the Holder in a Subsequent Financing,
a fraction, the numerator of which is the aggregate number of shares of Common Stock issuable upon exercise of Warrants to Purchase
Common Stock of the Company that are issued to the Holder pursuant to Warrant Exercise(s) under this Agreement and Other Warrant
Exercise Agreements, including the Bridge Warrant Shares, and the denominator of which is the aggregate number of shares of Common
Stock issuable upon exercise of Warrants to Purchase Common Stock of the Company issued to Holder pursuant to Warrant Exercise(s)
under this Agreement and Other Warrant Exercise Agreements and Other Holders pursuant to Warrant Exercises under Other Warrant
Exercise Agreements.
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The Company hereby
represents and warrants as of the date hereof and covenants and agrees from and after the date hereof until 12 months following
the end of the Standstill Period (the “MFN Period”), that none of the terms offered to any Other Holder with
respect to any Other Warrant Exercise Agreement (or any amendment, modification or waiver thereof including Other Warrant Exercise
Agreements signed concurrently with this Agreement), is or will be more favorable to such Other Holder than those of the Holder
and this Agreement. If, and whenever on or after the date hereof during the MFN Period, the Company enters into an Other Warrant
Exercise Agreement, then (i) the Company shall provide notice thereof to the Holder promptly following the occurrence thereof and
(ii) the terms and conditions of this Agreement shall be, without any further action by the Holder or the Company, automatically
amended and modified in an economically and legally equivalent manner such that the Holder shall receive the benefit of the more
favorable terms and/or conditions (as the case may be) set forth in such Other Warrant Exercise Agreement (including the issuance
of additional BridgeWarrant Shares), provided that upon written notice to the Company at any time the Holder may elect not to accept
the benefit of any such amended or modified term or condition, in which event the term or condition contained in this Agreement
shall apply to the Holder as it was in effect immediately prior to such amendment or modification as if such amendment or modification
never occurred with respect to the Holder. The provisions of this paragraph shall apply similarly and equally to each Other Warrant
Exercise Agreement.
***************
Within one Business
Day from the Holder’s execution of this Agreement and delivery of a Notice of Exercise, the Holder shall make available for
“Delivery Versus Payment” to the Company immediately available funds equal to the sum of the number of Bridge Warrants
being exercised multiplied by $0.49 (the “Exercise Amount”) and the Company shall deliver the Bridge
Warrant Shares via “Delivery Versus Payment” to the Holder and shall deliver the New Warrant certificates registered
in the name of the Holder.
Please do not hesitate
to call me if you have any questions.
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Sincerely yours,
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JAGUAR HEALTH, INC.
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By:
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Name: Lisa A. Conte
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Title: Chief Executive Officer
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Accepted and Agreed to:
Name of Holder: _________________________________________________________
Signature of Authorized Signatory of
Holder: _________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
Bridge Warrant Shares to be exercised:
______________
DTC Instructions:
[NOTE THAT HOLDERS MUST DELIVER A NOTICE
OF EXERCISE FOR EACH WARRANT EXERCISE]
Annex A
Form of Series 3 Warrant
Annex B
Form of Selling Stockholder Questionnaire
Jaguar
health, inc.
Selling Stockholder Notice and Questionnaire
The undersigned beneficial
owner of securities of Jaguar Health, Inc., a Delaware corporation (the “Company”), understands that the Company
intends to file with the Securities and Exchange Commission (the “Commission”) a registration statement on Form
S-3 (the “Registration Statement”) for the registration and resale under the Securities Act of 1933, as amended
(the “Securities Act”), of shares of the Company’s common stock issuable upon exercise of a warrant (the
“Registrable Securities”) issued pursuant to the Inducement Offer Letter, dated May ___, 2020, between the Company
and the undersigned (the “Inducement Offer Letter”). The undersigned understands that, pursuant to the Inducement
Offer Letter, the undersigned will be named as a selling stockholder (the “Selling Stockholder”) in the prospectus
that forms a part of the Registration Statement, and the Company will use the information that the undersigned provides in this
questionnaire to ensure the accuracy of the Registration Statement and the prospectus.
Please
note that if the entity completing this questionnaire is not a natural person, in addition to disclosing any material relationships
between the Company and that entity, you should also provide relevant information about any persons (whether they are entities
or natural persons) who exercise discretionary control over the entity completing this questionnaire, and who have had a material
relationship with the registrant or any of its predecessors or affiliates within the past three years.
Certain legal consequences
arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling stockholder in the Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial
owner of the Company’s securities acknowledges that by completing, dating, executing and returning this questionnaire to
the Company, the undersigned is giving written notice to the Company of its desire to have the securities disclosed in response
to Question 4(b) of this questionnaire included in the Registration Statement.
The undersigned hereby provides the following
information to the Company and represents and warrants that such information is accurate:
QUESTIONNAIRE
Please
answer every question. If the answer to any question is “none” or “not applicable,” please so state.
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(a)
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Full Legal Name of Selling Stockholder
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(b)
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Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities
are held:
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(c)
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Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly
alone or with others has power to vote or dispose of the securities covered by this Questionnaire):
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2. Address for Notices to Selling
Stockholder:
3. Broker-Dealer Status:
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(a)
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Are you a broker-dealer?
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Note:
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In general, the Company will be required to identify any registered broker-dealer or an affiliate as an underwriter in the prospectus.
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(b)
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If “yes” to Section 3(a), did you receive your Registrable Securities as compensation
for investment banking services to the Company?
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(c)
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Are you an affiliate of a broker-dealer? If “Yes”, please identify the registered broker-dealer(s),
describe the nature of the affiliation(s) and answer subsection (d).
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(d)
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If you are an affiliate of a broker-dealer, do you certify that you purchased the Registrable Securities
in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements
or understandings, directly or indirectly, with any person to distribute the Registrable Securities?
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4. Beneficial Ownership of Securities
of the Company Owned by the Selling Stockholder.
This question covers beneficial
ownership of the Company’s securities. Please consult Appendix A to this Questionnaire for information as to the meaning
of “beneficial ownership.” State (a) the number of shares of the Company’s common stock (including any shares
issuable upon exercise of warrants or other convertible securities) that the selling securityholder beneficially owned as of the
date this Questionnaire is signed and (b) the number of such shares of the Company’s common stock (including any shares issuable
upon exercise of warrants or other convertible securities) that the selling securityholder wishes to have registered for resale
in the Registration Statement:
(a) Number
of shares of common stock and other equity securities owned (including any shares issuable upon exercise of warrants or other convertible
securities):
(b) Number of shares of common
stock and other equity securities owned (including any shares issuable upon exercise of warrants or other convertible securities)
to be registered for resale in the Registration Statement:
(c) In
addition to the securities identified in paragraphs (a) and (b) of this question, please identify any additional equity securities
of the Company as to which there is any arrangement under which you have the right to receive any economic benefits of those securities.
5. Relationships with the Company:
Except as set forth below,
neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the
equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company
(or its predecessors or affiliates) during the past three years.
State any exceptions here:
The undersigned agrees
to promptly notify the Company of any material inaccuracies or changes in the information provided herein that may occur subsequent
to the date hereof at any time while the Registration Statement remains effective; provided, that the undersigned shall not be
required to notify the Company of any changes to the number of securities held or owned by the undersigned or its affiliates.
By
signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through
5 and the inclusion of such information in the Registration Statement and the related prospectus and any amendments or supplements
thereto. The undersigned understands that such information will be relied upon by the Company in
connection with the preparation or amendment of the Registration Statement and the related prospectus and any amendments or supplements
thereto.
IN WITNESS WHEREOF
the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person
or by its duly authorized agent.
PLEASE FAX A COPY (OR EMAIL A .PDF COPY)
OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO: JWolin@jaguar.health with a copy to CHo@reedsmith.com
APPENDIX A
DEFINITION OF “BENEFICIAL OWNERSHIP”
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1.
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A “Beneficial Owner” of a security includes any person who, directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise has or shares:
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(a)
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Voting power which includes the power to vote, or to direct the voting of, such security; and/or
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(b)
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Investment power which includes the power to dispose, or direct the disposition of, such security.
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Please note that either voting
power or investment power, or both, is sufficient for you to be considered the beneficial owner of shares.
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2.
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Any person who, directly or indirectly, creates or uses a trust, proxy, power of attorney, pooling
arrangement or any other contract, arrangement or device with the purpose or effect of divesting such person of beneficial ownership
of a security or preventing the vesting of such beneficial ownership as part of a plan or scheme to evade the reporting requirements
of the federal securities acts shall be deemed to be the beneficial owner of such security.
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3.
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Notwithstanding the provisions of paragraph (1), a person is deemed to be the “beneficial
owner” of a security if that person has the right to acquire beneficial ownership of such security within 60 days, including
but not limited to any right to acquire: (a) through the exercise of any option, warrant or right; (b) through the conversion of
a security; (c) pursuant to the power to revoke a trust, discretionary account or similar arrangement; or (d) pursuant to the automatic
termination of a trust, discretionary account or similar arrangement; provided, however, any person who acquires a security or
power specified in (a), (b) or (c) above, with the purpose or effect of changing or influencing the control of the issuer, or in
connection with or as a participant in any transaction having such purpose or effect, immediately upon such acquisition shall be
deemed to be the beneficial owner of the securities which may be acquired through the exercise or conversion of such security or
power.
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Annex C
Representations, Warranties and Covenants
of the Company. The Company hereby makes the following representations and warranties to the undersigned:
(a)
Affirmation of Prior Representations, Warranties and Covenants. The Company hereby represents and warrants to the
undersigned that the Company’s representations and warranties as set forth in Section 4 of the Securities Purchase Agreement,
dated as of ____ __, 2019 (the “Purchase Agreement”), together with any updates in the Company’s SEC Reports
subsequent to the Purchase Agreement, are true and correct as of the date hereof and have been fully performed as of the
date hereof. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement.
(b)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, its board
of directors or its stockholders in connection therewith. This Agreement has been duly executed by the Company and, when delivered
in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by
laws relating to the availability of specific performance, injunctive relief or other equitable remedies, and (iii) insofar as
indemnification and contribution provisions may be limited by applicable law.
(c) No
Conflicts. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the
Company’s certificate or articles of incorporation, bylaws or other organizational or charter documents; or (ii)
conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or assets of the Company in connection with, or give to others
any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any
material agreement, credit facility, debt or other material instrument (evidencing Company debt or otherwise) or other
material understanding to which such Company is a party or by which any property or asset of the Company is bound or
affected; or (iii) subject to any required approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company is
subject (including federal and state securities laws and regulations), or by which any property or asset of the Company is
bound or affected, except, in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to
result in a Material Adverse Effect (as defined in the Purchase Agreement).
(d)
Issuance of the New Warrants. The issuance of the New Warrants is duly authorized and, upon the execution of this
Agreement by the undersigned, will be duly and validly issued, fully paid and nonassessable, free and clear of all liens imposed
by the Company. The shares of Common Stock issuable upon exercise (including cashless exercise) of the New Warrants (the “New
Warrant Shares”), when issued in accordance with the terms of the New Warrants, will be validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized capital stock
a number of shares of Common Stock for issuance of the New Warrant Shares in full.
(e)
Equal Consideration. Except as set forth in this Agreement and the transactions described in the Company’s
Current Reports on Form 8-K filed on February 28, 2020 and March 26, 2020, no consideration has been offered or paid to any person
to amend or consent to a waiver, modification, forbearance or otherwise of any provision of any of the Purchase Agreement or the
Bridge Warrants.
(f)
Legends and Transfer Restrictions.
(i)
The New Warrants and New Warrant Shares may only be disposed of in compliance with state and federal securities laws. In
connection with any transfer of New Warrants or New Warrant Shares other than pursuant to an effective registration statement or
Rule 144, to the Company or to an Affiliate of a undersigned or in connection with a pledge as contemplated in Section 4.1(b),
the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably
acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect
that such transfer does not require registration of such transferred New Warrants and New Warrant Shares under the Securities Act.
As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement.
(ii)
The undersigned agrees to the imprinting, so long as is required by this Section (i), of a legend on any of the New Warrants
and New Warrant Shares in the following form:
NEITHER THIS
SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS
SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
The
Company acknowledges and agrees that the undersigned may from time to time pledge pursuant to a bona fide margin agreement with
a registered broker-dealer or grant a security interest in some or all of the New Warrants to a financial institution that is an
“accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions
of this Agreement and, if required under the terms of such arrangement, the undersigned may transfer pledged or secured New Warrants
to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion
of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be
required of such pledge. At the appropriate undersigned’s expense, the Company will execute and deliver such reasonable documentation
as a pledgee or secured party of New Warrants may reasonably request in connection with a pledge or transfer of the New Warrants
or New Warrant Shares.
(iii)
Certificates evidencing the New Warrant Shares shall not contain any legend (including the legend set forth in Section
(f)(ii) hereof), (i) while a registration statement covering the resale of such security is effective under the Securities
Act, (ii) following any sale of such New Warrant Shares pursuant to Rule 144, (iii) if such New Warrant Shares are eligible
for sale under Rule 144, or (iv) if such legend is not required under applicable requirements of the Securities Act
(including judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall cause its counsel
to issue a legal opinion to its transfer agent if required by the transfer agent to effect the removal of the legend
hereunder. If all or any portion of a New Warrant is exercised at a time when there is an effective registration statement to
cover the resale of the New Warrant Shares, or if such New Warrant Shares may be sold under Rule 144 and the Company is then
in compliance with the current public information required under Rule 144, or if the New Warrant Shares may be sold under
Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule
144 as to such New Warrant Shares or if such legend is not otherwise required under applicable requirements of the Securities
Act (including judicial interpretations and pronouncements issued by the staff of the SEC) then such New Warrant Shares shall
be issued free of all legends. The Company agrees that following such time as such legend is no longer required under this
Section (f), it will, no later than three Trading Days following the delivery by a undersigned to the Company (or its
transfer agent) of a certificate representing New Warrant Shares, as the case may be, issued with a restrictive legend (such
third Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to the undersigned
a certificate representing such shares that is free from all restrictive and other legends. The Company may not make any
notation on its records or give instructions to the transfer agent that enlarge the restrictions on transfer set forth in
this Section (f). Certificates for New Warrant Shares subject to legend removal hereunder shall be transmitted by the
Transfer Agent to the undersigned by crediting the account of the undersigned’s prime broker with the Depository Trust
Company System as directed by the undersigned.
(iv) In
addition to such undersigned’s other available remedies, the Company shall pay to an undersigned, in cash, (i) as partial
liquidated damages and not as a penalty, for each $1,000 of New Warrant Shares (based on the VWAP of the Common Stock on the date
such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c),
$10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each
Trading Day after the Legend Removal Date until such certificate is delivered without a legend and (ii) if the Company fails to
(a) issue and deliver (or cause to be delivered) to a undersigned by the Legend Removal Date a certificate representing the Securities
so delivered to the Company by such undersigned that is free from all restrictive and other legends and (b) if after the Legend
Removal Date such undersigned purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction
of a sale by such undersigned of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of
Common Stock equal to all or any portion of the number of shares of Common Stock that such undersigned anticipated receiving from
the Company without any restrictive legend, then, an amount equal to the excess of such undersigned’s total purchase price
(including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including
brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A)
such number of New Warrant Shares that the Company was required to deliver to such undersigned by the Legend Removal Date multiplied
by (B) the lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery
by such undersigned to the Company of the applicable New Warrant Shares (as the case may be) and ending on the date of such delivery
and payment under this clause (ii).
(g) Public
Information Failure. At any time during the period commencing from the six (6) month anniversary of the date hereof and
ending at such time that all of the New Warrant Shares may be sold without the requirement for the Company to be in
compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall
fail for any reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer
described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set
forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to the undersigned’s
other available remedies, the Company shall pay to the undersigned, in cash, as partial liquidated damages and not as a
penalty, by reason of any such delay in or reduction of its ability to sell the New Warrant Shares, an amount in cash equal
to two percent (2.0%) of the aggregate Exercise Price of the New Warrant of the undersigned’s Securities on the day of
a Public Information Failure and on every thirtieth (30th) day (pro-rated for periods totaling less than thirty days)
thereafter until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such public
information is no longer required for the undersigned to transfer the New Warrant Shares pursuant to Rule 144. The payments
to which the undersigned shall be entitled pursuant to this Section (g) are referred to herein as “Public Information
Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar
month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the
event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make
Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the
rate of 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit the undersigned’s
right to pursue actual damages for the Public Information Failure, and the undersigned shall have the right to pursue all
remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or
injunctive relief.
(h)
Listing of Common Stock. The Company shall apply to list or quote all of the New Warrant Shares on the Trading Market
and promptly secure the listing of all of the New Warrant Shares on such Trading Market.
(i)
Registration Statement. As soon as practicable (and in any event within 30 calendar days of the date of this Agreement),
the Company shall file a registration statement on Form S-3 (or other appropriate form if the Company is not then S-3 eligible)
providing for the resale by the Holders of the New Warrant Shares issued and issuable upon exercise of the New Warrants.
The Company shall use commercially reasonable efforts to cause such registration to become effective within 45 days following the
date hereof and to keep such registration statement effective at all times until the earlier of (A) the time that no Holder owns
any New Warrants or New Warrant Shares issuable upon exercise thereof and (B) the time that
all of the remaining New Warrants or New Warrant Shares issuable upon exercise thereof are eligible to be sold by the Holders without
compliance with the volume limitations or public information requirements of Rule 144.
Exhibit 99.1
May 22, 2020
DTC, Voluntary Reorg Department
Re: Jaguar Health, Inc. Series 1 Warrants (CUSIP: 47010C 110)
Ladies and Gentlemen:
Please be advised that, effective May 22, 2020, pursuant
to Section 5(l) of the Series 1 Common Stock Purchase Warrants of Jaguar Health, Inc. (the “Series 1 Warrants”), the
Exercise Price for the Series 1 Warrants has been adjusted to $0.49 per share of common stock, par value $0.0001 per share (“Common
Stock”). Please note that all exercises resulting in fractions are to be, at the Company’s election, either settled
with a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the exercise price or
rounded up to the next whole share.
[Signature Page Follows]
Jaguar
Health, Inc. • 201 Mission Street, Suite 2375 • San Francisco, CA 94105
Tel:
+1 (415) 371-8300 • Fax: +1 (415) 371-8311 • https://jaguar.health
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Sincerely,
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JAGUAR HEALTH, INC.
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By:
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/s/ Lisa A. Conte
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Lisa A. Conte
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President and Chief Executive Officer
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RECEIVED AND ACKNOWLEDGED:
American Stock Transfer
& Trust Company, LLC
[SIGNATURE PAGE TO COMPANY ORDER TO WARRANT AGENT]
Exhibit 99.2
May 22, 2020
DTC, Voluntary Reorg Department
Re: Jaguar Health, Inc. Series 2 Warrants (CUSIP: 47010C 128)
Ladies and Gentlemen:
Please be advised that, effective May 22, 2020, pursuant
to Section 5(l) of the Series 2 Common Stock Purchase Warrants of Jaguar Health, Inc. (the “Series 2 Warrants”), the
Exercise Price for the Series 2 Warrants has been adjusted to $0.49 per share of common stock, par value $0.0001 per share (“Common
Stock”). Please note that all exercises resulting in fractions are to be, at the Company’s election, either settled
with a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the exercise price or
rounded up to the next whole share.
[Signature Page Follows]
Jaguar
Health, Inc. • 201 Mission Street, Suite 2375 • San Francisco, CA 94105
Tel:
+1 (415) 371-8300 • Fax: +1 (415) 371-8311 • https://jaguar.health
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Sincerely,
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JAGUAR HEALTH, INC.
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By:
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/s/ Lisa A. Conte
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Lisa A. Conte
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President and Chief Executive Officer
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RECEIVED AND ACKNOWLEDGED:
American Stock Transfer
& Trust Company, LLC
[SIGNATURE PAGE TO COMPANY ORDER TO WARRANT AGENT]
Exhibit 99.3
May 22, 2020
Dear [Investor] (“Investor”):
Reference is made to
that certain warrant (the “Warrant”) to purchase [____] shares of common stock of Jaguar Health, Inc. (the “Company”)
issued by the Company to Investor pursuant to that certain Securities Purchase Agreement, dated as of [_____ __], 2019, by and
between the Company and Investor. Please be advised that the Company has reduced the exercise price of the Warrant from $2.00 per
share to $0.49 per share (the “Exercise Price Adjustment”), effective as of May 20, 2020. Except for the Exercise
Price Adjustment, all other terms and provisions of the Warrant remain in full force and effect
Please sign and return
this letter to the Company as acknowledgment of the Exercise Price Adjustment.
This letter may be
executed in several counterparts, all of which shall be an original and constitute one and the same document. Signatures submitted
via facsimile or .pdf email shall be acceptable.
[The remainder of this page is intentionally
left blank. Signatures follow.]
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Sincerely,
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COMPANY:
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JAGUAR
HEALTH, INC.
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By
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Acknowledged and agreed this ___ day of May, 2020.
INVESTOR:
[_________]
Signature Page to Warrant Notice Letter
Exhibit 99.4
Jaguar Health Announces Exercise of Warrants
for $4.45 Million Gross Proceeds
SAN FRANCISCO, CA / May 22, 2020 / Jaguar Health, Inc.
(NASDAQ: JAGX) (“Jaguar” or the “Company”) today announced that it has entered into agreements with several
institutional and accredited investors wherein the investors agreed to exercise certain outstanding warrants to purchase an aggregate
of up to 9,077,102 shares of common stock for gross proceeds to the Company of approximately $4.45 million. These warrants were
previously issued in a bridge financing to and as part of Jaguar’s public offering which closed in July 2019.
“We’re very pleased to have executed this transaction,”
Lisa Conte, Jaguar's president and CEO, stated, “as it supports our strategy of supporting our patient access programs to
remove barriers for people living with HIV/AIDS to access Mytesi®, our non-opioid, oral, plant-based drug product,
as we continue to work to become a financially sustainable business supported by growth in Mytesi sales for its FDA- approved indication.”
Ladenburg Thalmann & Co. Inc. is acting as the exclusive
solicitation agent for the transaction.
On May 22, 2020, the Company reduced the exercise price of all
Series 1 Warrants and Series 2 Warrants issued as part of the July 2019 financing (collectively, the “Original Warrants”)
from $1.40 per share to $0.49 per share and from $2.00 per share to $0.49 per share, respectively, and all the warrants to purchase
common stock previously issued in private placements by the Company in March through June of 2019 (the “Bridge Warrants”)
from $2.00 per share to $0.49 per share.
The issuance of the Original Warrants to the public and the
issuance of the Common Stock upon exercise thereof have been registered on a registration statement on Form S-1 (File No. 333-231399),
which was declared effective by the Securities and Exchange Commission (the “SEC”) on July 18, 2019, and an additional
registration statement (File No. 333-232715) filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended (the "Securities
Act"), which became effective when filed. The offer and sale of shares of Common Stock underlying the Bridge Warrants has
been registered on the Company’s registration statement on Form S-1 (File No. 333-233989), which was previously filed and
declared effective by the SEC.
In consideration for the immediate exercise of the Original
Warrants and the Bridge Warrants for cash, the exercising holders will receive new unregistered Series 3 warrants to purchase up
to 1 share of common stock (the “Series 3 Warrants”) in a private placement pursuant to Section 4(a)(2) of the Securities
Act. The Series 3 Warrants will have an exercise price of $0.53 per share and will be exercisable beginning the earlier of (i)
six months from the issuance date and (ii) receipt of the requisite stockholder approval and ending five years thereafter. The
Series 3 Warrants will have a cashless exercise feature wherein, following receipt of the requisite stockholder approval, each
Series 3 Warrant will be exercisable into one share of common stock for no consideration (the “Alternate Cashless Exercise”).
The Series 3 Warrants described above were offered in a private
placement pursuant to an applicable exemption from the registration requirements of the Securities Act and, along with the shares
of common stock issuable upon their exercise, have not been registered under the Securities Act, and may not be offered or sold
in the United States absent registration with the SEC or an applicable exemption from such registration requirements. The securities
were offered only to accredited investors. The Company has agreed to file a registration statement with the SEC covering the resale
of shares of common stock issuable upon exercise of the Series 3 Warrants.
This press release shall not constitute an offer to sell or
a solicitation of an offer to buy nor shall there be any sale of these securities in any state or jurisdiction in which such offer,
solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or
jurisdiction.
About Jaguar Health, Inc.
Jaguar Health, Inc. is a commercial stage pharmaceuticals company
focused on developing novel, sustainably derived gastrointestinal products on a global basis. Our wholly owned subsidiary, Napo
Pharmaceuticals, Inc., focuses on developing and commercializing proprietary human gastrointestinal pharmaceuticals for the global
marketplace from plants used traditionally in rainforest areas. Our Mytesi® (crofelemer) product is approved by
the U.S. FDA for the symptomatic relief of noninfectious diarrhea in adults with HIV/AIDS on antiretroviral therapy.
For more information about Jaguar, please visit jaguar.health.
For more information about Napo, visit napopharma.com.
About Mytesi®
Mytesi (crofelemer) is an antidiarrheal indicated for the symptomatic
relief of noninfectious diarrhea in adult patients with HIV/AIDS on antiretroviral therapy (ART). Mytesi is not indicated for the
treatment of infectious diarrhea. Rule out infectious etiologies of diarrhea before starting Mytesi. If infectious etiologies are
not considered, there is a risk that patients with infectious etiologies will not receive the appropriate therapy and their disease
may worsen. In clinical studies, the most common adverse reactions occurring at a rate greater than placebo were upper respiratory
tract infection (5.7%), bronchitis (3.9%), cough (3.5%), flatulence (3.1%), and increased bilirubin (3.1%).
See full Prescribing Information at Mytesi.com. Crofelemer,
the active ingredient in Mytesi, is a botanical (plant-based) drug extracted and purified from the red bark sap of the medicinal
Croton lechleri tree in the Amazon Rainforest. Napo has established a sustainable harvesting program for crofelemer to ensure
a high degree of quality and ecological integrity.
Forward-Looking Statements
Certain statements in this press release constitute “forward-looking
statements.” In some cases, you can identify forward-looking statements by terms such as “may,” “will,”
“should,” “expect,” “plan,” “aim,” “anticipate,” “could,”
“intend,” “target,” “project,” “contemplate,” “believe,” “estimate,”
“predict,” “potential” or “continue” or the negative of these terms or other similar expressions.
The forward-looking statements in this release are only predictions. Jaguar has based these forward-looking statements largely
on its current expectations and projections about future events. These forward-looking statements speak only as of the date of
this release and are subject to a number of risks, uncertainties and assumptions, some of which cannot be predicted or quantified
and some of which are beyond Jaguar’s control. Except as required by applicable law, Jaguar does not plan to publicly update
or revise any forward-looking statements contained herein, whether as a result of any new information, future events, changed circumstances
or otherwise.
Source: Jaguar Health, Inc.
Contact:
Peter Hodge
Jaguar Health, Inc.
phodge@jaguar.health
Jaguar-JAGX