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): January 27, 2023
MURPHY CANYON ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
| Delaware | 001-41245 | 87-3272543 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
4995 Murphy Canyon Road, Suite 300
San Diego, CA 92123
(Address of principal executive offices, including zip code)
760-471-8536
(Registrant’s telephone number, including area code)
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:
| ☒ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class: | Trading symbol | Name of each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR§230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☒
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. ☐
Item 1.01 Entry into a Material Definitive Agreement
As previously reported by Murphy Canyon Acquisition Corp., a Delaware corporation (the “Company”), on Current Reports on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on November 8, 2022 and November 14, 2022, the Company entered into an Agreement and Plan of Merger, dated as of November 8, 2022 (the “Original Merger Agreement”), with Conduit Merger Sub, Inc., a newly-formed Cayman Islands exempted company and wholly-owned subsidiary of the Company (the “Merger Sub”) and Conduit Pharmaceuticals Limited, a Cayman Islands exempted company (“Conduit”), pursuant to which, among other matters, subject to the terms and conditions therein, the Company intends to consummate its initial business combination with Conduit (the “Conduit Business Combination”). Also as reported in the Current Reports on Form 8-K filed with the SEC on November 8, 2022 and November 14, 2022, in connection with the Conduit Business Combination the Company entered into a Subscription Agreement (the “Subscription Agreement”) with an accredited investor (the “Private Placement Investor”). Pursuant to the Subscription Agreement, the Private Placement Investor agreed to purchase $27 million worth of units of the Company’s securities, with each unit consisting of (i) one share of the Company’s class A common stock and (ii) one warrant to purchase one share of class A common stock, for a purchase price of $10.00 per unit.
On January 27, 2023, the Company entered into an Amendment to Agreement and Plan of Merger (the “Merger Amendment” and, together with the Original Merger Agreement, the “Merger Agreement”) with Merger Sub and Conduit. The Merger Amendment provides for only one class of authorized common stock of the Company following the Conduit Business Combination, instead of both authorized Class A common stock and Class B common stock as set forth in in the Original Merger Agreement. The Merger Amendment also provides, among other things, for resale registration rights to the Company’s sponsor, Murphy Canyon Acquisition Sponsor, LLC, for 4,060,250 shares of common stock and 754,000 shares of common stock issuable upon exercise of existing warrants.
Also on January 27, 2023, the Company entered into an amendment to subscription agreement (the “Subscription Amendment”) with the Private Placement Investor to clarify that the Company will only have one class of authorized common stock following the Conduit Business Combination and to amend and restate the warrants to be issued to the Private Placement Investor accordingly (the “Amended and Restated Warrants”).
The foregoing descriptions of the Merger Amendment, Subscription Amendment and Amended and Restated Warrants are qualified in their entirety by reference to the Merger Amendment, form of Subscription Amendment and form of Amended and Restated Warrant, copies of which are filed as Exhibits 2.1, 10.1 and 4.1, respectively, to this Form 8-K, and the terms of which are incorporated herein by reference.
Important Information About the Proposed Conduit Business Combination and Where to Find It
This Form 8-K relates to a proposed business combination transaction among the parties referred to above and herein as the Conduit Business Combination. A full description of the terms of the Conduit Business Combination will be provided in a Registration Statement on Form S-4 (the “Registration Statement”) that the Company intends to file with the SEC that will include a prospectus of the Company with respect to the securities to be issued in connection with the proposed merger and a proxy statement of the Company with respect to the solicitation of proxies for the special meeting of stockholders of the Company to vote on the Conduit Business Combination. Each of the Company and Conduit urges its investors, stockholders and other interested persons to read, when available, the preliminary proxy statement/prospectus as well as other documents filed with the SEC because these documents will contain important information about the Company, Conduit and the Conduit Business Combination. After the Registration Statement is declared effective, the definitive proxy statement/prospectus to be included in the Registration Statement will be mailed to stockholders of the Company as of a record date to be established for voting on the Conduit Business Combination. Once available, the Company’s stockholders and other interested persons will also be able to obtain a copy of the Registration Statement, including the proxy statement/prospectus included therein, and other documents filed with the SEC, without charge, on the SEC’s website at www.sec.gov or by directing a request to Murphy Canyon Acquisition Corp., 4995 Murphy Canyon Road, Suite 300, San Diego, California, 92123.
Participants in Solicitation
The Company, Conduit and their respective directors and executive officers may be deemed participants in the solicitation of proxies of the Company’s stockholders in respect of the proposed merger. The Company’s stockholders and other interested persons may obtain more detailed information about the names and interests of these directors and officers of the Company (and as applicable, Conduit) in the Conduit Business Combination as set forth in the Company’s final prospectus relating to its initial public offering, dated February 2, 2022, which was filed with the SEC on February 4, 2022, and in filings with the SEC, including when filed, the Registration Statement and the accompanying proxy statement/prospectus. These documents can be obtained free of charge from the sources specified above and at the SEC’s web site at www.sec.gov.
This communication does not contain all the information that should be considered concerning the Conduit Business Combination and is not intended to form the basis of any investment decision or any other decision in respect of the Conduit Business Combination. Before making any voting or investment decision, investors and security holders are urged to read the Registration Statement and accompanying proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the proposed merger as they become available because they will contain important information about the proposed merger.
No Offer or Solicitation
This Form 8-K is not a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Conduit Business Combination. This Form 8-K is not an offer to sell or the solicitation of an offer to buy any securities, nor will there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities will be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act, as amended, or an exemption therefrom.
Forward-Looking Statements
This Form 8-K, exhibits hereto and information incorporated by reference herein, contain certain forward-looking statements within the meaning of the federal securities laws with respect to the Conduit Business Combination. All statements other than statements of historical facts contained in this Form 8-K, including statements regarding the Company’s or Conduit’s future results of operations and financial position, the amount of cash expected to be available to Conduit after the closing and giving effect to any redemptions by the Company’s stockholders, Conduit’s business strategy, prospective product candidates, product approvals, research and development costs, timing and likelihood of success, plans and objectives of management for future operations, future results of current and anticipated product candidates, and expected use of proceeds, are forward-looking statements. These forward-looking statements generally are identified by words such as “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. These forward-looking statements are subject to a number of risks, uncertainties and assumptions, including, but not limited to, the following risks relating to the proposed transaction: the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement; the risk that the transaction may not be completed in a timely manner or at all, which may adversely affect the price of the Company’s securities; the inability to complete the Conduit Business Combination and transactions contemplated thereby (the “Transactions”), including due to failure to obtain approval of the stockholders of the Company or other conditions to closing in the Merger Agreement; the inability to maintain the listing of the Company’s securities on Nasdaq prior to the Transactions; the inability to obtain or maintain the listing of the Company’s securities on Nasdaq following the Transactions; the risk that the Transactions disrupt current plans and operations of Conduit as a result of the announcement and consummation of the Transactions; the ability to recognize the anticipated benefits of the Transactions, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth economically and hire and retain key employees; the risks that Conduit’s product candidates in development fail clinical trials or are not approved by the U.S. Food and Drug Administration or other applicable authorities; costs related to the Transactions; changes in applicable laws or regulations; the possibility that the Company or Conduit may be adversely affected by other economic, business, and/or competitive factors; potential redemptions of the Company’s public stockholders; and other risks and uncertainties to be identified in the Registration Statement and accompanying proxy statement/prospectus (when available) relating to the Transactions, including those under the section titled “Risk Factors” therein, and in other filings with the SEC made by the Company. Moreover, the Company and Conduit operate in very competitive and rapidly changing environments. Because forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified and some of which are beyond the Company’s and Conduit’s control, you should not rely on these forward-looking statements as predictions of future events. Forward-looking statements speak only as of the date they are made. Investors are cautioned not to put undue reliance on forward-looking statements, and except as required by law. the Company and Conduit assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. Neither the Company nor Conduit gives any assurance that either the Company or Conduit or the combined company will achieve its expectations.
Item 9.01. Financial Statements and Exhibits.
| Exhibit No. | Description | |
| 2.1 | Amendment to Merger Agreement dated as of January 27, 2023, by and among Murphy Canyon Acquisition Corp., Conduit Merger Sub, Inc. and Conduit Pharmaceuticals Limited | |
| 4.1 | Form of Amended and Restated Warrant | |
| 10.1 | Form of Amendment to Subscription Agreement | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| January 30, 2023 | Murphy Canyon Acquisition Corp. | |
| By: | /s/ Jack K. Heilbron | |
| Name: | Jack Heilbron | |
| Title: | Chief Executive Officer | |
Exhibit 2.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this “Amendment”), dated as of January 27, 2023 (the “Effective Date”), is made and entered into by and among Murphy Canyon Acquisition Corp., a Delaware corporation (“Murphy”), Conduit Merger Sub, Inc., a Cayman Islands exempted company (“Merger Sub”), and Conduit Pharmaceuticals Limited, a Cayman Islands exempted company (the “Company”). Capitalized terms used herein and not otherwise defined will have the meanings ascribed to such terms in the Merger Agreement (as defined below).
RECITALS
A. The Parties entered into that certain Agreement and Plan of Merger on November 8, 2022 (the “Merger Agreement”).
B. Pursuant to Section 9.4 of the Merger Agreement, the Parties may amend the Merger Agreement by an agreement in writing signed by the Parties at any time prior to the Effective Time.
C. The Parties desire to amend the Merger Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound hereby, the Parties agree as follows, as of the Effective Date:
1. Amendments to the Merger Agreement.
(a) The definitions of “Exchange Ratio” and “Murphy Common Stock” are amended and restated in their entirety as follows:
“‘Exchange Ratio’ means the quotient of (a) the Merger Consideration, divided by (b) the number of shares of Company Capital Stock, divided by (c) ten dollars ($10).”
“‘Murphy Common Stock’ means, at all times prior to the Effective Time, Murphy Class A Common Stock and Murphy Class B Common Stock, collectively, and at all times as of and from the Effective Time, Murphy’s common stock, par value $0.0001 per share, as set forth in Article IV of the Amended Charter.”
(b) Section 2.5 is amended and restated in its entirety as follows:
“Section 2.5 Directors. Immediately after the Closing, the size and composition of the board of directors of each of the Surviving Corporation and Murphy shall be mutually determined by Murphy and the Company, provided that the board of directors of each of Murphy and the Surviving Corporation shall consist of no more than nine (9) directors, at least a majority of whom shall be independent directors satisfying the independence requirements of the Securities Act and the Nasdaq rules.”
(c) Section 3.1(c) is amended and restated in its entirety as follows:
“(c) Murphy Class A Common Stock and Murphy Class B Common Stock. At the Closing and immediately prior to the Effective Time, in connection with filing the Amended Charter pursuant to Section 2.4(a) hereof, each share of Murphy Class B Common Stock shall automatically convert into and become one validly issued, fully paid and non-assessable share of Murphy Class A Common Stock, and by virtue of the Merger and without any action on the part of Murphy, Merger Sub or the Company, each share of Murphy Class A Common Stock shall automatically convert into and become one validly issued, fully paid and non-assessable share of one class of Murphy common stock, par value $0.001.”
(d) Section 3.2(b) is hereby amended by deleting the reference to “Class A” such that Section 3.2(b) is amended and restated in its entirety as follows:
“(b) No certificates or scrip representing fractional Murphy Common Stock will be issued pursuant to the Merger, and such fractional share interests will not entitle the owner thereof to vote or to any rights of a shareholder of Murphy. If a holder would be entitled to receive a fractional interest in a share of Murphy Common Stock, the amount of shares of Murphy Common Stock will be rounded down to the nearest whole number of the number of shares of Murphy Common Stock to be issued to such holder.”
(e) Section 8.3(e) is hereby amended and restated in its entirety as follows:
“(e) Equity Incentive Plan. Murphy, in consultation with, and based on the recommendations of, a compensation consultant, shall have agreed to a new equity incentive plan for Murphy to be in effect following the Closing Date with customary market terms for comparable public companies and with an initial share reserve of no more than twelve and one-half percent (12.5%) of Murphy’s fully diluted common stock immediately outstanding after Closing.”
(f) Section 7 is hereby amended by inserting the following provision at the end of such section:
“Section 7.16 Murphy shall, within fifteen (15) Business Days after the Closing, use reasonable best efforts to file with the SEC (at its sole cost and expense) a registration statement (the “Resale Registration Statement”) registering the resale of 4,060,250 shares of Murphy Common Stock held by the Sponsor or its designees and 754,000 shares of Murphy Common Stock issuable upon exercise of the Murphy Private Placement Warrants held by the Sponsor or its designees, and Murphy shall use reasonable best efforts to cause such Resale Registration Statement to become effective within 60 Business Days following the Closing. Murphy agrees that it will use its reasonable best efforts to cause such Resale Registration Statement or another registration statement (which may be a “shelf” registration statement) to remain effective until the earlier of (i) the date on which the Sponsor or its designees cease to hold the Registrable Securities covered by such Resale Registration Statement, or (iii) on the first date on which the Sponsor or its designees can sell all of its Registrable Securities under Rule 144 promulgated under the Securities Act (“Rule 144”) without limitation as to the manner of sale or the amount of such equity interests that may be sold. If the SEC prevents Murphy from including any or all of the Registrable Securities proposed to be registered for resale under the Resale Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of Murphy’s Registrable Securities by the applicable stockholders or otherwise, (i) such Resale Registration Statement shall register for resale such number of Murphy registrable securities which is equal to the maximum number of Murphy registrable securities as is permitted by the SEC and (ii) the number of Murphy registrable securities to be registered for each selling stockholder named in the Resale Registration Statement shall be reduced pro rata among all such selling stockholders. “Registrable Securities” shall include the shares of Murphy Common Stock referenced in the first sentence of this Section 7.16 and any other equity security of the of Murphy issued or issuable with respect to the Registrable Securities by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event or otherwise, but not, for the avoidance of doubt, any other equity security of Murphy owned or acquired by the Sponsor or its designees. For as long as the Sponsor or its designees holds the Registrable Securities, Murphy shall (A) make and keep public information available, as those terms are understood and defined in Rule 144, (B) file in a timely manner all reports and other documents with the SEC required under the Exchange Act, as long as Murphy remains subject to such requirements, and (C) provide all customary and reasonable cooperation necessary, in each case, to enable Subscriber or its designees to resell the Registrable Securities pursuant to the Resale Registration Statement or Rule 144 (when Rule 144 becomes available to the Sponsor or its designees), as applicable.
(g) The Amended Charter attached as Exhibit B to the Merger Agreement is here by amended and restated in its entirety as set forth in Exhibit A to this Amendment. All references to the Amended Charter in the Merger Agreement shall refer to the Amended Charter attached hereto as Exhibit A.
2. No Further Amendments. Except as expressly modified by this Amendment, the Merger Agreement will remain unmodified and in full force and effect.
3. Counterparts. This Agreement may be executed and delivered (including by facsimile or portable document format (.pdf) transmission) in counterparts, and by the different Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
4. Conflict. To the extent there is a conflict between the terms and provisions of this Amendment and the Merger Agreement, the terms and provisions of this Amendment will govern as to such conflict.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed and delivered as of the Effective Date.
| MURPHY CANYON ACQUISITION CORP. | ||
/s/ Jack K. Heilbron | ||
| By: | Jack K. Heilbron | |
| Title: | CEO | |
| CONDUIT MERGER SUB, INC. | ||
| /s/ Jack K. Heilbron | ||
| By: | Jack K. Heilbron | |
| Title: | Director | |
| CONDUIT PHARMACEUTICALS LIMITED | ||
| /s/ Andrew Regan | ||
| By: | Dr. Andrew Regan | |
| Title: | Director | |
[Signature Page to Amendment to Agreement and Plan of Merger]
Exhibit 4.1
FORM OF WARRANT
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.
COMMON
STOCK WARRANT
CONDUIT PHARMACEUTICALS INC.
| Warrant Shares: | Initial Exercise Date: [●]1, 2023 |
This Common Stock Warrant (this “Common Stock 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 [●], 2023 (the “Initial Exercise Date”) and on or prior to the earlier of (i) 5:00 p.m. (New York City time) on [●],2 2028, or (ii) the date fixed for redemption of the Warrant Shares (as defined below) as provided in Section 4 (the “Termination Date”) but not thereafter, to subscribe for and purchase from Conduit Pharmaceuticals Inc., a Delaware corporation formerly known as Murphy Canyon Acquisition Corp. (the “Company”), up to 2,700,000 shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price of one share of Common Stock under this Common Stock Warrant shall be equal to the Exercise Price, as defined in Section 2(b). This Common Stock Warrant is issued pursuant to that certain Subscription Agreement (the “Subscription Agreement”), dated November [●], 2022, among the Company and the Holder.
Section 1. Definitions. In addition to the terms defined elsewhere in this Common Stock Warrant, for all purposes of this Common Stock Warrant, the following terms have the meanings set forth 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.
1 To be 30 days after the completion of the initial business combination.
2 To be five years after the completion of the initial business combination.
“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 bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (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 on The Pink Open Market (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 Warrant Shares then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Black Scholes Value” means the value of this Common Stock Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on 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 (determined utilizing a 365 day annualization factor) 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 highest VWAP during the period beginning on the Trading Day immediately preceding the announcement of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to Section 3(d), (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five business days of the Holder’s election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Common Stock Warrant in accordance with the provisions of Section 3(d) 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 Common Stock Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Common Stock 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 Common Stock Warrant (without regard to any limitations on the exercise of this Common Stock 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, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Common Stock 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 Common Stock 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 Common Stock Warrant with the same effect as if such Successor Entity had been named as the Company herein.
| 2 |
“Business Day” and “business day” mean a day other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.
“Common Stock” means the Company’s common stock, par value $0.0001 per share. For the avoidance of doubt, it is understood and agreed that prior to the date hereof, the Company had Class A Common Stock, par value $0.0001 per share (the “Class A Common Stock”), and Class B Common Stock, par value $0.0001 per share (the “Class B Common Stock”), and that in connection with the transactions contemplated by that certain Agreement and Plan of Merger, dated as of November 8, 2022, by and among Conduit Pharmaceuticals Inc. (formerly known as Murphy Canyon Acquisition Corp.), Conduit Merger Sub, Inc., and Conduit Pharmaceuticals Limited, as amended by Amendment No. 1, dated December [●], 2022, all issued and outstanding shares of Class B Common Stock were converted into Class A Common Stock and all issued and outstanding shares of Class A Common Stock were converted into the Company’s common stock, par value $0.0001 per share.
“Common Stock Equivalents” means any securities of the Company that 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.
“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.
“Trading Day” means a day on which the principal Trading Market is open for trading.
“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 or the New York Stock Exchange (or any successors to any of the foregoing).
| 3 |
“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 date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (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 Open Market (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 Warrant Shares then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrant Agent” shall be any duly appointed agent selected by the Company. The Warrant Agent shall initially be the Company.
Section 2. Exercise.
(a) Exercise of Common Stock Warrant.
(i) Exercise by Holder. Exercise of the purchase rights represented by this Common Stock 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 (with a copy to the Warrant Agent) of a duly executed facsimile copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within the earlier of (i) two 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) 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 be required.
(ii) Exercise Procedures. Notwithstanding anything herein to the contrary, subject to Section 2(d)(ii), the Holder shall not be required to physically surrender this Common Stock Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and this Common Stock Warrant has been exercised in full, in which case, the Holder shall surrender this Common Stock Warrant to the Company for cancellation within 3 Trading Days of the date on which the final Notice of Exercise is delivered to the Company (with a copy to the Warrant Agent). Partial exercises of this Common Stock 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 1 business day of receipt of such notice. Subject to the provisions of Section 2(d)(ii), the Holder and any assignee, by acceptance of this Common Stock 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.
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(b) Exercise Price. The exercise price per share of Common Stock under this Common Stock Warrant shall be $11.50, subject to adjustment hereunder (the “Exercise Price”).
(c) Cashless Exercise. Notwithstanding anything to the contrary set forth herein, if following 60 business days from the Closing (as defined in the Subscription Agreement) and at the time of exercise hereof there is no effective registration statement registering the resale of the Warrant Shares by, or the prospectus contained therein is not available for the resale 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)(68) 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. (“Bloomberg”) 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 2 hours thereafter (including until 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; |
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| (B) = | the Exercise Price of this Common Stock Warrant, as adjusted hereunder; and | |
| (X) = | the number of Warrant Shares that would be issuable upon exercise of this Common Stock Warrant in accordance with the terms of this Common Stock Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the characteristics of this Common Stock Warrant being exercised, and the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Common Stock Warrant. The Company agrees not to take any position contrary to this Section 2(c).
(d) Mechanics of Exercise.
(i) Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Company’s transfer agent (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 (“DTC”) 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 the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144 (assuming cashless exercise of this Common Stock Warrant), 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 by the date that is in the case of an exercise by the Holder, the earliest of (i) two Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one 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 Common Stock Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that, in the case of an exercise by a Holder, payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) two 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), $5.00 per Trading Day (increasing to $10.00 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) 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 Common Stock 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 Common Stock Warrants Upon Exercise. If this Common Stock Warrant shall have been exercised in part, the Company shall, at the request of the Holder and upon surrender of this Common Stock Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Common Stock Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Common Stock Warrant, which new Common Stock Warrant shall in all other respects be identical with this Common Stock 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.
(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 (other than any such failure that is solely due to any action or inaction by the Holder with respect to such exercise), 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 this Common Stock 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 this Common Stock Warrant as required pursuant to the terms hereof.
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(v) No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Common Stock 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 Common Stock Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto as Exhibit B 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 DTC (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 Common Stock Warrant, pursuant to the terms hereof.
Section 3. Certain Adjustments.
(a) Stock Dividends and Splits. If the Company, at any time while this Common Stock 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 Common Stock 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 Common Stock Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Common Stock 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.
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(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 Common Stock Warrant (without regard to any limitations on exercise hereof) 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.
(c) Pro Rata Distributions. During such time as this Common Stock 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 Common Stock 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 Common Stock Warrant (without regard to any limitations on exercise hereof) 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.
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(d) Fundamental Transaction. If, at any time while this Common Stock Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of the consolidated assets of the Company in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another person or group of persons whereby such other person or group acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other person or other persons making or party to, or associated or affiliated with the other persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Common Stock 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 Common Stock Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Common Stock Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Common Stock Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Common Stock Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Common Stock Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Common Stock Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Common Stock Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which Successor Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction.
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(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 approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by 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 20 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 reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Common Stock Warrant constitutes, or contains, material, non-public information regarding the Company, 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 Common Stock 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.
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(g) Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of this Common Stock Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors of the Company.
Section 4. Redemption.
(a) Redemption. Subject to Section 4(d), all (and not less than all) of the outstanding Warrant Shares may be redeemed, in whole and not in part, at the option of the Company, at any time after the Warrant Shares become exercisable, and prior to their expiration, at the office of the Warrant Agent, upon the notice referred to in Section 6(b), at the price of $0.01 per Warrant Share (“Redemption Price”); provided that the last sales price of the shares of Common Stock has been equal to or greater than $18.00 per share (subject to adjustment for splits, dividends, recapitalizations and other similar events) for any 20 Trading Days within a 30 Trading Day period commencing after the Warrant Shares become exercisable and ending on the third business day prior to the date on which notice of redemption is given and provided further that there is a current registration statement in effect with respect to the shares of Common Stock underlying the Warrant Shares for each day in the 30-Trading Day period and continuing each day thereafter until the Redemption Date (defined below).
(b) Date Fixed for, and Notice of, Redemption. In the event the Company shall elect to redeem all of the Warrant Shares, the Company shall fix a date for the redemption (the “Redemption Date”). Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than 30 days prior to the date fixed for redemption to the holders of the Warrant Shares to be redeemed at their last addresses as they shall appear on the Warrant Register (defined below). Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the holder received such notice.
(c) Exercise After Notice of Redemption. Subject to Section 4(f), this Common Stock Warrant may be exercised in accordance with Section 2 at any time after notice of redemption shall have been given by the Company pursuant to Section 6(b) hereof and prior to the Redemption Date; provided that the Company may require the Holder to exercise this Common Stock Warrant to elect “cashless exercise” in accordance with the procedures of Section 2(c), and the Holder must exercise this Common Stock Warrant on a cashless basis if the Company so requires. On and after the Redemption Date, the Holder of this Common Stock Warrant shall have no further rights except to receive, upon surrender of this Common Stock Warrant, the Redemption Price.
(d) No Other Rights to Cash Payment. Except for a redemption in accordance with this Section 4, the Holder shall not be entitled to any cash payment whatsoever from the Company in connection with the ownership, exercise or surrender of this Common Stock Warrant.
(e) Exclusion of Certain Common Stock Warrants. The Company understands that the redemption rights provided for by this Section 4 apply only to outstanding Warrant Shares. To the extent a person holds rights to purchase Warrant Shares, such purchase rights shall not be extinguished by redemption. However, once such purchase rights are exercised, the Company may redeem the Warrant Shares issued upon such exercise provided that the criteria for redemption is met.
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(f) Company’s Exercise Limitations. The Company shall not effect any exercise 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 Common Stock 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 Common Stock 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, 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 applies, the determination of whether this Common Stock 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 good faith discretion of the Holder, and it shall be the obligation of Holder to notify the Company within three (3) Trading Days of receipt of a Notice of Exercise from the Exercise if the Holder believes any exercise or partial exercise thereof is unexercisable because such exercise or partial exercise would cause the Holder and its Affiliates and Attribution Parties to beneficially own in excess of the Beneficial Ownership Limitation, and the reasons and basis for such belief of the Holder. 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. Upon the written or oral request of a Holder, the Company shall within one Trading Day 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% 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 Common Stock Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section, even to increase the Beneficial Ownership Limitation to exceed 4.99% 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 Common Stock Warrant and the provisions of this Section 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 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.
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Section 5. Transfer of Common Stock Warrant.
(a) Transferability. Subject to compliance with any applicable securities laws, this Common Stock Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Common Stock Warrant at the principal office of the Company or its designated agent, which shall initially be the Warrant Agent, together with a written assignment of this Common Stock 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 Common Stock Warrantor, a new Common Stock Warrant 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 Common Stock Warrant evidencing the portion of this Common Stock Warrant not so assigned, and this Common Stock Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Common Stock Warrant to the Company unless the Holder has assigned this Common Stock Warrant in full, in which case, the Holder shall surrender this Common Stock Warrant to the Company within 3 Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Common Stock Warrant in full. The Common Stock Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Common Stock Warrant issued.
(b) New Common Stock Warrants. This Common Stock Warrant may be divided or combined with other Common Stock Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Common Stock Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 5(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Common Stock Warrantor, one or more new Common Stock Warrants in exchange for the Common Stock Warrants to be divided or combined in accordance with such notice. All Common Stock Warrants issued on transfers or exchanges shall be dated the original issuance date and shall be identical with this Common Stock Warrant except as to the number of Warrant Shares issuable pursuant thereto.
(c) Common Stock Warrant Register. The Company shall register this Common Stock Warrant, upon records to be maintained by the Company for that purpose (the “Common Stock Warrant Register”), in the name of the record Holder hereof from time to time. The Company and the Warrant Agent may deem and treat the registered Holder of this Common Stock 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. The Company has appointed the Warrant Agent to maintain the Common Stock Warrant Register, as the Company’s agent. The Company shall remain responsible for the contents of the Common Stock Warrant Register, notwithstanding the appointment of a Warrant Agent. The Company shall provide 30 days’ prior written notice to the Holder of any appointment of or change in Warrant Agent and the new Warrant Agent’s contact information, including if the Company shall itself directly maintain the Common Stock Warrant Register after a third-party Warrant Agent has been appointed.
Section 6. Miscellaneous.
(a) No Rights as Stockholder Until Exercise; No Settlement in Cash. This Common Stock 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, except as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required to net cash settle an exercise of this Common Stock Warrant.
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(b) Loss, Theft, Destruction or Mutilation of Common Stock 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 Common Stock Warrantor 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 this Common Stock Warrant, shall not include the posting of any bond), and upon surrender and cancellation of this Warrant or stock certificate, if mutilated, the Company will make and deliver a new Common Stock Warrantor stock certificate of like tenor and dated as of such cancellation, in lieu of such Common Stock Warrantor 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 this Common Stock Warrants 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 Common Stock Warrant. The Company further covenants that its issuance of this Common Stock 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 Common Stock 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 Common Stock Warrant will, upon exercise of the purchase rights represented by this Common Stock 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 Common Stock 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 Common Stock 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 Common Stock 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 Common Stock Warrant.
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Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Common Stock Warrants 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) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Common Stock 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 Common Stock Warrant(whether brought against a party hereto or its 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 (including with respect to the enforcement of this Common Stock Warrant), and hereby irrevocably waives, and agrees not to assert in any action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such 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 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 Common Stock Warrant 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 or proceeding to enforce any provisions of this Common Stock Warrant, the prevailing party in such action or proceeding shall be reimbursed by the non-prevailing party for its 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 Common Stock 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 the 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 Common Stock Warrant, if the Company willfully and knowingly fails to comply with any provision of this Common Stock 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.
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(h) Notices. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iii) three (3) business days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:
(i) if to a Holder, to its address, email address and/or facsimile number set forth on the register of Holders on file with the Company, with copies to such Holder’s representatives as set forth on such register, or to such other address, email address and/or to the attention of such other person as the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of such change;
(ii) if to the Company, to:
4995 Murphy Canyon Road, Suite 300
San Diego, California 92123
Attention: Jack K. Heilbron, CEO
Email: jheilbron@presidiopt.com
with a required copy to (which copy shall not constitute notice):
Sichenzia Ross Ference LLP
1185 Avenue of the Americas, 31st Floor
New York, NY 10036
Attention: Darrin Ocasio, Esq.
E-mail: dmocasio@srf.law
(i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Common Stock 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 Common Stock 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 Common Stock 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.
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(k) Successors and Assigns. Subject to applicable securities laws, this Common Stock 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 Common Stock Warrant are intended to be for the benefit of any Holder from time to time of this Common Stock Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
(l) Amendment. This Common Stock Warrant may be amended by the Company without the consent of any of the holders of the Warrant Shares for the purpose of (i) curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein, or making any other provisions with respect to matters or questions arising under this Common Stock Warrant that is not inconsistent with the provisions of this Common Stock Warrant, (ii) evidencing the succession of another corporation to the Company, other than a Successor Entity pursuant to a Fundamental Transaction, and the assumption by any such successor of the covenants of the Company contained in this Common Stock Warrant, (iii) evidencing and providing for the acceptance of appointment by a successor Warrant Agent with respect to the Warrant Shares, and any provisions required in connection therewith, (iv) adding to the covenants of the Company for the benefit of the Holder or surrendering any right or power conferred upon the Company under this Common Stock Warrant, (v) to comply with the rules of DTC, including to permit the deposit of Warrant Shares with the DTC and settlement through the facilities thereof; or (vi) amending this Common Stock Warrant in any manner that the Company may deem to be necessary or desirable and that will not adversely affect the interests of the Holder in any material respect. All other modifications or amendments to this Common Stock Warrant, including any amendment to increase the Exercise Price or move the Termination Date, shall require the written consent of the Company and each Holder of Common Stock Warrants.
(m) Severability. Wherever possible, each provision of this Common Stock Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Common Stock 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 Common Stock Warrant.
(n) Headings. The headings used in this Common Stock Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Common Stock Warrant.
[signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Common Stock Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
CONDUIT PHARMACEUTICALS INC. (formerly known as Murphy Canyon Acquisition Corp.) | ||
| By: | ||
| Name: | ||
| Title: | ||
NOTICE OF EXERCISE
To: CONDUIT PHARMACEUTICALS INC.
CC: WARRANT AGENT
(1) The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Common Stock Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
☐ in lawful money of the United States; or
☐ if permitted, the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please 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:
_______________________________
_______________________________
_______________________________
(4) Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
| Name of Investing Entity: | ||
| Signature of Authorized Signatory of Investing Entity: | ||
| Name of Authorized Signatory: | ||
| Title of Authorized Signatory: | ||
| Date: |
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Common Stock Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Common Stock Warrant and all rights evidenced thereby are hereby assigned to:
| Name: | |||
| (Please Print) | |||
| Address: | |||
| (Please Print) | |||
| Phone Number: | |||
| Email Address: | |||
| Dated: _______________ __, ______ | |||
| Holder’s Signature: | |||
| Holder’s Address: | |||
Exhibit 10.1
AMENDMENT TO SUBSCRIPTION AGREEMENT
THIS AMENDMENT TO SUBSCRIPTION AGREEMENT (this “Amendment”), dated as of January 27, 2023 (the “Effective Date”), is made and entered into by and among Murphy Canyon Acquisition Corp., a Delaware corporation (the “Company”), and _______________ (the “Subscriber”). Capitalized terms used herein and not otherwise defined will have the meanings ascribed to such terms in the Subscription Agreement (as defined below).
RECITALS
A. The parties entered into that certain Subscription Agreement on November 8, 2022 (the “Subscription Agreement”).
B. Pursuant to Section 9(f) of the Subscription Agreement, the parties may amend the Subscription Agreement by an agreement in writing signed by the parties.
C. The parties desire to amend the Subscription Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound hereby, the parties agree as follows, as of the Effective Date:
1. Amendments to the Subscription Agreement.
(a) At all times prior to the Transaction Closing, all references to “Class A Common Stock” shall refer to the Company’s Class A Common Stock, par value $0.0001 per share, each share of which, by virtue of the Merger and without any action on the part of the Company, Merger Sub or the Target, shall automatically convert into and become one validly issued, fully paid and non-assessable share of one class of the Company’s common stock, par value $0.0001.
(b) At all times as of and from the date of the Transaction Closing, all references to “Class A Common Stock” shall refer to the Company’s common stock, par value $0.0001.
(c) The Company Warrant is hereby amended and restated in its entirety as set forth in Exhibit A to this Amendment. All references to the Company Warrant in the Subscription Agreement shall refer to the Company Warrant attached hereto as Exhibit A.
2. No Further Amendments. Except as expressly modified by this Amendment, the Subscription Agreement will remain unmodified and in full force and effect.
3. Counterparts. This Amendment may be executed in one or more counterparts (including by facsimile or electronic mail or in .pdf) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
4. Conflict. To the extent there is a conflict between the terms and provisions of this Amendment and the Subscription Agreement, the terms and provisions of this Amendment will govern as to such conflict.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and delivered as of the Effective Date.
| MURPHY CANYON ACQUISITION CORP. | ||
| By: | Jack K. Heilbron | |
| Title: | CEO | |
| By: | ||
| Title: | ||
[Signature Page to Amendment to Subscription Agreement]