|
Delaware
|
| |
3841
|
| |
47-1214177
|
|
|
(State or other jurisdiction of
incorporation or organization) |
| |
(Primary Standard Industrial Classification
Code Number) |
| |
(I.R.S. Employer Identification Number)
|
|
|
Large accelerated filer
☐
|
| |
Accelerated filer
☐
|
| |
Non-accelerated filer
☐
(Do not check if a smaller reporting company) |
| |
Smaller reporting company ☒
|
|
Title of Each Class of Securities to be Registered
|
| |
Proposed
Maximum Aggregate Offering Price (1) |
| |
Amount of
Registration Fee |
| ||||||
Units, each consisting of one share of common stock, par value $.001 per share, and one warrant
|
| | | $ | 10,000,000 | | | | | $ | 1,162.00 | | |
Common stock included in the units
|
| | | | — | | | | | | — | | |
Warrants included in the units
|
| | | | — | | | | | | — | | |
Common stock, issuable upon exercise of all warrants issued or issuable in public offering
(2)
|
| | | | — | | | | | | — | | |
Total
|
| | | $ | 10,000,000 | | | | | $ | 1,162.00 (3) | | |
| | |
Per Unit
|
| |
Total
(2)
|
| ||||||
Public offering price
|
| | | $ | 5.00 | | | | | $ | 6,000,000 | | |
Selling agents’ commissions
(1)
|
| | | $ | 0.35 | | | | | $ | 420,000 | | |
Proceeds, before expenses, to us
|
| | | $ | 4.65 | | | | | $ | 5,580,000 | | |
| | |
Page
|
| |||
| | | | 1 | | | |
| | | | 8 | | | |
| | | | 11 | | | |
| | | | 12 | | | |
| | | | 33 | | | |
| | | | 34 | | | |
| | | | 36 | | | |
| | | | 37 | | | |
| | | | 38 | | | |
| | | | 41 | | | |
| | | | 59 | | | |
| | | | 74 | | | |
| | | | 76 | | | |
| | | | 78 | | | |
| | | | 81 | | | |
| | | | 82 | | | |
| | | | 91 | | | |
| | | | 91 | | | |
| | | | 91 | | |
Project
|
| |
Device
|
| |
Features
|
|
PortIO | | | Long-term implantable vascular access device | | |
•
No central venous access
•
No indwelling intravascular component
•
No radiographic confirmation required
|
|
Caldus | | | Disposable tissue ablation devices, including renal denervation for hypertension | | |
•
Completely disposable
•
No console or other capital equipment.
•
Direct thermal ablation using heated fluid
|
|
CarpX | | | Percutaneous device to treat carpal tunnel syndrome | | |
•
Completely percutaneous
•
Office-based procedure
|
|
NextCath | | | Self-anchoring short-term catheters | | |
•
Anchoring integral to catheter design
•
No suturing, elaborate dressings or costly catheter securement devices
|
|
NextFlo | | | Highly-accurate disposable infusion pumps | | |
•
Variable resistor design
•
Applicable to broader range of drugs
|
|
| | |
For the Period
June 26, 2014 (inception) through December 31, 2014 |
| |
For the Six
Months Ended June 30, 2015 |
| ||||||
Operating Data: | | | | | | | | | |||||
Net sales
|
| | | | — | | | | | | — | | |
Net loss
|
| | | $ | (274,384 ) | | | | | $ | (506,945 ) | | |
Basic and diluted net loss per share
|
| | | | (0.03 ) | | | | | | (0.05 ) | | |
Weighted average number of shares outstanding
|
| | | | 8,618,278 | | | | | | 10,856,371 | | |
| | | | | | | | |
June 30, 2015
|
| |||||||||||||||
| | |
December 31, 2014
|
| |
Actual
|
| |
Pro forma
(1)
|
| |
Pro forma
As Adjusted (2) |
| ||||||||||||
Balance Sheet Data: | | | | | | | | | | | |||||||||||||||
Cash | | | | $ | 839,077 | | | | | $ | 521,572 | | | | | $ | 1,771,572 | | | | | $ | 7,231,572 | | |
Working capital
|
| | | | 794,828 | | | | | | 440,678 | | | | | | 1,690,678 | | | | | | 7,150,678 | | |
Total assets
|
| | | | 842,077 | | | | | | 573,071 | | | | | | 1,823,071 | | | | | | 7,283,071 | | |
Total liabilities
|
| | | | 47,249 | | | | | | 85,188 | | | | | | 85,188 | | | | | | 85,188 | | |
Total stockholders’ equity
|
| | | | 794,828 | | | | | | 487,883 | | | | | | 1,737,883 | | | | | | 7,197,883 | | |
Assumed Percentage of Units Sold
|
| |
100%
|
| |
80%
|
| |
60%
|
| |
40%
|
| |
20%
|
| ||||||||||||||||||||
Price to Public
|
| | | $ | 10,000,000 | | | | | $ | 8,000,000 | | | | | $ | 6,000,000 | | | | | $ | 4,000,000 | | | | | $ | 2,000,000 | | | |||||
Selling agents’ commissions
|
| | | | 700,000 | | | | | | 560,000 | | | | | | 420,000 | | | | | | 280,000 | | | | | | 140,000 | | | |||||
Other offering expenses
|
| | | | 760,000 | | | | | | 720,000 | | | | | | 680,000 | | | | | | 640,000 | | | | | | 600,000 | | | |||||
Net proceeds
|
| | | $ | 8,540,000 | | | | | $ | 6,720,000 | | | | | $ | 4,900,000 | | | | | $ | 3,080,000 | | | | | $ | 1,260,000 | | | |||||
Research and development and regulatory clearance of products, commercialization of products, etc.
|
| | | $ | 5,693,190 | | | | | $ | 4,267,448 | | | | | $ | 3,057,185 | | | | | $ | 1,702,938 | | | | | $ | 552,316 | | | |||||
Operating expenses (including legal and accounting expenses related to SEC reporting obligations and payment of contingent compensation to our Chief Executive Officer)
|
| | | | 2,525,915 | | | | | | 1,797,517 | | | | | | 1,469,131 | | | | | | 1,298,607 | | | | | | 514,095 | | | |||||
Working capital
|
| | | | 320,894 | | | | | | 655,034 | | | | | | 373,683 | | | | | | 78,455 | | | | | | 193,589 | | | |||||
Total use of proceeds
|
| | | $ | 8,540,000 | | | | | $ | 6,720,000 | | | | | $ | 4,900,000 | | | | | $ | 3,080,000 | | | | | $ | 1,260,000 | | | |||||
|
|
Public offering price
|
| | | | | | | | | $ | 5.00 | | | ||
|
Net tangible book value before this offering
|
| | | $ | 0.05 | | | | | | | | | ||
|
Decrease attributable to new investors
|
| | | $ | 0.49 | | | | | | | | | ||
|
Pro forma net tangible book value after this offering
|
| | | | | | | | | $ | 0.54 | | | ||
|
Dilution to new investors
|
| | | | | | | | | $ | 4.46 | | | ||
|
| | |
Shares Purchased
|
| |
Total Consideration
|
| |
Average Price
Per Share |
| ||||||||||||||||||||||||||
| | |
Number
|
| |
Percentage
|
| |
Amount
|
| |
Percentage
|
| |||||||||||||||||||||||
Initial stockholders
|
| | | | 12,250,000 | | | | | | 91.1 % | | | | | $ | 2,173,212 | | | | | | 26.6 % | | | | | $ | 0.18 | | | |||||
New investors
|
| | | | 1,200,000 | | | | | | 8.9 % | | | | | $ | 6,000,000 | | | | | | 73.4 % | | | | | $ | 5.00 | | | |||||
| | | | | 13,450,000 | | | | | | 100.0 % | | | | | $ | 8,173,212 | | | | | | 100.0 % | | | | | | | | | |||||
|
| | |
December 31, 2014
|
| |
June 30, 2015
|
| ||||||||||||||||||||||
| | |
Actual
|
| |
Actual
|
| |
Pro forma
|
| |
Pro forma
As Adjusted |
| ||||||||||||||||
Cash | | | | $ | 839,077 | | | | | $ | 521,572 | | | | | $ | 1,771,572 | | | | | $ | 7,231,572 | | | ||||
Stockholders’ equity: | | | | | | ||||||||||||||||||||||||
Preferred stock, $.001 par value, 20,000,000 shares authorized; none issued or outstanding
|
| | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | ||||
Common stock, $.001 par value, 50,000,000
shares authorized; 10,856,371 shares issued and outstanding; 13,450,000 shares issued and outstanding, as adjusted |
| | | | 10,856 | | | | | | 10,856 | | | | | | 12,250 | | | | | | 13,450 | | | ||||
Additional paid-in capital
|
| | | | 1,058,356 | | | | | | 1,258,356 | | | | | | 2,506,962 | | | | | | 7,965,762 | | | ||||
Accumulated deficit
|
| | | | (274,384 ) | | | | | | (781,329 ) | | | | | | (781,329 ) | | | | | | (781,329 ) | | | ||||
Total stockholders’ equity
|
| | | | 794,828 | | | | | | 487,883 | | | | | | 1,737,883 | | | | | | 7,197,883 | | | ||||
Total capitalization
|
| | | $ | 794,828 | | | | | $ | 487,883 | | | | | $ | 1,737,883 | | | | | $ | 7,197,883 | | | ||||
|
Team Member
|
| |
Career Highlights
|
|
Lishan Aklog, M.D.
Chairman and Chief Executive Officer |
| |
•
Co-founding Partner, Pavilion Holdings Group and Pavilion Medical Innovations
•
Former Chairman and Chief Technology Officer, Vortex Medical
•
Former Associate Professor, Chief of Cardiovascular Surgery and Cardiovascular Center Chair, St. Joseph’s Hospital and Medical Center, Phoenix, Arizona
•
Former Assistant Professor of Cardiothoracic Surgery and Associate Chief of Cardiac Surgery, Mount Sinai Medical Center, New York
•
Former Assistant Professor of Surgery and Attending Cardiac Surgeon, Harvard Medical School and Brigham and Women’s Hospital
|
|
Michael J. Glennon
Vice Chairman |
| |
•
Co-founding Partner, Pavilion Holdings Group and Pavilion Medical Innovations
•
Chairman and Chief Executive Officer, Saphena Medical and Cruzar Medsystems
•
Former Chief Executive Officer, Vortex Medical
•
Former Senior Vice President, Accellent, Inc.
•
Former senior sales and marketing executive at multiple companies including Guidant and Medtronic
|
|
Brian J. deGuzman, M.D.
Chief Medical Officer |
| |
•
Co-founding Partner, Pavilion Holdings Group and Pavilion Medical Innovations
•
Chief Executive Officer, Kaleidoscope Medical
•
Former Chief Medical Officer, Vortex Medical
•
Former Assistant Professor and Associate Chief of Cardiovascular Surgery, St. Joseph’s Hospital and Medical Center, Phoenix, Arizona
•
Former Assistant Professor of Surgery and Attending Cardiac Surgeon, Tufts University School of Medicine and Lahey Clinic
|
|
James L. Cox, M.D.
Director |
| |
•
Professor of Surgery Emeritus, Washington University School of Medicine
•
Creator of the Cox-Maze procedure for atrial fibrillation
•
Chairman, The World Heart Foundation
•
Former President, American Association of Thoracic Surgery
•
Instrumental in founding six medical device companies
|
|
Ronald M. Sparks
Director |
| |
•
Former Healthcare Industry Executive, Avista Capital Partners
•
Former Chairman and CEO, Navilyst, Inc.
•
Former President and CEO, Accellent
•
Former Division President, Smith & Nephew
•
Led the commercialization of over 50 medical device products
|
|
Team Member
|
| |
Career Highlights
|
|
Albert Chin, M.D.
Medical Advisory Board |
| |
•
Co-founding Partner and Chief Innovation Officer, Pavilion Medical Innovations
•
Former Vice President of Research and Chief Innovation Officer, Maquet Cardiovascular/ Guidant Cardiac Surgery
•
Inventor on 184 issued patents and of 12 commercialized products
|
|
Marc Gerdisch, M.D.
Medical Advisory Board |
| |
•
Assistant Professor, Loyola University Medical Center
•
Chief of Cardiovascular and Thoracic Surgery, Franciscan St. Francis Health Heart Center, Indianapolis
|
|
Timothy Murphy, M.D.
Medical Advisory Board |
| |
•
Professor of Diagnostic Imaging and Director of the Vascular Diseases Research Center, Warren Alpert Medical School of Brown University
•
Former President, Society of Interventional Radiology
•
Co-founder of four medical device companies
|
|
Todd Rosengart, M.D.
Medical Advisory Board |
| |
•
Professor and Chairman, Debakey Department of Surgery, Baylor Medical College
•
Professor of Heart and Vascular Disease and DeBakey-Bard Chair of Surgery, Texas Heart Institute
•
Co-founder of five medical device and healthcare IT companies
|
|
Phillip Stieg, M.D.
Medical Advisory Board |
| |
•
Professor and Chairman of Neurological Surgery, Weil Cornell Medical College
•
Neurosurgeon-in-Chief and Chairman of Neurological Surgery, New York-Presbyterian Hospital
•
Former President of the Society of University Neurosurgeons
|
|
Project
|
| |
Inventors
|
| |
Title
|
| |
Number
|
| |
Date
|
|
PortIO | | |
Aklog and deGuzman
|
| | “Long-term Intraosseous Infusion Ports” | | |
Application#
62/079.266 |
| |
Filed
13-Nov-2014 |
|
Caldus | | |
Aklog and deGuzman
|
| | “Continuous Flow Balloon Catheter Systems and Methods of Use” | | |
Application#
62/131.214 |
| |
Filed
10-Mar-2015 |
|
| | |
Aklog and deGuzman
|
| | “Continuous Flow Thermal Ablation Balloon Catheter Systems and Methods of Use” | | |
Application#
62/131.217 |
| |
Filed
10-Mar-2015 |
|
CarpX | | |
Aklog and deGuzman
|
| | “Systems and Methods for Percutaneous Division of Fibrous Structures” | | |
Application#
62/086.950 |
| |
Filed
03-Dec-2014 |
|
NextCath | | |
Aklog and deGuzman
|
| | “Self-Anchoring Catheters and Methods of Use” | | |
Application#
62/085.838 |
| |
Filed
01-Dec-2014 |
|
NextFlo | | |
Aklog, deGuzman,
Glennon, Cronin and Barker |
| | “Systems and Methods for Infusion of Fluids Using Stored Potential Energy and a Variable Flow Resistor” | | |
U.S. Patent
8,622,976 (1) |
| |
Issued
07-Jan-2014 |
|
| | |
Aklog, deGuzman,
Glennon, Cronin and Barker |
| | “Systems and Methods for Infusion of Fluids Using Stored Potential Energy and a Variable Flow Resistor” | | |
Application#
14/094.046 |
| |
Filed
02-Dec-2013 |
|
Name
|
| |
Age
|
| |
Position
|
|
Lishan Aklog, M.D. | | |
49
|
| | Chairman and Chief Executive Officer | |
Michael J. Glennon | | |
49
|
| | Vice Chairman and Director | |
Richard J. Salute | | |
69
|
| | Chief Financial Officer and Secretary | |
Brian J. deGuzman, M.D. | | |
51
|
| | Chief Medical Officer | |
Ira Scott Greenspan | | |
56
|
| | Senior Advisor and Director | |
James L. Cox, M.D. | | |
72
|
| | Director | |
Joshua R. Lamstein | | |
46
|
| | Director | |
Ronald M. Sparks | | |
60
|
| | Director | |
David Weild IV | | |
58
|
| | Director | |
Name and Address of Beneficial Owner
(1)
|
| |
Amount and
Nature of Beneficial Ownership |
| |
Approximate
Percentage of Outstanding Shares of Common Stock Prior to Offering |
| |
Approximate
Percentage of Outstanding Shares of Common Stock After Offering |
| |||||||||
5% Stockholders | | | | | | | | | | | | | | | | | | | |
HCFP/Capital Partners III LLC
|
| | | | 5,713,879 | | | | | | 46.6 % | | | | | | 42.5 % | | |
Pavilion Venture Partners LLC
|
| | | | 2,508,532 | | | | | | 20.5 % | | | | | | 18.7 % | | |
Directors and Executive Officers | | | | | | | | | | | | | | | | | | | |
Lishan Aklog, M.D.
|
| | | | 8,222,412 (2)(3) | | | | | | 67.1 % | | | | | | 61.1 % | | |
Ira Scott Greenspan
|
| | | | 5,762,656 (3)(9) | | | | | | 47.0 % | | | | | | 42.8 % | | |
Joshua R. Lamstein
|
| | | | 83,617 (4) | | | | | | * | | | | | | * | | |
Richard J. Salute
|
| | | | 55,745 (4) | | | | | | * | | | | | | * | | |
Michael J. Glennon
|
| | | | 0 (5) | | | | | | 0 | | | | | | 0 | | |
Brian J. deGuzman, M.D.
|
| | | | 0 (5) | | | | | | 0 | | | | | | 0 | | |
Ronald M. Sparks
|
| | | | 0 (6) | | | | | | 0 | | | | | | 0 | | |
James L. Cox, M.D.
|
| | | | 0 (7) | | | | | | 0 | | | | | | 0 | | |
David Weild IV
|
| | | | 0 (8) | | | | | | 0 | | | | | | 0 | | |
All directors and executive officers as a group (nine individuals)
|
| | | | 8,410,552 (2)(3) (9) | | | | | | 68.7 % | | | | | | 62.5 % (10) | | |
Name
|
| |
Number of
Shares of Common Stock included in Units |
| |
Number of
Warrants included in Units |
| |
Relationship to Us
|
| ||||||
HCFP/Capital Partners III LLC
|
| | | | 20,000 | | | | | | 20,000 | | | | Affiliate of Drs. Aklog and deGuzman and Messrs. Glennon, Greenspan, Lamstein and Salute | |
Pavilion Venture Partners LLC
|
| | | | 30,000 | | | | | | 30,000 | | | | Affiliate of Drs. Aklog and deGuzman and Mr. Glennon | |
Richard J. Salute
|
| | | | 20,000 | | | | | | 20,000 | | | | Chief Financial Officer and Secretary | |
Ira Scott Greenspan
|
| | | | 10,000 | | | | | | 10,000 | | | | Senior Advisor and Director | |
Joshua R. Lamstein
|
| | | | 30,000 | | | | | | 30,000 | | | | Director | |
| | |
Page
|
| |||
Condensed Consolidated Financial Statements (Unaudited) | | | |||||
| | | | F-2 | | | |
| | | | F-3 | | | |
| | | | F-4 | | | |
| | | | F-5 | | | |
Consolidated Financial Statements | | | |||||
| | | | F-11 | | | |
| | | | F-12 | | | |
| | | | F-13 | | | |
| | | | F-14 | | | |
| | | | F-15 | | | |
| | | | F-16 | | |
| | |
June 30,
2015 |
| |
December 31,
2014 |
| ||||||||
| | |
(Unaudited)
|
| | ||||||||||
ASSETS
|
| | | ||||||||||||
Current assets: | | | | ||||||||||||
Cash
|
| | | $ | 521,572 | | | | | $ | 839,077 | | | ||
Prepaid and other current assets
|
| | | | 4,294 | | | | | | 3,000 | | | ||
Total current assets
|
| | | | 525,866 | | | | | | 842,077 | | | ||
Deferred offering costs
|
| | | | 47,205 | | | | | | — | | | ||
Total assets
|
| | | $ | 573,071 | | | | | $ | 842,077 | | | ||
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
| | | ||||||||||||
Current liabilities: | | | | ||||||||||||
Accounts payable and accrued expenses
|
| | | $ | 85,188 | | | | | $ | 47,249 | | | ||
Total current liabilities
|
| | | | 85,188 | | | | | | 47,249 | | | ||
Commitments and contingencies | | | | ||||||||||||
Stockholders’ equity: | | | | ||||||||||||
Preferred stock, $.001 par value, authorized 20,000,000 shares; none issued and outstanding
|
| | | | — | | | | | | — | | | ||
Common stock, $.001 par value, authorized 50,000,000 shares, 10,856,371 shares issued and outstanding at June 30, 2015 and December 31, 2014
|
| | | | 10,856 | | | | | | 10,856 | | | ||
Additional paid-in capital
|
| | | | 1,258,356 | | | | | | 1,058,356 | | | ||
Accumulated deficit
|
| | | | (781,329 ) | | | | | | (274,384 ) | | | ||
Total stockholders’ equity
|
| | | | 487,883 | | | | | | 794,828 | | | ||
Total liabilities and stockholders’ equity
|
| | | $ | 573,071 | | | | | $ | 842,077 | | | ||
|
| | |
Six Months Ended
June 30, 2015 |
| ||||
Formation and operating costs
|
| | | $ | 423,495 | | | |
Research and development costs
|
| | | | 83,450 | | | |
Net loss
|
| | | $ | (506,945 ) | | | |
Net loss per share, basic and diluted
|
| | | $ | (.05 ) | | | |
Weighted average shares outstanding, basic and diluted
|
| | | | 10,856,371 | | | |
|
| Cash flows from operating activities | | | ||||||
|
Net loss
|
| | | $ | (506,945 ) | | | |
| Adjustments to reconcile net loss to net cash used in operating activities: | | | ||||||
|
Expense attributable to contributed services
|
| | | | 200,000 | | | |
| Changes in operating assets and liabilities: | | | ||||||
|
Prepaid and other current assets
|
| | | | (1,294 ) | | | |
|
Accounts payable and accrued expenses
|
| | | | 24,439 | | | |
|
Net cash used in operating activities
|
| | | | (283,800 ) | | | |
| Cash flows from financing activities | | | ||||||
|
Payment of deferred offering costs
|
| | | | (33,705 ) | | | |
|
Net cash used in financing activities
|
| | | | (33,705 ) | | | |
|
Net decrease in cash
|
| | | | (317,505 ) | | | |
|
Cash, beginning of the period
|
| | | | 839,077 | | | |
|
Cash, end of the period
|
| | | $ | 521,572 | | | |
|
|
ASSETS
|
| |||||||
| CURRENT ASSETS: | | | ||||||
|
Cash
|
| | | $ | 839,077 | | | |
|
Prepaid expenses and other current assets
|
| | | | 3,000 | | | |
|
TOTAL ASSETS
|
| | | $ | 842,077 | | | |
|
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
| |||||||
| CURRENT LIABILITIES: | | | ||||||
|
Accounts payable and accrued expenses
|
| | | $ | 47,249 | | | |
| COMMITMENTS AND CONTINGENCIES (Note 4) | | | ||||||
| STOCKHOLDERS’ EQUITY: | | | ||||||
|
Preferred stock, $.001 par value, authorized 20,000,000 shares, none issued
|
| | | | — | | | |
|
Common stock, $.001 par value, authorized 50,000,000 shares, 10,856,371 issued and outstanding
|
| | | | 10,856 | | | |
|
Additional paid-in capital
|
| | | | 1,058,356 | | | |
|
Accumulated deficit
|
| | | | (274,384 ) | | | |
|
TOTAL STOCKHOLDERS’ EQUITY
|
| | | | 794,828 | | | |
|
TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY
|
| | | $ | 842,077 | | | |
|
|
Revenue
|
| | | $ | — | | | |
|
Formation and operational costs
|
| | | | 274,384 | | | |
|
Net loss
|
| | | $ | (274,384 ) | | | |
|
Weighted average number of shares used in computing net loss per share, basic and diluted
|
| | | | 8,618,278 | | | |
|
Basic and diluted net loss per share
|
| | | $ | (0.03 ) | | | |
|
| | |
Common Stock
|
| |
Additional
Paid-In Capital |
| |
Accumulated
deficit |
| |
Stockholders’
Equity |
| |||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |||||||||||||||||||||||||||||
Balance at June 26, 2014, date of inception
|
| | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | |||||
Common shares and 8,083,049 warrants issued to founders
|
| | | | 8,083,049 | | | | | | 8,083 | | | | | | (4,871 ) | | | | | | — | | | | | | 3,212 | | | |||||
Units consisting of one share of
common stock and one warrant issued to initial stockholders, net of offering costs of $7,500 |
| | | | 418,089 | | | | | | 418 | | | | | | 67,082 | | | | | | — | | | | | | 67,500 | | | |||||
Units consisting of one share of
common stock and one warrant issued to investors, net of offering costs of $46,500 |
| | | | 2,355,233 | | | | | | 2,355 | | | | | | 796,145 | | | | | | | | | | | | 798,500 | | | |||||
Value of contributed services of Chief Executive Officer and Chief Financial Officer
|
| | | | — | | | | | | — | | | | | | 200,000 | | | | | | — | | | | | | 200,000 | | | |||||
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | (274,384 ) | | | | | | (274,384 ) | | | |||||
Balance at December 31, 2014
|
| | | | 10,856,371 | | | | | $ | 10,856 | | | | | $ | 1,058,356 | | | | | $ | (274,384 ) | | | | | $ | 794,828 | | | |||||
|
| CASH FLOWS FROM OPERATING ACTIVITIES: | | | ||||||
|
Net loss
|
| | | $ | (274,384 ) | | | |
| Adjustments to reconcile net loss to net cash used in operating activities: | | | ||||||
|
Expense attributable to contributed services
|
| | | | 200,000 | | | |
| Change in operating assets and liabilities: | | | ||||||
|
Prepaid expenses and other current assets
|
| | | | (3,000 ) | | | |
|
Accounts payable and accrued expenses
|
| | | | 47,249 | | | |
|
NET CASH USED IN OPERATING ACTIVITIES
|
| | | | (30,135 ) | | | |
| CASH FLOWS FROM FINANCING ACTIVITIES: | | | ||||||
|
Proceeds from sale of shares of common stock and warrants
|
| | | | 923,212 | | | |
|
Payment of offering costs
|
| | | | (54,000 ) | | | |
|
NET CASH PROVIDED BY FINANCING ACTIVITIES
|
| | | | 869,212 | | | |
|
NET INCREASE IN CASH
|
| | | | 839,077 | | | |
|
Cash at June 26, 2014
|
| | | | — | | | |
|
Cash at December 31, 2014
|
| | | $ | 839,077 | | | |
|
|
U.S. statutory rate
|
| | | | (35.0 %) | | | |
|
State income taxes (net of federal benefit)
|
| | | | (5.4 %) | | | |
|
Permanent differences
|
| | | | 29.5 % | | | |
|
Valuation allowance
|
| | | | 10.9 % | | | |
| | | | | | 0.0 % | | | |
|
| Noncurrent deferred tax assets: | | | ||||||
|
Net operating loss
|
| | | $ | 30,051 | | | |
|
Valuation allowance
|
| | | | (30,051 ) | | | |
|
Total net deferred tax assets
|
| | | $ | — | | | |
|
|
SEC registration fee
|
| | | $ | 3,079.59 | | |
|
FINRA filing fee
|
| | | $ | 2,750.00 | | |
|
Accounting fees and expenses
|
| | | $ | 100,000 | | |
|
Printing and engraving expenses
|
| | | $ | 50,000 | | |
|
Legal fees and expenses
|
| | | $ | 400,000 | | |
|
Nasdaq listing fees
|
| | | $ | 50,000 | | |
|
Miscellaneous
|
| | | | 50,000 (1) | | |
|
Total
|
| | | $ | 655,829.59 | | |
|
Exhibit No.
|
| |
Description
|
| |||
| | | 1.1 | | | | Form of Selling Agent Agreement.* | |
| | | 3.1 | | | | Certificate of Incorporation.** | |
| | | 3.2 | | | | Certificate of Amendment to Certificate of Incorporation** | |
| | | 3.3 | | | | By-laws.** | |
| | | 4.1 | | | | Specimen Unit Certificate. | |
| | | 4.2 | | | | Specimen Common Stock Certificate. | |
| | | 4.3 | | | | Specimen Warrant Certificate. | |
| | | 4.4 | | | | Form of Warrant Agreement between Continental Stock Transfer & Trust Company and PAVmed. | |
| | | 4.5 | | | | 2014 Long-Term Equity Incentive Plan** | |
| | | 4.6 | | | | Form of Unit Purchase Option* | |
| | | 5.1 | | | | Opinion of Graubard Miller. | |
| | | 10.1 | | | | Patent Option Agreement.** | |
| | | 10.2.1 | | | | Employment Agreement between PAVmed and Dr. Aklog.** | |
| | | 10.2.2 | | | | Amendment to Employment Agreement between PAVmed and Dr. Aklog.** | |
| | | 10.3.1 | | | | Form of Subscription Agreement (July 2014)** | |
| | | 10.3.2 | | | | Form of Subscription Agreement (November 2014)** | |
| | | 10.4.1 | | | | Form of Letter Agreement with HCFP Capital Partners III LLC** | |
| | | 10.4.2 | | | | Form of Letter Agreement with Pavilion Venture Partners LLC** | |
| | | 10.5.1 | | | | Letter agreement regarding corporate opportunities executed by Dr. Lishan Aklog.** | |
| | | 10.5.2 | | | | Letter agreement regarding corporate opportunities executed by Michael Glennon.** | |
| | | 10.5.3 | | | | Letter agreement regarding corporate opportunities executed by Dr. Brian deGuzman.** | |
|
Exhibit No.
|
| |
Description
|
| |||
| | | 10.6 | | | | Form of Management services agreement between PAVmed and HCFP LLC.** | |
| | | 10.7 | | | | Form of Management services agreement between PAVmed and Pavilion Holdings Group.** | |
| | | 23.1 | | | | Consent of Citrin Cooperman & Company, LLP. | |
| | | 23.2 | | | | Consent of Graubard Miller (included in Exhibit 5.1). | |
| | | 24 | | | | Power of Attorney (included on signature page of this Registration Statement). | |
| | | | PAVMED INC. | | |||
| | | | By: | | |
/s/ Lishan Aklog
|
|
| | | | | | |
Lishan Aklog
Chairman and Chief Executive Officer (Principal Executive Officer) |
|
|
Name
|
| |
Position
|
| |
Date
|
|
|
/s/ Lishan Aklog
Lishan Aklog
|
| |
Chairman and Chief Executive Officer
(Principal Executive Officer) |
| |
September 29, 2015
|
|
|
/s/ Richard J. Salute
Richard J. Salute
|
| |
Chief Financial Officer
(Principal Accounting and Financial Officer) and Secretary |
| |
September 29, 2015
|
|
|
/s/ Michael J. Glennon
Michael J. Glennon
|
| |
Vice Chairman and Director
|
| |
September 29, 2015
|
|
|
/s/ Ira Scott Greenspan
Ira Scott Greenspan
|
| |
Director
|
| |
September 29, 2015
|
|
|
/s/ James L. Cox, M.D.
James L. Cox, M.D.
|
| |
Director
|
| |
September 29, 2015
|
|
|
/s/ Joshua R. Lamstein
Joshua R. Lamstein
|
| |
Director
|
| |
September 29, 2015
|
|
|
/s/ Ronald M. Sparks
Ronald M. Sparks
|
| |
Director
|
| |
September 29, 2015
|
|
|
/s/ David Weild IV
David Weild IV
|
| |
Director
|
| |
September 29, 2015
|
|
Exhibit 4.1
NUMBER | UNITS | |
U-__________ | ||
SEE REVERSE FOR CERTAIN DEFINITIONS |
INCORPORATED UNDER THE LAWS OF DELAWARE
CUSIP 70423R 201
UNITS CONSISTING OF ONE SHARE OF COMMON STOCK AND
ONE WARRANT
THIS | CERTIFIES | THAT |
is | the | owner | of | |
Units. |
Each Unit (“Unit”) consists of one (1) share of common stock, par value $.001 per share (“Common Stock”), of PAVmed Inc., a Delaware corporation (the “Company”), and one (1) warrant (the “Warrants”). Each Warrant entitles the holder to purchase one share of Common Stock for $5.00 per share (subject to adjustment) commencing six (6) months from the consummation of the Company’s initial public offering (“IPO”) and expiring unless exercised before 5:00 p.m., New York City Time, on ______, 2021 (the “Expiration Date”). The Common Stock and Warrant(s) comprising the Unit(s) represented by this certificate are not transferable separately until the 90 th day after the consummation of the Company’s initial public offering. The terms of the Warrants are governed by a Warrant Agreement, dated as of _______, 2015, between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent, and are subject to the terms and provisions contained therein, all of which terms and provisions the holder of this certificate consents to by acceptance hereof. Copies of the Warrant Agreement are on file at the office of the Warrant Agent at 17 Battery Place, New York, New York 10004, and are available to any Warrant holder on written request and without cost.
This certificate is not valid unless countersigned by the Transfer Agent and Registrar of the Company.
Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized officers.
Dated: | ||
CHAIRMAN | SECRETARY |
PAVmed Inc.
The Company will furnish without charge to each shareholder who so requests, a statement of the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof of the Company and the qualifications, limitations, or restrictions of such preferences and/or rights.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM – | as tenants in common | UNIF GIFT MIN ACT - | _____ Custodian ______ | |
TEN ENT – | as tenants by the entireties | (Cust) | (Minor) |
JT TEN – | as joint tenants with right of survivorship | under Uniform Gifts to Minors | |
and not as tenants in common | Act ______________ | ||
(State) |
Additional Abbreviations may also be used though not in the above list.
For value received, ___________________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
Units |
represented by the within Certificate, and do hereby irrevocably constitute and appoint
Attorney |
to transfer the said Units on the books of the within named Company will full power of substitution in the premises.
Dated |
Notice: | The signature to this assignment must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatever. |
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM,
PURSUANT TO S.E.C. RULE 17Ad-15).
Exhibit 4.2
NUMBER | SHARES | |
C |
INCORPORATED UNDER THE LAWS OF DELAWARE
COMMON STOCK
SEE REVERSE FOR
CERTAIN DEFINITIONS
This Certifies that | CUSIP 70423R 102 |
is the owner of |
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF THE PAR VALUE OF $.001 EACH OF
PAVMED INC.
transferable
on the books of the Company in person or by duly authorized attorney upon surrender of this certificate properly endorsed.
This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized officers.
Dated: |
CHAIRMAN | SECRETARY |
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM – | as tenants in common UNIF GIFT MIN ACT - _____ Custodian ______ | ||
TEN ENT – | as tenants by the entireties | (Cust) (Minor) | |
JT TEN – | as joint tenants with right of survivorship | under Uniform Gifts to Minors | |
and not as tenants in common |
Act ______________ (State) |
Additional Abbreviations may also be used though not in the above list.
PAVmed Inc.
The Company will furnish without charge to each shareholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof of the Company and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate and the shares represented thereby are issued and shall be held subject to all the provisions of the Certificate of Incorporation and all amendments thereto and resolutions of the Board of Directors providing for the issue of Preferred Shares (copies of which may be obtained from the secretary of the Company), to all of which the holder of this certificate by acceptance hereof assents.
For value received, ___________________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER | ||
IDENTIFYING NUMBER OF ASSIGNEE | ||
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
shares |
of the capital stock represented by the within Certificate, and do hereby irrevocably constitute and appoint
Attorney |
to transfer the said stock on the books of the within named Company will full power of substitution in the premises.
Dated |
Notice: | The signature to this assignment must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatever. |
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM,
PURSUANT TO S.E.C. RULE 17Ad-15).
Exhibit 4.3
NUMBER ________- |
(SEE REVERSE SIDE FOR LEGEND)
THIS WARRANT WILL BE VOID IF NOT EXERCISED
PRIOR TO
|
WARRANTS |
CUSIP 70423R 110
WARRANT
THIS CERTIFIES THAT, for value received
is the registered holder of a warrant or warrants (the “Warrant”), expiring at 5:00 p.m., New York City time, on ________, 2021 to purchase one fully paid and non-assessable share of common stock, par value $.001 per share (“Shares”), of PAXmed Inc., a Delaware corporation (the “Company”) for each Warrant evidenced by this Warrant Certificate. The Warrant entitles the holder thereof to purchase from the Company, commencing six months from the consummation of the Company’s initial public offering, such number of Shares of the Company at the Warrant Price, upon surrender of this Warrant Certificate and payment of the Warrant Price at the office or agency of the Warrant Agent, Continental Stock Transfer & Trust Company, but only subject to the conditions set forth herein and in the Warrant Agreement between the Company and Continental Stock Transfer & Trust Company. In no event will the Company be required to net cash settle any warrant exercise. The Warrant Agreement provides that upon the occurrence of certain events the Warrant Price and the number of Shares purchasable hereunder, set forth on the face hereof, may, subject to certain conditions, be adjusted. The term Warrant Price as used in this Warrant Certificate refers to the price per Share at which Shares may be purchased at the time the Warrant is exercised. The initial Warrant Price per share of Common Stock for any Warrant is equal to $5.00 per share.
Upon any exercise of the Warrant for less than the total number of full Shares provided for herein, there shall be issued to the registered holder hereof or the registered holder’s assignee a new Warrant Certificate covering the number of Shares for which the Warrant has not been exercised.
Warrant Certificates, when surrendered at the office or agency of the Warrant Agent by the registered holder hereof in person or by attorney duly authorized in writing, may be exchanged in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants.
Upon due presentment for registration of transfer of the Warrant Certificate at the office or agency of the Warrant Agent, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any applicable tax or other governmental charge.
The Company and the Warrant Agent may deem and treat the registered holder as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the registered holder, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
This Warrant does not entitle the registered holder to any of the rights of a stockholder of the Company.
The Company reserves the right to call the Warrant at any time prior to its exercise commencing __ years from the closing of the Company’s initial public offering, with a notice of call in writing to the holders of record of the Warrant, giving at least 30 days’ notice of such call, at any time while the Warrant is exercisable, if the volume weighted average price of the Shares has been at least $10.00 per share on each of 20 consecutive trading days ending on the third business day prior to the date on which notice of such call is given provided that the average daily trading volume in the stock is at least 20,000 shares per day and if, and only if, there is a current registration statement in effect with respect to the Shares underlying the Warrants. The call price of the Warrants is to be $.01 per Warrant. Any Warrant either not exercised or tendered back to the Company by the end of the date specified in the notice of call shall be canceled on the books of the Company and have no further value except for the $.01 call price.
By | ||||
Chairman | Secretary |
SUBSCRIPTION FORM
To Be Executed by the Registered Holder in Order to Exercise Warrants
The undersigned Registered Holder irrevocably elects to exercise ______________ Warrants represented by this Warrant Certificate, and to purchase the Common Stock issuable upon the exercise of such Warrants, and requests that Certificates for such shares shall be issued in the name of
(PLEASE TYPE OR PRINT NAME AND ADDRESS) |
(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
and be delivered to |
(PLEASE PRINT OR TYPE NAME AND ADDRESS)
and, if such number of Warrants shall not be all the Warrants evidenced by this Warrant Certificate, that a new Warrant Certificate for the balance of such Warrants be registered in the name of, and delivered to, the Registered Holder at the address stated below:
Dated: | |||
(SIGNATURE) | |||
(ADDRESS) | |||
(TAX IDENTIFICATION NUMBER) |
ASSIGNMENT
To Be Executed by the Registered Holder in Order to Assign Warrants
For Value Received, _______________________ hereby sell, assign, and transfer unto
(PLEASE TYPE OR PRINT NAME AND ADDRESS) |
(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
and be delivered to |
(PLEASE PRINT OR TYPE NAME AND ADDRESS)
______________________ of the Warrants represented by this Warrant Certificate, and hereby irrevocably constitute and appoint _________________________________ Attorney to transfer this Warrant Certificate on the books of the Company, with full power of substitution in the premises.
Dated: | |||
(SIGNATURE) |
The signature to the assignment of the Subscription Form must correspond to the name written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatsoever, and must be guaranteed by a commercial bank or trust company or a member firm of the NYSE Amex, New York Stock Exchange, Pacific Stock Exchange or Chicago Stock Exchange.
Exhibit 4.4
WARRANT AGREEMENT
Agreement made as of _____________, 2015 between PAVmed Inc., a Delaware corporation, with offices at 420 Lexington Avenue, Suite 300, New York, New York 10170 (“Company”), and Continental Stock Transfer & Trust Company, a New York corporation, with offices at 17 Battery Place, New York, New York 10004 (“Warrant Agent”).
WHEREAS, the Company has previously sold an aggregate of 9,560,296 warrants (“Warrants”), each Warrant evidencing the right of the holder thereof to purchase one share of common stock, par value $0.001 per share (“Common Stock”), of the Company to certain private investors; and
WHEREAS, the Company is engaged in a public offering (“Public Offering”) of units (“Units”), each Unit consisting of one share of Common Stock and one Warrant and, in connection therewith, will issue and deliver up to 2,000,000 Warrants to public investors; and
WHEREAS, the Company has filed with the Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-1, No. 333-203569 (“Registration Statement”), for the registration, under the Securities Act of 1933, as amended (“Act”) of, among other securities, the Warrants to be issued in the Public Offering; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of all of the Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the
Company, and to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent . The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2. Warrants .
2.1. Form of Warrant . Each Warrant shall be issued in registered form only, shall be in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and shall be signed by, or bear the facsimile signature of, the Chairman of the Board or Chief Executive Officer and Treasurer, Secretary or Assistant Secretary of the Company and shall bear a facsimile of the Company’s seal. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
2.2. Uncertificated Warrants . Notwithstanding anything herein to the contrary, any Warrant, or portion thereof, may be issued as part of, and be represented by, a Unit, and any Warrant may be issued in uncertificated or book-entry form through the Warrant Agent and/or the facilities of The Depository Trust Company (the “Depositary”) or other book-entry depositary system, in each case as determined by the Board of Directors of the Company or by an authorized committee thereof. Any Warrant so issued shall have the same terms, force and effect as a certificated Warrant that has been duly countersigned by the Warrant Agent in accordance with the terms of this Agreement.
2 |
2.3. Effect of Countersignature . Except with respect to uncertificated Warrants as described above, unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.
2.4. Registration .
2.4.1. Warrant Register . The Warrant Agent shall maintain books (“Warrant Register”) for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company.
2.4.2. Registered Holder . Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant shall be registered upon the Warrant Register (“registered holder”) as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on the Warrant Certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.5. Detachability of Warrants Included in Units . The securities comprising the Units will not be separately transferable until the ninetieth (90 th ) day after the date hereof or, if such 90 th day is not on a day on which banks in New York City are generally open for business (including Saturdays, Sundays or federal holidays) (a “Business Day”), then on the immediately succeeding Business Day following such date.
3 |
3. Terms and Exercise of Warrants
3.1. Warrant Price . Each Warrant shall, when countersigned by the Warrant Agent, entitle the registered holder thereof, subject to the provisions of such Warrant and of this Warrant Agreement, to purchase from the Company the number of shares of Common Stock stated therein, at the price of $5.00 per share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this Warrant Agreement refers to the price per share at which shares of Common Stock may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than 10 Business Days; provided, however, that the Company shall provide at least 10 Business Days prior written notice of such reduction to registered holders of the Warrants; provided, further, however, that any such reduction shall be applied consistently to all of the Warrants.
3.2. Duration of Warrants . A Warrant may be exercised only during the period (“Exercise Period”) commencing on __________, 2016 [6 months after the date of this agreement] and terminating at 5:00 p.m., New York City time on the earlier to occur of (i) ____, 2021 [6 years from the date of this agreement] and (ii) the Redemption Date as provided in Section 6.2 of this Agreement (“Expiration Date”); provided, however, that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth in Section 7.4 below. Except with respect to the right to receive the Redemption Price (as set forth in Section 6 hereunder), each Warrant not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at the close of business on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided, however, that the Company will provide written notice to registered holders of the Warrants of such extension of not less than 20 days.
3.3. Exercise of Warrants .
3.3.1. Payment . Subject to the provisions of the Warrant and this Warrant
4 |
Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised by the registered holder thereof by surrendering it, at the office of the Warrant Agent, or at the office of its successor as Warrant Agent, in the Borough of Manhattan, City and State of New York, with the subscription form, as set forth in the Warrant, duly executed, and by paying in full the Warrant Price for each share of Common Stock as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, as follows:
(a) good certified check or good bank draft payable to the order of the Company (or as otherwise agreed to by the Company); or
(b) in the event of redemption pursuant to Section 6 hereof in which the Company has elected to require all holders of Warrants to exercise such Warrants on a “cashless basis,” by surrendering the Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value” (defined below) by (y) the Fair Market Value. Solely for purposes of this Section 3.3.1(b), the “Fair Market Value” shall mean the average reported last sale price of the Common Stock for the 10 trading days ending on the third trading day prior to the date on which the notice of redemption is sent to holders of Warrant pursuant to Section 6 hereof; or
(c) in the event the post-effective amendment or registration statement required by Section 7.4 hereof is not effective and current at a time while the Warrants are exercisable, holders of the Warrants shall have the right, until such time as such post-effective amendment or registration statement has been declared effective by the SEC, and during any other period after such date of effectiveness when the Company shall fail to have maintained an effective registration statement covering the shares of Common Stock issuable upon exercise of the Warrants, by surrendering such Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied
5 |
by the difference between the exercise price of the Warrants and the “Fair Market Value” by (y) the Fair Market Value; provided, however, that no cashless exercise shall be permitted unless the Fair Market Value is higher than the exercise price. Solely for purposes of this Section 3.3.1(c), the “Fair Market Value” shall mean the average reported last sale price of the Common Stock for the 10 trading days ending on the day prior to the date of exercise.
3.3.2. Issuance of Certificates . As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if any), the Company shall issue to the registered holder of such Warrant a certificate or certificates for the number of full shares of Common Stock to which he is entitled, registered in such name or names as may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new countersigned Warrant for the number of shares as to which such Warrant shall not have been exercised. Notwithstanding the foregoing, in no event will the Company be required to net cash settle the Warrant exercise. Warrants may not be exercised by, or securities issued to, any registered holder in any state in which such exercise would be unlawful.
3.3.3. Valid Issuance . All shares of Common Stock issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and nonassessable.
3.3.4. Date of Issuance . Each person in whose name any such certificate for Common Stock is issued shall for all purposes be deemed to have become the holder of record of such shares on the date on which the Warrant was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate, except that, if the date of such surrender and payment is a date when the share transfer books of the Company are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the share transfer books are open.
6 |
4. Adjustments .
4.1. Stock Dividends - Split Ups . If after the date hereof, the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock, or by a split up of the Common Stock, or other similar event, then, on the effective date of such stock dividend, split up or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be increased in proportion to such increase in outstanding shares of Common Stock.
4.2. Aggregation of Shares . If after the date hereof, the number of outstanding shares of Common Stock is decreased by a consolidation, combination, reverse share split or reclassification of the Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse share split, reclassification or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be decreased in proportion to such decrease in outstanding shares of Common Stock.
4.3 Extraordinary Dividends . If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the Common Stock on account of such shares of Common Stock (or other shares of the Company’s capital stock into which the Warrants are convertible), other than (a) as described in subsection 4.1 above or (b) Ordinary Cash Dividends (as defined below) (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Warrant Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and the fair market value (as determined by the Company’s board of directors, in good faith) of any securities or other assets paid on each share of the Common Stock in respect of such Extraordinary Dividend. For purposes of this subsection 4.3, “Ordinary Cash Dividends” means any cash dividend or cash distribution which, when combined on a per share basis with the per share amounts of all other cash dividends and cash distributions paid on the Common Stock during the 365-day period ending on the date of declaration of such dividend or distribution (as adjusted to appropriately reflect any of the events referred to in other
7 |
subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of shares of Common Stock issuable on exercise of each Warrant) does not exceed __% of the offering price of the Units in the Public Offering.
4.4 Adjustments in Exercise Price . Whenever the number of shares of Common Stock purchasable upon the exercise of the Warrants is adjusted, as provided in Section 4.1 and 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of shares of Common Stock purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of shares of Common Stock so purchasable immediately thereafter.
4.5. Replacement of Securities upon Reorganization, etc . In case of any reclassification or reorganization of the outstanding shares of Common Stock (other than a change covered by Section 4.1 or 4.2 hereof or that solely affects the par value of such shares of Common Stock), or in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding shares of Common Stock), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Warrant holders shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the shares of Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the Warrant holder would have received if such Warrant holder had exercised his, her or its Warrant(s) immediately prior to such event; and if any reclassification also results in a change in shares of Common Stock
8 |
covered by Section 4.1 or 4.2, then such adjustment shall be made pursuant to Sections 4.1, 4.2, 4.4 and this Section 4.5. The provisions of this Section 4.5 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers.
4.6. Notices of Changes in Warrant . Upon every adjustment of the Warrant Price or the number of shares issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1 to 4.5, then, in any such event, the Company shall give written notice to each Warrant holder, at the last address set forth for such holder in the warrant register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
4.7. No Fractional Shares . Notwithstanding any provision contained in this Warrant Agreement to the contrary, the Company shall not issue fractional shares upon exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round up to the nearest whole number the number of the shares of Common Stock to be issued to the Warrant holder.
4.8. Form of Warrant . The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of shares as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
9 |
5. Transfer and Exchange of Warrants .
5.1. Registration of Transfer . The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.
5.2. Procedure for Surrender of Warrants . Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the registered holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange therefor until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.
5.3. Fractional Warrants . The Warrant Agent shall not be required to effect any registration of transfer or exchange which will result in the issuance of a warrant certificate for a fraction of a warrant.
5.4. Service Charges . No service charge shall be made for any exchange or registration of transfer of Warrants.
5.5. Warrant Execution and Countersignature . The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the
10 |
Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, will supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
6. Redemption .
6.1. Redemption . Subject to Section 6.4 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time commencing one (1) year after the consummation of the Public Offering and prior to the Warrants’ expiration, at the office of the Warrant Agent, upon the notice referred to in Section 6.2, at the price of $.01 per Warrant (“Redemption Price”), provided that the volume weighted average price of the Common Stock has been at least $10.00 per share (subject to adjustment in accordance with Section 4 hereof), on each of twenty (20) consecutive trading days ending on the third Business Day prior to the date on which notice of redemption is given provided that the average daily trading volume in the stock is at least 20,000 shares per day, and provided further that there is a current registration statement in effect with respect to the shares of Common Stock underlying the Warrants.
6.2. Date Fixed for, and Notice of, Redemption . In the event the Company shall elect to redeem all of the Warrants, 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 thirty days prior to the Redemption Date to the registered holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the registered holder received such notice.
6.3. Exercise After Notice of Redemption . The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with Section 3 of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section 6.2 hereof and prior to the Redemption Date. In the event the Company determines to require all holders of Warrants to exercise their Warrants on a “cashless basis” pursuant to Section 3.3.1(b), the notice of
11 |
redemption will contain the information necessary to calculate the number of shares of Common Stock to be received upon exercise of the Warrants, including the “Fair Market Value” in such case. On and after the Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price.
6.4 Exclusion of Certain Warrants . The Company has contractually agreed that it will not exercise its redemption rights provided for herein with respect to certain Warrants held by the Company’s founders, members of management and their respective affiliates while such Warrants continue to be held by such holders. However, once such Warrants are transferred from the Company’s founders, members of management and their respective affiliates, the Company may redeem such Warrants provided that the criteria for redemption is met.
7. Other Provisions Relating to Rights of Holders of Warrants .
7.1. No Rights as Shareholder . A Warrant does not entitle the registered holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter.
7.2. Lost, Stolen, Mutilated, or Destroyed Warrants . If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
7.3. Reservation of Common Stock . The Company shall at all times reserve and keep available a number of its authorized but unissued shares of Common Stock that will be sufficient
12 |
to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.
7.4. Registration of Common Stock . The Company agrees to use its commercially reasonable best efforts to have an effective and current registration statement, whether as a post-effective amendment to the Registration Statement or a new registration statement, for the registration, under the Act, of the shares of Common Stock issuable upon exercise of the Warrants. In either case, the Company will use its best efforts to cause the same to become effective and to maintain the effectiveness of such registration statement until the expiration of the Warrants in accordance with the provisions of this Agreement. In addition, the Company agrees to use its commercially reasonable best efforts to register such securities under the blue sky laws of the states of residence of the exercising warrant holders to the extent an exemption is not available. If any such post-effective amendment or registration statement has not been declared effective at a time while the Warrants are exercisable, holders of the Warrants shall have the right, until such time as such post-effective amendment or registration statement has been declared effective by the SEC, and during any other period after such date of effectiveness when the Company shall fail to have maintained an effective registration statement covering the shares of Common Stock issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis” as determined in accordance with Section 3.3.1(c). For the avoidance of any doubt, unless and until all of the Warrants have been exercised on a cashless basis, the Company shall continue to be obligated to comply with its registration obligations under this Section 7.4.
8. Concerning the Warrant Agent and Other Matters .
8.1. Payment of Taxes . The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of shares of Common Stock upon the exercise of Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares.
13 |
8.2. Resignation, Consolidation, or Merger of Warrant Agent .
8.2.1. Appointment of Successor Warrant Agent . The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of the Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
8.2.2. Notice of Successor Warrant Agent . In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the transfer agent for the Common Stock not later than the effective date of any such appointment.
14 |
8.2.3. Merger or Consolidation of Warrant Agent . Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.
8.3. Fees and Expenses of Warrant Agent .
8.3.1. Remuneration . The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2. Further Assurances . The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
8.4. Liability of Warrant Agent .
8.4.1. Reliance on Company Statement . Whenever in the performance of its duties under this Warrant Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer or Chairman of the Board of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
8.4.2. Indemnity . The Warrant Agent shall be liable hereunder only for its own
15 |
gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement except as a result of the Warrant Agent’s gross negligence, willful misconduct, or bad faith.
8.4.3. Exclusions . The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant; nor shall it be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any Common Stock will when issued be valid and fully paid and nonassessable.
8.5. Acceptance of Agency . The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all moneys received by the Warrant Agent for the purchase of Common Stock through the exercise of Warrants.
9. Miscellaneous Provisions .
9.1. Successors . All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
9.2. Notices . Any notice, statement or demand authorized by this Warrant Agreement
16 |
to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or, if sent by certified mail or private courier service, within five days after deposit of such notice, statement or demand, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:
PAVmed Inc.
420 Lexington Avenue, Suite 300
New York, New York 10170
Attn: Chief Executive Officer
Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or, if sent by certified mail or private courier service within five days after deposit of such notice, statement or demand, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company
17 Battery Place
New York, New York 10004
Attn: Compliance Department
with a copy in each case to:
Graubard Miller
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attn: David Alan Miller, Esq.
9.3. Applicable Law . The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the
17 |
substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim.
9.4. Persons Having Rights under this Agreement . Nothing in this Agreement expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto and the registered holders of the Warrants, any right, remedy, or claim under or by reason of this Warrant Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Warrant Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the registered holders of the Warrants.
9.5. Examination of the Warrant Agreement . A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the registered holder of any Warrant. The Warrant Agent may require any such holder to submit his Warrant for inspection by it.
9.6. Counterparts . This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
9.7. Effect of Headings . The Section headings herein are for convenience only and
18 |
are not part of this Warrant Agreement and shall not affect the interpretation thereof.
9.8 Amendments . This Agreement may be amended by the parties hereto without the consent of any registered holder for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the registered holders. Except as otherwise set forth herein, all other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise Period, shall require the written consent or vote of the registered holders of at least a majority of the then outstanding Warrants (including any Warrants held by the Company’s officers and directors or their respective affiliates). Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the registered holders.
9.9 Severability . This Warrant Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Warrant Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Warrant Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
19 |
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
PAVMED INC. | ||
By: | ||
Name: | ||
Title: | ||
CONTINENTAL STOCK TRANSFER | ||
& TRUST COMPANY | ||
By: | ||
Name: | ||
Title: |
20 |
Exhibit A
21 |
Exhibit 5.1
GRAUBARD MILLER
THE CHRYSLER BUILDING
405 LEXINGTON AVENUE
NEW YORK, NEW YORK 10174
September 29, 2015
PAVmed Inc.
420 Lexington Avenue, Suite 300
New York, New York 10170
Dear Sirs:
Reference is made to the Registration Statement on Form S-1 (“Registration Statement”) filed by PAVmed Inc. (“Company”), a Delaware corporation, under the Securities Act of 1933, as amended (“Act”), covering (i) up to 10,000,000 units (“Units”), with each Unit consisting of one share of the Company’s common stock (10,000,000 shares), par value $.001 per share (the “Common Stock”), and one warrant (10,000,000 warrants) (“Warrants”) each Warrant to purchase one share of the Company’s Common Stock (10,000,000 Shares) to the selling agents described therein, (ii) all shares of Common Stock and all Warrants issued as part of the Units and (iii) all shares of Common Stock issuable upon exercise of the Warrants included in the Units.
We have examined such documents and considered such legal matters as we have deemed necessary and relevant as the basis for the opinion set forth below. With respect to such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as reproduced or certified copies, and the authenticity of the originals of those latter documents. As to questions of fact material to this opinion, we have, to the extent deemed appropriate, relied upon certain representations of certain officers and employees of the Company.
Based upon the foregoing, we are of the opinion that:
1. The Units, the Warrants and the Common Stock, when issued and sold in accordance with and in the manner described in the Registration Statement, will be duly authorized, validly issued, fully paid and non assessable.
2. The Warrants constitute legal, valid and binding obligations of the Company, enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
Our opinions set forth herein are limited to the laws of the State of New York and the General Corporation Law of the State of Delaware and, to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws (all of the foregoing being referred to as “Opined on Law”). We do not express any opinion with respect to the law of any jurisdiction other than Opined on Law.
We hereby consent to the use of this opinion as an exhibit to the Registration Statement, to the use of our name as your counsel and to all references made to us in the Registration Statement and in the Prospectus forming a part thereof. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act, or the rules and regulations promulgated thereunder.
Very truly yours,
/s/ Graubard Miller
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our report dated February 12, 2015, except for Note 8 as to which the date is September 21, 2015, with respect to the consolidated financial statements of PAVmed Inc. (formerly known as PAXmed Inc.) and Subsidiary contained in the Registration Statement and Prospectus. We consent to the use of the aforementioned report in the Registration Statement and Prospectus, and to the use of our name as it appears under the caption "Experts."
/s/ CITRIN COOPERMAN & COMPANY, LLP
New York, New York
September 29, 2015