Nutex Health Inc S-3, filed Apr 15, 2025
Nutex Health Inc. (NUTX)
As filed with the Securities and Exchange Commission on April 15, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Nutex Health Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 11-3363609 | |
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
6030 S. Rice Ave, Suite C
Houston Texas 77081
(713) 660-0557
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Elisa V. Luqman
Chief Legal Officer — SEC
6030 S. Rice Ave, Suite C
Houston Texas 77081
(713) 660-0557
(Address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Gislar Donnenberg
Joe Perillo
Troutman Pepper Locke LLP
600 Travis St., Suite 2800
Houston Texas 77002
(713) 226-1200
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date hereof.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective on filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | Smaller reporting company | ☒ | |||
| 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 7(a)(2)(B) of Securities Act. ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to Completion, dated April 15, 2025
PROSPECTUS
NUTEX HEALTH INC.
Up to 78,424 Shares of
Common Stock Issuable Upon Exercise of Warrants
This prospectus relates to the resale from time to time by the selling securityholders identified in this prospectus (the “Selling Securityholders”) of up to 78,424 shares of our common stock, par value $0.001 per share (the “Common Stock”), issuable upon exercise of warrants (the “Warrants”). The Warrants were acquired by the Selling Securityholders in a series of transactions more fully described in the section titled “Selling Securityholders.”
Each time the selling securityholders offer and sell shares of our Common Stock, we or such selling securityholders may provide a supplement to this prospectus that contains specific information about the offering and the selling securityholders. The supplement may also add, update or change information contained in this prospectus with respect to that offering of our Common Stock. You should carefully read this prospectus and the applicable prospectus supplement before you invest in any of our Common Stock.
The selling securityholders may offer and sell shares of our Common Stock described in this prospectus and any prospectus supplement to or through one or more underwriters, dealers and agents, or directly to purchasers, or through a combination of these methods. In addition, the selling securityholders may offer and sell shares of our Common Stock from time to time, together or separately. The selling securityholders will determine at what price they may sell the Common Stock offered by this prospectus, and such sales may be made at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. If any underwriters, dealers or agents are involved in the sale of any of our Common Stock, their names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See the sections of this prospectus entitled “About this Prospectus” and “Plan of Distribution” for more information. No Common Stock may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the offering of such securities.
Investing in our Common Stock involves risks. See “Risk Factors” on page 6 of this Prospectus and any similar section contained in the applicable Prospectus Supplement concerning factors you should consider before investing in our Common Stock.
Our Common Stock is listed on the Nasdaq Global Market under the symbol “NUTX.” On April 14, 2025, the last reported sale price of our Common Stock on the Nasdaq Global Market was $129.67 per share.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION (THE “SEC”) NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is _____, 2025.
TABLE OF CONTENTS
i
This prospectus is part of a registration statement that we filed with the SEC using a “shelf” registration process. By using a shelf registration statement, the selling securityholders may, from time to time, sell shares of Common Stock in one or more offerings as described in this prospectus. Each time that the selling securityholders offer and sell shares of our Common Stock, we or the selling securityholders may provide a prospectus supplement to this prospectus that contains specific information about the Common Stock being offered and sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement or free writing prospectus may also add, update or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus supplement or free writing prospectus, as applicable. Before purchasing any Common Stock, you should carefully read both this prospectus and the applicable prospectus supplement (and any applicable free writing prospectuses), together with the additional information described under the heading “Where You Can Find More Information; Incorporation by Reference.”
Neither we, nor the selling securityholders, have authorized anyone to provide you with any information or to make any representations other than those contained in this prospectus, any applicable prospectus supplement or any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We and the selling securityholders take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We and the selling securityholders will not make an offer to sell the Common Stock in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and the applicable prospectus supplement to this prospectus is accurate only as of the date on its respective cover, that the information appearing in any applicable free writing prospectus is accurate only as of the date of that free writing prospectus, and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since those dates. This prospectus incorporates by reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference, market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. In addition, the market and industry data and forecasts that may be included or incorporated by reference in this prospectus, any prospectus supplement or any applicable free writing prospectus may involve estimates, assumptions and other risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” contained in this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, and under similar headings in other documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
When we refer to “Nutex Health,” “we,” “our,” “us” and the “Company” in this prospectus, we mean Nutex Health Inc. and its consolidated subsidiaries, unless otherwise specified. When we refer to “you,” we mean the potential holders of the Common Stock.
On April 1, 2022, Nutex Health Holdco LLC merged (the “Merger”) with Clinigence Holdings, Inc., a publicly traded Delaware corporation, which was renamed Nutex Health Inc. after the Merger. Pursuant to the Merger Agreement, each unit representing an equity interest in Nutex Health Holdco LLC issued and outstanding immediately prior to the effective time of the Merger but after the Contribution Transaction was converted into the right to receive 3.571428575 shares of common stock of Clinigence, or an aggregate of 592,791,712 shares of common stock of Clinigence.
Effective as of 11:59 p.m. Eastern time on April 9, 2024, the Company effected a 1-15 reverse stock split and effective as of 11:59 p.m. Eastern time on July 2, 2024, the Company effected an additional 1-10 reverse stock split (the “2024 Reverse Stock Splits”). Unless otherwise indicated, all authorized, issued, and outstanding stock and per share amounts referred to in this Prospectus have been adjusted to reflect the 2024 Reverse Stock Splits. Proportionate adjustments for the 2024 Reverse Stock Splits were made to the exercise prices and number of shares issuable upon exercise of the Warrants.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein and therein contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). We intend such forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995 and include this statement for purposes of complying with these safe harbor provisions.
This document contains certain forward-looking statements with respect to our financial condition, results of operations and business, plans, objectives and strategies. These statements may be made directly in this prospectus or may be incorporated by reference to other documents or in any accompanying prospectus supplement. These forward-looking statements can be identified by the fact that they do not relate only to historical or current facts. Forward-looking statements often use words such as “estimate,” “project,” “predict,” “will,” “would,” “should,” “could,” “may,” “might,” “anticipate,” “plan,” “intend,” “believe,” “expect,” “aim,” “goal,” “target,” “objective,” “commit,” “advance,” “likely” or similar expressions that convey the prospective nature of events or outcomes. There are several factors which could cause actual plans and results to differ materially from those expressed or implied in forward-looking statements.
Such factors include, but are not limited to:
| · | our ability to successfully execute our growth strategy, including identifying and developing successful new geographies, physician partners and patients; |
| · | changes in applicable laws or regulations, including changes in the laws and regulations related to reimbursements; |
| · | uncertainties in the amounts, timing and process of reimbursements by third-party payors and individuals; |
| · | we may be adversely affected by other economic, business, and/or competitive factors; |
| · | the difficulty in evaluating our future prospects, as well as risks and challenges, due to the new and rapidly evolving business and market; |
| · | we may need to raise additional capital to fund our existing operations, develop and commercialize new services or expand our operations; |
| · | possible difficulty managing growth and expanding operations; |
| · | our ability to retain qualified personnel; |
| · | the effectiveness and efficiency of our marketing efforts; |
| · | spending changes in the healthcare industry; |
| · | we, our affiliated professional entities and other physician partners may become subject to medical liability claims; |
| · | a failure in our information technology systems, |
| · | security breaches, loss of data or other disruptions could compromise sensitive information related to our business or prevent us from accessing critical information, expose us to liability and our reputation may be harmed and we could lose sales, clients and members; |
| · | any future litigation against us could be costly and time-consuming to defend; |
| · | failure to adhere to all of the complex government laws and regulations that apply to our business could result in fines or penalties, being required to make changes to our operations or experiencing adverse publicity; |
| · | our arrangements with affiliated professional entities and other physician partners may be found to constitute improper rendering of medical services or fee splitting under applicable state laws; |
| · | we may face inspections, reviews, audits and investigations under federal and state government programs and contracts and adverse findings may have an adverse effect on our business; |
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| · | recent healthcare legislation and other changes in the healthcare industry and in healthcare spending has and may in the future adversely affect our revenues and may cause material adverse effects on our financial results; |
| · | the transition from volume to value-based reimbursement models may have a material adverse effect on our operations; |
| · | our ability to remain listed on the NASDAQ; and |
| · | other risks, uncertainties and factors disclosed in the section entitled “Risk Factors” and elsewhere in this prospectus or in our Annual Report on Form 10-K. |
The forward-looking statements contained in this prospectus or documents incorporated by reference into this prospectus are based on historical performance and management’s current plans, estimates and expectations in light of information currently available to us and are subject to uncertainty and changes in circumstances. There can be no assurance that future developments affecting us will be those that we have anticipated. Actual results may differ materially from these expectations due to changes in global, regional or local political, economic, business, competitive, market, regulatory and other factors, many of which are beyond our control, as well as the other factors described in the section of this prospectus and documents incorporated by reference into this prospectus entitled “Risk Factors.” Additional factors or events that could cause our actual results to differ may also emerge from time to time, and it is not possible for us to predict all of them. Should one or more of these risks or uncertainties materialize, or should any of our assumptions prove to be incorrect, our actual results may vary in material respects from what we may have expressed or implied by these forward-looking statements. We may not actually achieve the plans, intentions, or expectations disclosed in our forward-looking statements, and we caution that you should not place undue reliance on any of our forward-looking statements. Any forward-looking statement made by us speaks only as of the date on which we make it. We undertake no obligation to publicly update any forward-looking statement, whether as a result of new information, future developments or otherwise, except as may be required by applicable securities laws. You should read this prospectus, and the documents that we reference in this prospectus and have filed with the SEC, with the understanding that our actual future results, performance, and events and circumstances may be materially different from what we expect.
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WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
Available Information
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website at http://www.nutexhealth.com. Our website is not a part of this prospectus and is not incorporated by reference in this prospectus.
This prospectus and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the information in the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. For further information about us and the Common Stock covered in this prospectus, you should refer to the registration statement and its exhibits, as well as documents incorporated by reference in the registration statement. Statements in this prospectus or any prospectus supplement about these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters. You may inspect a copy of the registration statement through the SEC’s website, as provided above.
Incorporation by Reference
The SEC allows us to incorporate by reference much of the information we file with the SEC, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded.
This prospectus incorporates by reference the documents listed below (File No. 001-41346) and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to be filed) until the offering of the securities under the registration statement is terminated or completed:
| · | Our Annual Report on Form 10-K for the year ended December 31, 2024, filed with the SEC on March 31, 2025. |
| · | Our Current Report on Form 8-K filed with the SEC on February 6, 2025. |
| · | The description of the Common Stock contained in Exhibit 4.10 hereto. |
All reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this offering, including all such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.
You may request a free copy of any of the documents incorporated by reference in this prospectus by writing or telephoning us at the following address:
Nutex Health Inc.
Attention: Corporate Secretary
6030 S. Rice Ave, Suite C
Houston, Texas 77081
Telephone: (713) 660-0557
Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus or any accompanying prospectus supplement.
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Nutex Health is a physician-led, healthcare services and operations company with 24 hospital facilities in 11 states (hospital division), as of March 31, 2025, and a primary care-centric, risk-bearing population health management division. Our hospital division implements and operates innovative health care models, including micro-hospitals, specialty hospitals and hospital outpatient departments. The population health management division owns and operates provider networks such as independent physician associations.
As of March 31, 2025, we had 800 full-time employees, contracted 255 doctors at our facilities and partnered with over 2,100 physicians and specialists within our networks. Our corporate headquarters is based in Houston, Texas. We were incorporated on April 13, 2000 in the state of Delaware.
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| Common Stock Offered by the Selling Securityholders | 78,424 shares of Common Stock, par value $0.001 per share |
| Terms of the Offering | The Selling Securityholders, including their respective transferees, donees, pledgees or successors-in-interest, may sell, transfer or otherwise dispose of any or all of the shares of Common Stock offered by this prospectus from time to time on the Nasdaq Global Market or any other stock exchange, market or trading facility on which the shares are traded or in private transactions. The shares of Common Stock may be sold at fixed prices, at prevailing market prices, at prices related to prevailing market prices or at negotiated prices. See the section entitled “Plan of Distribution.” |
| Use of Proceeds | We will not receive any proceeds from the sale of the shares of Common Stock covered by this prospectus. |
| Risk Factors | See “Risk Factors” and other information included in this prospectus for a discussion of the factors you should carefully consider before deciding to invest in shares of our Common Stock |
| Nasdaq Symbol | NUTX |
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Investing in our securities involves a high degree of risk. You should carefully consider the risks set forth in our filings with the SEC that are incorporated by reference herein and any prospectus supplement, as well as other information we include or incorporate by reference into this prospectus and any applicable prospectus supplement, before making an investment decision. Our business, financial condition or results of operations could be materially adversely affected by the materialization of any of these risks. The trading price of our securities could decline due to the materialization of any of these risks, and you may lose all or part of your investment. This prospectus and the documents incorporated herein by reference also contain forward-looking statements that involve risks and uncertainties. Actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks described in the documents incorporated herein by reference, including our most recent Annual Report on Form 10-K and the other documents we file with the SEC that are deemed incorporated by reference into this prospectus.
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We will not receive any of the proceeds from the sale of Common Stock being offered by any of the selling securityholders.
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The following description of the capital stock of Nutex Health Inc. is based upon the Company’s Second Amended and Restated Certificate of Incorporation (as amended), the Company’s Second Amended and Restated Bylaws and applicable provisions of law. We have summarized certain portions of the Company’s Second Amended and Restated Certificate of Incorporation (as amended) and Second Amended and Restated Bylaws below. The summary is not complete and is subject to, and is qualified in its entirety by express reference to, the provisions of applicable law and to the Company’s Second Amended and Restated Certificate of Incorporation (and the amendments thereto) and Second Amended and Restated Bylaws, which have been publicly filed with the SEC. See “Where You Can Find More Information; Incorporation by Reference.”
Authorized Capital Stock
The authorized capital stock of the Company consists of 950,000,000 shares of Common Stock, par value $0.001 per share.
Common Stock
Voting Rights. Holders of shares of Common Stock are entitled to one vote per share held of record on all matters to be voted upon by the shareholders. The holders of Common Stock do not have cumulative voting rights in the election of directors.
Dividend Rights. Holders of shares of our Common Stock are entitled to ratably receive dividends when and if declared by our board of directors out of funds legally available for that purpose, subject to any statutory or contractual restrictions on the payment of dividends and to any prior rights and preferences that may be applicable to any outstanding preferred stock.
Liquidation Rights. Upon our liquidation, dissolution, distribution of assets or other winding up, the holders of Common Stock are entitled to receive ratably the assets available for distribution to the shareholders after payment of liabilities and the liquidation preference of any of our outstanding shares of preferred stock.
Other Matters. The shares of Common Stock have no preemptive or conversion rights and are not subject to further calls or assessment by us. There are no redemption or sinking fund provisions applicable to the Common Stock. All outstanding shares of our Common Stock are fully paid and non-assessable.
Anti-Takeover Effects of Provisions of Our Second Amended and Restated Certificate of Incorporation, Our Second Amended and Restated Bylaws and Delaware Law
Some provisions of Delaware law, and our Second Amended and Restated Certificate of Incorporation (as amended) and our Second Amended and Restated Bylaws described below, contain provisions that could make the following transactions more difficult: acquisitions of us by means of a tender offer, a proxy contest or otherwise, or removal of our incumbent officers and directors. These provisions may also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that shareholders may otherwise consider to be in their best interest or in our best interests, including transactions that might result in a premium over the market price for our shares.
These provisions, summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with us. We believe that the benefits of increased protection and our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because, among other things, negotiation of these proposals could result in an improvement of their terms.
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Delaware Law
We are subject to the anti-takeover provisions of the Delaware General Corporation Law (“DGCL”), including Section 203. Under these provisions, if anyone becomes an “interested stockholder,” the Company may not enter into a “business combination” with that person for three years without special approval, which could discourage a third party from making a takeover offer and could delay or prevent a change of control. For purposes of Section 203 of the DGCL, “interested stockholder” means, generally, someone owning 15% or more of the Company’s outstanding voting stock or an affiliate of the Company that owned 15% or more of the Company’s outstanding voting stock during the past three years, subject to certain exceptions as described in Section 203 of the DGCL. As such, Section 203 of the DGCL could prohibit or delay mergers or a change in control and may discourage attempts by other companies to acquire the Company.
Second Amended and Restated Certificate of Incorporation and Second Amended and Restated Bylaws
Provisions of our Second Amended and Restated Certificate of Incorporation (as amended) and our Second Amended and Restated Bylaws may delay or discourage transactions involving an actual or potential change in control or change in our management, including transactions in which shareholders might otherwise receive a premium for their shares, or transactions that our shareholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of our Common Stock.
Provisions in our Second Amended and Restated Certificate of Incorporation (as amended) and Second Amended and Restated Bylaws establish advance notice procedures with regard to shareholder proposals relating to the nomination of candidates for election as directors or new business to be brought before meetings of our shareholders. These procedures provide that notice of shareholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at our principal executive offices not less than 90 days nor more than 120 days prior to the first anniversary date of the annual meeting for the preceding year. Our second amended and restated bylaws specify the requirements as to form and content of all shareholders notices. These requirements may preclude shareholders from bringing matters before the shareholders at an annual or special meeting.
Forum Selection
Our Second Amended and Restated Bylaws provide that unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will, to the fullest extent permitted by applicable law, be the sole and exclusive forum for:
| · | any derivative action or proceeding brought on our behalf; |
| · | any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers, employees or agents to us or our shareholders; |
| · | any action asserting a claim against us or any director or officer or other employee of ours arising pursuant to any provision of the DGCL, our amended and restated certificate of incorporation or our second amended and restated bylaws; or |
| · | any action asserting a claim against us or any director or officer or other employee of ours that is governed by the internal affairs doctrine. |
Our Second Amended and Restated Bylaws also provide that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock will be deemed to have notice of, and to have consented to, this forum selection provision. The forum selection provision is not, however, intended to be deemed a waiver by any stockholder with respect to our compliance with U.S. federal securities laws, and the application of the forum selection provision may in some instances be limited by applicable law.
Although we believe these provisions benefit us by providing increased consistency in the application of Delaware law for the specified types of actions and proceedings, the provisions may have the effect of discouraging lawsuits against our directors, officers, employees and agents. The enforceability of similar exclusive forum provisions in other companies’ certificates of incorporation or bylaws has been challenged in legal proceedings, and it is possible that, in connection with one or more actions or proceedings described above, a court could rule that this provision in our second amended and restated bylaws is inapplicable or unenforceable.
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Our Transfer Agent
The transfer agent for our Common Stock is Transfer Online. We have agreed to indemnify Transfer Online in its role as transfer agent, its agents and each of its stockholders, directors, officers and employees against all liabilities, including judgments, costs and reasonable counsel fees that may arise out of acts performed or omitted for its activities in that capacity, except for any liability due to any gross negligence, willful misconduct or bad faith of the indemnified person or entity.
Rule 144
Pursuant to Rule 144, a person who has beneficially owned restricted shares of Common Stock for at least six months would be entitled to sell such securities provided that (i) such person is not deemed to have been one of our affiliates at the time of, or at any time during the three months preceding, a sale and (ii) we are subject to the Exchange Act periodic reporting requirements for at least three months before the sale and have filed all required reports under Section 13 or 15(d) of the Exchange Act during the 12 months (or such shorter period as we were required to file reports) preceding the sale.
Persons who have beneficially owned restricted shares of Common Stock for at least six months but who are our affiliates at the time of, or at any time during the three months preceding, a sale, would be subject to additional restrictions, by which such person would be entitled to sell within any three-month period only a number of securities that does not exceed the greater of:
| · | 1% of the total number of shares of Common Stock then outstanding; or |
| · | the average weekly reported trading volume of the Common Stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale. |
Sales by our affiliates under Rule 144 are also limited by manner of sale provisions and notice requirements and to the availability of current public information about us.
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The selling securityholders acquired the warrants exercisable for the shares of Common Stock included in this prospectus (“Warrant Shares”) pursuant to various private placements of warrants to purchase shares of our Common Stock, issued between May 28, 2019 and December 31, 2023. The Warrant Shares are being registered pursuant to the terms of (i) the Managing Dealer Agreement, by and between the Company and Emerson Equity LLC (“Emerson”), dated as of June 15, 2020, (ii) the Placement Agent Agreement, by and between the Company and Emerson, dated July 27, 2023, (iii) the Stock Purchase Warrant issued to Emerson on March 18, 2022, and (iv) the Managing Dealer Agreement, by and between the Company and Emerson, dated October 7, 2019 (collectively, the “Agreements”). This prospectus relates to the possible resale by certain of our securityholders identified below, who we refer to in this prospectus as the “selling securityholders,” of up to 78,424 Warrant Shares that are issuable upon exercise of the 78,424 warrants issued pursuant to the Agreements.
The following table lists the number outstanding of each of the 2019, 2020, 2021 and 2023 Warrant, its exercise price and expiration date. Each warrant listed below is currently exercisable for one share of Common Stock, at the discretion of the holder. All information provided in the table below reflects the effects of the Merger and the 2024 Reverse Stock Splits.
| Warrant | Warrants Outstanding | Exercise Price | Expiration Date | |||||||||
| 2019 Warrants | 6,067 | $ | 232.50 | October 31, 2025 | ||||||||
| 2020 Warrants | 6,736 | $ | 232.50 | July 31, 2026 | ||||||||
| 2021 Warrants | 11,771 | $ | 262.50 | May 31, 2027 | ||||||||
| 2023 Warrants | 53,850 | $ | 30.00 | December 31, 2029 | ||||||||
| Total | 78,424 | |||||||||||
The following table sets forth information with respect to the beneficial ownership of our Common Stock held by the selling securityholders as of March 31, 2025, and as adjusted to reflect the sale of Common Stock offered by the selling securityholders in this offering. The number of shares beneficially owned by each selling securityholder is determined under rules issued by the SEC. The information is not necessarily indicative of beneficial ownership for any other purpose. Under these rules, a person is deemed to be a beneficial owner of a security if that person has or shares voting power or investment power, which includes the power to dispose of or to direct the disposition of such security. Except as indicated in the footnotes below, we believe, based on the information furnished to us, that the individuals and entities named in the table below have sole voting and investment power with respect to all shares beneficially owned by them, subject to any applicable community property laws. The number of shares in the column “Common Stock to be Sold in the Offering” represents all of the shares of Common Stock that the Selling Securityholder may offer under this prospectus.
The applicable percentage ownership before and after the offering is based on 5,528,448 shares of our Common Stock outstanding as of March 24, 2025. The selling securityholders may sell some, all or none of their shares and we cannot predict when or if the selling securityholders will sell their shares. See the section titled “Plan of Distribution.” For purposes of the following table, we have assumed that the selling securityholders will have sold all of the securities covered by this prospectus upon the completion of the offering. The information in the following table has been provided to us by or on behalf of the selling securityholders and the selling securityholders may have sold, transferred or otherwise disposed of all or a portion of their securities after the date on which they provided us with information regarding their securities.
| 12 |
| Before the Offering | After the Offering(1) | |||||||||||||||||||
| Name of Selling Securityholder | Shares of Common Stock Beneficially Owned | % of Common Stock | Common Stock to be Sold in the Offering | Shares of Common Stock | % of Common Stock Beneficially Owned | |||||||||||||||
| Avenue 4 Capital Management, Inc. (2) | 11,522 | * | 11,522 | 0 | 0 | |||||||||||||||
| Emerson Equity LLC(3) | 7,835 | * | 7,835 | 0 | 0 | |||||||||||||||
| Michael Dimeo(4) | 59,067 | 1.06 | % | 59,067 | 0 | 0 | ||||||||||||||
| Total | 78,424 | 1.41 | % | 78,424 | 0 | 0 | ||||||||||||||
* Indicates beneficial ownership of less than 1%.
| (1) | Assumes sale of all shares available for sale under this prospectus and no further acquisitions or dispositions of shares by the selling securityholders. |
| (2) | Consists of 11,522 shares of Common Stock issuable upon exercise of the Warrants as follows: 5,460 2019 Warrants are exercisable at $232.50 and expire on October 31, 2025, and 6,062 2020 Warrants are exercisable at $232.50 and expire on July 31, 2026. The principal business address of Avenue 4 Capital Management is 260 Newport Center Dr., Suite 100, Newport Beach, CA 92660. Michael DiMeo is the principal and owner of Avenue 4 Capital Management and in such capacity has voting and investment control over such securities. |
| (3) | Consists of 7,835 shares of Common Stock issuable upon exercise of the Warrants as follows: 607 2019 Warrants are exercisable at $232.50 and expire on October 31, 2025, 674 2020 Warrants are exercisable at $232.50 and expire on July 31, 2026, 1,169 2021 Warrants are exercisable at $262.50 and expire on May 31, 2027, and 5,385 2023 Warrants are exercisable at $30.00 and expire on December 31, 2029. The principal business address of Emerson Equity LLC is 155 Bovet Road, Suite 725, San Mateo, CA 94402. Dominic Baldini is the CEO and owner of Emerson Equity LLC and as such has investment and voting control over the securities held by Emerson Equity LLC. |
| (4) | Consists of 59,067 shares of Common Stock issuable upon exercise of the Warrants as follows: 10,602 2021 Warrants are exercisable at $262.50 and expire on May 31, 2027, and 48,465 2023 Warrants are exercisable at $30.00 and expire on December 31, 2029. The address of Michael Dimeo is 260 Newport Center Dr., Suite 100, Newport Beach, CA 92660. |
Relationships with Selling Securityholders
None of the selling securityholders or any persons having control over such selling securityholders has held any position or office with us or our affiliates within the last three years or has had a material relationship with us or any of our predecessors or affiliates within the past three years, other than as a result of the ownership of our shares or other securities. Emerson Equity LLC acted as Placement Agent in the offerings of the Warrants and Mr. DiMeo, a broker with Emerson Equity LLC, received an aggregate of 59,067 placement agent warrants.
| 13 |
The selling securityholders may sell shares of our Common Stock from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods or through underwriters or dealers, through agents and/or directly to one or more purchasers. These sales may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices. The selling securityholders may use one or more of the following methods when disposing of the shares or interests therein:
| · | in market transactions or on any national securities exchange or quotation service or over-the-counter market on which the shares may be listed or quoted at the time of sale; |
| · | in transactions other than on such exchanges or services or in the over-the-counter market; |
| · | in privately negotiated transactions; |
| · | through one or more underwriters on a firm commitment or best-efforts basis, including through overnight underwritten offerings or bought deals; |
| · | through the writing or settlement of options or other hedging transactions (including the issuance by the selling securityholders of derivative securities), whether the options or such other derivative securities are listed on an options exchange or otherwise; |
| · | through the settlement of certain short sales entered into after the date of this prospectus; |
| · | purchases by the broker-dealer as principal, and resale by the broker-dealer for its account pursuant to this prospectus; |
| · | a block trade in which the broker-dealer so engaged will attempt to sell the shares as agent, but may resell all or a portion of the block as principal in order to facilitate the transaction; |
| · | in a public auction; |
| · | transactions in which a broker-dealer may agree with the selling securityholders to sell a specified number of such shares at a stipulated price per share; |
| · | transactions in which the broker-dealer as agent solicits purchasers and ordinary brokerage transactions by the broker-dealer as agent; |
| · | an offering at other than a fixed price on or through the facilities of any stock exchange on which the shares are then listed or to or through a market maker other than on that stock exchange; |
| · | through any combination of the foregoing methods of sale; or |
| · | through any other method permitted pursuant to applicable law. |
The selling securityholders may enter into derivative transactions with third parties or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
The selling securityholders may enter into hedging transactions with broker-dealers or any other person, in connection with such broker dealer or other person who may in turn engage in short sales of the shares of Common Stock in the course of hedging the positions they assume. The selling securityholders also may sell shares short and deliver shares covered by this prospectus and any applicable prospectus supplement to close out the short positions or loan, pledge, or grant a security interest in, some or all of the shares owned by them to broker-dealers that in turn may sell such shares.
| 14 |
From time to time, the selling securityholders may sell the shares of Common Stock offered by them pursuant to this prospectus to one or more dealers acting as principals. The dealers, which may be deemed to be “underwriters” as that term is defined in the Securities Act, may then resell the shares to purchasers.
The selling securityholders may designate broker-dealers as agents from time to time to solicit offers from purchasers to purchase the shares of Common Stock offered by them pursuant to this prospectus, or to sell such shares in ordinary brokerage transactions, on their behalf. Such broker-dealers may be deemed to be “underwriters” as that term is defined in the Securities Act in such offering.
The selling securityholders or their respective underwriters, broker-dealers, or agents may make sales of the shares of Common Stock that are deemed to be an at-the-market offering as defined in Rule 415 of the Securities Act, which includes sales of such shares made directly on or through any stock exchange on which the shares are listed, the existing trading market for the shares, or in the over-the-counter market or otherwise.
From time to time, one or more of the selling securityholders may pledge, hypothecate or grant a security interest in some or all of the shares of Common Stock owned by them. In the event of default, the pledgees, secured parties or persons to whom the shares have been hypothecated will, to the extent registration rights are transferable and are transferred upon foreclosure, be deemed to be selling securityholders under this prospectus.
We may pay the expenses of the registration of the shares of Common Stock offered and sold by the selling securityholders under the registration statement of which this prospectus forms a part, including, but not limited to, all registration and filing fees, fees and expenses of our counsel and accountants. The selling securityholders will pay any underwriting discounts and commissions applicable to the shares sold by the selling securityholders.
To the extent required, when the selling securityholders sell shares of our Common Stock covered by this prospectus, we or the selling securityholders will provide a prospectus supplement or supplements that will describe the method of distribution and set forth the terms and conditions of the offering of such Common Stock, including the offering price of the shares of our Common Stock and the proceeds to us or the selling securityholders, if applicable.
Offers to purchase our Common Stock being offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers to purchase the Common Stock from time to time. If a dealer is utilized in the sale of the Common Stock being offered by this prospectus, the Common Stock will be sold to the dealer, as principal. The dealer may then resell the Common Stock to the public at varying prices to be determined by the dealer at the time of resale. Any agent or dealer involved in the offer or sale of our Common Stock will, if required, be identified in a prospectus supplement.
If an underwriter is utilized in the sale of the Common Stock being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales of the Common Stock to the public. In connection with the sale of the Common Stock, the selling securityholders, or the purchasers of Common Stock for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the Common Stock to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus supplement, an agent will be acting on a best efforts basis and a dealer will purchase the Common Stock as a principal, and may then resell the Common Stock at varying prices to be determined by the dealer.
Any compensation paid to underwriters, dealers or agents in connection with the offering of the Common Stock, and any discounts, concessions or commissions allowed by underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers, broker-dealers designated as agents, dealers acting as principals and agents participating in the distribution of the Common Stock may be deemed to be underwriters within the meaning of the Securities Act and any discounts and commissions received by them and any profit realized by them on resale of the Common Stock may be deemed to be underwriting discounts and commissions.
| 15 |
Any Common Stock will be listed on the Nasdaq Global Market. To facilitate the offering of our Common Stock, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the Common Stock. This may include over-allotments or short sales of the Common Stock, which involve the sale by persons participating in the offering of more shares of Common Stock than were sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option, if any. In addition, these persons may stabilize or maintain the price of our Common Stock by bidding for or purchasing shares of our Common Stock in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if Common Stock sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the Common Stock at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
The specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
| 16 |
Troutman Pepper Locke LLP, Houston, Texas will pass upon certain legal matters relating to the shares of Common Stock offered by the selling securityholders. Additional legal matters may be passed upon for us, the selling securityholders or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
The financial statements incorporated in this Prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2024, have been so incorporated in reliance on the report of Marcum LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
| 17 |
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth an estimate of the fees and expenses, other than underwriting discounts and commissions, payable by the registrant in connection with the issuance and distribution of the securities being registered. All the amounts shown are estimates, except for the SEC registration fee.
| SEC Registration Fee | $ | 979 | |||
| Legal Fees and Expenses | $ | 40,000 | |||
| Accounting Fees and Expenses | $ | 30,000 | |||
| Miscellaneous Fees and Expenses | $ | 3,000 | |||
| Total | $ | 73,979 | |||
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (“DGCL”) permits a corporation to indemnify its directors and officers against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties. The directors or officers must have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. In a derivative action, an action only by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors and officers in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation. No indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine upon application that the defendant officers or directors are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability and in view of all of the circumstances of the case.
The Company has adopted provisions in its Second Amended and Restated Bylaws, which provide that it will indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by Nutex Health or in its right, by reason of the fact that such person is or was Nutex Health’s director, officer, employee or agent, or, while such person is or was a director, officer, employee or agent of Nutex Health, is or was serving at the Company’s request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, but in each case only if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
The Company’s Second Amended and Restated Bylaws, further state that this indemnification shall not be deemed exclusive of any other right to which the indemnified person may be entitled, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of that person.
The Company’s Second Amended and Restated Certificate of Incorporation, as amended, provides that, consistent with Section 102(b)(7) of the DGCL, no director shall be liable to Nutex Health or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability:
| II-1 |
| · | for any breach of the director’s duty of loyalty to Nutex Health or its stockholders; |
| · | for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of the law; |
| · | under Section 174 of the DGCL; or |
| · | for any transaction from which a director derived an improper benefit. |
The Company maintains policies insuring its officers and directors against certain civil liabilities, including liabilities under the Securities Act.
The Company has also entered into indemnification agreements with each of its directors and certain of its executive officers and anticipates that it will enter into similar agreements with future directors and officers. Generally, these agreements attempt to provide the maximum protection permitted by Delaware law with respect to indemnification. The indemnification agreements provide that the Company will pay certain amounts incurred by its directors in connection with any civil, criminal, administrative or investigative action or proceeding. Such amounts include any expenses, including attorney’s fees, judgments, civil or criminal fines, settlement amounts and other expenses customarily incurred in connection with legal proceedings.
| II-2 |
Item 16. Exhibits
* To be filed, if necessary, by amendment or as an exhibit to a document to be incorporated or deemed to be incorporated by reference in this registration statement, including a Current Report on Form 8-K.
+ Filed herewith.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
| II-3 |
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to shares of our Common Stock offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the shares of our Common Stock being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of shares of our Common Stock, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communications that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
| II-4 |
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
| II-5 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on April 15, 2025.
| NUTEX HEALTH INC. | ||
| By: | /s/ Thomas T. Vo, M.D. | |
Name: Title: |
Thomas T. Vo, M.D. Chief Executive Officer | |
We, the undersigned officers and directors of Nutex Health Inc., hereby severally constitute and appoint Thomas T. Vo, M.D. and Jon C. Bates, and each of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement (or any other registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities held on April 15, 2025.
| Signature | Title | |
| /s/ Thomas T. Vo, M.D. | Chief Executive Officer and Chairman of the Board | |
| Thomas T. Vo, M.D. | (principal executive officer) | |
| /s/ Jon C. Bates | Chief Financial Officer (principal financial officer and | |
| Jon C. Bates | principal accounting officer) | |
| /s/ Warren Hosseinion | President and Director | |
| Warren Hosseinion | ||
| /s/ Kelvin Spears | Director | |
| Kelvin Spears | ||
| /s/ Scott J. Saunders | Director | |
| Scott J. Saunders | ||
| /s/ Cheryl Grenas, R.N., M.S.N. | Director | |
| Cheryl Grenas, R.N., M.S.N. | ||
| /s/ Michael L. Reed | Director | |
| Michael L. Reed | ||
| /s/ Mitchell Creem | Director | |
| Mitchell Creem | ||
Exhibit 4.2
WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (II) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (III) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
STOCK PURCHASE WARRANT
To Purchase ______ Shares of Common Stock
| No. 2019-16 | Issue Date: ________, 2019 |
THIS CERTIFIES that, for value received, _________________ (the “Holder”), is entitled, upon the terms and subject to the conditions hereinafter set forth, at any time on (the “Exercise Date”), to subscribe for and purchase, from CLINIGENCE HOLDINGS, INC., a Delaware corporation (the “Company”), of ______________________________________ fully paid non-assessable shares of the Company’s common stock, $0.001 par value per share (“Common Stock”), at a purchase price of $1.55 per share, provided that such right will terminate, if not terminated earlier in accordance with the provisions hereof, at 5:00 p.m. (Florida time) on October 31, 2025 (the “Expiration Date”).
The purchase price and the number of shares for which this warrant (the “Warrant”) is exercisable are subject to adjustment, as provided herein.
This Warrant was issued in connection with the Company’s private offering (the “Offering”) of investment units of the Company consisting of one share of Common Stock and one-half of a warrant to purchase one share of Common Stock pursuant to a Confidential Private Offering Memorandum dated May 5, 2021 (the “Memorandum”) and is subject to the terms of a Subscription Agreement (the “Subscription Agreement”) to which the initial Holder is a party. Capitalized terms used and not otherwise defined herein will have the respective meanings ascribed to such terms in the Memorandum.
As used herein the following terms, unless the context otherwise requires, have the following respective meanings:
(a) “Company” means CLINIGENCE HOLDINGS, INC. and any corporation that shall succeed or assume the obligations of CLINIGENCE HOLDINGS, INC. hereunder.
(b) “Exercise Price” shall be $1.75 per Warrant Share, subject to adjustment pursuant to Section 11 hereof.
(c) “Warrant Shares” means (i) the Company’s Common Stock and (ii) any Other Securities into which or for which any of the Common Stock may be converted or exchanged pursuant to a plan of recapitalization, reorganization, merger, sale of assets or otherwise.
(d) “Other Securities” refers to any stock (other than Common Stock) and other securities of the Company or any other person (corporate or otherwise) which the holder of the Warrant at any time shall be entitled to receive, or shall have received, on the exercise of the Warrant, in lieu of or in addition to Common Stock, or which at any time shall be issuable or shall have been issued in exchange for or in replacement of Common Stock or Other Securities.
| 1 |
1. Number of Shares Issuable upon Exercise. Unless sooner terminated in accordance herewith, from and after the date hereof through and including the Expiration Date, the Holder shall be entitled to receive, upon exercise of this Warrant in whole or in part, the number of shares of Common Stock of the Company set forth on the first page of this Warrant, subject to adjustment pursuant hereto, by delivery of an original or fax copy of the exercise notice attached hereto as Exhibit A (the “Notice of Exercise”), at least 61 days’ prior to the date of exercise, along with payment to the Company of the Exercise Price. To validly exercise this Warrant, the Notice of Exercise must be received by the Company no later than 61 days before the Expiration Date.
2. Exercise of Warrant.
(a) The purchase rights represented by this Warrant are exercisable by the registered Holder hereof, in whole at any time or in part from time to time by delivery of the Notice of Exercise duly completed and executed at the principal executive office of the Company (or such other office or agency of the Company as it may designate by notice in writing to the registered Holder hereof at the address of such Holder appearing on the books of the Company), and upon payment of the Exercise Price of the Warrant Shares thereby purchased (cash, bank wire transfer, or by certified or official bank check payable to the order of the Company in an amount equal to the Exercise Price of the shares thereby purchased); whereupon the Holder of this Warrant shall be entitled to receive a certificate for the number of Warrant Shares so purchased; provided that the Company will place on each certificate a legend substantially the same as that appearing on this Warrant, in addition to any legend required by any applicable state or federal law. If this Warrant is exercised in part, the Company will issue to the Holder hereof a new Warrant upon the same terms as this Warrant but for the balance of Warrant Shares for which this Warrant remains exercisable. The Company agrees that upon proper exercise of this Warrant the Holder shall be deemed to be the record owner of the shares issued upon such proper exercise as of the close of business on the date on which this Warrant shall have been exercised as aforesaid (after taking into account, and following the termination of, any applicable notice period). This Warrant will be surrendered at the time of exercise or if lost, stolen, misplaced or destroyed, the Holder will comply with Section 7 below. Certificates for shares purchased hereunder shall be delivered to the Holder hereof within a reasonable time after the date on which this Warrant shall have been exercised as aforesaid.
(b) The Company covenants that all Warrant Shares which may be issued upon the exercise of rights represented by this Warrant will, upon exercise of the rights represented by this Warrant, be fully paid and non-assessable and free from all preemptive rights, taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue which shall be paid by the Company in accordance with Section 4 below).
3. No Fractional Shares. The Company shall not be required to issue fractional Warrant Shares upon the exercise of this Warrant or to deliver Warrant Certificates that evidence fractional Warrant Shares. In the event that a fraction of a Warrant Share would, except for the provisions of this Section 3, be issuable upon the exercise of this Warrant, the Company shall, upon such exercise, round down to the nearest whole number the number of shares of Common Stock to be issued upon such exercise.
4. Charges, Taxes and Expenses. Issuance of certificates for Warrant Shares upon the exercise of this Warrant shall be made without charge to the Holder hereof for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder of this Warrant, or in such name or names as may be directed by the Holder of this Warrant; provided, however, that in the event certificates for Warrant Shares are to be issued in a name other than the name of the Holder of this Warrant, this Warrant, when exercised, shall be accompanied by the Assignment Form attached hereto as Exhibit B (the “Assignment Form”) duly executed by the Holder hereof; and provided further, that upon any transfer involved in the issuance or delivery of any certificates for Warrant Shares, the Company may require, as a condition thereto, that the transferee execute an appropriate investment representation as may be reasonably required by the Company.
5. No Rights as Shareholders. This Warrant does not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company prior to the exercise hereof.
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6. Exchange and Registry of Warrant. This Warrant is exchangeable, upon the surrender hereof by the registered Holder at the above- mentioned office or agency of the Company, for a new Warrant or Warrants aggregating the total Warrant Shares of the surrendered Warrant of like tenor and dated as of such exchange. The Company shall maintain at the above-mentioned office or agency a registry showing the name and address of the registered Holder of this Warrant. This Warrant may be surrendered for exchange, transfer or exercise, in accordance with its terms, at such office or agency of the Company, and the Company shall be entitled to rely in all respects, prior to written notice to the contrary, upon such registry.
7. Loss; Theft, Destruction or Mutilation of Warrant. Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and in case of loss, theft or destruction, of indemnity reasonably satisfactory to it, and upon reimbursement to the Company of all reasonable expenses incidental thereto, and upon surrender and cancellation of this Warrant, if mutilated, the Company will make and deliver a new Warrant of like tenor (but with no additional rights or obligations) and dated as of such cancellation, in lieu of this Warrant.
8. 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 be a Saturday or a Sunday or shall be a legal holiday, then such action may be taken or such right may be exercised on the next succeeding day not a Saturday, Sunday or legal holiday.
9. Cash Distributions. No adjustment on account of cash dividends or interest on the Company’s Common Stock or Other Securities that may become purchasable hereunder will be made to the Exercise Price under this Warrant.
10. Consolidation, Merger or Sale of the Company. If the Company is a party to a consolidation, merger or transfer of assets that reclassifies or changes its outstanding Common Stock, the successor corporation (or corporation controlling the successor corporation or the Company, as the case may be) shall by operation of law assume the Company’s obligations under this Warrant.
11. Adjustments in the Exercise Price. The number of shares and class of capital stock purchasable under this Warrant are subject to adjustment from time to time as set forth in this Section 11.
(a) Adjustment for change in capital stock. If the Company:
(i) pays a dividend or makes a distribution on its Common Stock, in each case, in shares of its Common Stock;
(ii) subdivides its outstanding shares of Common Stock into a greater
(iii) combines its outstanding shares of Common Stock into a smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its capital stock other than Common Stock; or
(v) issues by reclassification of its shares of Common Stock any shares of its capital stock;
then the number and classes of shares purchasable upon exercise of each Warrant in effect immediately prior to such action shall be adjusted so that the holder of any Warrant thereafter exercised may receive the number and classes of shares of capital stock of the Company which such holder would have owned immediately following such action if such holder had exercised the Warrant immediately prior to such action.
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For a dividend or distribution the adjustment shall become effective immediately after the record date for the dividend or distribution. For a subdivision, combination or reclassification, the adjustment shall become effective immediately after the effective date of the subdivision, combination or reclassification.
If after an adjustment the Holder, upon exercise of a Warrant, may receive shares of two or more classes of capital stock of the Company, the Board of Directors of the Company shall in good faith determine the allocation of the adjusted Exercise Price between or among the classes of capital stock. After such allocation, that portion of the Exercise Price applicable to each share of each such class of capital stock shall thereafter be subject to adjustment on terms comparable to those applicable to Common Stock in this Warrant. Notwithstanding the allocation of the Exercise Price between or among shares of capital stock as provided by this Section 11(a), a Warrant may only be exercised in full by payment of the entire Exercise Price currently in effect.
(b) The Company will not, by amendment of 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 to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Section 11 and in the taking of all such action as may be necessary or appropriate in order to protect the exercise rights of the Holders of this Warrant against impairment.
12. Certificate as to Adjustments. In each case (other than a consolidation or merger of the Company with or into another corporation where the Company is not the surviving entity) of any adjustment or readjustment in the shares of Common Stock (or Other Securities) issuable on the exercise of the Warrant, the Company at its expense will promptly cause its Chief Financial Officer or other appropriate designee to compute such adjustment or readjustment in accordance with the terms of the Warrant and prepare a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based, including a statement of (a) the consideration received or receivable by the Company for any additional shares of Common Stock (or Other Securities) issued or sold or deemed to have been issued or sold, (b) the number of shares of Common Stock (or Other Securities) outstanding or deemed to be outstanding, and (c) the Exercise Price and the number of shares of Common Stock to be received upon exercise of this Warrant, in effect immediately prior to such adjustment or readjustment and as adjusted or readjusted as provided in this Warrant. The Company will forthwith mail a copy of each such certificate to the Holder of the Warrant and any Warrant agent of the Company (appointed pursuant to Section 15 hereof).
13. Reservation of Stock Issuable on Exercise of Warrant. The Company will at all times reserve and keep available, solely for issuance and delivery on the exercise of the Warrant, shares of Common Stock (or Other Securities) from time to time issuable on the exercise of the Warrant.
14. Assignment; Exchange of Warrant. Subject to compliance with applicable securities laws, this Warrant, and the rights evidenced hereby, may be transferred by any registered Holder hereof (a “Transferor”) with respect to any or all of the shares underlying this Warrant. On the surrender or exchange of this Warrant, with the Transferor’s duly executed Assignment Form and together with evidence reasonably satisfactory to the Company demonstrating compliance with applicable securities laws, which shall include, without limitation, a legal opinion from the Transferor’s counsel that such transfer is exempt from the registration requirements of applicable securities laws, the Company at its expense (but with payment by the Transferor of any applicable transfer taxes) will issue and deliver to or on the order of the Transferor thereof a new Warrant of like tenor, in the name of the Transferor and/or the transferee(s) specified in such Assignment Form (each a “Transferee”), calling in the aggregate on the face or faces thereof for the number of Warrant Shares called for on the face or faces of the Warrant so surrendered by the Transferor; and provided further, that upon any such transfer, the Company may require, as a condition thereto, that the Transferee execute an appropriate investment representation as may be reasonably required by the Company.
15. Warrant Agent. The Company may, by written notice to each Holder of a Warrant, appoint an agent for the purpose of issuing Common Stock (or Other Securities) on the exercise of this Warrant pursuant to Section 2, exchanging this Warrant pursuant to Section 14, and replacing this Warrant pursuant to Section 7, or any of the foregoing, and thereafter any such issuance, exchange or replacement, as the case may be, shall be made at such office by such agent.
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16. Notices, etc. All notices shall be in writing signed by the party giving such notice and delivered personally or sent by overnight courier or messenger or sent by registered or certified mail (air mail if overseas), return receipt requested, or by telex, facsimile transmission, telegram or similar means of communication. Notices shall be deemed to have been received on the date of personal, telex, facsimile transmission, telegram or similar means of communication, or if sent by overnight courier or messenger, shall be deemed to have been received on the next delivery day after deposit with the courier or messenger, or if sent by certified or registered mail, return receipt requested, shall be deemed to have been received on the third business day after the date of mailing. Notices shall be sent to the addresses set forth below each party’s signature on the Subscription Agreement.
17. Notices of Record Date.
In case,
(a) The Company takes a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase any shares of stock of any class or to receive a dividend, distribution or any other rights; or
(b) There is any capital reorganization of the Company, reclassification of the capital stock of the Company (other than a subdivision or combination of its outstanding shares of Common Stock), or consolidation or merger of the Company with or into another corporation where the Company is not the surviving entity; or
(c) There is a voluntary or involuntary dissolution, liquidation or winding up of the Company;
then, and in any such case, the Company shall cause to be mailed to the Holder, at least 5 business days prior to the date hereinafter specified, a notice stating the date on which (i) a record is to be taken for the purpose of such dividend, distribution or rights, or (ii) such reclassification, reorganization, consolidation, merger, dissolution, liquidation or winding up is to take place and the date, if any is to be fixed, as of which holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, reorganization, consolidation, merger, dissolution, liquidation or winding up.
18. Amendments and Supplements.
(a) The Company may from time to time supplement or amend this Warrant without the approval of any Holders in order to cure any ambiguity or to be correct or supplement any provision contained herein which may be defective or inconsistent with any other provision, or to make any other provisions in regard to matters or questions herein arising hereunder which the Company may deem necessary or desirable and which shall not materially adversely affect the interest of the Holder. All other supplements or amendments to this Warrant must be signed by the party against whom such supplement or amendment is to be enforced.
(b) Notwithstanding Section 18(a), the Company may at any time during the term of this Warrant 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.
19. Investment Intent. Holder represents and warrants to the Company that Holder is acquiring the Warrant for investment and with no present intention of distributing or reselling all or any part of the Warrant.
20. Certificates to Bear Language. The Warrant Shares issuable upon exercise thereof shall bear the following legend by which Holder shall be bound:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT of 1933, AS AMENDED. THE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE of SUCH REGISTRATION OR AN OPINION of COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.”
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Certificates for Warrants or Warrant Shares without such legend shall be issued if such Warrants or Warrant Shares are sold pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), or if the Company has received an opinion from counsel reasonably satisfactory to counsel for the Company, that such legend is no longer required under the 1933 Act.
21. Representations and Warranties of Holder. The Holder hereby represents and warrants that on the date hereof and on each date of exercise of this Warrant:
(a) Securities Not Registered. The Holder is acquiring this Warrant and the Warrant Shares (collectively, the “Securities”) for its own account, not as an agent or nominee, and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable securities laws. By accepting this Warrant, the Holder further represents that the Holder does not have any present contract, undertaking, understanding or arrangement with any person to sell, transfer or grant participations to such persons or any third person, with respect to any of the Securities.
(b) Access to Information. The Company has made available to the Holder the opportunity to ask questions of and to receive answers from the Company’s officers, directors and other authorized representatives concerning the Company and its business and prospects, and Holder has been permitted to have access to all information which it has requested in order to evaluate the merits and risks of the purchase of the Securities.
(c) Investment Experience. The Holder is an investor in securities of companies in the development stage and acknowledges that it is able to fend for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the purchase of the Securities.
(d) Regulation D. The Holder is an “accredited investor” as defined in Rule 501 under the 1933 Act. In the normal course of business, the Holder invests in or purchases securities similar to the Securities and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of purchasing the Securities. The Holder is not a registered broker dealer or an affiliate of any broker or dealer registered under Section 15(a) of the Exchange Act of 1934, as amended, or a member of the FINRA or a Person engaged in the business of being a broker dealer.
(e) Securities are Unregistered. The Holder has been advised that (i) none of the Securities have been registered under the 1933 Act or other applicable securities laws, (ii) the Securities may need to be held indefinitely, (iii) the Holder will continue to bear the economic risk of the investment in the Securities after they are subsequently registered under the 1933 Act or an exemption from such registration is available, and (iv) when and if the Securities may be disposed of without registration in reliance on Rule 144 promulgated under the 1933 Act, such disposition may be made only in amounts in accordance with the terms and conditions of such Rule in effect at that time.
(f) Pre-Existing Relationship. The Holder has a pre-existing personal or business relationship with the Company or any of its officers, directors or controlling persons, or by his/its business or financial experience or the business or financial experience of his/its financial advisors who are unaffiliated with and who are not compensated by the Company, directly or indirectly, could be reasonably assumed to have the capacity to protect his/its own interest in connection with the acquisition of the Securities.
(g) No Advertisement. The Holder acknowledges that the offer and sale of the Securities was not accomplished by the publication of any advertisement.
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(h) No Review. The Holder understands that no arbitration board or panel, court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, has passed upon or made any recommendation or endorsement of the common stock into which it converts.
(i) Legal Representation. The Holder has had the opportunity to confer with legal counsel of its choosing regarding the issuance of the Securities and any related transactions.
22. Survival of Representation and Warranties. All representations and warranties made by the Holder shall survive the earlier of the Expiration Date and shall remain effective and enforceable until the earlier to occur of the Expiration Date or the date on which claims based thereon shall have been barred by the applicable statutes of limitation.
23. Miscellaneous.
(a) This Warrant shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws. The parties submit to the jurisdiction of the Courts of the County of Fulton, State of Georgia or a Federal Court empaneled in the State of Georgia for the resolution of all legal disputes arising under the terms of this Warrant, including, but not limited to, enforcement of any arbitration award. The Company and the Holder agree to submit to the jurisdiction of such courts and waive trial by jury.
(b) If any action or proceeding is brought by the Company on the one hand or by the Holder on the other hand to enforce or continue any provision of this Warrant, the prevailing party’s costs and expenses, including its reasonable attorney’s fees, in connection with such action or proceeding shall be paid by the other party.
(c) In the event that any provision of this Warrant is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision, which may prove invalid or unenforceable under any law, shall not affect the validity or enforceability of any other provision of this Warrant.
(d) The headings in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any of the terms hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first written above.
CLINIGENCE HOLDINGS, INC.,
a Delaware corporation
By:_________________________________________
Michael Bowen, Chief Financial Officer
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NOTICE OF EXERCISE
(To Be Executed by the Holder in Order to Exercise the Warrant)
The undersigned Holder hereby elects to purchase _____ Shares pursuant to the attached Warrant, and requests that certificates for securities be issued in the name of:
| (Please type or print name and address) |
| (Social Security or Tax Identification Number) |
and delivered
| to: | |
| (Please type or print name and address if different from above) | |
If such number of Shares being purchased hereby shall not be all the Shares that may be purchased pursuant to the attached Warrant, a new Warrant for the balance of such Shares shall be registered in the name of, and delivered to, the Holder at the address set forth below.
In full payment of the purchase price with respect to the Shares purchased and transfer taxes, if any, the undersigned hereby tenders payment of $_____________ by check, money order or wire transfer payable in United States currency to the order of [________________].
| HOLDER: | |
| Dated: | By: _________________________ |
| Name: _______________________ | |
| Title: ____________________ |
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers unto ________________ the right represented by the within Warrant to purchase _____ shares of Common Stock of Clinigence Holdings, Inc., a Delaware corporation, to which the within Warrant relates, and appoints ________________ Attorney to transfer such right on the books of Clinigence Holdings, Inc., a Delaware corporation, with full power of substitution of premises.
| Dated: | By: _________________________ |
| Name: _______________________ | |
| Title: ________________________ | |
| (signature must conform to name of holder as specified on the fact of the Warrant) | |
| Address: |
Signed in the presence of :
Dated:______________
Exhibit 4.3
PLACEMENT AGENT
AGREEMENT
(the “Agreement”)
July 2, 2023
Dominic Baldini
Emerson Equity LLC
155 Bovet Road, Suite 725
San Mateo, CA 94402
Dear Mr. Baldini,
Nutex Health Inc., a Delaware corporation (“Nutex Health” or the “Company”), proposes to raise a maximum of $15,000,000 through the sale of investment units of the Company (the “Units”), with each Unit consisting of one share of common stock of the Company, par value $0.0001 (the “Common Stock”) and one half (1/2) of one warrant (the “Warrants”), with price and terms as set forth the private placement memorandum, together with any revisions, supplements or amendments thereto (the “PPM”). Each whole Warrant will entitle the holder thereof to purchase one share of Common Stock at the price set forth in the PPM. The offering of the Units (the “Offering”) will be a non-public private placement transaction and will be made pursuant to Section 4(a)(2) or Rule 506 of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”) and through the use of the PPM.
The Company and Emerson Equity LLC (“EE”) may be referred to collectively herein as the “Parties.” The Company hereby confirms its agreement with EE which is set forth as follows:
1. Appointment of Placement Agent
EE is hereby appointed as a Placement Agent (the “Placement Agent”) for the Offering. EE shall be entitled to solicit the services of other duly registered broker/dealers to offer and sell the Units and reallocate a portion of its compensation described in this Agreement in connection with the Offering and performing its services hereunder, and as permitted by applicable law. EE shall be liable for any services provided by such broker/dealers in connection with the Offering.
2. Solicitation
By accepting this Agreement, EE agrees to use its best efforts to solicit and sell, or cause to be solicited and sold, as the case may be, subscriptions for Units in accordance with: (1) the terms and conditions of this Agreement, (2) the PPM and (3) the applicable federal and state securities laws and regulations in connection with the Offering.
The Company’s securities are only being offered to persons who are accredited investors within the meaning of the requirements of Sections 4(a)(2) and 4(a)(6) of the Securities Act and Regulation D promulgated under the Securities Act.
EE neither guarantees or offers assurance that there will be any sales of Units made through its efforts at the proposed prices and proposed terms described herein.
3. Solicitation Material
No sales literature may be used by EE or the Company other than the PPM or other materials (“Offering Materials”) which have been or are approved in writing by the Company.
EE shall not publicly solicit offers to purchase the Company’s securities in any manner that is inconsistent with securities laws and regulations. Before EE delivers the PPM or any other Offering Materials to any prospective investor, each prospective investor shall have provided reasonable grounds that (1) he, she or it is an “accredited investor” as defined under the Securities Act and Regulation D promulgated thereunder and (2) that such investor is sophisticated and otherwise qualified to invest in the Company’s securities.
4. Sale of Securities
The Company reserves the right to refuse to accept any and all subscriptions obtained by EE. No subscription will be deemed to be accepted by the Company until: (1) all necessary documents relating to such subscription have been received by the Company, and (2) the Company has made appropriate blue-sky filings with the state of residence of such investor and the Company has indicated acceptance of the subscription. Subscription proceeds will be handled by the Company pursuant to the terms of the PPM.
5. Closing of Offering.
At times mutually acceptable to the Parties, the Company may then proceed to accept subscriptions periodically, pursuant to the terms of the PPM and the subscription documents attached thereto, until the completion of the Offering (each, a “Closing”).
6. Timing of Payment of Commissions
Pursuant to this Agreement, the Company agrees to remit the Commission (as defined in Section 7 below) to EE within 14 days of the acceptance of each subscription that occurs throughout the duration of the Offering. The Company shall ensure that payment is made promptly and without any undue delay following the acceptance of each subscription.
7. Amount of Sales Commissions; Terms
(a) Within 14 days of each Closing, the Company shall pay to EE: (i) a cash commission equal to 10% of the gross proceeds from the sale of Units in such Closing, and (ii) warrants to purchase a number of shares of Common Stock (the "Placement Agent Warrants" or "PAWs") equal to 20% of the total number of Units sold in such Closing. The Placement Agent may, at its discretion and in conformity with applicable law, distribute the Placement Agent Warrants to affiliates, agents, brokers, selected dealers, and employees. For the specific transaction referenced in this paragraph, 90% of the Placement Agent Warrants shall be distributed to Michael DiMeo, a broker with Emerson Equity, and the remaining 10% shall be distributed to Emerson Equity.
(b) The PAWs shall have terms that are identical in all material respects to the terms of the investor warrants, including but not limited to, the exercise price, exercise period, expiration date, any other rights, privileges, or conditions associated with the investor warrants, as set forth in the applicable warrant agreement or other governing document. Any deviation from the terms of the investor warrants, shall be subject to the prior written consent of the placement agent, which shall not be unreasonably withheld or delayed.
(c) In consideration of the Company's existing public status, the Company hereby covenants and agrees that all Placement Agent Warrants (PAWs) issued to the Placement Agent, including any previously issued PAWs to Emerson, their brokers, or affiliates, shall be duly registered within 90 days from the issuance date of the new Placement Agent Warrants. The Company shall undertake all necessary actions, including but not limited to the preparation and filing of required registration statements, amendments, and supplements, as well as addressing any comments or information requests from regulatory authorities, to ensure the timely and compliant registration of these previously issued PAWs. This obligation extends to both the new PAWs issued under this agreement and the existing PAWs to Emerson, their brokers, or affiliates, which shall be registered within 90 days from the issuance date of the new PAWs. The Company affirms its commitment to fulfilling these obligations and ensuring the registration of all relevant PAWs within the specified timeframe.
(d) If termination of this Agreement occurs in accordance with Section 16 without there being a breach, then the Company will issue to the Placement Agent (i) PAWs exercisable into 40,000 shares of Common Stock and (ii) any PAWs earned from Closing(s) that have not been issued as of the date of such termination; provided, that Company is only obligated to issue the PAWs to EE under this Section 7(d) so long as EE is in good standing with FINRA.
(e) In the event prospective investors who received a copy of the PPM from and were first introduced to the Company by EE or a duly registered participating broker/dealer solicited by EE during the Offering, ultimately purchase Units of the Company within a period of 24 months after the date of the termination of this Agreement, the Company shall deliver to EE the same compensation which EE would have been entitled had such transactions been included in the Offering.
8. Expenses of the Offering
The Company and the Placement Agent shall each bear its own costs in connection with the Offering. The Company will bear the cost for its legal counsel and state filing fees for the qualification of the Offering under state securities laws in such states as may be required, the cost of printing the PPM and other Offering Materials (if required by investors) in such number as EE and the Company may determine to be appropriate. For the avoidance of doubt, EE will bear the costs of its legal counsel in connection with the Offering.
9. Effectiveness of Agreement
This Agreement will become effective as of the date that the Company and EE both execute and deliver this Agreement.
10. Indemnification and Contribution
(a) EE hereby indemnifies and holds harmless the Company, its agents, employees, attorneys, officers, and directors, and each person who controls the Company within the meaning of Section 15 of the Securities Act (collectively, the “Company Indemnified Persons”) against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and counsel fees) related to our arising out of:
| (i) | any breach by EE of the representations, warranties or covenants by EE contained in or made pursuant to this Agreement, |
| (ii) | the failure by EE: |
| a. | to give, deliver or send a copy of the PPM (as may be supplemented or amended from time to time) as appropriate to any person to whom the Company’s securities are offered or sold; or |
| b. | to offer and sell the Company’s securities in accordance with the provisions of and applicable rules, regulations and published administrative interpretations under Section 4(a)(2) of the Securities Act and the securities or blue-sky laws of any jurisdiction in which the Company’s securities are offered or sold by or through EE; |
| (iii) | any unauthorized representations made by EE or any of its agents or representatives; or |
| (iv) | any unauthorized conduct which adversely affects the availability of exemption from registration under the Securities Act or the rules and regulations thereunder or any provisions of the laws of any jurisdiction. |
(b) The Company agrees to indemnify and hold harmless EE, and its affiliates, directors, officers, agents, attorneys, and employees, and each other person, if any, controlling EE or any of their respective affiliates (collectively, the “EE Indemnified Persons” and, together with the Company Indemnified Persons, the “Indemnified Persons”), from and against any losses, claims, damages, liabilities or expenses (or actions, including shareholder actions, in respect thereof) related to or arising out of such engagement or EE’s role in connection therewith, and will reimburse the Indemnified Persons for all reasonable out-of-pocket expenses (including any EE Indemnified Person’s counsel fees and expenses subject to court approval) as they are incurred by the EE Indemnified Persons in connection with investigating, preparing or defending any such action or claim, whether or not in connection with pending or threatened litigation in which EE or any other EE Indemnified Person is a party. The Company will not, however, be responsible to any EE Indemnified Persons for any losses, claims, damages, liabilities, or expenses which resulted from the EE Indemnified Person’s gross negligence, willful misconduct, bad faith or the actions set forth in Section 10(a) above.
(c) The Company also agrees that none of the EE Indemnified Persons shall have any liability to the Company for or in connection with the services or matters pertaining to this Agreement except for any such liability for losses, claims, damages, liabilities or expenses incurred by the Company that results from any Indemnified Person’s gross negligence, willful misconduct, bad faith or the actions set forth in Section 10(a) above.
(d) If any action, proceeding, or investigation is commenced as to which an Indemnified Person demands indemnification, the Indemnified Person shall have the right to retain counsel of its own choice to represent it (subject to the approval of the other Party which shall not be unreasonably withheld), the other Party shall pay the reasonable fees and expenses of such counsel, and such counsel shall to the extent consistent with its professional responsibilities cooperate with the other Party and any counsel designated by the other Party; provided that the other Party shall not be responsible for the fees and expenses of more than one counsel; provided further that the other Party shall not be liable for any settlement of any action, proceeding or intervention effected without its consent.
(e) Promptly after receipt by an Indemnified Person under this Section 10 of notice of the commencement of any action, proceeding or investigation, such Indemnified Person will, if a claim in respect thereof is to be made against the Indemnified Person under this Section 10, notify the other Party in writing of the commencement thereof, but the omission so to notify the other Party will not relieve it from any liability which it may have to any Indemnified Person otherwise than under this Section 10. In case any such action is brought against any Indemnified Person and such Indemnified Person notifies the other Party of the commencement thereof, the other Party will be entitled to participate in and, to the extent that it may wish, jointly with any other Party similarly notified, to join the defense thereof, with counsel reasonably satisfactory to such Indemnified Person, after notice from the other Party to such Indemnified Person, of its election to join the defense thereof, the other Party will not be liable to such Indemnified Person under this Section 10 for any legal or other expenses subsequently incurred by such Indemnified Person in connection with the defense thereof other than reasonable costs of investigation and the other Party may, but shall not be obligated to, participate in the defense of its own expense with its own counsel.
11. Representations and Warranties of Placement Agent
In addition to meeting any conditions specified elsewhere herein, EE represents and warrants to the Company that:
(a) EE, and any other broker-dealer to whom EE delegates any of its duties under this Agreement to comply with, all statutes and other requirements applicable to it EE or such other duly registered broker-dealer as a broker dealer pursuant to those registrations, and (ii) is legally authorized under all applicable laws to engage in the activities contemplated hereby and receive compensation therefore as herein contemplated;
(b) EE is a member in good standing of the FINRA; and
(c) this Agreement, when executed and delivered by EE, is duly authorized, executed and delivered by EE and is a valid and binding agreement on EE’s part.
12. Covenants of Placement Agent
In addition to meeting the commitments it agrees to elsewhere in this Agreement, EE covenants and agrees that it will:
(a) Diligently make or cause to be made the inquiries required by law of all prospective investors in order to confirm that they meet the suitability standards set forth in the PPM, to confirm to the best of its ability that the investment is suitable for the prospective investor, and to solicit only residents in states in which the Offering is qualified for exemption from registration;
(b) Contact only prospective investors with whom EE or its representatives have a pre-existing relationship, or who are referrals from those pre-existing relationships, or who are existing stockholders of the Company, or who are referrals from the Company;
(c) Deliver or cause to be delivered a copy of the PPM prior to or simultaneously with soliciting a prospective investor to purchase securities;
(d) Cause, to the best of its ability, all subscription documents to be properly and accurately completed by all purchasers of securities;
(e) Transmit all executed subscription documents received from purchasers of securities directly to the Company and its counsel;
(f) Not give any information or make any representation in connection with the sale of the securities other than as contained in the PPM, or as approved in writing by the Company; and
(g) Immediately notify the Company and cease to offer and sell securities of the Company if either of representations or warranties in Section 11(a) and (b) fail to be true and correct at any time during the term of this Agreement.
13. Covenants of the Company
(a) The Company will use all reasonable efforts to promptly prepare the PPM in form and substance reasonably satisfactory to EE. In connection with the PPM and other matters pertaining to the Offering, the Company and its officers, accountants and counsel shall furnish to EE and EE’s counsel such information and documents as may be reasonably requested.
(b) In the event the Company terminates its Chief Executive Officer with or without cause, or if the Chief Executive Officer resigns within six (6) months after the completion of the Offering, the Company will use commercially reasonable efforts to hire a suitable replacement as soon as practically possible.
(c) As of the date of this Agreement, the Company has not engaged any other registered broker-dealer in connection with the proposed Offering. The Company will indemnify EE with respect to any claim for finder’s or similar fees brought against EE in connection with the Offering.
(d) Until the completion or termination of the Offering, the Company will notify EE promptly of the occurrence of any event which might materially affect the Offering or the status of the Company.
(e) Proceeds from the Offering will be used by the Company as described in the PPM.
(f) The Company will furnish on request completed and executed questionnaires in the form presented to the Company by EE or in the form on file with the Company at the time of such request (the “D&O Questionnaires”) from each officer, director and also from each stockholder who beneficially holds 10% or more of a class of the Company’s stock.
(g) Subject to all applicable federal and state securities laws, the Company will facilitate all transfers between assignees of the shares of Common Stock contained within the Units, and any PAWs issued to the Placement Agent and its designees.
(h) EE and the Company will advise each other immediately and confirm in writing the receipt of any threat of or the initiation of any steps or proceedings which would impair or prevent the right to offer the Company’s securities, or the issuance of any orders or other prohibitions preventing or impairing the proposed offering by the Securities and Exchange Commission or any other regulatory authority. In the case of the happening of any such event, the Company will not acquiesce to such steps, proceedings or suspension orders, but will actively defend any such actions or orders unless the Company determines in good faith after consultation with its counsel to acquiesce to such actions or orders.
14. The Securities and Rule 144
The securities will be described completely and accurately in the Company’s PPM. After receiving a written request from a stockholder to remove a restrictive legend on shares of Common Stock received from exercising the warrants included in the Units, the Company will, at the holder’s expense, provide any and all required legal opinions to the satisfaction of the Company’s stock transfer agent for the removal of the restrictive legend from any stock certificates under Rule 144 as soon as possible. The Company shall instruct its transfer agent to promptly process the request for removal of the restrictive legend(s).
15. New Releases and Publicity
From the date of this Agreement until the completion or termination of the Offering, without the prior review of EE, the Company and its officers, directors, and agents shall not release or distribute any press release, statement to any media representative, promotional material, public announcement, shareholder letter, or any other communication intended for general distribution (including but not limited to communications made by electronic mail or over the Internet) (collectively, “Press Releases”) relating to the Offering, except for communications required by the Securities and Exchange Commission and earnings releases. At no time shall the Company name EE in any Press Releases or in any other written or oral communication without the express written consent of EE. However, the foregoing shall not prohibit discussions, releases or other publicity which is in the Company’s normal course of business or as required by law.
16. Termination; Survival
This Agreement will terminate automatically on November 30, 2023. In the event the offering is extended beyond November 30, 2023, whether by mutual agreement of the Company and the placement agent or by any other means, this Agreement shall also be extended for the duration of the extended offering period. The Company or the Placement Agent may terminate this Agreement for any reason at any time (a “Termination”) upon five (5) days written notice. Upon such notice of Termination, EE shall cease offering and selling securities of the Company and EE shall continue to have the right to receive all earned but unpaid compensation or reimbursement as set forth in this Agreement at the time of Termination. Subject to Section 17, upon such Termination, neither Party shall have any other liability to the other.
17. Representations and Indemnities to Survive Delivery.
Sections 6, 7, 8, 10, 11, 16, 17, 18, 19, 20, 24 and 25 of this Agreement will remain in full force and effect and will survive delivery of and payment for the Company’s securities.
18. Confidentiality.
The Parties acknowledge and agree that this Agreement and the terms and conditions hereof are confidential and will not be disclosed to anyone other than the Parties’ respective officers, directors, board observers, and professional advisors, including accountants and attorneys.
Notwithstanding the above, if the Company is required by the Securities and Exchange Commission, or any other state or federal regulatory agency or securities exchange to disclose the existence or terms of this Agreement, the Company shall, to the extent feasible, provide EE a reasonable period of time before such disclosure is made to comment on any disclosure.
Except as contemplated by the terms hereof or by applicable law, EE will keep strictly confidential all non-public information (“Confidential Information”) concerning the Company provided to EE. Notwithstanding the preceding sentence, no such obligation of confidentiality will apply to Confidential Information that: (a) is in the public domain as of the date hereof or hereafter enters the public domain without a breach of the is section by EE; (b) was known or became known by EE prior to the Company’s disclosure thereof EE, as demonstrated by EE’s written records; (c) becomes known to EE from a source other than the Company, where such source did not breach its own obligation of confidentiality to the Company; or (d) is independently developed by EE, as demonstrated by EE’s written records.
19. Governing Law; Arbitration.
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to its choice-of-laws or conflicts-of-law rules. Other than with respect to any equitable remedies available to the Parties with respect to alleged breaches of Section 18, all claims, disputes and other matters in question arising out of, or relating to, this Agreement or the performance hereof, shall be submitted to, and determined by, arbitration if good faith negotiations among the Parties hereto, if any, do not resolve such claim, dispute or other matter. Such arbitration shall proceed in accordance with the then- current rules for arbitration established by Judicial Arbitration Mediation Services, Inc. (“JAMS”), unless the Parties hereto mutually agree otherwise, and pursuant to the following procedures: (i) the Company on the one hand and the Placement Agent on the other hand shall appoint an arbitrator from the JAMS panel of retired judges, and those party-appointed arbitrators shall appoint a third arbitrator from the JAMS panel of retired judges within ten (10) days. If the Party- appointed arbitrators fail to appoint a third arbitrator within the ten (10) days, such third arbitrator shall be appointed by JAMS in accordance with its rules; (ii) reasonable discovery shall be allowed in arbitration; (iii) all proceedings before the arbitrators shall be held in Pima County, Arizona; (iv) the award rendered by the arbitrators shall be final and binding, and judgment may be entered in accordance with applicable law and in any court having jurisdiction thereof; (v) the award rendered by the arbitrators shall include (a) a provision that the prevailing Party in such arbitration recover its costs relating to the arbitration and reasonable attorneys’ fees from the other Party, (b) the amount of such costs and fees, and (c) an order that the losing Party pay the fees and expenses of the arbitrators. The arbitrator shall by the agreement of the Parties expressly be prohibited from awarding punitive damages in connection with any claim being resolved by arbitration hereunder.
20. Notices.
Any notice, request, instruction, or other document required by the terms of this Agreement, or deemed by any of the Parties to be desirable, to be given to any other Party shall be in writing and shall be given by personal delivery, overnight delivery, mailed by registered or certified mail, postage prepaid, with return receipt requested, or via email pursuant to the following: if to EE, to the person and address first set forth above or an email address provided by the Placement Agent; if to the Company, the person and address or email address first set forth below on the signature page of this Agreement. These persons and addresses maybe changed from time to time by a notice sent as aforesaid. If notice is given by personal delivery or overnight delivery in accordance with the provisions of this Section, said notice shall be conclusively deemed given at the time of such delivery provided a receipt is obtained from the recipient. If notice is given by mail in accordance with the provisions of this Section, such notice shall be conclusively deemed given upon receipt and delivery or refusal. If notice is given by email in accordance with the provisions of this Section, such notice shall be conclusively deemed given at the time of actual receipt of such email.
21. Modifications and Waivers.
No modification or waiver of any term hereof shall be effective unless in writing, signed by the Party to be charged.
22. Multiple Counterparts; Facsimile Signatures.
This Agreement is made, and may be executed, in multiple counterparts, each of which shall constitute an original hereof. The Parties agree that this Agreement may be executed by facsimile or electronic signatures (such as DocuSign) and such signatures shall be deemed originals.
23. Assignability.
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs and successors but shall not be assignable by a Party without the prior written consent of the other Party.
24. Attorneys’ Fees.
If either Party files any action or brings any proceeding against the other arising out of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees.
25. Recitals.
The recitals set forth in the beginning of this Agreement are binding and incorporated into this Agreement by this reference.
[Signature Page Follows]
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between us in accordance with its terms.
Very truly yours,
Nutex Health Inc.
By: /s/ Tom Vo
Name: Tom Vo
Title: Chief Executive Officer
ACKNOWLEDGED AND AGREED:
Emerson Equity LLC
By: /s/ Dominic Baldini
Name: Dominic Baldini
Title: Chief Executive Officer
Signature Page to Placement Agent Agreement
Exhibit 4.4
MANAGING DEALER AGREEMENT
(the “Agreement”)
June 15, 2020
Dominic Baldini
Emerson Equity LLC
155 Bovet Road, Suite 725
San Mateo, CA 94402
Dear Mr. Baldini,
Accountable Healthcare America, Inc., a Delaware corporation (the “Company”) proposes to raise a maximum of $5,000,000 through the sale of up to 100 investment units (the “Units”) priced at $2.00 per unit, with each Unit consisting of 25,000 (twenty five thousand) shares of common stock and 12,500 (twelve thousand five hundred) warrants. Each whole Warrant will entitle the holder thereof to purchase one share of common stock at $2.50 per share. The offering of the units (the “Offering”) will be a non-public private placement transaction and will be made pursuant to Section 4(a)(2) or Rule 506 of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”) and through the use of a private placement memorandum together with any revisions, supplements or amendments (the “PPM”).
The Company and Emerson Equity LLC. (“EE”) may be referred to collectively herein as the “Parties.” The Company hereby confirms its agreement with EE which is set forth as follows:
1. Appointment of Managing Dealer
EE is hereby appointed as managing dealer (the “Managing Dealer”)1 for the Offering on an exclusive basis, and the Company shall not solicit any other broker/dealers to participate in the Offering, during the term of this Agreement. The Company will not sell any securities directly to the public for the term of this Agreement without EE’s prior written consent.
EE shall be entitled to solicit the services of other broker/dealers and reallocate a portion of its compensation described in this Agreement in connection with the Offering and performing its services hereunder, and as permitted by applicable law.
2. Solicitation
By accepting this Agreement, EE agrees to use its best efforts to solicit and sell, or cause to be solicited and sold, as the case may be, subscriptions for 100 of the Company’s Units in accordance with: (1) the terms and conditions of this Agreement, (2) the PPM and (3) the applicable federal and state securities laws and regulations in connection with the Offering.
The Company’s securities are only being offered to persons who are accredited investors within the meaning of the requirements of Sections 4(a)(2) and 4(a)(6) of the Securities Act of 1933, as amended (the “Act”), and Regulation D promulgated under the Act.
EE neither guarantees or offers assurance that there will be any sales of Units made through its efforts at the proposed prices and proposed terms described herein.
3. Solicitation Material
No sales literature may be used by EE or the Company other than the PPM or other Offering materials which have been approved in writing by the Company and EE, unless otherwise approved in writing by the Company.
EE shall not publicly solicit offers to purchase the Company’s securities in any manner that is inconsistent with securities laws and regulations. Before EE delivers the PPM or any other Offering materials to any prospective investor, each prospective investor shall have provided reasonable grounds that: (1) he or she is an “accredited investor” as defined under the Securities Act and Regulation D promulgated thereunder and (2) that such investor is sophisticated and otherwise qualified to invest in the Company’s securities.
4. Sale of Securities
The Company reserves the right to refuse to accept any and all subscriptions obtained by EE. No subscription will be deemed to be accepted by the Company until: (1) all necessary documents relating to such subscription have been received by the Company, (2) the Company has made appropriate blue-sky filings with the state of residence of such investor and the Company has indicated acceptance of the subscription. Subscription proceeds will be handled by the Company pursuant to the terms of the private placement memorandum.
5. Closing of Offering
At times mutually acceptable to the Parties, the Company may then proceed to accept subscriptions periodically, pursuant to the terms of the PPM and the subscription documents attached thereto, until the completion of the Offering (each, a “Closing.”)
6. Timing of Payment of Commissions
At each Closing of the first $100,000 in gross proceeds from the Offering, the Company shall remit concurrently to EE the amount of cash sales commissions to be paid to EE as the Managing Dealer pursuant to this Agreement with the payment of such proceeds of the Closings to the Company. Thereafter, the remaining amount of the cash sales commissions to be paid to EE as the Managing Dealer pursuant to this Agreement, if any, shall be payable by the Company at and contingent on the closing of the Combination (as defined in the PPM).
Any MDWs (as defined below) earned as part of the sales commissions payable to EE as the Managing Dealer pursuant to this Agreement shall be issuable at and contingent on the closing of the Combination.
7. Amount of Sales Commissions
The Company shall pay EE:
| a. | A cash commission equal to 10% of the gross proceeds from the sale of all securities in the Offering, including subscriptions received by introductions made from the Company. |
| b. | Warrants to purchase shares of the Company’s common stock (the “Managing Dealer Warrants” or “MDWs”) in a share amount equal to 60% of the total number of warrants issued in the Offering (for a maximum number of MDWs of 750,000). 90% of the MDWs will be issued to Michael DiMeo or a nominee of his choice. 10% of the MDWs will be issued to EE or its nominee and shall have a six year term and an exercise price of $2.50 per share. |
As an example, if the number of Units sold in the Offering is 100, then the Managing Dealer would be issued warrants to purchase 750,000 shares.
[If Termination occurs in accordance with Section 16 then the minimum number of Managing Dealer Warrants shall be exercisable into 10,000 shares.] The Company agrees that, at the direction of EE and in complete fulfillment of its obligations with respect to the MDWs under Sections 6 and 7 of this Agreement, it will issue the MDWs as described.
In the event prospective investors, who received a copy of the PPM from and were first introduced to the Company by EE or other participating broker/dealers solicited by EE during the Offering, ultimately purchase privately placed securities of the Company within a period of 18 months after the date of the termination of this Agreement, the Company shall deliver to EE the same compensation which EE would have been entitled had such transactions been included in the Offering.
The Parties confirm that the terms stated in this section are correct:
Initialed by the Company: _M.B._ Initialed by Managing Dealer: __
8. Expenses of the Offering
The Company and the Managing Dealer shall each bear its own costs. The Company will bear the cost for its legal counsel expense and state filing fees for the qualification of the Offering under state securities laws in such states as may be required, the cost of printing the PPM and other Offering materials in such number as EE and the Company may determine to be appropriate, and fees of the Escrow Agent. For the avoidance of doubt, EE will bear the costs of its legal counsel in connection with the Offering.
9. Effectiveness of Agreement
This Agreement will become effective as of the date that the Company and EE both execute and deliver this Agreement.
10. Indemnification and Contribution
| a. | EE hereby indemnifies and holds harmless the Company, its agents, employees, attorneys, officers, and directors, and each person who controls the Company within the meaning of Section 15 of the Securities Act (collectively, the “Company Indemnified Persons”) against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and counsel fees) related to or arising out of: |
| i. | any breach by EE of the representations, warranties or covenants by EE contained in or made pursuant to this Agreement, |
| ii. | the failure by EE: |
| 1. | to give, deliver or send a copy of the PPM (as may be supplemented or amended from time to time) as appropriate to any person to whom the Company's securities are offered or sold or |
| 2. | to offer and sell the Company’s securities in accordance with the provisions of and applicable rules, regulations and published administrative interpretations under Section 4(a)(2) of the Securities Act and the securities or blue-sky laws of any jurisdiction in which the Company’s securities are offered or sold by or through EE, |
| iii. | any unauthorized representations made by EE or any of its agents or representatives or |
| iv. | any unauthorized conduct which adversely affects the availability of exemption from registration under the Securities Act or the rules and regulations thereunder or any provisions of the laws of any jurisdiction. |
| b. | The Company agrees to indemnify and hold harmless EE, and its affiliates, directors, officers, agents, attorneys, and employees, and each other person, if any, controlling EE or any of their respective affiliates (collectively, the “EE Indemnified Persons” and, together with the Company Indemnified Persons, the “Indemnified Persons”), from and against any losses, claims, damages, liabilities or expenses (or actions, including shareholder actions, in respect thereof) related to or arising out of such engagement or EE’s role in connection therewith, and will reimburse the Indemnified Persons for all reasonable out-of-pocket expenses (including any EE Indemnified Person’s counsel fees and expenses subject to court approval) as they are incurred by the EE Indemnified Persons in connection with investigating, preparing or defending any such action or claim, whether or not in connection with pending or threatened litigation in which EE or any other EE Indemnified Person is a party. The Company will not, however, be responsible to any EE Indemnified Persons for any losses, claims, damages, liabilities, or expenses which resulted from the EE Indemnified Person’s gross negligence, willful misconduct, bad faith or the actions set forth in Section 10(a) above. |
The Company also agrees that none of the EE Indemnified Persons shall have any liability to the Company for or in connection with the services or matters pertaining to this Agreement except for any such liability for losses, claims, damages, liabilities or expenses incurred by the Company that results from any Indemnified Person’s gross negligence, willful misconduct, bad faith or the actions set forth in Section 10(a) above.
If the foregoing indemnity is unavailable or insufficient to hold the EE Indemnified Persons harmless, then the Company shall contribute to the amount paid or payable by the EE Indemnified Persons, in respect of the EE Indemnified Persons, for losses, claims, damages, liabilities, or expenses in such proportion as appropriately reflects the relative benefits received by, and fault of, the Company, on the one hand and the EE Indemnified Persons, on the other, in connection with the matters as to which such losses, claims, damages, liabilities or expenses relate and other equitable consideration; provided, however, the Company agrees that the aggregate contribution of all EE Indemnified Persons shall in all cases be not more than the amount of fees actually received by EE for its services.
The foregoing Agreement shall be in addition to any rights that any Indemnified Person may have at common law or otherwise.
If any action, proceeding, or investigation is commenced as to which an Indemnified Person demands indemnification, the Indemnified Person shall have the right to retain counsel of its own choice to represent it (subject to the approval of the other Party which shall not be unreasonably withheld), the other Party shall pay the reasonable fees and expenses of such counsel, and such counsel shall to the extent consistent with its professional responsibilities cooperate with the other Party and any counsel designated by the other Party; provided that the other Party shall not be responsible for the fees and expenses of more than one counsel; provided further that the other Party shall not be liable for any settlement of any action, proceeding or intervention effected without its consent.
| c. | Promptly after receipt by an Indemnified Person under this Section of notice of the commencement of any action, proceeding or investigation, such Indemnified Person will, if a claim in respect thereof is to be made against the Indemnified Person under this Section, notify the other Party in writing of the commencement thereof, but the omission so to notify the other Party will not relieve it from any liability which it may have to any Indemnified Person otherwise than under this Section. In case any such action is brought against any Indemnified Person it notifies the other Party of the commencement thereof, the other Party will be entitled to participate in, and to the extent that it may wish, jointly with any other indemnifying party, similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Person, under joint control thereof over the defense in conjunction with the Indemnified Person and after notice from the other Party to such Indemnified Person, of its election so to assume the defense thereof, the other Party will not be liable to such Indemnified Person under this Section for any legal or other expenses subsequently incurred by such Indemnified Person in connection with the defense thereof other than reasonable costs of investigation and the Indemnified Person may, but shall not be obligated to, participate in the defense of its own expense with its own counsel. |
11. Representations and Warranties of Managing Dealer
In addition to meeting any conditions specified elsewhere herein, EE represents and warrants to the Company that:
| a. | EE is duly registered pursuant to the provisions of the Securities Exchange Act of 1934 as a broker-dealer and is duly registered as a broker dealer in those states where required and EE agrees to comply with all statutes and other requirements applicable to it as a broker dealer pursuant to those registrations and is legally authorized under all applicable laws to engage in the activities contemplated hereby and receive compensation therefor as herein contemplated; |
| b. | EE is a member in good standing of the FINRA; and |
| c. | This Agreement, when executed and delivered by EE, is duly authorized, executed and delivered by EE and is a valid and binding agreement on EE’s part. |
12. Covenants of Managing Dealer
In addition to meeting the commitments it agrees to elsewhere in this Agreement, EE covenants and agrees that it will:
| a. | Diligently make or cause to be made the inquiries required by law of all prospective investors in order to confirm that they meet the suitability standards set forth in the PPM, to confirm to the best of its ability that the investment is suitable for the prospective investor, and to solicit only residents in states in which the Offering is qualified for exemption from registration; |
| b. | Contact only prospective investors with whom EE or its representatives have a pre-existing relationship, or who are referrals from those pre-existing relationships, or who are existing shareholders of the Company, or who are referrals from the Company; |
| c. | Deliver or cause to be delivered a copy of the PPM prior to or simultaneously with soliciting a prospective investor to purchase securities; |
| d. | Cause, to the best of its ability, all subscription documents to be properly and accurately completed by all purchasers of securities; |
| e. | Transmit all executed subscription documents and payments received from purchasers of securities directly to the Escrow Agent; |
| f. | Not give any information or make any representation in connection with the sale of the securities other than as contained in the PPM, or as approved in writing by the Company; and |
| g. | Immediately notify the Company and cease to offer and sell securities of the Company if either of representations or warranties in Section 11(a) and (b) fail to be true and correct at any time during the term of this Agreement. |
13. Covenants of the Company
| a. | The Company will use all reasonable efforts to promptly prepare the PPM in form and substance reasonably satisfactory to EE. In connection with the PPM and other matters pertaining to the Offering, the Company and its officers, accountants, and counsel shall furnish to EE and EE’s counsel such information and documents as may be reasonably requested. |
| b. | [In the event the Company terminates its Chief Executive Officer with or without cause, or if the Chief Executive Officer resigns within six (6) months after the completion of the Offering, the Company will use commercially reasonable efforts to hire a suitable replacement as soon as practically possible.] |
| c. | The Company has not engaged any finder who was not a registered broker dealer in connection with the proposed Offering. The Company will indemnify EE with respect to any claim for finder’s or similar fees in connection with the Offering. The Company represents and warrants that it has not promised or represented to any person that any portion of the Units will be directed or otherwise made available to such person in connection with the Offering. |
| d. | Until the completion or termination of the Offering, the Company will notify EE promptly of the occurrence of any event which might materially affect the Offering or the status of the Company. |
| e. | Proceeds from the Offering will be used by the Company as described in the PPM. |
| f. | [The Company has furnished a completed and executed a due diligence outline in the form presented to the Company by EE (the “Due Diligence Outline”) and all items requested by the Due Diligence Outline to EE except as otherwise brought to EE’s attention in writing. The Company represents that its responses to the Due Diligence Outline are accurate. In the event any of the responses provided by the Company pursuant to the Due Diligence Outline materially change prior to or during the Offering, the Company will promptly notice EE in writing of the change together with all material details and copies of relevant documents.] |
| g. | [The Company has furnished completed and executed due diligence questionnaires in the form presented to the Company by EE (the “D&O Questionnaires”) from each officer, director and also from each shareholder who beneficially holds 10% or more of a class of the Company’s stock. The Company has reviewed all of the completed D&O Questionnaires and any attached materials and warrants that they are accurate.] |
| h. | Subject to all applicable federal and state securities laws, the Company will facilitate all transfers between assignees of the shares contained within the Units, and any MDWs issued to the Managing Dealer and its designees at the Company’s expense. |
| i. | EE and the Company will advise each other immediately and confirm in writing the receipt of any threat of or the initiation of any steps or proceedings which would impair or prevent the right to offer the Company’s securities, or the issuance of any orders or other prohibitions preventing or impairing the proposed offering by the Securities and Exchange Commission or any other regulatory authority. In the case of the happening of any such event, the Company will not acquiesce to such steps, proceedings or suspension orders, but will actively defend any such actions or orders unless the Company determines in good faith after consultation with EE to acquiesce to such actions or orders. |
14. The Securities and Rule 144
The securities will be described completely and accurately in the Company’s PPM.
After receiving a written request from a shareholder to remove a restrictive legend on shares received from exercising the warrants included in the Units, the Company will, at the holder’s expense, provide any and all required legal opinions to the satisfaction of the Company’s stock transfer agent for the removal of the restrictive legend from any stock certificates under Rule 144 as soon as possible. The Company shall instruct its transfer agent to promptly process the request for removal of the restrictive legend(s).
15. New Releases and Publicity
From the date of this Agreement until the completion or termination of the Offering, without the prior review of EE, the Company and
its officers, directors, and agents shall not release or distribute any press release, statement to any media representative, promotional
material, public announcement, shareholder letter, or any other communication intended for general distribution (including but not limited
to communications made by electronic mail or over the Internet) (collectively, “Press Releases”), except for communications
required by the Securities and Exchange Commission and earnings releases. At no time shall the Company name EE in any Press Releases
or in any other written or oral communication without the express written consent of EE. However, the foregoing shall not prohibit discussions,
releases or other publicity which is in the Company’s normal course of business or as required by law.
16. Termination; Survival
The Company or the Managing Dealer may terminate this Agreement for any reason at any time (a “Termination”) upon five (5)
days written notice. Upon such notice of Termination, EE shall cease offering and selling securities of the Company and EE shall continue
to have the right to receive all earned but unpaid compensation or reimbursement as set forth in this Agreement at the time of Termination.
Subject to Section 17, upon such Termination, neither Party shall have any other liability to the other.
17. Representations and Indemnities to Survive Delivery
Sections 6, 7, 10, 11, 16, 17, 18, 19, 20, 24 and 25 of this Agreement will remain in full force and effect and will survive delivery
of and payment for the Company's securities.
18. Confidentiality
The parties acknowledge and agree that this Agreement and the terms and conditions hereof are confidential and will not be disclosed
to anyone other than the parties' respective officers, directors, board observers, and professional advisors, including accountants and
attorneys.
Notwithstanding the above, if the Company is required by the Securities and Exchange Commission, or any other state or federal regulatory
agency or securities exchange to disclose the existence or terms of this Agreement, the Company shall, to the extent feasible, provide
EE a reasonable period of time before such disclosure is made to comment on any disclosure.
Except as contemplated by the terms hereof by applicable law, EE will keep strictly confidential for a period of one year from the date
hereof all non-public information (“Confidential Information”) concerning the Company provided to EE. Notwithstanding the
preceding sentence, no such obligation of confidentiality will apply to Confidential Information that: (a) is in the public domain as
of the date hereof or hereafter enters the public domain without a breach of this section by EE; (b) was known or became known by EE
prior to the Company's disclosure thereof EE, as demonstrated by EE's written records; (c) becomes known to EE from a source other than
the Company, where such source did not breach its own obligation of confidentiality to the Company; or (d) is independently developed
by EE, as demonstrated by EE's written records.
19. Governing Law; Arbitration
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of [Delaware], without regard to its choice-of-law or conflicts-of-law rules. Other than with respect to any equitable remedies available to the parties with respect to alleged breaches of Section 18, all claims, disputes and other matters in question arising out of, or relating to, this Agreement or the performance hereof, shall be submitted to, and determined by, arbitration if good faith negotiations among the parties hereto, if any, do not resolve such claim, dispute or other matter. Such arbitration shall proceed in accordance with the then-current rules for arbitration established by Judicial Arbitration Mediation Services, Inc. ("JAMS"), unless the parties hereto mutually agree otherwise, and pursuant to the following procedures: (i) the Company on the one hand and the Managing Dealer on the other hand shall appoint an arbitrator from the JAMS panel of retired judges, and those party-appointed arbitrators shall appoint a third arbitrator from the JAMS panel of retired judges within ten (10) days. If the party-appointed arbitrators fail to appoint a third arbitrator within the ten (10) days, such third arbitrator shall be appointed by JAMS in accordance with its rules; (ii) reasonable discovery shall be allowed in arbitration;
(iii) all proceedings before the arbitrators shall be held in [San Francisco, California]; (iv) the award rendered by the arbitrators shall be final and binding, and judgment may be entered in accordance with applicable law and in any court having jurisdiction thereof; (v) the award rendered by the arbitrators shall include (a) a provision that the prevailing party in such arbitration recover its costs relating to the arbitration and reasonable attorneys' fees from the other party, (b) the amount of such costs and fees, and
(c) an order that the losing party pay the fees and expenses of the arbitrators. The arbitrator shall be the arbitration tribunal expressly prohibited from awarding punitive damages in connection with any claim being resolved by arbitration hereunder.
20. Notices
Any notice, request, instruction, or other document required by the terms of this Agreement, or deemed by any of the Parties to be desirable, to be given to any other Party shall be in writing and shall be given by personal delivery, overnight delivery, or mailed by registered or certified mail, postage prepaid, with return receipt requested, pursuant to the following: if to EE, to the person and address first set forth above; if to the Company, the person and address first set forth below on the signature page of this Agreement. These persons and addresses maybe changed from time to time by a notice sent as aforesaid. If notice is given by personal delivery or overnight delivery in accordance with the provisions of this Section, said notice shall be conclusively deemed given in the time of such delivery provided a receipt is obtained thorn the recipient. If notice is given by mail in ascendance with the provisions of this Section, such notice shall be conclusively deemed given upon receipt and delivery or refusal.
21. Modification and Waivers
No modification or waiver of any term hereof shall be effective unless in writing, signed by the party to be charged.
22. Multiple Counterparts; Facsimile Signatures
This Agreement is made, and may be executed,
in multiple counterparts, each of which shall constitute an original hereof. The Parties agree that this Agreement may be executed by
facsimile signatures and such signatures shall be deemed originals.
23. Assignability
This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective heirs and successors but shall not be assignable by a Party without the prior
written consent of the other Party.
24. Attorneys’ Fees.
If either Party files any action or brings any proceeding against the other arising out of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees.
25. Recitals.
The recitals set forth in the beginning of this Agreement are binding and incorporated into this Agreement by this reference. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between us in accordance with its terms.
Very truly yours.
Accountable Healthcare America, Inc.
By: /s/ Michael Bowen
Michael Bowen
Chief Financial Officer
Emerson Equity LLC
By: /s/ Dominic Baldini
Name: Dominic Baldini
Title: Chief Executive Officer
Exhibit 4.5
MANAGING DEALER AGREEMENT
(the “Agreement”)
October 7, 2019
Dominic Baldini
Emerson Equity UC
155 Bovet Road, Suite 725
San Mateo, CA 94402
Dear Mr. Baldini,
Clinigence Holdings, Inc., a Delaware corporation (the “Company”) proposes to raise $1,000,000 (subject to increase up to $2,000,000 by the Company in its sole discretion) through the sale of investment units (the “Units”), each consisting of: (a) a 10% interest-bearing, unsecured, convertible promissory note in the aggregate principal amount of $5,000 convertible into shares of the Company’s common stock, par value $0.00001 per share (the “Clinigence Common Stock”), at $1.25 per share (the “Notes”), and (b) a six-year warrant to purchase up to 2,500 shares of Clinigence Common Stock. at an exercise price of $1.25 per share (the “Warrants”). The offering of the Units (the “Offering”) will be a non-public private placement transaction and will be made pursuant to Section 4(a)(2) or Rule 506 of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”) and through the use of a private placement memorandum together with any revisions, supplements or amendments (the “PPM”).
The Company has entered into an Agreement and Plan of merger, dated as of August 8, 2019 (the “Merger Agreement”), by and among the Company, iGambit, Inc., a Delaware corporation “Parent”), HealthDatix, Inc. (“Merger Sub”) and John Salerno, pursuant to which Merger Sub will merge with and into the Company, following which the Company will be a wholly owned subsidiary of Parent (the “Merger”). The Merger is expected to close in October, 2019. After the effective time of the Merger, the Notes and Warrants shall be convertible into shares of Parent’s common stock and the conversion price and exercise price shall be adjusted in accordance with the Merger Agreement, the Notes and the Warrants. The more complete description of the Merger and the Merger Agreement are set forth in the information statement prepared by Parent and filed with the Securities Exchange Commission on September 24, 2019.
The Company and Emerson Equity UC. (“EE”) may be referred to collectively herein as the “Parties.” The Company hereby confirms its agreement with EE which is set forth as follows:
1. Appointment of Managing Dealer
EE is hereby appointed as managing dealer (the “Managing Dealer”) for the Offering on an exclusive basis, and the Company shall not solicit any other broker/dealers to participate in the Offering, during the term of this Agreement. The Company will not sell any securities directly to the public for the term of this Agreement without EE’s prior written consent.
EE shall be entitled to solicit the services of Avenue 4 Capital Management, LLC and ether broker/dealers to offer and sell the Units and reallocate a portion of its compensation described in the Agreement in connection with the Offering and performing its services hereunder, and as permitted by applicable law. EE shall be liable for any services provided by Avenue 4 Capital Management, LLC or such broker/dealers in connection with the Offering.
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2. Solicitation
By accepting this Agreement, EE agrees to use its best efforts to solicit and sell, or cause to be solicited and sold, as the case may be, subscriptions for the number of units to be solicited and sold is 200, subject to increase up to 400 by the Company at its sole discretion, of the Company’s Units in accordance with: (1) the terms and conditions of this Agreement, (2) the PPM and (3) the applicable federal and state securities laws and regulations in connection with the Offering.
The Company’s securities are only being offered to persons who are accredited investors within the meaning of the requirements of Sections 4(a)(2) and 4(a)(6) of the Securities Act of 1933, as amended (the “Act”), and Regulation D promulgated under the Act.
EE neither guarantees or offers assurance that there will be any sales of Units made through its efforts at the proposed prices and proposed terms described herein.
3. Solicitation Material
No sales literature may be used by EE or the Company other than the PPM or other Offering materials which have been approved in writing by the Company and EE, unless otherwise approved in writing by the Company.
EE shall not publicly solicit offers to purchase the Company’s securities in any manner that is inconsistent with securities laws and regulations. Before EE delivers the PPM or any other Offering materials to any prospective investor, each prospective investor shall have provided reasonable grounds that (1) he or she is an “accredited investor” as defined under the Securities Act and Regulation D promulgated thereunder and (2) that such investor is sophisticated and otherwise qualified to invest in the Company’s securities.
4. Sale of Securities
The Company reserves the right to refuse to accept any and all subscriptions obtained by EE. No subscription will be deemed to be accepted by the Company until: (1) all necessary documents relating to such subscription have been received by the Company, (2) the Company has made appropriate blue-sky filings with the state of residence of such investor and the Company has indicated acceptance of the subscription. Subscription proceeds will be handled by the Company pursuant to the terms of the private placement memorandum.
5. Closing of Offering
At times mutually acceptable to the Parties, the Company may then proceed to accept subscriptions periodically, pursuant to the terms of the PPM and the subscription documents attached thereto, until the completion of the Offering (each, a “Closing.”)
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6. Timing of Payment of Commissions
At each Closing of the Offering, the Company shall remit concurrently to EE the amount of cash sales commissions to be paid to EE as the Managing Dealer pursuant to this Agreement with the payment of such proceeds of the Closings to the Company.
7. Amount of Sales Commissions
The Company shall pay EE:
(a) A cash commission equal to 10% of the gross proceeds from the sale of securities in the Offering,
(b) Warrants to purchase 2,000 shares of the Company’s common stock (the Managing Dealer Warrants” or “MDWs”) for each Unit sold in the Offering. The MDWs that may be issued to EE or its nominee shall have a six year term and an exercise price of $1.25 per share of Clinigence Common Stock, subject to adjustment as disclosed above.
As an example, if the total number of Units sold in the Offering is 200, then the Managing Dealer would be issued warrants to purchase 400,000 shares of Clinigence Common Stock.
If Termination occurs in accordance with Section 16 without at there being a breach, then the Company will issue, if, when and to the extent MDWs would otherwise be issuable under Sections 6 and 7 b), MDWs exercisable into 20,000 shares (or, if greater, the number of MDWs that would be issuable to EE under Sections 6 and 7(b)). The Company agrees that, at the direction of EE and in complete fulfillment of its obligations with respect to the MDWs under Sections 6 and 7 of this Agreement, it will issue 90% of the MDWs to Michael DiMeo (“DIMEO”) so long as DIMEO is registered with a FINRA member firm, and 10% to EE so long as EE is in good standing with FINRA.
(c) In the event prospective investors. who received a copy of the PPM from and were first introduced to the Company by EE, Avenue 4 Capital Management, LLC or other participating broker/dealers solicited by EE during the Offering, ultimately purchase privately placed securities of the Company within a period of 18 months after the date of the termination of this Agreement, the Company shall deliver to EE the same compensation which EE would have been entitled had such transactions been included in the Offering.
The Parties confirm that the terms stated in this section as correct:
| INITIALS: | N.P. | D.B. | |
| Company | Managing Director |
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8. Expenses of the Offering
The Company and the Managing Dealer shall each bear its own costs. The Company will bear the cost for its legal counsel expense and state filing fees for the qualification of the Offering under state securities laws in such states as may be required, the cost of printing the PPM and ether Offering materials in such number as EE and the Company may determine to be appropriate. For the avoidance of doubt, EE will bear the costs of its legal counsel in connection with the Offering.
9. Effectiveness of Agreement
This Agreement will become effective as of the date that the Company and EE both execute and deliver this Agreement.
10. Indemnification and Contribution
(a) EE hereby indemnifies and heads harmless the Company, its agents, employees, attorneys, officers, and directors, and each person who controls the Company within the meaning of Section 15 of the Securities Act (collectively, the “Company Indemnified Persons”) against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and counsel fees) related to our arising out of:
(i) any breach by EE of the representations, warranties or covenants by EE contained in or made pursuant to this Agreement,
(ii) the failure by EE:
(1) to give, deliver or send a copy of the PPM (as may be supplemented or amended from time to time) as appropriate to any person to whom the Company’s securities are offered or sold or
(2) to offer and sell the Company’s securities in accordance with the provisions of and applicable rules, regulations and published administrative interpretations under Section 4(a)(2) of the Securities Act and the securities or blue-sky laws of any jurisdiction in which the Company’s securities are offered or sold by or through EE,
(iii) any unauthorized representations made by EE or any of its agents or representatives or
(iv) any unauthorized conduct witch adversely affects the availability of exemption from registration under the Securities Act or the rules red regulations thereunder or any provisions of the laws of any jurisdiction.
(b) The Company agrees to indemnify and hold harmless EE, and its affiliates, directors, officers, agents, attorneys, and employees, and each other person, if any, controlling EE or any of their respective affiliates (collectively, the “EE Indemnified Persons” and, together with the Company Indemnified Persons, the “Indemnified Persons”), from and against any losses, claims, damages, liabilities or expenses (or actions, including shareholder actions, in respect thereof, related to or arising out of such engagement or EE’s role in connection therewith, and will reimburse the Indemnified Persons for all reasonable out-of-pocket expenses including any EE Indemnified Person’s counsel fees and expenses subject to court approval) as they are incurred by the EE Indemnified Persons in connection with investigating, preparing or defending any such action or claim, whether or not in connection with pending or threatened litigation in which. EE or any other EE Indemnified Person is a party. The Company will not, however, be responsible to any EE Indemnified Persons for any losses, claims, damages, liabilities, or expenses which resulted from the EE Indemnified Person’s gross negligence, willful misconduct, bad faith or the actions set forth in Section 10(a) above.
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The Company also agrees that none of the EE Indemnified Persons shall have any liability to the Company for or in connection with the services or matters pertaining to this Agreement except for any such liability fer losses, claims, damages, liabilities or expenses incurred by the Company that results from any indemnified Person’s gross negligence, willful misconduct, bad faith or the actions set forth in Section 10(a) above.
If the foregoing indemnity is unavailable or insufficient to hold the EE Indemnified Persons harmless, then the Company shall contribute to the amount paid or payable by the EE Indemnified Persons, in respect of the EE Indemnified Persons, for losses, claims, damages, liabilities, or expenses in such proportion as appropriately reflects the relative benefits received by, and fault of, the Company, on the one hand and the EE Indemnified Persons, on the other, in connection with the matters as to which such losses, claims, damages, liabilities or expenses relate and other equitable consideration. provided, however, the Company agrees that the aggregate contribution of all EE Indemnified Persons shall in all cases be not more than the amount of fees actually received by EE for its services.
The foregoing Agreement shall be in addition to any rights that any Indemnified Person may have at common law or otherwise.
If any action, proceeding, or investigation is commenced as to which an Indemnified Person demands indemnification, the Indemnified Person shall have the right to retain counsel of its own choice to represent it (subject to the approval of the other PM/ which shall not be unreasonably withheld), the other Party shall pay the reasonable fees and expenses of such counsel, and such counsel shall to the extent consistent with its professional responsibilities cooperate with the other Party and any counsel designated by the other Party; provided that the other Party shall not be responsible for the fees and expenses of more than one counsel; provided further that the ether Party shall not be liable for any settlement of any action, proceeding or intervention effected without its consent.
(c) Promptly after receipt by an Indemnified Person under this Section of notice of the commencement of any action, proceeding or investigation, such Indemnified Person will, if a claim in respect thereof is to be made against the Indemnified Person under this Section, notify the other Party in writing of the commencement thereof, but the omission so to notify the other Party will not relieve it from any liability which it may have to any Indemnified Person otherwise than under this Section. In case any such action is brought against any Indemnified Person it notifies the other fifty of the commencement thereof, the other Party will be entitled to participate in and, to the extent that it may wish, jointly with any other indemnifying party, similarly notified. to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Person, under joint control thereof over the defense in conjunction with the Indemnified Person and after notice from the other Party to such Indemnified Person, of its election so to assume the defense thereof, the other Party will not be liable to such Indemnified Person under this Section for any legal or other expenses subsequently incurred by such Indemnified Person in connection with the defense thereof other than reasonable costs of investigation and the Indemnified Person may, but shall not be obligated to, participate in the defense of its own expense with its own counsel.
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11. Representations and Warranties of Managing Dealer
In addition to meeting any conditions specified elsewhere herein, EE represents and warrants to the Company that:
(a) EE is duly registered pursuant to the provisions of the Securities Exchange Act of 1934 as a broker-dealer and is duly registered as a broker dealer in those states where required and EE agrees to comply with all statutes and other requirements applicable to it as a broker dealer pursuant to those registrations and is legally authorized under all applicable laws to engage in the activities contemplated hereby and receive compensation therefore as herein contemplated;
(b) EE is a member in good standing of the FINRA; and
(c) This Agreement, when executed and delivered by EE, is duly authorized, executed and delivered by EE and is a valid and binding agreement on EE’s part.
12. Covenants of Managing Dealer
In addition to meeting the commitments it agrees to elsewhere in this Agreement, EE covenants and agrees that it will:
(a) Diligently make or cause to be made the inquiries required by law of all prospective investors in order to confirm that they meet the suitability standards set forth in the PPM, to confine to the best of its ability that the investment is suitable for the prospective investor, and to solicit only residents in states in which the Offering is qualified for exemption from registration;
(b) Contact only prospective investors with whom EE or its representatives have a pre-existing relationship, or who are referrals from those pre-existing relationships, or who are existing shareholders of the Company, or who are referrals from the Company;
(c) Deliver or cause to be delivered a copy of the PPM prior to or simultaneously with soliciting a prospective investor to purchase securities;
(d) Cause, to the best of its ability, all subscription documents to be properly and accurately completed by all purchasers of securities;
(e) Transmit all executed subscription documents and payments received from purchasers of securities directly to the Company;
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(f) Not give any information or make any representation in connection with the sale of the securities enter than as contained in the PPM, or as approved in writing by the Company; and
(g) Immediately notify the Company and cease to offer and sell securities of the Company if either of representations or warranties in Section 11(a) and (b) fail to be true and correct at any time during the term of this Agreement.
13. Covenants of the Company
(a) The Company will use all reasonable efforts to promptly prepare the PPM in form and substance reasonably satisfactory to EE. In connection with the PPM and other matters pertaining to the Offering, the Company and its officers, accountants, and counsel shall furnish to EE and EE’s counsel such information and documents as may be reasonably requested.
(b) In the event the Company terminates its Chief Executive Officer with or without cause, or if the Chief Executive Officer resigns within six (6) months after the completion of the Offering, the Company will use commercially reasonable efforts to hire a suitable replacement as soon as practically’ possible.
(c) The Company has not engaged any other registered broker-dealer in connection with the proposed Offering. The Company will indemnify EE with respect to any claim for finder’s or similar fees in connection with the Offering. The Company represents and warrants that it has not promised or represented to any person that any portion of the Units will be directed or otherwise made available to such person in connection with the Offering.
(d) Until the completion or termination of the Offering, the Company will notify EE promptly of the occurrence of any event which might materially affect the Offering or the status of the Company.
(e) Proceeds from the Offering will be used by the Company as described in the PPM.
(f) The Company will furnish on request a completed and executed a due diligence outline in the form presented to the Company by EE (the “Due Diligence Outline”) and all items requested by the Due Diligence Outline to EE excerpt as otherwise brought to EE’s attention in writing. The Company represents that its responses to the Due Diligence Outline will be accurate. In the event any of the responses provided by the Company pursuant to the Due Diligence Outline materially change prior to or during the Offering, the Company will promptly notice EE in writing of the change together with all material details and copies of relevant documents.
(g) The Company will furnish on request completed and executed due diligence questionnaires in the form presented to the Company by EE (the “D&O Questionnaires”) from reach officer, director and also from each shareholder who beneficially holds 10% or more of a class of the Company’s stock. The Company will review all of the completed D&O Questionnaires am any attached materials and will warrant that they are accurate.
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(h) Subject to all applicable federal and state securities laws, the Company win facilitate all transfers between assignees of the shares contained within the Units, and any MDWs issued to the Managing Dealer and its designees at the Company’s expense.
(i) EE and the Company will advise each other immediately and confirm in writing the receipt of any threat of or the initiation of any steps or proceedings which would impair or prevent the right to offer the Company’s securities, or the issuance of any orders or other prohibitions preventing or impairing the proposed offering by the Securities and Exchange Commission or any other regulatory authority. In the case of the happening of any such event, the Company will not acquiesce to such steps, proceedings or suspension orders, but will actively defend any such actions or orders unless the Company determines in good faith after consultation with EE to acquiesce to such actions or orders.
14. The Securities and Rule 144
The securities will be described completely and accurately in the Company’s PPM.
After receiving a written request from a shareholder to remove a restrictive legend on shares received from exercising the warrants included in the Units, the Company will, at the holder’s expense, provide any and all required legal opinions to the satisfaction of the Company’s stock transfer agent for the removal of the restrictive legend from any stock certificates under Rule 144 as soon as possible. The Company shall instruct its transfer agent to promptly process the request for removal of the restrictive legend(s).
15. New Release and Publicity
From the cafe of this Agreement until the completion or termination of the Offering, without the prior review of EE, the Company and its officers, directors, and agents shall not release or distribute any press release, statement to any media representative, promotional material, public announcement, shareholder letter, or any other communication intended for general distribution (including but not limited the communications made by electronic mail or over the Internet) (collectively, “Press Releases”), except for communications required by the Securities and Exchange Commission and earnings releases. At no time shall the Company name EE in any Press Releases or in any other written or oral communication without the express written consent of EE. However, the foregoing shall not prohibit discussions, releases or other publicity which is in the Company’s normal course of business or as required by law.
16. Termination; Survival
The Company or the Managing Dealer may terminate this Agreement for any reason at any time (a “Termination”) upon five (5) days written notice. Upon such notice of Termination, EE shall cease offering and selling securities of the Company and EE shall continue to have the right to receive all earned but unpaid compensation or reimbursement as set forth in this Agreement at the time of Termination. Subject to Section 17, upon such Termination, neither Party shall have any other liability to the other.
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17. Representations and Indemnities to Survive Delivery.
Sections 8, 7, 10, 11, 16, 17, 18, 19, 20, 24 and 25 of this Agreement will remain in full force and effect and will survive delivery of and payment for the Company’s securities.
18. Confidentiality.
The parties acknowledge and agree that this Agreement and the terms and conditions hereof are confidential and will not be disclosed to anyone other than the parties respective officers, directors, board observers, and professional advisors, including accountants and attorneys. Notwithstanding the above, if time Company is required by the Securities and Exchange Commission, or any other state or federal regulatory agency or securities exchange to disclose the existence er terms of this Agreement, the Company shall, to the extent feasible, provide EE a reasonable period of time before such disclosure is made to comment on any disclosure. Except as contemplated by the terms hereof or by applicable law, EE will keep strictly confidential for a period of one year front the date hereof all non-pubic information (“Confidential Information”) concerning the Company provided to EE. Notwithstanding the preceding sentence, no such obligation of confidentiality will apply to Confidential Information that: (a) is in the public domain as of the date hereof or hereafter enters the public domain without a breach of the is section by EE; (b) was known or became known by EE prior to the Company’s disclosure thereof EE, as demonstrated by EE’s written records; (c) becomes known to EE from a source other than the Company, where such source did not breach its own obligation of confidentiality to the Company; or (d) is independently developed by EE, as demonstrated by EE’s written records.
19. Governing Law; Arbitration.
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to its choice-of-laws or conflicts-of-law rules. Other than with respect to any equitable remedies available to the parties with respect to alleged breaches of Section 18, all claims, disputes and other matters in question arising out of, or relating to, this Agreement or the performance hereof, shall be submitted to, and determined by, arbitration if good faith negotiations among the pastes hereto, if any, do not resolve such claim, dispute or other matter. Such arbitration shall proceed in accordance with the then-current rules for arbitration established by Judicial Arbitration Mediation Services, Inc. (“JAMS”), unless the parties hereto mutually agree otherwise, and pursuant to the following procedures: (i) the Company on the one hand and the Managing Dealer on the other hand shall appoint an arbitrator from the JAMS panel of retired judges, and those party-appointed arbitrators shall appoint a third arbitrator from the JAMS panel of retired judges within ten (10) days. If the party-appointed arbitrators fail to appoint a third arbitrator within the ten (10) days, such third arbitrator shall be appointed by JAMS in accordance with its rules; (ii) reasonable discovery shall be allowed in arbitration; (iii) all proceedings before the arbitrators shall be held in Fulton County, Georgia; (iv) the award rendered by the arbitrators shall be final and binding, and judgment may be entered in accordance with applicable law and in any court having jurisdiction thereof; (v) the award rendered by the arbitrators shall include (a) a provision that the prevailing party in such arbitration recover its costs relating to the arbitration and reasonable attorneys’ fees from the other party, b) the amount of such costs and fees, and (c) an order that the losing party pay the fees and expenses of the arbitrators. The arbitrator shall by the agreement of the parties expressly be prohibited from awarding punitive damages in connection with any claim being resolved by arbitration hereunder.
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20. Notices.
Any notice, request, instruction, or other document required by the terms of this Agreement, or deemed by any of the Parties to be desirable, to be given to any other Party shall be in writing and shall be given by personal delivery, overnight delivery, or mailed by registered or certified mail, postage prepaid, with return receipt requested, pursuant to the following: if to EE, to the person and address first set forth above; if to the Company, the person and address first set forth below on the signature page of this Agreement. These persons and addresses maybe changed from time to time by a notice sent as aforesaid. If notice is given by personal delivery or overnight delivery in accordance with the provisions of this Section, said notice shall be conclusively deemed given at the time of such delivery provided a receipt is obtained from the recipient. If notice is given by mail in accordance with the provisions of this Section, such notice shall be conclusively deemed given upon receipt and delivery or refusal.
21. Modifications and Waivers.
No modification or waiver of any term hereof shall be effective unless in writing, signed by the party to be charged.
22. Multiple Counterparts; Facsimile Signatures.
This Agreement is made, and may be executed, in multiple counterparts, each of which shall constitute an original hereof. The Parties agree that this Agreement may be executed by facsimile signatures and such signatures shall be deemed originals.
23. Assignability.
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs and successors but shall not be assignable by a Party without the prior written consent of the other Party.
24. Attorneys’ Fees.
If either Party files any action or brings any proceeding against the other arising out of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees.
25. Recitals.
The recitals set forth in the beginning of this Agreement are binding and incorporated into this Agreement by this reference.
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon it will became a binding agreement between us in accordance with its terms.
| Very truly yours, | ||
| Clinigence Holdings, Inc. | ||
| By: | /s/ Jacob Margolin | |
| Jacob Margolin Chief Executive Officer | ||
| Emerson Equity LLC | ||
| By: | /s/ Dominic Baldini | |
| Dominic Baldini Chief Executive Officer | ||
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Exhibit 4.6
WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (II) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (III) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
STOCK PURCHASE WARRANT
To Purchase ______________ Shares of Common Stock
| No. 2020A- | Issue Date: ________, 2020 |
THIS CERTIFIES that, for value received, ______________________(the “Holder”), is entitled, upon the terms and subject to the conditions hereinafter set forth, to subscribe for and purchase, from ACCOUNTABLE HEALTHCARE AMERICA, INC., a Delaware corporation (the “Company”), of _________________________________ fully paid non-assessable shares of the Company’s common stock, $0.001 par value per share (“Common Stock”), at a purchase price of $1.55 per share, provided that such right will terminate, if not terminated earlier in accordance with the provisions hereof, at 5:00 p.m. (Florida time) on July 31, 2026 (the “Expiration Date”).
The purchase price and the number of shares for which this warrant (the “Warrant”) is exercisable are subject to adjustment, as provided herein.
This Warrant was issued in connection with the Company’s private offering (the “Offering”) of investment units of the Company consisting of a Convertible Promissory in the original principal amount of $50,000 and a warrant to purchase 12,500 shares of Common Stock pursuant to a Confidential Private Offering Memorandum dated June 12, 2020 (the “Memorandum”) and is subject to the terms of a Subscription Agreement (the “Subscription Agreement”) to which the initial Holder is a party. Capitalized terms used and not otherwise defined herein will have the respective meanings ascribed to such terms in the Memorandum.
As used herein the following terms, unless the context otherwise requires, have the following respective meanings:
(a) “Company” means Accountable Healthcare America, Inc. and any corporation that shall succeed or assume the obligations of Accountable Healthcare America, Inc. hereunder.
(b) “Exercise Price” shall be $2.25 per Warrant Share.
(c) “Warrant Shares” means (i) the Company’s Common Stock and (ii) any Other Securities into which or for which any of the Common Stock may be converted or exchanged pursuant to a plan of recapitalization, reorganization, merger, sale of assets or otherwise.
(d) “Other Securities” refers to any stock (other than Common Stock) and other securities of the Company or any other person (corporate or otherwise) which the holder of the Warrant at any time shall be entitled to receive, or shall have received, on the exercise of the Warrant, in lieu of or in addition to Common Stock, or which at any time shall be issuable or shall have been issued in exchange for or in replacement of Common Stock or Other Securities.
1. Number of Shares Issuable upon Exercise. Unless sooner terminated in accordance herewith, from and after the date hereof through and including the Expiration Date, the Holder shall be entitled to receive, upon exercise of this Warrant in whole or in part, the number of shares of Common Stock of the Company set forth on the first page of this Warrant, subject to adjustment pursuant hereto, by delivery of an original or fax copy of the exercise notice attached hereto as Exhibit A (the “Notice of Exercise”), at least 61 days’ prior to the date of exercise, along with payment to the Company of the Exercise Price. To validly exercise this Warrant, the Notice of Exercise must be received by the Company no later than 61 days before the Expiration Date.
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2. Exercise of Warrant.
(a) The purchase rights represented by this Warrant are exercisable by the registered Holder hereof, in whole at any time or in part from time to time by delivery of the Notice of Exercise duly completed and executed at the principal executive office of the Company (or such other office or agency of the Company as it may designate by notice in writing to the registered Holder hereof at the address of such Holder appearing on the books of the Company), and upon payment of the Exercise Price of the Warrant Shares thereby purchased (cash, bank wire transfer, or by certified or official bank check payable to the order of the Company in an amount equal to the Exercise Price of the shares thereby purchased); whereupon the Holder of this Warrant shall be entitled to receive a certificate for the number of Warrant Shares so purchased; provided that the Company will place on each certificate a legend substantially the same as that appearing on this Warrant, in addition to any legend required by any applicable state or federal law. If this Warrant is exercised in part, the Company will issue to the Holder hereof a new Warrant upon the same terms as this Warrant but for the balance of Warrant Shares for which this Warrant remains exercisable. The Company agrees that upon proper exercise of this Warrant the Holder shall be deemed to be the record owner of the shares issued upon such proper exercise as of the close of business on the date on which this Warrant shall have been exercised as aforesaid (after taking into account, and following the termination of, any applicable notice period). This Warrant will be surrendered at the time of exercise or if lost, stolen, misplaced or destroyed, the Holder will comply with Section 7 below. Certificates for shares purchased hereunder shall be delivered to the Holder hereof within a reasonable time after the date on which this Warrant shall have been exercised as aforesaid.
(b) The Company covenants that all Warrant Shares which may be issued upon the exercise of rights represented by this Warrant will, upon exercise of the rights represented by this Warrant, be fully paid and non-assessable and free from all preemptive rights, taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue which shall be paid by the Company in accordance with Section 4 below).
3. No Fractional Shares. The Company shall not be required to issue fractional Warrant Shares upon the exercise of this Warrant or to deliver Warrant Certificates that evidence fractional Warrant Shares. In the event that a fraction of a Warrant Share would, except for the provisions of this Section 3, be issuable upon the exercise of this Warrant, the Company shall, upon such exercise, round down to the nearest whole number the number of shares of Common Stock to be issued upon such exercise.
4. Charges, Taxes and Expenses. Issuance of certificates for Warrant Shares upon the exercise of this Warrant shall be made without charge to the Holder hereof for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder of this Warrant, or in such name or names as may be directed by the Holder of this Warrant; provided, however, that in the event certificates for Warrant Shares are to be issued in a name other than the name of the Holder of this Warrant, this Warrant, when exercised, shall be accompanied by the Assignment Form attached hereto as Exhibit B (the “Assignment Form”) duly executed by the Holder hereof; and provided further, that upon any transfer involved in the issuance or delivery of any certificates for Warrant Shares, the Company may require, as a condition thereto, that the transferee execute an appropriate investment representation as may be reasonably required by the Company.
5. No Rights as Shareholders. This Warrant does not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company prior to the exercise hereof.
6. Exchange and Registry of Warrant. This Warrant is exchangeable, upon the surrender hereof by the registered Holder at the above- mentioned office or agency of the Company, for a new Warrant or Warrants aggregating the total Warrant Shares of the surrendered Warrant of like tenor and dated as of such exchange. The Company shall maintain at the above-mentioned office or agency a registry showing the name and address of the registered Holder of this Warrant. This Warrant may be surrendered for exchange, transfer or exercise, in accordance with its terms, at such office or agency of the Company, and the Company shall be entitled to rely in all respects, prior to written notice to the contrary, upon such registry.
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7. Loss; Theft, Destruction or Mutilation of Warrant. Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and in case of loss, theft or destruction, of indemnity reasonably satisfactory to it, and upon reimbursement to the Company of all reasonable expenses incidental thereto, and upon surrender and cancellation of this Warrant, if mutilated, the Company will make and deliver a new Warrant of like tenor (but with no additional rights or obligations) and dated as of such cancellation, in lieu of this Warrant.
8. 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 be a Saturday or a Sunday or shall be a legal holiday, then such action may be taken or such right may be exercised on the next succeeding day not a Saturday, Sunday or legal holiday.
9. Cash Distributions. No adjustment on account of cash dividends or interest on the Company’s Common Stock or Other Securities that may become purchasable hereunder will be made to the Exercise Price under this Warrant.
10. Consolidation, Merger or Sale of the Company. If the Company is a party to a consolidation, merger or transfer of assets that reclassifies or changes its outstanding Common Stock, the successor corporation (or corporation controlling the successor corporation or the Company, as the case may be) shall by operation of law assume the Company’s obligations under this Warrant.
11. Adjustments in the Exercise Price. The number of shares and class of capital stock purchasable under this Warrant are subject to adjustment from time to time as set forth in this Section 11.
(a) Adjustment for change in capital stock. If the Company:
(i) pays a dividend or makes a distribution on its Common Stock, in each case, in shares of its Common Stock;
(ii) subdivides its outstanding shares of Common Stock into a greater
(iii) combines its outstanding shares of Common Stock into a smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its capital stock other than Common Stock; or
(v) issues by reclassification of its shares of Common Stock any shares of its capital stock;
then the number and classes of shares purchasable upon exercise of each Warrant in effect immediately prior to such action shall be adjusted so that the holder of any Warrant thereafter exercised may receive the number and classes of shares of capital stock of the Company which such holder would have owned immediately following such action if such holder had exercised the Warrant immediately prior to such action.
For a dividend or distribution, the adjustment shall become effective immediately after the record date for the dividend or distribution. For a subdivision, combination or reclassification, the adjustment shall become effective immediately after the effective date of the subdivision, combination or reclassification.
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If after an adjustment the Holder, upon exercise of a Warrant, may receive shares of two or more classes of capital stock of the Company, the Board of Directors of the Company shall in good faith determine the allocation of the adjusted Exercise Price between or among the classes of capital stock. After such allocation, that portion of the Exercise Price applicable to each share of each such class of capital stock shall thereafter be subject to adjustment on terms comparable to those applicable to Common Stock in this Warrant. Notwithstanding the allocation of the Exercise Price between or among shares of capital stock as provided by this Section 11(a), a Warrant may only be exercised in full by payment of the entire Exercise Price currently in effect.
(b) The Company will not, by amendment of 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 to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Section 11 and in the taking of all such action as may be necessary or appropriate in order to protect the exercise rights of the Holders of this Warrant against impairment.
12. Certificate as to Adjustments. In each case of any adjustment or readjustment in the shares of Common Stock (or Other Securities) issuable on the exercise of the Warrant, the Company at its expense will promptly cause its Chief Financial Officer or other appropriate designee to compute such adjustment or readjustment in accordance with the terms of the Warrant and prepare a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based, including a statement of (a) the consideration received or receivable by the Company for any additional shares of Common Stock (or Other Securities) issued or sold or deemed to have been issued or sold, (b) the number of shares of Common Stock (or Other Securities) outstanding or deemed to be outstanding, and (c) the Exercise Price and the number of shares of Common Stock to be received upon exercise of this Warrant, in effect immediately prior to such adjustment or readjustment and as adjusted or readjusted as provided in this Warrant. The Company will forthwith mail a copy of each such certificate to the Holder of the Warrant and any Warrant agent of the Company (appointed pursuant to Section 15 hereof).
13. Reservation of Stock Issuable on Exercise of Warrant. The Company will at all times reserve and keep available, solely for issuance and delivery on the exercise of the Warrant, shares of Common Stock (or Other Securities) from time to time issuable on the exercise of the Warrant.
14. Assignment; Exchange of Warrant. Subject to compliance with applicable securities laws, this Warrant, and the rights evidenced hereby, may be transferred by any registered Holder hereof (a “Transferor”) with respect to any or all of the shares underlying this Warrant. On the surrender or exchange of this Warrant, with the Transferor’s duly executed Assignment Form and together with evidence reasonably satisfactory to the Company demonstrating compliance with applicable securities laws, which shall include, without limitation, a legal opinion from the Transferor’s counsel that such transfer is exempt from the registration requirements of applicable securities laws, the Company at its expense (but with payment by the Transferor of any applicable transfer taxes) will issue and deliver to or on the order of the Transferor thereof a new Warrant of like tenor, in the name of the Transferor and/or the transferee(s) specified in such Assignment Form (each a “Transferee”), calling in the aggregate on the face or faces thereof for the number of Warrant Shares called for on the face or faces of the Warrant so surrendered by the Transferor; and provided further, that upon any such transfer, the Company may require, as a condition thereto, that the Transferee execute an appropriate investment representation as may be reasonably required by the Company.
15. Warrant Agent. The Company may, by written notice to each Holder of a Warrant, appoint an agent for the purpose of issuing Common Stock (or Other Securities) on the exercise of this Warrant pursuant to Section 2, exchanging this Warrant pursuant to Section 14, and replacing this Warrant pursuant to Section 7, or any of the foregoing, and thereafter any such issuance, exchange or replacement, as the case may be, shall be made at such office by such agent.
16. Notices, etc. All notices shall be in writing signed by the party giving such notice, and delivered personally or sent by overnight courier or messenger or sent by registered or certified mail (air mail if overseas), return receipt requested, or by telex, facsimile transmission, telegram or similar means of communication. Notices shall be deemed to have been received on the date of personal, telex, facsimile transmission, telegram or similar means of communication, or if sent by overnight courier or messenger, shall be deemed to have been received on the next delivery day after deposit with the courier or messenger, or if sent by certified or registered mail, return receipt requested, shall be deemed to have been received on the third business day after the date of mailing. Notices shall be sent to the addresses set forth below each party’s signature on the Subscription Agreement.
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17. Notices of Record Date.
In case,
(a) The Company takes a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase any shares of stock of any class or to receive a dividend, distribution or any other rights; or
(b) There is any capital reorganization of the Company, reclassification of the capital stock of the Company (other than a subdivision or combination of its outstanding shares of Common Stock), or consolidation or merger of the Company with or into another corporation where the Company is not the surviving entity; or
(c) There is a voluntary or involuntary dissolution, liquidation or winding up of the Company;
then, and in any such case, the Company shall cause to be mailed to the Holder, at least 5 business days prior to the date hereinafter specified, a notice stating the date on which (i) a record is to be taken for the purpose of such dividend, distribution or rights, or (ii) such reclassification, reorganization, consolidation, merger, dissolution, liquidation or winding up is to take place and the date, if any is to be fixed, as of which holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, reorganization, consolidation, merger, dissolution, liquidation or winding up.
18. Amendments and Supplements.
(a) The Company may from time to time supplement or amend this Warrant without the approval of any Holders in order to cure any ambiguity or to be correct or supplement any provision contained herein which may be defective or inconsistent with any other provision, or to make any other provisions in regard to matters or questions herein arising hereunder which the Company may deem necessary or desirable and which shall not materially adversely affect the interest of the Holder. All other supplements or amendments to this Warrant must be signed by the party against whom such supplement or amendment is to be enforced.
(b) Notwithstanding Section 18(a), the Company may at any time during the term of this Warrant 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.
19. Investment Intent. Holder represents and warrants to the Company that Holder is acquiring the Warrant for investment and with no present intention of distributing or reselling all or any part of the Warrant.
20. Certificates to Bear Language. The Warrant Shares issuable upon exercise thereof shall bear the following legend by which Holder shall be bound:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT of 1933, AS AMENDED. THE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE of SUCH REGISTRATION OR AN OPINION of COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.”
Certificates for Warrants or Warrant Shares without such legend shall be issued if such Warrants or Warrant Shares are sold pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), or if the Company has received an opinion from counsel reasonably satisfactory to counsel for the Company, that such legend is no longer required under the 1933 Act.
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21. Representations and Warranties of Holder. The Holder hereby represents and warrants that on the date hereof and on each date of exercise of this Warrant:
(a) Securities Not Registered. The Holder is acquiring this Warrant and the Warrant Shares (collectively, the “Securities”) for its own account, not as an agent or nominee, and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable securities laws. By accepting this Warrant, the Holder further represents that the Holder does not have any present contract, undertaking, understanding or arrangement with any person to sell, transfer or grant participations to such persons or any third person, with respect to any of the Securities.
(b) Access to Information. The Company has made available to the Holder the opportunity to ask questions of and to receive answers from the Company’s officers, directors and other authorized representatives concerning the Company and its business and prospects, and Holder has been permitted to have access to all information which it has requested in order to evaluate the merits and risks of the purchase of the Securities.
(c) Investment Experience. The Holder is an investor in securities of companies in the development stage and acknowledges that it is able to fend for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the purchase of the Securities.
(d) Regulation D. The Holder is an “accredited investor” as defined in Rule 501 under the 1933 Act. In the normal course of business, the Holder invests in or purchases securities similar to the Securities and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of purchasing the Securities. The Holder is not a registered broker dealer or an affiliate of any broker or dealer registered under Section 15(a) of the Exchange Act of 1934, as amended, or a member of the FINRA or a Person engaged in the business of being a broker dealer.
(e) Securities are Unregistered. The Holder has been advised that (i) none of the Securities have been registered under the 1933 Act or other applicable securities laws, (ii) the Securities may need to be held indefinitely, (iii) the Holder will continue to bear the economic risk of the investment in the Securities after they are subsequently registered under the 1933 Act or an exemption from such registration is available, and (iv) when and if the Securities may be disposed of without registration in reliance on Rule 144 promulgated under the 1933 Act, such disposition may be made only in amounts in accordance with the terms and conditions of such Rule in effect at that time.
(f) Pre-Existing Relationship. The Holder has a pre-existing personal or business relationship with the Company or any of its officers, directors or controlling persons, or by his/its business or financial experience or the business or financial experience of his/its financial advisors who are unaffiliated with and who are not compensated by the Company, directly or indirectly, could be reasonably assumed to have the capacity to protect his/its own interest in connection with the acquisition of the Securities.
(g) No Advertisement. The Holder acknowledges that the offer and sale of the Securities was not accomplished by the publication of any advertisement.
(h) No Review. The Holder understands that no arbitration board or panel, court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, has passed upon or made any recommendation or endorsement of the common stock into which it converts.
(i) Legal Representation. The Holder has had the opportunity to confer with legal counsel of its choosing regarding the issuance of the Securities and any related transactions.
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22. Survival of Representation and Warranties. All representations and warranties made by the Holder shall survive the earlier of the Expiration Date and shall remain effective and enforceable until the earlier to occur of the Expiration Date or the date on which claims based thereon shall have been barred by the applicable statutes of limitation.
23. Miscellaneous.
(a) This Warrant shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws. The parties submit to the jurisdiction of the Courts of the County of Fulton, State of Georgia or a Federal Court empaneled in the State of Florida for the resolution of all legal disputes arising under the terms of this Warrant, including, but not limited to, enforcement of any arbitration award. The Company and the Holder agree to submit to the jurisdiction of such courts and waive trial by jury.
(b) If any action or proceeding is brought by the Company on the one hand or by the Holder on the other hand to enforce or continue any provision of this Warrant, the prevailing party’s costs and expenses, including its reasonable attorney’s fees, in connection with such action or proceeding shall be paid by the other party.
(c) In the event that any provision of this Warrant is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision, which may prove invalid or unenforceable under any law, shall not affect the validity or enforceability of any other provision of this Warrant.
(d) The headings in this Warrant are for purposes of reference only and shall not limit or otherwise affect any of the terms hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first written above.
ACCOUNTABLE HEALTHCARE AMERICA, INC., a Delaware corporation
| By: | _____________________ |
| Michael Bowen | |
| Chief Financial Officer |
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EXHIBIT
A
TO
WARRANT
NOTICE OF EXERCISE
(To Be Executed by the Holder in Order to Exercise the Warrant)
The undersigned Holder hereby elects to purchase __________ Shares pursuant to the attached Warrant, and requests that certificates for securities be issued in the name of :
| (Please type or print name and address) |
| (Social Security or Tax Identification Number) |
and delivered
| to: | |
| (Please type or print name and address if different from above) | |
If such number of Shares being purchased hereby shall not be all the Shares that may be purchased pursuant to the attached Warrant, a new Warrant for the balance of such Shares shall be registered in the name of , and delivered to, the Holder at the address set forth below.
In full payment of the purchase price with respect to the Shares purchased and transfer taxes, if any, the undersigned hereby tenders payment of $_____________ by check, money order or wire transfer payable in United States currency to the order of [________________].
| HOLDER: | |
| Dated: | By: _________________________ |
| Name: _______________________ | |
| Title: ________________________ |
A-1
EXHIBIT
B
TO
WARRANT
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers unto ________________ the right represented by the within Warrant to purchase _______ shares of Common Stock of Clinigence Holdings, Inc., a Delaware corporation, to which the within Warrant relates, and appoints ________________ Attorney to transfer such right on the books of Clinigence Holdings, Inc., a Delaware corporation, with full power of substitution of premises.
| Dated: | By: _________________________ |
| Name: _______________________ | |
| Title: ________________________ | |
| (signature must conform to name of holder as specified on the fact of the Warrant) | |
| Address: |
Signed in the presence of :
Dated:__________
B-1
Exhibit 4.7
WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (II) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (III) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
STOCK PURCHASE WARRANT
To Purchase ____________ Shares of Common Stock
| No. 2021PA- | Issue Date: ________, 2021 |
THIS CERTIFIES that, for value received, _______________________ (the “Holder”), is entitled, upon the terms and subject to the conditions hereinafter set forth, at any time on (the “Exercise Date”), to subscribe for and purchase, from CLINIGENCE HOLDINGS, INC., a Delaware corporation (the “Company”), of ___________________________________________ fully paid non-assessable shares of the Company’s common stock, $0.001 par value per share (“Common Stock”), at a purchase price of $1.75 per share, provided that such right will terminate, if not terminated earlier in accordance with the provisions hereof, at 5:00 p.m. (Florida time) on May 30, 2027 (the “Expiration Date”).
The purchase price and the number of shares for which this warrant (the “Warrant”) is exercisable are subject to adjustment, as provided herein.
This Warrant was issued in connection with the Company’s private offering (the “Offering”) of investment units of the Company consisting of one share of Common Stock and one-half of a warrant to purchase one share of Common Stock pursuant to a Confidential Private Offering Memorandum dated May 5, 2021 (the “Memorandum”) and is subject to the terms of a Subscription Agreement (the “Subscription Agreement”) to which the initial Holder is a party. Capitalized terms used and not otherwise defined herein will have the respective meanings ascribed to such terms in the Memorandum.
As used herein the following terms, unless the context otherwise requires, have the following respective meanings:
(a) “Company” means CLINIGENCE HOLDINGS, INC. and any corporation that shall succeed or assume the obligations of CLINIGENCE HOLDINGS, INC. hereunder.
(b) “Exercise Price” shall be $1.75 per Warrant Share, subject to adjustment pursuant to Section 11 hereof.
(c) “Warrant Shares” means (i) the Company’s Common Stock and (ii) any Other Securities into which or for which any of the Common Stock may be converted or exchanged pursuant to a plan of recapitalization, reorganization, merger, sale of assets or otherwise.
(d) “Other Securities” refers to any stock (other than Common Stock) and other securities of the Company or any other person (corporate or otherwise) which the holder of the Warrant at any time shall be entitled to receive, or shall have received, on the exercise of the Warrant, in lieu of or in addition to Common Stock, or which at any time shall be issuable or shall have been issued in exchange for or in replacement of Common Stock or Other Securities.
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1. Number of Shares Issuable upon Exercise. Unless sooner terminated in accordance herewith, from and after the date hereof through and including the Expiration Date, the Holder shall be entitled to receive, upon exercise of this Warrant in whole or in part, the number of shares of Common Stock of the Company set forth on the first page of this Warrant, subject to adjustment pursuant hereto, by delivery of an original or fax copy of the exercise notice attached hereto as Exhibit A (the “Notice of Exercise”), at least 61 days’ prior to the date of exercise, along with payment to the Company of the Exercise Price. To validly exercise this Warrant, the Notice of Exercise must be received by the Company no later than 61 days before the Expiration Date.
2. Exercise of Warrant.
(a) The purchase rights represented by this Warrant are exercisable by the registered Holder hereof, in whole at any time or in part from time to time by delivery of the Notice of Exercise duly completed and executed at the principal executive office of the Company (or such other office or agency of the Company as it may designate by notice in writing to the registered Holder hereof at the address of such Holder appearing on the books of the Company), and upon payment of the Exercise Price of the Warrant Shares thereby purchased (cash, bank wire transfer, or by certified or official bank check payable to the order of the Company in an amount equal to the Exercise Price of the shares thereby purchased); whereupon the Holder of this Warrant shall be entitled to receive a certificate for the number of Warrant Shares so purchased; provided that the Company will place on each certificate a legend substantially the same as that appearing on this Warrant, in addition to any legend required by any applicable state or federal law. If this Warrant is exercised in part, the Company will issue to the Holder hereof a new Warrant upon the same terms as this Warrant but for the balance of Warrant Shares for which this Warrant remains exercisable. The Company agrees that upon proper exercise of this Warrant the Holder shall be deemed to be the record owner of the shares issued upon such proper exercise as of the close of business on the date on which this Warrant shall have been exercised as aforesaid (after taking into account, and following the termination of, any applicable notice period). This Warrant will be surrendered at the time of exercise or if lost, stolen, misplaced or destroyed, the Holder will comply with Section 7 below. Certificates for shares purchased hereunder shall be delivered to the Holder hereof within a reasonable time after the date on which this Warrant shall have been exercised as aforesaid.
(b) The Company covenants that all Warrant Shares which may be issued upon the exercise of rights represented by this Warrant will, upon exercise of the rights represented by this Warrant, be fully paid and non-assessable and free from all preemptive rights, taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue which shall be paid by the Company in accordance with Section 4 below).
3. No Fractional Shares. The Company shall not be required to issue fractional Warrant Shares upon the exercise of this Warrant or to deliver Warrant Certificates that evidence fractional Warrant Shares. In the event that a fraction of a Warrant Share would, except for the provisions of this Section 3, be issuable upon the exercise of this Warrant, the Company shall, upon such exercise, round down to the nearest whole number the number of shares of Common Stock to be issued upon such exercise.
4. Charges, Taxes and Expenses. Issuance of certificates for Warrant Shares upon the exercise of this Warrant shall be made without charge to the Holder hereof for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder of this Warrant, or in such name or names as may be directed by the Holder of this Warrant; provided, however, that in the event certificates for Warrant Shares are to be issued in a name other than the name of the Holder of this Warrant, this Warrant, when exercised, shall be accompanied by the Assignment Form attached hereto as Exhibit B (the “Assignment Form”) duly executed by the Holder hereof; and provided further, that upon any transfer involved in the issuance or delivery of any certificates for Warrant Shares, the Company may require, as a condition thereto, that the transferee execute an appropriate investment representation as may be reasonably required by the Company.
5. No Rights as Shareholders. This Warrant does not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company prior to the exercise hereof
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6. Exchange and Registry of Warrant. This Warrant is exchangeable, upon the surrender hereof by the registered Holder at the above- mentioned office or agency of the Company, for a new Warrant or Warrants aggregating the total Warrant Shares of the surrendered Warrant of like tenor and dated as of such exchange. The Company shall maintain at the above-mentioned office or agency a registry showing the name and address of the registered Holder of this Warrant. This Warrant may be surrendered for exchange, transfer or exercise, in accordance with its terms, at such office or agency of the Company, and the Company shall be entitled to rely in all respects, prior to written notice to the contrary, upon such registry.
7. Loss; Theft, Destruction or Mutilation of Warrant. Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and in case of loss, theft or destruction, of indemnity reasonably satisfactory to it, and upon reimbursement to the Company of all reasonable expenses incidental thereto, and upon surrender and cancellation of this Warrant, if mutilated, the Company will make and deliver a new Warrant of like tenor (but with no additional rights or obligations) and dated as of such cancellation, in lieu of this Warrant.
8. 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 be a Saturday or a Sunday or shall be a legal holiday, then such action may be taken or such right may be exercised on the next succeeding day not a Saturday, Sunday or legal holiday.
9. Cash Distributions. No adjustment on account of cash dividends or interest on the Company’s Common Stock or Other Securities that may become purchasable hereunder will be made to the Exercise Price under this Warrant.
10. Consolidation, Merger or Sale of the Company. If the Company is a party to a consolidation, merger or transfer of assets that reclassifies or changes its outstanding Common Stock, the successor corporation (or corporation controlling the successor corporation or the Company, as the case may be) shall by operation of law assume the Company’s obligations under this Warrant.
11. Adjustments in the Exercise Price. The number of shares and class of capital stock purchasable under this Warrant are subject to adjustment from time to time as set forth in this Section 11.
(a) Adjustment for change in capital stock. If the Company:
(i) pays a dividend or makes a distribution on its Common Stock, in each case, in shares of its Common Stock;
(ii) subdivides its outstanding shares of Common Stock into a greater
(iii) combines its outstanding shares of Common Stock into a smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its capital stock other than Common Stock; or
(v) issues by reclassification of its shares of Common Stock any shares of its capital stock;
then the number and classes of shares purchasable upon exercise of each Warrant in effect immediately prior to such action shall be adjusted so that the holder of any Warrant thereafter exercised may receive the number and classes of shares of capital stock of the Company which such holder would have owned immediately following such action if such holder had exercised the Warrant immediately prior to such action.
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For a dividend or distribution the adjustment shall become effective immediately after the record date for the dividend or distribution. For a subdivision, combination or reclassification, the adjustment shall become effective immediately after the effective date of the subdivision, combination or reclassification.
If after an adjustment the Holder, upon exercise of a Warrant, may receive shares of two or more classes of capital stock of the Company, the Board of Directors of the Company shall in good faith determine the allocation of the adjusted Exercise Price between or among the classes of capital stock. After such allocation, that portion of the Exercise Price applicable to each share of each such class of capital stock shall thereafter be subject to adjustment on terms comparable to those applicable to Common Stock in this Warrant. Notwithstanding the allocation of the Exercise Price between or among shares of capital stock as provided by this Section 11(a), a Warrant may only be exercised in full by payment of the entire Exercise Price currently in effect.
(b) The Company will not, by amendment of 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 to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Section 11 and in the taking of all such action as may be necessary or appropriate in order to protect the exercise rights of the Holders of this Warrant against impairment.
12. Certificate as to Adjustments. In each case (other than a consolidation or merger of the Company with or into another corporation where the Company is not the surviving entity) of any adjustment or readjustment in the shares of Common Stock (or Other Securities) issuable on the exercise of the Warrant, the Company at its expense will promptly cause its Chief Financial Officer or other appropriate designee to compute such adjustment or readjustment in accordance with the terms of the Warrant and prepare a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based, including a statement of (a) the consideration received or receivable by the Company for any additional shares of Common Stock (or Other Securities) issued or sold or deemed to have been issued or sold, (b) the number of shares of Common Stock (or Other Securities) outstanding or deemed to be outstanding, and (c) the Exercise Price and the number of shares of Common Stock to be received upon exercise of this Warrant, in effect immediately prior to such adjustment or readjustment and as adjusted or readjusted as provided in this Warrant. The Company will forthwith mail a copy of each such certificate to the Holder of the Warrant and any Warrant agent of the Company (appointed pursuant to Section 15 hereof).
13. Reservation of Stock Issuable on Exercise of Warrant. The Company will at all times reserve and keep available, solely for issuance and delivery on the exercise of the Warrant, shares of Common Stock (or Other Securities) from time to time issuable on the exercise of the Warrant.
14. Assignment; Exchange of Warrant. Subject to compliance with applicable securities laws, this Warrant, and the rights evidenced hereby, may be transferred by any registered Holder hereof (a “Transferor”) with respect to any or all of the shares underlying this Warrant. On the surrender or exchange of this Warrant, with the Transferor’s duly executed Assignment Form and together with evidence reasonably satisfactory to the Company demonstrating compliance with applicable securities laws, which shall include, without limitation, a legal opinion from the Transferor’s counsel that such transfer is exempt from the registration requirements of applicable securities laws, the Company at its expense (but with payment by the Transferor of any applicable transfer taxes) will issue and deliver to or on the order of the Transferor thereof a new Warrant of like tenor, in the name of the Transferor and/or the transferee(s) specified in such Assignment Form (each a “Transferee”), calling in the aggregate on the face or faces thereof for the number of Warrant Shares called for on the face or faces of the Warrant so surrendered by the Transferor; and provided further, that upon any such transfer, the Company may require, as a condition thereto, that the Transferee execute an appropriate investment representation as may be reasonably required by the Company.
15. Warrant Agent. The Company may, by written notice to each Holder of a Warrant, appoint an agent for the purpose of issuing Common Stock (or Other Securities) on the exercise of this Warrant pursuant to Section 2, exchanging this Warrant pursuant to Section 14, and replacing this Warrant pursuant to Section 7, or any of the foregoing, and thereafter any such issuance, exchange or replacement, as the case may be, shall be made at such office by such agent.
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16. Notices, etc. All notices shall be in writing signed by the party giving such notice and delivered personally or sent by overnight courier or messenger or sent by registered or certified mail (air mail if overseas), return receipt requested, or by telex, facsimile transmission, telegram or similar means of communication. Notices shall be deemed to have been received on the date of personal, telex, facsimile transmission, telegram or similar means of communication, or if sent by overnight courier or messenger, shall be deemed to have been received on the next delivery day after deposit with the courier or messenger, or if sent by certified or registered mail, return receipt requested, shall be deemed to have been received on the third business day after the date of mailing. Notices shall be sent to the addresses set forth below each party’s signature on the Subscription Agreement.
17. Notices of Record Date.
In case,
(a) The Company takes a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase any shares of stock of any class or to receive a dividend, distribution or any other rights; or
(b) There is any capital reorganization of the Company, reclassification of the capital stock of the Company (other than a subdivision or combination of its outstanding shares of Common Stock), or consolidation or merger of the Company with or into another corporation where the Company is not the surviving entity; or
(c) There is a voluntary or involuntary dissolution, liquidation or winding up of the Company;
then, and in any such case, the Company shall cause to be mailed to the Holder, at least 5 business days prior to the date hereinafter specified, a notice stating the date on which (i) a record is to be taken for the purpose of such dividend, distribution or rights, or (ii) such reclassification, reorganization, consolidation, merger, dissolution, liquidation or winding up is to take place and the date, if any is to be fixed, as of which holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, reorganization, consolidation, merger, dissolution, liquidation or winding up.
18. Amendments and Supplements.
(a) The Company may from time to time supplement or amend this Warrant without the approval of any Holders in order to cure any ambiguity or to be correct or supplement any provision contained herein which may be defective or inconsistent with any other provision, or to make any other provisions in regard to matters or questions herein arising hereunder which the Company may deem necessary or desirable and which shall not materially adversely affect the interest of the Holder. All other supplements or amendments to this Warrant must be signed by the party against whom such supplement or amendment is to be enforced.
(b) Notwithstanding Section 18(a), the Company may at any time during the term of this Warrant 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.
19. Investment Intent. Holder represents and warrants to the Company that Holder is acquiring the Warrant for investment and with no present intention of distributing or reselling all or any part of the Warrant.
20. Certificates to Bear Language. The Warrant Shares issuable upon exercise thereof shall bear the following legend by which Holder shall be bound:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT of 1933, AS AMENDED. THE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE of SUCH REGISTRATION OR AN OPINION of COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.”
Certificates for Warrants or Warrant Shares without such legend shall be issued if such Warrants or Warrant Shares are sold pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), or if the Company has received an opinion from counsel reasonably satisfactory to counsel for the Company, that such legend is no longer required under the 1933 Act.
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21. Representations and Warranties of Holder. The Holder hereby represents and warrants that on the date hereof and on each date of exercise of this Warrant:
(a) Securities Not Registered. The Holder is acquiring this Warrant and the Warrant Shares (collectively, the “Securities”) for its own account, not as an agent or nominee, and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable securities laws. By accepting this Warrant, the Holder further represents that the Holder does not have any present contract, undertaking, understanding or arrangement with any person to sell, transfer or grant participations to such persons or any third person, with respect to any of the Securities.
(b) Access to Information. The Company has made available to the Holder the opportunity to ask questions of and to receive answers from the Company’s officers, directors and other authorized representatives concerning the Company and its business and prospects, and Holder has been permitted to have access to all information which it has requested in order to evaluate the merits and risks of the purchase of the Securities.
(c)
Investment Experience. The Holder is an investor in securities of
companies in the development stage and acknowledges that it is able to fend for itself, can bear the economic risk of its investment,
and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the
purchase of the Securities.
(d) Regulation D. The Holder is an “accredited investor” as defined in Rule 501 under the 1933 Act. In the normal course of business, the Holder invests in or purchases securities similar to the Securities and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of purchasing the Securities. The Holder is not a registered broker dealer or an affiliate of any broker or dealer registered under Section 15(a) of the Exchange Act of 1934, as amended, or a member of the FINRA or a Person engaged in the business of being a broker dealer.
(e) Securities are Unregistered. The Holder has been advised that (i) none of the Securities have been registered under the 1933 Act or other applicable securities laws, (ii) the Securities may need to be held indefinitely, (iii) the Holder will continue to bear the economic risk of the investment in the Securities after they are subsequently registered under the 1933 Act or an exemption from such registration is available, and (iv) when and if the Securities may be disposed of without registration in reliance on Rule 144 promulgated under the 1933 Act, such disposition may be made only in amounts in accordance with the terms and conditions of such Rule in effect at that time.
(f) Pre-Existing Relationship. The Holder has a pre-existing personal or business relationship with the Company or any of its officers, directors or controlling persons, or by his/its business or financial experience or the business or financial experience of his/its financial advisors who are unaffiliated with and who are not compensated by the Company, directly or indirectly, could be reasonably assumed to have the capacity to protect his/its own interest in connection with the acquisition of the Securities.
(g) No Advertisement. The Holder acknowledges that the offer and sale of the Securities was not accomplished by the publication of any advertisement.
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(h) No Review. The Holder understands that no arbitration board or panel, court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, has passed upon or made any recommendation or endorsement of the common stock into which it converts.
(i) Legal Representation. The Holder has had the opportunity to confer with legal counsel of its choosing regarding the issuance of the Securities and any related transactions.
22. Survival of Representation and Warranties. All representations and warranties made by the Holder shall survive the earlier of the Expiration Date and shall remain effective and enforceable until the earlier to occur of the Expiration Date or the date on which claims based thereon shall have been barred by the applicable statutes of limitation.
23. Miscellaneous.
(a) This Warrant shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws. The parties submit to the jurisdiction of the Courts of the County of Fulton, State of Georgia or a Federal Court empaneled in the State of Georgia for the resolution of all legal disputes arising under the terms of this Warrant, including, but not limited to, enforcement of any arbitration award. The Company and the Holder agree to submit to the jurisdiction of such courts and waive trial by jury.
(b) If any action or proceeding is brought by the Company on the one hand or by the Holder on the other hand to enforce or continue any provision of this Warrant, the prevailing party’s costs and expenses, including its reasonable attorney’s fees, in connection with such action or proceeding shall be paid by the other party.
(c) In the event that any provision of this Warrant is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision, which may prove invalid or unenforceable under any law, shall not affect the validity or enforceability of any other provision of this Warrant.
(d) The headings in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any of the terms hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first written above.
| CLINIGENCE HOLDINGS, INC., | |
| a Delaware corporation | |
| By: | ______________________________ |
| Michael Bowen | |
| Chief Financial Officer |
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NOTICE OF EXERCISE
(To Be Executed by the Holder in Order to Exercise the Warrant)
The undersigned Holder hereby elects to purchase _____ Shares pursuant to the attached Warrant, and requests that certificates for securities be issued in the name of:
| (Please type or print name and address) |
| (Social Security or Tax Identification Number) |
and delivered
| to: | |
| (Please type or print name and address if different from above) | |
If such number of Shares being purchased hereby shall not be all the Shares that may be purchased pursuant to the attached Warrant, a new Warrant for the balance of such Shares shall be registered in the name of, and delivered to, the Holder at the address set forth below.
In full payment of the purchase price with respect to the Shares purchased and transfer taxes, if any, the undersigned hereby tenders payment of $_____________ by check, money order or wire transfer payable in United States currency to the order of [________________].
| HOLDER: | |
| Dated: | By: _________________________ |
| Name: _______________________ | |
| Title: ____________________ |
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers unto _____________ the right represented by the within Warrant to purchase _____ shares of Common Stock of Clinigence Holdings, Inc., a Delaware corporation, to which the within Warrant relates, and appoints ________________ Attorney to transfer such right on the books of Clinigence Holdings, Inc., a Delaware corporation, with full power of substitution of premises.
| Dated: | By: _________________________ |
| Name: _______________________ | |
| Title: ________________________ | |
| (signature must conform to name of holder as specified on the fact of the Warrant) | |
| Address: |
Signed in the presence of :
Dated:______________
Exhibit 4.8
WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (II) TO THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (III) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
STOCK PURCHASE WARRANT
To Purchase __________________ Shares of Common Stock
| No. 2023CDPA | Issue Date: December 31, 2023 |
THIS CERTIFIES that, for value received, ____________________ (the “Holder”), is entitled, upon the terms and subject to the conditions hereinafter set forth, to subscribe for and purchase, from NUTEX HEALTH, INC., a Delaware corporation (the “Company”), of ______________________________________________________________________ fully paid non-assessable shares of the Company’s common stock, $0.001 par value per share (“Common Stock”), at a purchase price of $0.40 per share, provided that such right will terminate, if not terminated earlier in accordance with the provisions hereof, at 5:00 p.m. (Texas time) on December 31, 2029 (the “Expiration Date”).
The purchase price and the number of shares for which this warrant (the “Warrant”) is exercisable are subject to adjustment, as provided herein.
This Warrant was issued in connection with the Placement Agent Agreement (the “Placement Agreement”) related to the Company’s private offering (the “Offering”) of investment units of the Company consisting of a Convertible Promissory notes and warrants to purchase Common Stock pursuant to a Confidential Private Offering Memorandum dated September 2023 (the “Memorandum”) and is subject to the terms of the Placement Agreement to which the initial Holder is a party. Capitalized terms used and not otherwise defined herein will have the respective meanings ascribed to such terms in the Memorandum.
As used herein the following terms, unless the context otherwise requires, have the following respective meanings:
(a) “Company” means Nutex Health, Inc. and any corporation that shall succeed or assume the obligations of Nutex Health, Inc. hereunder.
(b) “Warrant Shares” means (i) the Company’s Common Stock and (ii) any Other Securities into which or for which any of the Common Stock may be converted or exchanged pursuant to a plan of recapitalization, reorganization, merger, sale of assets or otherwise.
(c) “Other Securities” refers to any stock (other than Common Stock) and other securities of the Company or any other person (corporate or otherwise) which the holder of the Warrant at any time shall be entitled to receive, or shall have received, on the exercise of the Warrant, in lieu of or in addition to Common Stock, or which at any time shall be issuable or shall have been issued in exchange for or in replacement of Common Stock or Other Securities.
1. Number of Shares Issuable upon Exercise. Unless sooner terminated in accordance herewith, from and after the date hereof through and including the Expiration Date, the Holder shall be entitled to receive, upon exercise of this Warrant in whole or in part, the number of shares of Common Stock of the Company set forth on the first page of this Warrant, subject to adjustment pursuant hereto, by delivery of an original or fax copy of the exercise notice attached hereto as Exhibit A (the “Notice of Exercise”), along with payment to the Company of the Exercise Price. To validly exercise this Warrant, the Notice of Exercise must be received by the Company no later than the Expiration Date.
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2. Exercise of Warrant.
(a) The purchase rights represented by this Warrant are exercisable by the registered Holder hereof, in whole at any time or in part from time to time by delivery of the Notice of Exercise duly completed and executed at the principal executive office of the Company (or such other office or agency of the Company as it may designate by notice in writing to the registered Holder hereof at the address of such Holder appearing on the books of the Company), and upon payment of the Exercise Price of the Warrant Shares thereby purchased (cash, bank wire transfer, or by certified or official bank check payable to the order of the Company in an amount equal to the Exercise Price of the shares thereby purchased); whereupon the Holder of this Warrant shall be entitled to receive a certificate for the number of Warrant Shares so purchased; provided that the Company will place on each certificate a legend substantially the same as that appearing on this Warrant, in addition to any legend required by any applicable state or federal law. If this Warrant is exercised in part, the Company will issue to the Holder hereof a new Warrant upon the same terms as this Warrant but for the balance of Warrant Shares for which this Warrant remains exercisable. The Company agrees that upon proper exercise of this Warrant the Holder shall be deemed to be the record owner of the shares issued upon such proper exercise as of the close of business on the date on which this Warrant shall have been exercised as aforesaid (after taking into account, and following the termination of, any applicable notice period). This Warrant will be surrendered at the time of exercise or if lost, stolen, misplaced or destroyed, the Holder will comply with Section 7 below. Certificates for shares purchased hereunder shall be delivered to the Holder hereof within a reasonable time after the date on which this Warrant shall have been exercised as aforesaid.
(b) The Company covenants that all Warrant Shares which may be issued upon the exercise of rights represented by this Warrant will, upon exercise of the rights represented by this Warrant, be fully paid and non-assessable and free from all preemptive rights, taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue which shall be paid by the Company in accordance with Section 4 below).
3. No Fractional Shares. The Company shall not be required to issue fractional Warrant Shares upon the exercise of this Warrant or to deliver Warrant Certificates that evidence fractional Warrant Shares. In the event that a fraction of a Warrant Share would, except for the provisions of this Section 3, be issuable upon the exercise of this Warrant, the Company shall, upon such exercise, round down to the nearest whole number the number of shares of Common Stock to be issued upon such exercise.
4. Charges, Taxes and Expenses. Issuance of certificates for Warrant Shares upon the exercise of this Warrant shall be made without charge to the Holder hereof for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder of this Warrant, or in such name or names as may be directed by the Holder of this Warrant; provided, however, that in the event certificates for Warrant Shares are to be issued in a name other than the name of the Holder of this Warrant, this Warrant, when exercised, shall be accompanied by the Assignment Form attached hereto as Exhibit B (the “Assignment Form”) duly executed by the Holder hereof; and provided further, that upon any transfer involved in the issuance or delivery of any certificates for Warrant Shares, the Company may require, as a condition thereto, that the transferee execute an appropriate investment representation as may be reasonably required by the Company.
5. No Rights as Shareholders. This Warrant does not entitle the Holder hereof to any voting rights or other rights as a stockholder of the Company prior to the exercise hereof.
6. Exchange and Registry of Warrant. This Warrant is exchangeable, upon the surrender hereof by the registered Holder at the above- mentioned office or agency of the Company, for a new Warrant or Warrants aggregating the total Warrant Shares of the surrendered Warrant of like tenor and dated as of such exchange. The Company shall maintain at the above-mentioned office or agency a registry showing the name and address of the registered Holder of this Warrant. This Warrant may be surrendered for exchange, transfer or exercise, in accordance with its terms, at such office or agency of the Company, and the Company shall be entitled to rely in all respects, prior to written notice to the contrary, upon such registry.
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7. Loss; Theft, Destruction or Mutilation of Warrant. Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and in case of loss, theft or destruction, of indemnity reasonably satisfactory to it, and upon reimbursement to the Company of all reasonable expenses incidental thereto, and upon surrender and cancellation of this Warrant, if mutilated, the Company will make and deliver a new Warrant of like tenor (but with no additional rights or obligations) and dated as of such cancellation, in lieu of this Warrant.
8. 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 be a Saturday or a Sunday or shall be a legal holiday, then such action may be taken or such right may be exercised on the next succeeding day not a Saturday, Sunday or legal holiday.
9. Cash Distributions. No adjustment on account of cash dividends or interest on the Company’s Common Stock or Other Securities that may become purchasable hereunder will be made to the Exercise Price under this Warrant.
10. Consolidation, Merger or Sale of the Company. If the Company is a party to a consolidation, merger or transfer of assets that reclassifies or changes its outstanding Common Stock, the successor corporation (or corporation controlling the successor corporation or the Company, as the case may be) shall by operation of law assume the Company’s obligations under this Warrant.
11. Adjustments in the Exercise Price. The number of shares and class of capital stock purchasable under this Warrant are subject to adjustment from time to time as set forth in this Section 11.
(a) Adjustment for change in capital stock. If the Company:
(i) pays a dividend or makes a distribution on its Common Stock, in each case, in shares of its Common Stock;
(ii) subdivides its outstanding shares of Common Stock into a greater
(iii) combines its outstanding shares of Common Stock into a smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of its capital stock other than Common Stock; or
(v) issues by reclassification of its shares of Common Stock any shares of its capital stock;
then the number and classes of shares purchasable upon exercise of each Warrant in effect immediately prior to such action shall be adjusted so that the holder of any Warrant thereafter exercised may receive the number and classes of shares of capital stock of the Company which such holder would have owned immediately following such action if such holder had exercised the Warrant immediately prior to such action.
For a dividend or distribution the adjustment shall become effective immediately after the record date for the dividend or distribution. For a subdivision, combination or reclassification, the adjustment shall become effective immediately after the effective date of the subdivision, combination or reclassification.
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If after an adjustment the Holder, upon exercise of a Warrant, may receive shares of two or more classes of capital stock of the Company, the Board of Directors of the Company shall in good faith determine the allocation of the adjusted Exercise Price between or among the classes of capital stock. After such allocation, that portion of the Exercise Price applicable to each share of each such class of capital stock shall thereafter be subject to adjustment on terms comparable to those applicable to Common Stock in this Warrant. Notwithstanding the allocation of the Exercise Price between or among shares of capital stock as provided by this Section 11(a), a Warrant may only be exercised in full by payment of the entire Exercise Price currently in effect.
(b) The Company will not, by amendment of 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 to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Section 11 and in the taking of all such action as may be necessary or appropriate in order to protect the exercise rights of the Holders of this Warrant against impairment.
12. Certificate as to Adjustments. In each case of any adjustment or readjustment in the shares of Common Stock (or Other Securities) issuable on the exercise of the Warrant, the Company at its expense will promptly cause its Chief Financial Officer or other appropriate designee to compute such adjustment or readjustment in accordance with the terms of the Warrant and prepare a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based, including a statement of (a) the consideration received or receivable by the Company for any additional shares of Common Stock (or Other Securities) issued or sold or deemed to have been issued or sold, (b) the number of shares of Common Stock (or Other Securities) outstanding or deemed to be outstanding, and (c) the Exercise Price and the number of shares of Common Stock to be received upon exercise of this Warrant, in effect immediately prior to such adjustment or readjustment and as adjusted or readjusted as provided in this Warrant. The Company will forthwith mail a copy of each such certificate to the Holder of the Warrant and any Warrant agent of the Company (appointed pursuant to Section 15 hereof).
13. Reservation of Stock Issuable on Exercise of Warrant. The Company will at all times reserve and keep available, solely for issuance and delivery on the exercise of the Warrant, shares of Common Stock (or Other Securities) from time to time issuable on the exercise of the Warrant.
14. Assignment; Exchange of Warrant. Subject to compliance with applicable securities laws, this Warrant, and the rights evidenced hereby, may be transferred by any registered Holder hereof (a “Transferor”) with respect to any or all of the shares underlying this Warrant. On the surrender or exchange of this Warrant, with the Transferor’s duly executed Assignment Form and together with evidence reasonably satisfactory to the Company demonstrating compliance with applicable securities laws, which shall include, without limitation, a legal opinion from the Transferor’s counsel that such transfer is exempt from the registration requirements of applicable securities laws, the Company at its expense (but with payment by the Transferor of any applicable transfer taxes) will issue and deliver to or on the order of the Transferor thereof a new Warrant of like tenor, in the name of the Transferor and/or the transferee(s) specified in such Assignment Form (each a “Transferee”), calling in the aggregate on the face or faces thereof for the number of Warrant Shares called for on the face or faces of the Warrant so surrendered by the Transferor; and provided further, that upon any such transfer, the Company may require, as a condition thereto, that the Transferee execute an appropriate investment representation as may be reasonably required by the Company.
15. Warrant Agent. The Company may, by written notice to each Holder of a Warrant, appoint an agent for the purpose of issuing Common Stock (or Other Securities) on the exercise of this Warrant pursuant to Section 2, exchanging this Warrant pursuant to Section 14, and replacing this Warrant pursuant to Section 7, or any of the foregoing, and thereafter any such issuance, exchange or replacement, as the case may be, shall be made at such office by such agent.
16. Notices, etc. All notices shall be in writing signed by the party giving such notice, and delivered personally or sent by overnight courier or messenger or sent by registered or certified mail (air mail if overseas), return receipt requested, or by telex, facsimile transmission, telegram or similar means of communication. Notices shall be deemed to have been received on the date of personal, telex, facsimile transmission, telegram or similar means of communication, or if sent by overnight courier or messenger, shall be deemed to have been received on the next delivery day after deposit with the courier or messenger, or if sent by certified or registered mail, return receipt requested, shall be deemed to have been received on the third business day after the date of mailing. Notices shall be sent to the addresses set forth below each party’s signature on the Subscription Agreement.
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17. Notices of Record Date.
In case,
(a) The Company takes a record of the holders of its Common Stock for the purpose of entitling them to subscribe for or purchase any shares of stock of any class or to receive a dividend, distribution or any other rights; or
(b) There is any capital reorganization of the Company, reclassification of the capital stock of the Company (other than a subdivision or combination of its outstanding shares of Common Stock), or consolidation or merger of the Company with or into another corporation where the Company is not the surviving entity; or
(c) There is a voluntary or involuntary dissolution, liquidation or winding up of the Company;
then, and in any such case, the Company shall cause to be mailed to the Holder, at least 5 business days prior to the date hereinafter specified, a notice stating the date on which (i) a record is to be taken for the purpose of such dividend, distribution or rights, or (ii) such reclassification, reorganization, consolidation, merger, dissolution, liquidation or winding up is to take place and the date, if any is to be fixed, as of which holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, reorganization, consolidation, merger, dissolution, liquidation or winding up.
18. Amendments and Supplements.
(a) The Company may from time to time supplement or amend this Warrant without the approval of any Holders in order to cure any ambiguity or to be correct or supplement any provision contained herein which may be defective or inconsistent with any other provision, or to make any other provisions in regard to matters or questions herein arising hereunder which the Company may deem necessary or desirable and which shall not materially adversely affect the interest of the Holder. All other supplements or amendments to this Warrant must be signed by the party against whom such supplement or amendment is to be enforced.
(b) Notwithstanding Section 18(a), the Company may at any time during the term of this Warrant 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.
19. Investment Intent. Holder represents and warrants to the Company that Holder is acquiring the Warrant for investment and with no present intention of distributing or reselling all or any part of the Warrant.
20. Certificates to Bear Language. The Warrant Shares issuable upon exercise thereof shall bear the following legend by which Holder shall be bound:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT of 1933, AS AMENDED. THE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE of SUCH REGISTRATION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.”
Certificates for Warrants or Warrant Shares without such legend shall be issued if such Warrants or Warrant Shares are sold pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), or if the Company has received an opinion from counsel reasonably satisfactory to counsel for the Company, that such legend is no longer required under the 1933 Act.
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21. Representations and Warranties of Holder. The Holder hereby represents and warrants that on the date hereof and on each date of exercise of this Warrant:
(a) Securities Not Registered. The Holder is acquiring this Warrant and the Warrant Shares (collectively, the “Securities”) for its own account, not as an agent or nominee, and not with a view to, or for sale in connection with, any distribution thereof in violation of applicable securities laws. By accepting this Warrant, the Holder further represents that the Holder does not have any present contract, undertaking, understanding or arrangement with any person to sell, transfer or grant participations to such persons or any third person, with respect to any of the Securities.
(b) Access to Information. The Company has made available to the Holder the opportunity to ask questions of and to receive answers from the Company’s officers, directors and other authorized representatives concerning the Company and its business and prospects, and Holder has been permitted to have access to all information which it has requested in order to evaluate the merits and risks of the purchase of the Securities.
(c) Investment Experience. The Holder is an investor in securities of companies in various stages of development and growth and acknowledges that it is able to fend for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the purchase of the Securities.
(d) Regulation D. The Holder is an “accredited investor” as defined in Rule 501 under the 1933 Act. In the normal course of business, the Holder invests in or purchases securities similar to the Securities and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of purchasing the Securities. The Holder is not a registered broker dealer or an affiliate of any broker or dealer registered under Section 15(a) of the Exchange Act of 1934, as amended, or a member of the FINRA or a Person engaged in the business of being a broker dealer.
(e) Securities are Unregistered. The Holder has been advised that (i) none of the Securities have been registered under the 1933 Act or other applicable securities laws, (ii) the Securities may need to be held indefinitely, (iii) the Holder will continue to bear the economic risk of the investment in the Securities after they are subsequently registered under the 1933 Act or an exemption from such registration is available, and (iv) when and if the Securities may be disposed of without registration in reliance on Rule 144 promulgated under the 1933 Act, such disposition may be made only in amounts in accordance with the terms and conditions of such Rule in effect at that time.
(f) Pre-Existing Relationship. The Holder has a pre-existing personal or business relationship with the Company or any of its officers, directors or controlling persons, or by his/its business or financial experience or the business or financial experience of his/its financial advisors who are unaffiliated with and who are not compensated by the Company, directly or indirectly, could be reasonably assumed to have the capacity to protect his/its own interest in connection with the acquisition of the Securities.
(g) No Advertisement. The Holder acknowledges that the offer and sale of the Securities was not accomplished by the publication of any advertisement.
(h) No Review. The Holder understands that no arbitration board or panel, court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, has passed upon or made any recommendation or endorsement of the common stock into which it converts.
(i) Legal Representation. The Holder has had the opportunity to confer with legal counsel of its choosing regarding the issuance of the Securities and any related transactions.
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22. Survival of Representation and Warranties. All representations and warranties made by the Holder shall survive the earlier of the Expiration Date and shall remain effective and enforceable until the earlier to occur of the Expiration Date or the date on which claims based thereon shall have been barred by the applicable statutes of limitation.
23. Miscellaneous.
(a) This Warrant shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws. The parties submit to the jurisdiction of the Courts of the County of Houston, State of Texas or a Federal Court empaneled in the State of Texas for the resolution of all legal disputes arising under the terms of this Warrant, including, but not limited to, enforcement of any arbitration award. The Company and the Holder agree to submit to the jurisdiction of such courts and waive trial by jury.
(b) If any action or proceeding is brought by the Company on the one hand or by the Holder on the other hand to enforce or continue any provision of this Warrant, the prevailing party’s costs and expenses, including its reasonable attorney’s fees, in connection with such action or proceeding shall be paid by the other party.
(c) In the event that any provision of this Warrant is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision, which may prove invalid or unenforceable under any law, shall not affect the validity or enforceability of any other provision of this Warrant.
(d) The headings in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any of the terms hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first written above.
| NUTEX HEALTH, INC., | |
| a Delaware corporat | |
| By: | ______________________________ |
| Elisa Luqman | |
| Chief Legal Officer – SEC |
| 8 |
EXHIBIT
A
TO
WARRANT
NOTICE OF EXERCISE
(To Be Executed by the Holder in Order to Exercise the Warrant)
The undersigned Holder hereby elects to purchase _____ Shares pursuant to the attached Warrant, and requests that certificates for securities be issued in the name of :
| (Please type or print name and address) |
| (Social Security or Tax Identification Number) |
and delivered
| to: | |
| (Please type or print name and address if different from above) | |
If such number of Shares being purchased hereby shall not be all the Shares that may be purchased pursuant to the attached Warrant, a new Warrant for the balance of such Shares shall be registered in the name of , and delivered to, the Holder at the address set forth below.
In full payment of the purchase price with respect to the Shares purchased and transfer taxes, if any, the undersigned hereby tenders payment of $_____________ by check, money order or wire transfer payable in United States currency to the order of [________________].
| HOLDER: | |
| Dated: | By: _________________________ |
| Name: _______________________ | |
| Title: ________________________ |
A-1
EXHIBIT
B
TO
WARRANT
FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers unto ________________ the right represented by the within Warrant to purchase _____ shares of Common Stock of Nutex Health, Inc., a Delaware corporation, to which the within Warrant relates, and appoints ________________ Attorney to transfer such right on the books of Nutex Health, Inc., a Delaware corporation, with full power of substitution of premises.
| Dated: | By: _________________________ |
| Name: _______________________ | |
| Title: ________________________ | |
| (signature must conform to name of holder as specified on the fact of the Warrant) | |
| Address: |
Signed in the presence of :
Dated:__________________
B-1
Exhibit 4.9
AMENDMENT TO WARRANT AGREEMENT
This AMENDMENT TO WARRANT AGREEMENT (the “Warrant Amendment”) is made as of March 26, 2024, by and between Nutex Health Inc., a Delaware corporation (the “Company”), and Michael DiMeo (the “Holder”).
WHEREAS, the Company and the Holder are parties to that certain Stock Purchase Warrant dated December 31, 2023 (the “Original Warrant”); and
WHEREAS, the Company and the Holder desire to amend the Original Warrant in accordance with the terms and conditions set forth in this Warrant Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions. All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Original Warrant.
2. The Warrant is amended as follows:
| a. | “To Purchase 3,634,875 Shares of Common Stock” is amended to read “To Purchase 7,269,750 Shares of Common Stock” |
| b. | In the opening paragraph, the phrase “Three Million Six Hundred Thirty Four Thousand Eight Hundred Seventy Five (3,634,875) is amended to read “Seven Million Two Hundred Sixty Nine Thousand Seven Hundred Fifty (7,269,750)” and the phrase “$0.40” is amended to read “$0.20” |
| c. | In the third paragraph the phrase “to purchase 3,634,875” is amended to read “to purchase 7,269,750” |
3. Except as specifically amended hereby, the remaining terms and provisions of the Original Warrant shall not be affected by this Warrant Amendment and shall remain in full force and effect.
4. Conditions to Effectiveness. This Warrant Amendment shall become effective upon the execution and delivery hereof by the Company and the Holder.
5. Representations and Warranties. The Company and the Holder hereby represent and warrant to each other that (a) they have the legal capacity and authority to enter into this Warrant Amendment, (b) this Warrant Amendment constitutes their legal, valid, and binding obligation, enforceable against them in accordance with its terms, and (c) the execution, delivery, and performance of this Warrant Amendment does not violate any other agreement to which they are a party.
6. Miscellaneous.
(a) Entire Agreement. This Warrant Amendment, together with the Original Warrant, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.
(b) Counterparts. This Warrant Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Warrant Amendment as of the date first above written.
NUTEX HEALTH INC.
/s/ Jon Bates
Name: Jon Bates
Title: Chief Financial Officer
HOLDER:
/s/ Michael DiMeo
Name: Michael DiMeo
Exhibit 4.10
DESCRIPTION OF REGISTRANT’S SECURITIES
REGISTERED PURSUANT TO SECTION 12 OF THE
SECURITIES EXCHANGE ACT OF 1934
DESCRIPTION OF CAPITAL STOCK
The following description of the capital stock of Nutex Health Inc. (the “Company” or “we”) is based upon the Company’s amended and restated certificate of incorporation, as amended to date, and the Company’s second amended and restated bylaws and applicable provisions of law. We have summarized certain portions of the Company’s amended and restated certificate of incorporation and second amended and restated bylaws below. The summary is not complete and is subject to, and is qualified in its entirety by express reference to, the provisions of applicable law and to the Company’s amended and restated certificate of incorporation and amended and restated bylaws.
Common Stock
Voting Rights. Holders of shares of common stock, par value $0.001 per share, are entitled to one vote per share held of record on all matters to be voted upon by the shareholders. The holders of common stock do not have cumulative voting rights in the election of directors.
Dividend Rights. Holders of shares of our common stock are entitled to ratably receive dividends when and if declared by our board of directors out of funds legally available for that purpose, subject to any statutory or contractual restrictions on the payment of dividends and to any prior rights and preferences that may be applicable to any outstanding preferred stock.
Liquidation Rights. Upon our liquidation, dissolution, distribution of assets or other winding up, the holders of common stock are entitled to receive ratably the assets available for distribution to the shareholders after payment of liabilities and the liquidation preference of any of our outstanding shares of preferred stock.
Other Matters. The shares of common stock have no preemptive or conversion rights and are not subject to further calls or assessment by us. There are no redemption or sinking fund provisions applicable to the common stock. All outstanding shares of our common stock are fully paid and non-assessable.
Anti-Takeover
Effects of Provisions of Our Amended and Restated Certificate of Incorporation, Our
Second Amended and Restated Bylaws and Delaware Law
Some provisions of Delaware law, and our amended and restated certificate of incorporation and our second amended and restated bylaws described below, contain provisions that could make the following transactions more difficult: acquisitions of us by means of a tender offer, a proxy contest or otherwise; or removal of our incumbent officers and directors. These provisions may also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that shareholders may otherwise consider to be in their best interest or in our best interests, including transactions that might result in a premium over the market price for our shares.
These provisions, summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with us. We believe that the benefits of increased protection and our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because, among other things, negotiation of these proposals could result in an improvement of their terms.
Delaware Law
We are subject to the anti-takeover provisions of the Delaware General Corporation Law (“DGCL”), including Section 203. Under these provisions, if anyone becomes an “interested stockholder,” the combined company may not enter into a “business combination” with that person for three years without special approval, which could discourage a third party from making a takeover offer and could delay or prevent a change of control. For purposes of Section 203 of the DGCL, “interested stockholder” means, generally, someone owning 15% or more of the combined company’s outstanding voting stock or an affiliate of the combined company that owned 15% or more of the combined company’s outstanding voting stock during the past three years, subject to certain exceptions as described in Section 203 of the DGCL. As such, Section 203 of the DGCL could prohibit or delay mergers or a change in control and may discourage attempts by other companies to acquire the combined company
Amended and Restated Certificate of Incorporation and Second Amended and Restated Bylaws
Provisions of our amended and restated certificate of incorporation, as amended, and our amended and restated bylaws may delay or discourage transactions involving an actual or potential change in control or change in our management, including transactions in which shareholders might otherwise receive a premium for their shares, or transactions that our shareholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of our common stock.
Provisions in our amended and restated certificate of incorporation and amended and restated bylaws establish advance notice procedures with regard to shareholder proposals relating to the nomination of candidates for election as directors or new business to be brought before meetings of our shareholders. These procedures provide that notice of shareholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at our principal executive offices not less than 90 days nor more than 120 days prior to the first anniversary date of the annual meeting for the preceding year. Our amended and restated bylaws specify the requirements as to form and content of all shareholders' notices. These requirements may preclude shareholders from bringing matters before the shareholders at an annual or special meeting.
Forum Selection
Our second amended and restated bylaws provide that unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will, to the fullest extent permitted by applicable law, be the sole and exclusive forum for:
| • | any derivative action or proceeding brought on our behalf; |
| • | any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers, employees or agents to us or our shareholders; |
| • | any action asserting a claim against us or any director or officer or other employee of ours arising pursuant to any provision of the DGCL, our amended and restated certificate of incorporation or our amended and restated bylaws; or |
| • | any action asserting a claim against us or any director or officer or other employee of ours that is governed by the internal affairs doctrine; |
in each such case, subject to such Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein.
Our second amended and restated bylaws also provide that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock will be deemed to have notice of, and to have consented to, this forum selection provision. The forum selection provision is not, however, intended to be deemed a waiver by any stockholder with respect to our compliance with U.S. federal securities laws, and the application of the forum selection provision may in some instances be limited by applicable law.
Although we believe these provisions benefit us by providing increased consistency in the application of Delaware law for the specified types of actions and proceedings, the provisions may have the effect of discouraging lawsuits against our directors, officers, employees and agents. The enforceability of similar exclusive forum provisions in other companies' certificates of incorporation or bylaws has been challenged in legal proceedings, and it is possible that, in connection with one or more actions or proceedings described above, a court could rule that this provision in our second amended and restated bylaws is inapplicable or unenforceable.
Exhibit 5.1
Troutman Pepper Locke LLP 600 Travis St., Suite 2800 Houston, TX 77002 troutman.com |
 |
April 15, 2025
Nutex Health Inc.
6030 S. Rice Ave, Suite C
Houston, Texas 77081
| Re: |
Registration Statement on Form S-3; 78,424 shares of Nutex Health Inc. Common Stock, $0.001 par value per share |
Ladies and Gentlemen:
We have acted as special counsel to Nutex Health Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of the Company’s registration statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), filed by the Company with the Securities and Exchange Commission (the “Commission”). The Registration Statement relates to the resale from time to time by the selling stockholders of the Company named in the Registration Statement of an aggregate of up to 78,424 shares (the “Warrant Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), issuable upon the exercise of outstanding warrants (the “Warrants”). The Warrants were issued by the Company pursuant to the terms of (i) the Managing Dealer Agreement, by and between the Company and Emerson Equity LLC (“Emerson”), dated October 7, 2019, (ii) the Managing Dealer Agreement, by and between the Company and Emerson, dated as of June 15, 2020, (iii) the Stock Purchase Warrant issued to Emerson on March 18, 2022, and (iv) the Placement Agent Agreement, by and between the Company and Emerson, dated July 27, 2023 (collectively, the “Agreements”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related prospectus, other than as expressly stated herein with respect to the issuance of the Warrant Shares.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied, without verification, upon certificates of public officials and upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state antifraud law, rule or regulation relating to securities or to the sale or issuance thereof.
On the basis of the foregoing and subject to the qualifications set forth herein, we are of the opinion that the Warrant Shares, when issued and delivered against payment therefor in accordance with the terms of the Warrants, will be validly issued, fully paid and nonassessable. This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement. We also consent to the reference to our firm under the caption “Legal Matters” in the prospectus forming part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| Sincerely, | |
| /s/ Troutman Pepper Locke LLP |
Exhibit 23.1
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated March 31, 2025 relating to the financial statements appearing in the Annual Report on Form 10-K of Nutex Health Inc. for the year ended December 31, 2024. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
Marcum LLP
Houston, Texas
April 15, 2025
Marcum LLP 6002 Rogerdale Road Suite 300 Houston, Texas 77072 Phone 281.223.5500 www.marcumllp.com