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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 16, 2023
___________________________
CNS Pharmaceuticals, Inc.
(Exact name of registrant as specified in its
charter)
___________________________
Nevada |
001-39126 |
82-2318545 |
(State or other jurisdiction of
incorporation or organization) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
2100 West Loop South, Suite 900
Houston,
Texas 77027
(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including
area code: (800) 946-9185
Not Applicable
(Former Name or Former Address, if Changed
Since Last Report)
___________________________
Check the appropriate
box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
☐ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section
12(b) of the Act:
Title of each class |
Trading Symbols(s) |
Name of each exchange on which registered |
Common stock, par value $0.001 per share |
CNSP |
The NASDAQ Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by
check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry
into a Material Definitive Agreement
On October 16, 2023,
CNS Pharmaceuticals, Inc. (the “Company”) entered into a warrant exercise inducement offer letter (the “Inducement Letter”)
with a holder of certain existing warrants (“Holder”) to receive new warrants to purchase up to a number of shares of common
stock equal to 200% (the “Inducement Warrants”) of the number of warrant shares issued pursuant to the exercise of such certain
existing warrants to purchase shares of common stock (the “Existing Warrants”) pursuant to which the Holder agreed to exercise
for cash their Existing Warrants to purchase up to 1,878,000 shares of the Company’s common stock, at a Reduced Exercise Price
(as defined below), in exchange for the Company’s agreement to issue the Inducement Warrants to purchase up to 3,756,000 shares
of the Company’s common stock (the “Inducement Warrant Shares”). The Existing Warrants consist of: (i) warrants, originally
issued on December 22, 2020 and amended on December 5, 2022; (ii) warrants, originally issued on January 10, 2022 and amended on December
5, 2022; and (iii) warrants issued on December 5, 2022. Pursuant to the Inducement Letter, the exercise price for such Existing Warrants
was reduced to $1.28 per share (the “Reduced Exercise Price”). The issuance, or resale, of shares of Company common stock
underlying the Existing Warrants have been registered pursuant to effective registration statements (File Nos. 333-251530, 333-262262
and 333-267975). The Company anticipates receiving aggregate gross proceeds of up to approximately $2.4 million from the exercise
of the Existing Warrants before deducting financial advisory fees and other expenses payable by it.
The Company also agreed
to file a registration statement on Form S-3 (or other appropriate form if it is not then Form S-3 eligible) providing for the resale
of the Inducement Warrant Shares issuable upon the exercise of the Inducement Warrants (the “Resale Registration Statement”),
on or before November 20, 2023, and to use commercially reasonable efforts to have such Resale Registration Statement declared effective
by the SEC within 90 days following the date of such filing and to keep the Resale Registration Statement effective at all times until
no holder of the Inducement Warrants owns any Inducement Warrant Shares. The Company also granted liquidated damages to the Holders in
the event that it fails to deliver unlegended shares upon exercise of the Inducement Warrants and the Holders are unable to sell their
Inducement Warrant Shares otherwise.
The Company engaged A.G.P./Alliance Global Partners (“AGP”)
to act as its financial advisor in connection with the transactions summarized above and will pay AGP a fee of $145,000. The Company expect
to use the net proceeds from these transactions for general corporate purposes
Inducement Warrant
Terms
The following summary
of certain terms and provisions of the Inducement Warrants is not complete and is subject to, and qualified in its entirety by, the provisions
of the Inducement Warrants, the form of which is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by
reference. The following description of the Inducement Warrants is qualified in its entirety by reference to such exhibit.
Dilution and Exercise
Price
Each Inducement Warrant
will have an exercise price equal to the Reduced Exercise Price. The Inducement Warrants will be exercisable on the six-month anniversary
of the date of issuance and may be exercised for a period of five years therefrom. The exercise price and number of shares of common stock
issuable upon exercise is subject to appropriate proportional adjustment in the event of share dividends, share splits, reorganizations
or similar events affecting the Company’s common stock and the exercise price.
Exercisability
The Inducement Warrants
will be exercisable, at the option of each holder, in whole or in part, by delivering to the Company a duly executed exercise notice and,
within the earlier of (i) two trading days and (ii) the number of trading days comprising the standard settlement period with respect
to the common stock as in effect on the date of delivery of the notice of exercise thereafter, payment in full for the number of shares
of common stock purchased upon such exercise (except in the case of a cashless exercise as discussed below). A holder may not exercise
any portion of the Inducement Warrant to the extent that the holder, together with its affiliates and any other persons acting as a group
together with any such persons, would own more than 4.99% (or, at the election of the purchaser, 9.99%) of the number of shares of common
stock outstanding immediately after exercise (the “Beneficial Ownership Limitation”); provided that a holder with a Beneficial
Ownership Limitation of 4.99%, upon notice to the Company and effective sixty-one (61) days after the date such notice is
delivered to us, may increase the Beneficial Ownership Limitation so long as it in no event exceeds 9.99% of the number of shares of common
stock outstanding immediately after exercise.
Cashless Exercise
If, at the time a holder
exercises its Inducement Warrants, a registration statement registering the issuance of the shares of common stock underlying the Inducement
Warrants under the Securities Act is not then effective or available for the issuance of such shares, then in lieu of making the cash
payment otherwise contemplated to be made to the Company upon such exercise in payment of the aggregate exercise price, the holder may
only exercise its Inducement Warrants (either in whole or in part), at such time by means of a cashless exercise in which the holder shall
be entitled to receive upon such exercise the net number of shares of common stock determined according to a formula set forth in the
Inducement Warrants, which generally provides for a number of shares of common stock equal to (A) (1) the volume weighted average price
on (x) the trading day preceding the notice of exercise, if the notice of exercise is executed and delivered on a day that is not a trading
day or prior to the opening of “regular trading hours” on a trading day or (y) the trading day of the notice of exercise,
if the notice of exercise is executed and delivered after the close of “regular trading hours” on such trading day, or (2)
the bid price on the day of the notice of exercise, if the notice of exercise is executed during “regular trading hours” on
a trading day and is delivered within two hours thereafter, less (B) the exercise price, multiplied by (C) the number of shares of common
stock the Inducement Warrant was exercisable into, with such product then divided by the number determined under clause (A) in this sentence.
Fractional Shares
No fractional shares
of common stock will be issued upon the exercise of the Inducement Warrants. Rather, the Company will, at its election, and in lieu of
the issuance of such fractional share, either (i) pay cash in an amount equal to such fraction multiplied by the exercise price or (ii)
round up to the next whole share issuable upon exercise of the Inducement Warrant.
Transferability
Subject to applicable
laws, a Inducement Warrant may be transferred at the option of the holder upon surrender of the Inducement Warrant to the Company together
with the appropriate instruments of transfer and funds sufficient to pay any transfer taxes payable upon such transfer.
Trading Market
There is no trading market
available for the Inducement Warrants on any securities exchange or nationally recognized trading system. The Company does not intend
to list the Inducement Warrants on any securities exchange or nationally recognized trading system. The shares of common stock issuable
upon exercise of the Inducement Warrants are currently listed on Nasdaq under the symbol “CNSP.”
Rights as a Stockholder
Except as otherwise provided
in the Inducement Warrants or by virtue of such holder’s ownership of shares of common stock, the holders of the Inducement Warrants
do not have the rights or privileges of holders of the Company’s common stock, including any voting rights, until they exercise
their Inducement Warrants.
Fundamental Transaction
In the event of a fundamental
transaction, as described in the Inducement Warrants and generally including any reorganization, recapitalization or reclassification
of the Company’s common stock, the sale, transfer or other disposition of all or substantially all of the Company’s properties
or assets, the Company’s consolidation or merger with or into another person, the acquisition of more than 50% of the Company’s
outstanding shares of common stock, the holders of the Inducement Warrants will be entitled to receive upon exercise of the Inducement
Warrants the kind and amount of securities, cash or other property that the holders would have received had they exercised the Inducement
Warrants immediately prior to such fundamental transaction. Additionally, in the event of a fundamental transaction, the Company or any
successor entity will, at the option of the holder of a Inducement Warrant exercisable at any time concurrently with or within 30 days
after the consummation of the fundamental transaction (or, if later, the date of the public announcement thereof), purchase the Inducement
Warrant from the holder by paying to the holder an amount of consideration equal to the value of the remaining unexercised portion of
such Inducement Warrant on the date of consummation of the fundamental transaction based on the Black-Scholes option pricing model, determined
pursuant to a formula set forth in the Inducement Warrants. The consideration paid to the holder will be the same type or form of consideration
that was offered and paid to the holders of shares of common stock in connection with the fundamental transaction; provided that if no
such consideration was offered or paid, the holders of common stock will be deemed to have received common stock of the successor entity
in such fundamental transaction for purposes of this provision of the Inducement Warrants.
Item 3.02 Unregistered
Sales of Equity Securities
The Company will issue the Inducement Warrants pursuant to the exemption
from the registration requirements of the Securities Act available under Section 4(a)(2). Neither the issuance of the Inducement Warrants
nor the Inducement Warrant Shares will be registered under the Securities Act and such securities may not be offered or sold in the United
States absent registration or an exemption from registration under the Securities Act and any applicable state securities laws. The description
of the Inducement Warrants under Item 1.01 of this Form 8-K is incorporated by reference herein.
Item 9.01. Financial Statements and
Exhibits.
(d) Exhibits
Signature
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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CNS Pharmaceuticals, Inc. |
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By: |
/s/ Chris
Downs |
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Chris Downs |
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Chief Financial Officer |
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Dated: October 17, 2023 |
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Exhibit 4.1
NEITHER THIS SECURITY NOR THE
SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
CNS
Pharmaceuticals, Inc.
Warrant Shares: |
Issue Date:________, 2023
Initial Exercise Date: ________, 2023 |
THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”)
certifies that, for value received, __________ or its assigns (the “Holder”) is entitled, upon the terms and
subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after _______________,
20241 (the “Initial Exercise Date”)
and on or prior to 5:00 p.m. (New York City time) on the five (5)-year anniversary of the Initial Exercise Date (the “Termination
Date”) but not thereafter, to subscribe for and purchase from CNS Pharmaceuticals, Inc., a Nevada corporation (the “Company”),
up to _____________ shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase
price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid Price”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading
Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York
City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the
Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed
or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or a similar organization
or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d)
in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith
by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses
of which shall be paid by the Company.
“Board of Directors”
means the board of directors of the Company.
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
______________
1
A date that is 6 months after the date of issuance
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter
be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Letter Agreement”
means the certain inducement offer letter agreement dated October 16, 2023 between the Company and the Holder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading Day”
means a day on which the Common Stock is traded on a Trading Market.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or
any successors to any of the foregoing).
“Transfer Agent”
means Continental Stock Transfer and Trust, with offices located at 1 State Street 30th Floor, New York, NY 10004-1561, and any successor
transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or a
similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock
so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected
in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the
fees and expenses of which shall be paid by the Company.
“Warrants”
means this Warrant issued pursuant to the Letter Agreement.
Section 2. Exercise.
a) Exercise of Warrant.
Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial
Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail
attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within the earlier of
(i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i)
herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified
in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise
procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall
be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder
has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall
surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise
is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares
available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal
to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant
Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Trading
Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of
the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available
for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b) Exercise Price.
The exercise price per share of Common Stock under this Warrant shall be $1.28, subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless Exercise.
If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained therein is not
available for the issuance of the Warrant Shares to the Holder, then this Warrant may only be exercised, in whole or in part, at such
time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to
the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = as applicable:
(i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1)
both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant
to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation
NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading
Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading
Market as reported by Bloomberg L.P. as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice
of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including
until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii)
the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise
is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading
Day;
(B) = the Exercise
Price of this Warrant, as adjusted hereunder; and
(X) = the number
of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were
by means of a cash exercise rather than a cashless exercise.
If Warrant Shares are issued
in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant
Shares shall take on the registered characteristics of the Warrants being exercised, and the holding period of the Warrant Shares being
issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this Section 2(c).
Notwithstanding anything herein
to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section
2(c).
d) Mechanics of Exercise.
i. Delivery of Warrant
Shares upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to
the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through
its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either
(A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by Holder
or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144 (assuming
cashless exercise of the Warrants), and otherwise by physical delivery of the Warrant Shares, registered in the Company’s share
register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such
exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days
after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to
the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice
of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall
be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has
been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise
Price (other than in the case of a cashless exercise) is received within the earlier of (i) two (2) Trading Days and (ii) the number of
Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason
to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay
to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based
on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading
Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until
such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant
in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period”
means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect
to the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any
Notice(s) of Exercise along with payment of the aggregate Exercise Price (other than in the case of a cashless exercise) delivered on
or prior to 12:00 p.m. (New York City time) on the Initial Exercise Date, which may be delivered at any time after the time of execution
of the Letter Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time)
on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder.
ii. Delivery of New
Warrants upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon
surrender of this Warrant, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of
the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical
with this Warrant.
iii. Rescission Rights.
If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant
Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation for
Buy-In on Failure to Timely Deliver Warrant Shares upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its
broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common
Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained
by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise
at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in
which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been
issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with
an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms hereof.
v. No Fractional Shares
or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to
any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election,
either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or
round up to the next whole share.
vi. Charges, Taxes and
Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing of Books.
The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant
to the terms hereof.
e) Holder’s Exercise
Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any
portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as
set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other
securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on the
number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with
the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company
or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the
Company shall within one Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding.
In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of
securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such
number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99 % of
the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable
upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions
of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares
of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant
held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation
will not be effective until the 61st day after such notice is delivered to the Company.
The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of
this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial
Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation.
The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section 3. Certain Adjustments.
a) Stock Dividends and
Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution
or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which,
for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding
shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares of
capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the
number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise
of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment
made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled
to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b) Subsequent Rights
Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells any
Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class
of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable
to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares
of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without
limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale
of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined
for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as
a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until
such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c) Pro Rata Distributions.
During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets
(or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation,
any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement,
scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant,
then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have
participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the
date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the participation in such Distribution (provided, however, that,
to the extent that the Holder's right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of
any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
d) Fundamental Transaction.
If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects
any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease,
license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related
transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person)
is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash
or property and has been accepted by the holders of 50% or more of the outstanding shares of Common Stock or 50% or more of the voting
power of the Company’s outstanding equity securities, (iv) the Company, directly or indirectly, in one or more related transactions
effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which
the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly,
in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby
such other Person or group acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the voting power of the Company’s
outstanding equity securities (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant,
the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior
to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the
exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is
the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result
of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately
prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes
of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the
Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any
different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property
to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives
upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a
Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any
time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public
announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash
equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation
of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the
Company's control, including not approved by the Company's Board of Directors, the Holder shall only be entitled to receive from the Company
or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised
portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental
Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock
are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided,
further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction,
such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which Entity may be the Company following
such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this Warrant
based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”)
determined as of the day of consummation of the applicable contemplated Fundamental Transaction for pricing purposes and reflecting (A)
a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement
of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100%
and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the
Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying price
per share used in such calculation shall be the highest VWAP during the period beginning on the Trading Day immediately preceding the
public announcement of the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental Transaction,
if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(d) and (D) a remaining option time
equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination
Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds
(or such other consideration) within five Business Days of the Holder’s election (or, if later, on the date of consummation of the
Fundamental Transaction). The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor
(the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other
Transaction Documents in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and substance reasonably
satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at
the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital
stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise
of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an
exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value
of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares
of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the
consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder.
Upon the occurrence of any
such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this Warrant (so that from and
after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant and the other Transaction
Documents referring to the “Company” shall refer instead to each of the Company and the Successor Entity or Successor Entities,
jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company, may exercise every right
and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the obligations of the Company
prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company and such Successor Entity
or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled
to the benefits of the provisions of this Section 3(e) regardless of (i) whether the Company has sufficient authorized shares of Common
Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the Initial Exercise Date.
e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) Notice to Holder.
i. Adjustment to Exercise
Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver
to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant
Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice to Allow
Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock,
(B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize
the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class
or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the
Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of its assets,
or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall
authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company
shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register of the Company,
at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which
a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken,
the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants
are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected
to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to
exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation,
merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the
delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any
notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain
entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering
such notice except as may otherwise be expressly set forth herein.
g) Voluntary Adjustment
by Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of this Warrant,
subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any period of time deemed
appropriate by the board of directors of the Company.
Section 4. Transfer of Warrant.
a) Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof, this Warrant and all rights
hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant
at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the
form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this
Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
b) New Warrants.
This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together
with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent
or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company
shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with
such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be identical
with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant Register.
The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”),
in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual
notice to the contrary.
d)
Transfer Restrictions. If, at the time
of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be either (i)
registered pursuant to an effective registration statement under the
Securities Act and under applicable state securities or blue sky laws
or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information requirements pursuant to Rule
144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee of this Warrant, as the case may
be, comply with the provisions of the Letter Agreement.
e)
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring
this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with
a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable
state securities law, except pursuant to sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
a) No Rights as Stockholder
until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights
as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section
3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or
to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required to net cash
settle an exercise of this Warrant.
b) Loss, Theft, Destruction
or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the
posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein
shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
d) Authorized Shares.
The Company covenants that,
during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares
to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants
that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary
Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be
necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or
of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which
may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented
by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue).
Except and to the extent as
waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times
in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to
protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company
will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such
increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain
all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable
the Company to perform its obligations under this Warrant.
Before taking any action which
would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company
shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or
bodies having jurisdiction thereof.
e) Governing Law.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.
Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated
by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders, partners, members,
employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan
for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in
such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver and Expenses.
No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right
or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant, if the Company
willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company
shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable
attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto
or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices.
Any and all notices (other than Notices of Exercise) or other communications or deliveries to be provided by the Holders hereunder shall
be in writing and by e-mail Attention: Chris Downs, email address: Notices@CNSPharma.com, or such other email address as the Company may
specify for such purposes by notice to the Holders. Any Notices of Exercise shall be in writing and by e-mail Attention: Chris Downs,
email address: Warrants2022@CNSPharma.com, or such other email address as the Company may specify for such purposes by notice to the Holders.
Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally,
by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such
Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective
on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth
in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such
notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or
later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
i) Limitation of Liability.
No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no
enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of
any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors and Assigns.
Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and
be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions
of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder
or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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CNS Pharmaceuticals, Inc. |
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By: |
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Name: John M. Climaco
Title: Chief Executive Officer and Director |
NOTICE OF EXERCISE
To: CNS
Pharmaceuticals, Inc.
(1) The undersigned hereby
elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and
tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the
form of (check applicable box):
[_] in lawful money of the
United States; or
[_] if permitted the cancellation
of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant
with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant
Shares in the name of the undersigned or in such other name as is specified below:_______________________________
The Warrant Shares shall be delivered to the following
DWAC Account Number: _____________________________
[SIGNATURE
OF HOLDER]
Name of Investing Entity: _______________________________________________________________________
Signature of Authorized Signatory of Investing Entity: _________________________________________________
Name of Authorized Signatory: ___________________________________________________________________
Title of Authorized Signatory: ____________________________________________________________________
Date: ________________________________________________________________________________________
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this
form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name: |
______________________________________ |
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(Please Print) |
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Address: |
______________________________________ |
Phone Number:
Email Address: |
(Please Print)
______________________________________
______________________________________ |
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Dated: _________________, ______ |
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Holder’s Signature:___________________ |
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Holder’s Address:____________________ |
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Exhibit 10.1
CNS PHARMACEUTICALS, INC.
2100 West Loop South, Suite 900
Houston, Texas 77027
October 16, 2023
To:
Re:Inducement Offer to Exercise Existing Common
Stock Purchase Warrants
Dear Holder:
CNS Pharmaceuticals, Inc.
(the “Company”) is pleased to offer to you (“Holder”, “you” or similar terminology)
the opportunity to receive (i) new warrants to purchase up to ______shares of the Company’s common stock, par value $0.001 per share
(the “Common Stock”), and (ii) a reduction in the Exercise Price of $1.28 (as amended in the respective Existing Warrants)
of warrants to purchase an aggregate of ______ shares of Common Stock held by you in consideration for exercising from time to time for
cash all such warrants to purchase shares of the Company’s Common Stock, which warrants consist of the following:
| (a) | warrants, originally issued on December 22, 2020 and amended on December 5, 2022, to purchase up to ______shares
of Common Stock at an exercise price of $3.03 per share and an expiration date on December 5, 2027 (the “December 2020 Existing
Warrants”); |
| | |
| (b) | warrants, originally issued on January 10, 2022 and amended on December 5, 2022, to purchase up to ______shares
of Common Stock at an exercise price of $3.03 per share and an expiration date on December 5, 2027 (the “January 2022 Existing
Warrants”); and |
| | |
| (c) | certain remaining warrants, issued on December 5, 2022, to purchase up to ______shares of Common Stock
at an exercise price of $3.03 per share and an expiration date on December 5, 2027 (the “December 2022 Existing Warrants”
and collectively with the December 2020 Existing Warrants and the January 2022 Existing Warrants, the “Existing Warrants”),
as more particularly set forth on the signature page hereto. |
The shares of Common Stock
underlying the December 2020 Existing Warrants have been registered pursuant to the registration statement on Form S-1, as amended (File
No. 333-251530); the resale of the shares of Common Stock underlying the January 2022 Existing Warrants have been registered pursuant
to registration statement on Form S-3, as amended (File No. 333-262262); and the shares of Common Stock underlying the December 2022 Existing
Warrants have been registered pursuant to the registration statement on Form S-1, as amended (File No. 333-267975). The shares of Common
Stock underlying the Existing Warrants are collectively referred to herein as the “Warrant Shares” and the registration
statements referenced in the foregoing sentence are collectively referred to herein as the “Registration Statements.”
The Registration Statements are currently effective and, upon exercise of the Existing Warrants pursuant to this letter agreement, will
be effective for the issuance or resale of the Warrant Shares, as applicable. Capitalized terms not otherwise defined herein shall have
the meanings set forth in the New Warrants (as defined hereinafter).
The Company desires to reduce
the Exercise Price (as defined in the respective Existing Warrants) of the Existing Warrants to $1.28 (the “Reduced Exercise
Price”).
In consideration for exercising
in full all of the Existing Warrants held by Holder as set forth on the Holder’s signature page hereto (the “Warrant Exercise”)
and payment thereof on or before the Execution Time (as defined hereinafter), the Company hereby offers to issue you or your designees:
|
(a) |
New unregistered Common Stock purchase warrants (each a “New Warrant” and collectively the “New Warrants”)
pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (“Securities Act”), to purchase up to a number
of shares (the “New Warrant Shares”) of Common Stock equal to 200% of the number of Warrant Shares issued pursuant
to such exercise of Existing Warrants, which New Warrants shall be substantially in the form as set forth in Exhibit A hereto,
will be exercisable at any time for a period of five (5) years and six months from the date of issuance of the New Warrants at an exercise
price per share equal to the Reduced Exercise Price. |
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(b) |
The New Warrant certificates will be delivered within two (2) Trading Days following the Warrant Exercise, and such New Warrants,
together with any underlying shares of Common Stock issued upon exercise of the New Warrants, shall, unless and until registered, contain
customary restrictive legends and other language typical for an unregistered warrant and unregistered shares. Notwithstanding anything
herein to the contrary, in the event that any Warrant Exercise would otherwise cause the Holder to exceed the beneficial ownership limitations
(“Beneficial Ownership Limitation”) set forth in applicable sections of the respective Existing Warrants (or, if applicable
and at the Holder’s election, 9.99%), the Company shall only issue such number of Warrant Shares to the Holder that would not cause
the Holder to exceed the maximum number of Warrant Shares permitted thereunder, as directed by the Holder, with the balance to be held
in abeyance until notice from the Holder that the balance (or portion thereof) may be issued in compliance with such limitations, which
abeyance shall be evidenced through the Existing Warrants which shall be deemed prepaid thereafter (including the payment in full of the
exercise price), and exercised pursuant to a Notice of Exercise in the Existing Warrants (provided no additional exercise price shall
be due and payable). The parties hereby agree that the Beneficial Ownership Limitation for purposes of the Existing Warrants is as set
forth on the Holder’s signature page hereto. |
Expressly subject to the paragraph
immediately following this paragraph below, Holder may accept this offer by signing this letter below, with such acceptance constituting
Holder’s payment in full of the Existing Warrants for an aggregate exercise price set forth on the Holder’s signature page
hereto (the “Warrant Exercise Price”) on or before 9:00 p.m. Eastern Time on October 16, 2023 (the “Execution
Time”), which constitutes the Holder’s acceptance to exercise the Existing Warrants and receive the Warrant Shares at
the Holder’s own discretion subject to the Beneficial Ownership Limitation set forth in applicable sections of the respective Existing
Warrants at the Reduced Exercised Price. Once this letter agreement has been signed by the Holder, Holder has committed to pay the exercise
price of the Existing Warrants set forth on the “accepted and agreed to” signature page.
Additionally, the Company
agrees to the representations, warranties and covenants set forth on Annex A attached hereto. Holder represents and warrants
that, as of the date hereof it is, and on each date on which it exercises any New Warrants it will be, an “accredited investor”
as defined in Rule 501 of Regulation D promulgated under the Securities Act, and agrees that the New Warrants will contain restrictive
legends when issued, and neither the New Warrants nor the shares of Common Stock issuable upon exercise of the New Warrants will be registered
under the Securities Act, except as provided in Annex A attached hereto. Also, Holder represents and warrants
that it is acquiring the New Warrants as principal for its own account and has no direct or indirect arrangement or understandings with
any other persons to distribute or regarding the distribution of the New Warrants or the New Warrant Shares (this representation is not
limiting Holder’s right to sell the New Warrant Shares pursuant to an effective registration statement under the Securities Act
or otherwise in compliance with applicable federal and state securities laws).
The Holder understands that
the New Warrants and the New Warrant Shares are not, and may never be, registered under the Securities Act, or the securities laws of
any state and, accordingly, each certificate, if any, representing such securities shall bear a legend substantially similar to the following:
“THIS SECURITY HAS NOT
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.”
Certificates evidencing the
New Warrant Shares shall not contain any legend (including the legend set forth above), (i) while a registration statement covering the
resale of such New Warrant Shares is effective under the Securities Act, (ii) following any sale of such New Warrant Shares pursuant to
Rule 144 under the Securities Act, (iii) if such New Warrant Shares are eligible for sale under Rule 144 (assuming cashless exercise of
the New Warrants), without the requirement for the Company to be in compliance with the current public information required under Rule
144 as to such New Warrant Shares and without volume or manner-of-sale restrictions, (iv) if such New Warrant Shares may be sold under
Rule 144 (assuming cashless exercise of the New Warrants) and the Company is then in compliance with the current public information required
under Rule 144 as to such New Warrant Shares, or (v) if such legend is not required under applicable requirements of the Securities Act
(including judicial interpretations and pronouncements issued by the staff of the Securities and Exchange Commission (the “Commission”)
and the earliest of clauses (i) through (v), the “De-legend Date”. The Company shall cause its counsel to issue a legal
opinion to the Transfer Agent promptly after the De-legend Date if required by the Company and/or the Transfer Agent to effect the removal
of the legend hereunder, or at the request of the Holder, which opinion shall be in form and substance reasonably acceptable to the Holder.
From and after the De-legend Date, such New Warrant Shares shall be issued free of all legends. The Company agrees that following the
De-legend Date or at such time as such legend is no longer required under this Section, it will, no later than two (2) Trading Days following
the delivery by the Holder to the Company or the Transfer Agent of a certificate representing the New Warrant Shares issued with a restrictive
legend along with such certificate(s) or other documentation reasonably requested by the Company’s counsel and/or the Transfer Agent,
including a customary representation letter, in form and substance reasonably acceptable to the Company’s counsel and/or the Transfer
Agent (such second (2nd) Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to the
Holder a certificate representing such shares that is free from all restrictive and other legends or, at the request of the Holder shall
credit the account of the Holder’s prime broker with the Depository Trust Company System as directed by the Holder.
In addition to the Holder’s
other available remedies, the Company shall pay to a Holder, in cash, (i) as partial liquidated damages and not as a penalty, for each
$1,000 of New Warrant Shares (based on the VWAP of the Common Stock on the date such New Warrant Shares are submitted to the Transfer
Agent) delivered for removal of the restrictive legend, $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after
such damages have begun to accrue) for each Trading Day after the Legend Removal Date until such certificate is delivered without a legend
and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to the Holder by the Legend Removal Date a certificate
representing the New Warrant Shares that is free from all restrictive and other legends and (b) if after the Legend Removal Date the Holder
purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of all
or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of
the number of shares of Common Stock that the Holder anticipated receiving from the Company without any restrictive legend, then, an amount
equal to the excess of the Holder’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any)
for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In
Price”) over the product of (A) such number of New Warrant Shares that the Company was required to deliver to the Holder by
the Legend Removal Date and for which the Holder was required to purchase shares to timely satisfy delivery requirements, multiplied by
(B) the weighted average price at which the Holder sold that number of shares of Common Stock.
If this offer is accepted
and the transaction documents are executed by the Execution Time, then on or before 8:30 a.m., Eastern Time, on the Trading Day following
the date hereof, the Company shall issue a press release and/or file a Current Report on Form 8-K with the Commission disclosing all material
terms of the transactions contemplated hereunder, including this letter agreement as an exhibit thereto with the Commission within the
time required by the Exchange Act. From and after the issuance of such press release or filing of such of such Current Report on Form
8-K, as applicable, the Company represents to you that it shall have publicly disclosed all material, non-public information delivered
to you by the Company, or any of its respective officers, directors, employees or agents in connection with the transactions contemplated
hereunder. In addition, effective upon the issuance of such press release and/or filing of such Current Report on Form 8-K, the Company
acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between
the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand,
and you and your Affiliates on the other hand, shall terminate. The Company represents, warrants and covenants that, upon acceptance of
this offer, the Warrant Shares shall be issued free of any legends or restrictions on resale by Holder.
No later than the second (2nd)
Trading Day following today’s date, the closing (“Closing”) shall occur at such location as the parties shall
mutually agree. Unless otherwise directed by A.G.P./ Alliance Global Partners (the “Financial Service Agent”), settlement
of the Warrant Shares shall occur via “Delivery Versus Payment” (“DVP”) subject to the Beneficial Ownership
Limitation set forth in applicable sections of the respective Existing Warrants (i.e., on the Closing Date, the Company shall issue Warrant
Shares registered in the Holder’s name and address provided to the Company in writing and released by the Transfer Agent directly
to the account(s) at the Financial Service Agent identified by the Holder; upon receipt of such Warrant Shares, the Financial Service
Agent shall promptly electronically deliver such Warrant Shares to the Holder, and payment therefor shall concurrently be made to the
Company by the Financial Service Agent (or its clearing firm) by wire transfer to the Company). The date of the Closing of the exercise
of the Existing Warrants shall be referred to as a “Closing Date”.
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Sincerely yours, |
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CNS PHARMACEUTICALS, INC. |
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By: |
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Name: John M. Climaco |
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Title: Chief Executive Officer and Director |
[Inducement Offer Letter - Company Signature
Page]
ACCEPTED AND AGREED TO:
Name of Holder:
Signature of Authorized Signatory of
Holder: ____________________________________________________________
Name of Authorized Signatory: _______________________________________________________________________
Title of Authorized Signatory: ________________________________________________________________________
Date(s) of Existing Warrants: ________________________________________________________________________
Number of Existing Warrants Exercised: ________________________________________________________________
Reduced Exercise Price: _____________________________________________________________________________
Aggregate Warrant Exercise Price at the Reduced Exercise
Price being exercised contemporaneously with signing this letter agreement:
____________________________________________________________
Existing Warrants Beneficial Ownership Blocker: 4.99% or 9.99%
New Warrants: (200% of total Existing Warrants being exercised):
____________________________________________
New Warrants Beneficial Ownership Blocker: 4.99% or 9.99%
DTC Instructions: _________________________________________________________________________________
[Inducement Offer Letter - Holder Signature
Page]
Annex A
Representations, Warranties
and Covenants of the Company. The Company hereby makes the following representations and warranties to the Holder:
a)
SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the
foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein
as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any
such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material
respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading except as otherwise noted in a subsequent
SEC Report. The Company has never been an issuer subject to Rule 144(i) under the Securities Act.
b)Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this letter agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this letter agreement by
the Company and the consummation by the Company of the transactions contemplated hereby and thereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the Company, the board of directors of the Company or the Company’s
stockholders in connection herewith other than approval by the stockholders of the Company of the transaction contemplated by this letter
agreement in order to comply with the Nasdaq Stock Market listing standards (the “Stockholder Approval”), if applicable.
This letter agreement has been duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the
valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general
equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
The New Warrants are duly authorized and binding obligations of the Company under the law of the jurisdiction governing the New Warrants,
and, when issued in accordance with this letter agreement, will be duly and validly issued, and free and clear of all liens (excluding
any securities restriction) imposed by the Company.
c)No
Conflicts. The execution, delivery and performance of this letter agreement by the Company and the consummation by the Company of
the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the Company’s certificate
or articles of incorporation, bylaws or other organizational or charter documents; or (ii) conflict with, or constitute a default (or
an event that with notice or lapse of time or both would become a default) under, result in the creation of any liens, claims, security
interests, other encumbrances or defects upon any of the properties or assets of the Company in connection with, or give to others any
rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any material agreement,
credit facility, debt or other material instrument (evidencing Company debt or otherwise) or other material understanding to which such
Company is a party or by which any property or asset of the Company is bound or affected; or (iii) conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which
the Company is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company
is bound or affected, except, in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result
in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations
of the Company, taken as a whole, or in its ability to perform its obligations under this letter agreement.
d)Registration
Obligations. On or before November 20, 2023, the Company shall file with the Commission a registration statement on Form S-3
(or other appropriate form if the Company is not then Form S-3 eligible) providing for the resale of the New Warrant Shares by the holders
of the New Warrants (the “Resale Registration Statement”). The Company shall use commercially reasonable efforts to
cause the Resale Registration Statement to become effective within ninety (90) calendar days following the date of filing with the Commission
and to keep the Resale Registration Statement effective at all times until no holder of the New Warrants owns any New Warrants or New
Warrant Shares.
e)Trading
Market. Except for as related to the Stockholder Approval, if applicable, the transactions contemplated under this letter agreement
comply with all the rules and regulations of the Nasdaq Stock Market LLC.
f)Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of this letter agreement, other than: (i) the filings required pursuant to
this letter agreement; (ii) application(s) or notice to each applicable Trading Market for the listing of the New Warrants and New Warrant
Shares for trading thereon in the time and manner required thereby; (iii) the filing of Form D with the Commission and such filings as
are required to be made under applicable state securities laws, and (iv) Stockholder Approval, if applicable.
g)Listing
of Common Stock. The Company hereby agrees to use commercially reasonable efforts to maintain the listing or quotation of the Common
Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote
all of the New Warrant Shares on such Trading Market and promptly secure the listing of all of the New Warrant Shares on such Trading
Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include
in such application all of the New Warrant Shares, and will take such other action as is necessary to cause all of the New Warrant Shares
to be listed or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably necessary
to continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects with the Company’s reporting,
filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the Common
Stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation,
by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic
transfer. In addition, and if applicable, the Company shall hold an annual or special meeting of stockholders on or prior to the date
that is ninety (90) days following the Closing Date for the purpose of obtaining Stockholder Approval, with the recommendation of the
Company’s Board of Directors that such proposals are approved, and the Company shall solicit proxies from its stockholders in connection
therewith in the same manner as all other management proposals in such proxy statement and all management-appointed proxyholders shall
vote their proxies in favor of such proposals. If the Company does not obtain Stockholder Approval at the first meeting, the Company shall
call a meeting every ninety (90) days thereafter to seek Stockholder Approval until the earlier of the date on which Stockholder Approval
is obtained or the New Warrants are no longer outstanding.
h)Form
D; Blue Sky Filings. If required, the Company agrees to timely file a Form D with respect to the New Warrants and New Warrant Shares
as required under Regulation D and to provide a copy thereof, promptly upon request of any Purchaser. The Company shall take such action
as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the New Warrants and New Warrant
Shares for, sale to the Holder at Closing under applicable securities or “Blue Sky” laws of the states of the United States,
and shall provide evidence of such actions promptly upon request of any Holder.
i)Additional
Representations.
(i)Until December
15, 2023, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any
of its subsidiaries of shares of Common Stock or Common Stock equivalents (or a combination of units thereof) involving a Variable Rate
Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity
securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock
either (A) at a conversion price, exercise price or exchange rate or other price that is based upon and/or varies with the trading prices
of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with
a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or
equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company
or the market for shares of the Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited
to, an equity line of credit or an “at-the-market offering”, whereby the Company may issue securities at a future determined
price regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently
canceled. Any purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy
shall be in addition to any right to collect damages.
(ii)
Notwithstanding the foregoing, this Section i) shall not apply (1) in respect of an Exempt Issuance (as defined in certain Securities
Purchase Agreement dated November 30, 2022), except that no Variable Rate Transaction shall be an Exempt Issuance.
(iii)
From the date hereof until forty-five (45) days thereafter, neither the Company nor any subsidiary shall (i) issue, enter
into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock equivalents or
(ii) file any registration statement or amendment or supplement thereto, other than pursuant to the Company’s existing outstanding
warrants, options or convertible securities, equity incentive plan or the transactions contemplated by this letter agreement.
j)Liquidated
Damages.
(i)At
any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that all of
the Warrant Shares may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction
or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement
under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall
fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such
Holder’s other available remedies, the Company shall pay to Holder, in cash, as partial liquidated damages and not as a penalty,
by reason of any such delay in or reduction of its ability to sell the Warrant Shares, an amount in cash equal to one and one-half percent
(1.5%) of the aggregate exercise price of the Warrants held by the Holder on the day of a Public Information Failure and on every thirtieth
(30th) day (pro rated for periods totaling less than thirty (30) days) thereafter until the earlier of (a) the date such Public Information
Failure is cured and (b) such time that such public information is no longer required for the Holder to transfer the Warrant Shares pursuant
to Rule 144. The payments to which a Holder shall be entitled pursuant to this Section j)(i) are referred to herein as “Public Information
Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during
which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise
to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely
manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until
paid in full. Nothing herein shall limit such Holder’s right to pursue actual damages for the Public Information Failure, and such
Holder shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief.
(ii)If
at any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that the Company
has obtained Stockholder Approval, if required, if the Company shall fail obtain Stockholder Approval then, in addition to such Holder’s
other available remedies, the Company shall pay to a Holder, in cash, as partial liquidated damages and not as a penalty, by reason of
any such delay in or reduction of its ability to sell the Warrant Shares, an amount in cash equal to one and one-half percent (1.5%) of
the aggregate exercise price of the Warrants held by the Holder on the six month anniversary date hereof and on every thirtieth (30th)
day (pro rated for periods totaling less than thirty days) thereafter until the Company has obtained Stockholder Approval, if required.
The payments to which a Holder shall be entitled pursuant to this Section j)(ii) are referred to herein as “Stockholder Approval
Failure Payments.” Stockholder Approval Failure Payments shall be paid on the earlier of (i) the last day of the calendar month
during which such Stockholder Approval Failure Payments are incurred and (ii) the third (3rd) Business Day after Stockholder Approval,
if required, is obtained. In the event the Company fails to make Stockholder Approval Failure Payments in a timely manner, such Stockholder
Approval Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Nothing
herein shall limit such Holder’s right to pursue actual damages for the failure to obtain Stockholder Approval, and such Holder
shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance
and/or injunctive relief.
k.)
Form D; Blue Sky Filings. If required, the Company agrees to timely file a Form D with respect to the New Warrants and New Warrant
Shares as required under Regulation D and to provide a copy thereof, promptly upon request of any Purchaser. The Company shall take such
action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the New Warrants and
New Warrant Shares for, sale to the Holder at Closing under applicable securities or “Blue Sky” laws of the states of the
United States, and shall provide evidence of such actions promptly upon request of any Holder.
EXHIBIT A
FORM OF NEW WARRANT
(See Attachment)
v3.23.3
Cover
|
Oct. 16, 2023 |
Cover [Abstract] |
|
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Oct. 16, 2023
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Entity File Number |
001-39126
|
Entity Registrant Name |
CNS Pharmaceuticals, Inc.
|
Entity Central Index Key |
0001729427
|
Entity Tax Identification Number |
82-2318545
|
Entity Incorporation, State or Country Code |
NV
|
Entity Address, Address Line One |
2100 West Loop South
|
Entity Address, Address Line Two |
Suite 900
|
Entity Address, City or Town |
Houston
|
Entity Address, State or Province |
TX
|
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77027
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(800)
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946-9185
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false
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false
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Pre-commencement Tender Offer |
false
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false
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Common stock, par value $0.001 per share
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CNSP
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Security Exchange Name |
NASDAQ
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