EX-99.(A)(1)(C) 4 exa1c.htm

 

Exhibit (a)(1)(C)

 

ELECTION TO PARTICIPATE AND EXERCISE WARRANTS

 

PURSUANT TO

 

OFFER TO EXERCISE

 

WARRANTS TO PURCHASE COMMON STOCK

 

OF

 

PAVMED INC.

 

THE OFFER (AND ASSOCIATED WITHDRAWAL RIGHTS) WILL EXPIRE AT 11:59 P.M. (EASTERN TIME) ON THE EVENING OF FEBRUARY 8, 2018, UNLESS THE OFFER PERIOD IS EXTENDED.

 

The Depository Agent for the Offer is:

 

CONTINENTAL STOCK TRANSFER & TRUST COMPANY

 

1 State Street Plaza, 30th Floor

New York, NY 10004

Attention: Reorganization Department

Telephone: (917) 262-2378

Facsimile: (212) 616-7610

 

This Election to Participate and Exercise Warrants is provided to holders of record of outstanding warrants to purchase 10,567,845 shares of common stock of PAVmed Inc. (the “Company”) issued in the Company’s initial public offering (“IPO”) and in private placements prior to the IPO, each with an exercise price of $5.00 per share, and any subsequently issued warrants with identical terms and conditions (collectively, the “Series W Warrants”), in connection with the Offer to Exercise Warrants to Purchase Common Stock of PAVmed Inc., dated January 11, 2018, as may be amended or supplemented (the “Offer to Exercise”). The Company is providing the holders of the Series W Warrants the opportunity to exercise their warrants at a temporarily reduced cash exercise price of $2.00 per share of common stock, upon the terms set forth in the enclosed Offer to Exercise. Capitalized terms not otherwise defined in this Election to Participate and Exercise Warrants shall have the meanings ascribed to them in the Offer to Exercise.

 

If you desire to exercise Series W Warrants pursuant to the Offer to Exercise and you cannot deliver your Series W Warrants and all other documents required by this Election to Participate and Exercise Warrants to the Depositary prior to the Expiration Date, you may tender your Series W Warrants according to the guaranteed delivery procedures set forth in “Description of the Offer to Exercise — Section 8. Procedure for Participating in the Offer to Exercise and Exercising Series W Warrants” of the Offer to Exercise.

 

 

 

 

The undersigned holder of Series W Warrants, as the case may be, hereby:

 

1. Elects to participate in the Offer to Exercise with respect to ________________

Series W Warrants, and to exercise and purchase the number of shares of the Company’s Common Stock issuable upon exercise of such number of shares of Series W Warrants at the temporarily reduced exercise price of $2.00 per share.

 

2. Delivers to the Company the aggregate exercise price in cash of $____________

(i.e., $2.00 times the number of shares you elect to purchase).

 

  3. Requests that the shares of Common Stock be delivered via DWAC to:  

 

    Name of DTC Participant:  
    (i.e., broker-dealer at which account  
    is to be credited with shares)  
       
    DTC Participant number:  
       
    Name of Account at DTC Participant:  
       
    Account Number at DTC Participant:  

 

Alternately, if you wish to receive your shares in certificated form, or if the certificates for your Series W Warrants bear a legend, check here and fill out below:

 

    Deliver shares in certificate form [  ]  
       
    Name:  
       
    Name of Beneficial Holder:  
    (if applicable; may also use a nominee name)  

 

    Mailing Address:  
       
       
       
       
       
    Mailing Address of Beneficial Holder:  
       
       
       
       
       
    Tax ID:  
       
    Tax ID of Beneficial Holder:  

 

 

 

 

The Series W Warrants, together with a properly completed Election to Participate and Exercise Warrants and any other documents required hereby, must be delivered to the Depositary Agent and not to the Company nor to any warrant solicitation agent engaged by the Company. ANY DOCUMENTS DELIVERED TO THE COMPANY, ANY INFORMATION AGENT OR ANY WARRANT SOLICITATION AGENT WILL NOT BE FORWARDED TO THE DEPOSITARY AGENT OR CONSIDERED DELIVERED TO THE DEPOSITARY AGENT AND WILL NOT BE DEEMED TO BE VALIDLY DELIVERED.

 

If there is inadequate space in any box above, list the information on a separate signed sheet and attach it to this Election to Participate and Exercise Warrants.

 

NOTE: SIGNATURES MUST BE PROVIDED BELOW.

PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.

 

 

 

 

ACKNOWLEDGMENTS AND REPRESENTATIONS AND WARRANTIES

 

The undersigned hereby understands and acknowledges that:

 

1. To accept the Offer to Exercise the undersigned must comply with the “Instructions for Delivery” enclosed with this Election to Participate and Exercise Warrants.

 

2. If the undersigned elects to participate in the Offer to Exercise and the conditions to the Offer to Exercise are satisfied prior to the Expiration Date, then immediately following the Expiration Date the undersigned will automatically exercise the undersigned’s Series W Warrants at the temporarily reduced exercise price of $2.00 per share.

 

3. If the undersigned elects not to participate in the Offer to Exercise with respect to any of its Series W Warrants, then the exercise price and the other terms of the undersigned’s Series W Warrants not tendered in the Offer to Exercise will remain unmodified, with an exercise price of $5.00 per share.

 

4. The undersigned understands that the Company expects to conduct a rights offering promptly following the expiration of this Offer to Exercise, and that the undersigned’s decision to participate or not participate in the Offer to Exercise will affect whether and to what extent the undersigned receives rights in the rights offering.

 

5. If the undersigned chooses to participate in the Offer to Exercise and execute and deliver this Election to Participate and Exercise Warrants along with the aggregate exercise price applicable to the undersigned’s Series W Warrants, the Company will place the aggregate exercise price funds into a separate non-interest bearing escrow account established by the Depositary Agent until the Expiration Date. Under no circumstances will interest be paid on the exercise price of the Series W Warrants, regardless of any extension of, or amendment to, the Offer to Exercise or any delay in issuing common stock upon the exercise of the Series W Warrants.

 

6. By exercising the Series W Warrants pursuant to the procedure described in the Offer to Exercise and in the instructions to this Election to Participate and Exercise Warrants, the undersigned accepts the terms and conditions of the Offer to Exercise and understands that the acceptance of Series W Warrants by the Company will constitute a binding agreement between the undersigned and the Company upon the terms and subject to the conditions of the Offer to Exercise.

 

7. The Company has advised the undersigned to consult with the undersigned’s own legal, tax, accounting and financial advisors as to the consequences of participating or not participating in the Offer to Exercise.

 

8. The undersigned understands that this Offer to Exercise is not being offered to holders in any jurisdiction in which the offering or acceptance of participation in the Offer to Exercise would not be in compliance with the laws of such jurisdiction.

 

 

 

 

9. All authority herein conferred or agreed to be conferred shall not be affected by, and shall survive, the undersigned’s death or incapacity, and all of the undersigned’s obligations hereunder shall be binding upon the undersigned’s heirs, personal representatives, successors and assigns. Except as stated in the Offer to Exercise, this Election to Participate and Exercise Warrants is irrevocable.

 

10. Upon request, the undersigned will execute and deliver any additional documents deemed by the Company or the Depositary Agent to be necessary or desirable to complete the exercise of the Series W Warrants pursuant to the Offer to Exercise.

 

11. The undersigned acknowledges that: All questions as to the number of Series W Warrants to be accepted, the validity, form, eligibility (including time of receipt) and acceptance for exercise pursuant to the Offer to Exercise of any Series W Warrants will be determined by the Company in its sole discretion, which determinations shall be final and binding on all parties, subject to the judgments of any courts. The Company reserves the absolute right to reject any or all exercises of Series W Warrants it determines not to be in proper form or to reject those Series W Warrants, the acceptance of which may, in the opinion of the Company’s counsel, be unlawful. The Company also reserves the absolute right to waive any of the conditions of the Offer to Exercise and any defect or irregularity in the exercise of any particular Series W Warrants, and the Company’s interpretation of the terms of the Offer to Exercise (including the instructions contained in the Election to Participate and Exercise Warrants) will be final and binding on all parties, subject to the judgments of any court with jurisdiction over the Company. No exercise of Series W Warrants will be deemed to be properly made until all defects and irregularities have been cured or waived. Unless waived, any defects or irregularities in connection with exercises must be cured within such time as the Company shall determine. Neither the Company nor any other person is or will be obligated to give notice of any defects or irregularities in exercises and none of them will incur any liability for failure to give any such notice.

 

The undersigned hereby represents and warrants that the undersigned has the full power and authority to execute, deliver, and perform any obligations hereunder and that, when and to the extent the Series W Warrants are accepted for exercise by the Company, the Series W Warrants will be free and clear of all security interests, liens, restrictions, charges, encumbrances, conditional sales agreements, or other obligations relating to the sale or transfer thereof, and the Series W Warrants will not be subject to any adverse claims.

 

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

 

 

 

 

By completing the Offer to Exercise and returning this signature page, the undersigned’s Series W Warrants will be deemed exercised in accordance with the terms and conditions of the Series W Warrants as modified by the Offer to Exercise.

 

If the signature is by a trustee, executor, administrator, guardian, attorney-in-fact or another person acting in a fiduciary or representative capacity, please set forth the signatory’s full title and include with this Election to Participate and Exercise Warrants proper evidence of the authority of such person to act in such capacity.

 

Date: __________________, 2018 By:  
    (signature)
     
   
    (print name)

 

  Address:  
     
     
     
     
     
  Telephone:  
     
  Fax:  
     
  Tax ID:  

 

Guarantee of Signature (If required by Instructions)

 

Authorized Signature:  
   
Name:  
   
Title:  
   
Name of Firm:  

(Must be an Eligible Institution as defined in Instructions)

 

Address:  
   
Telephone Number:  
   
Dated:  

 

 

 

 

INSTRUCTIONS FOR DELIVERY

 

Your right to participate in the Offer to Exercise will automatically expire if you do not properly elect to participate on or before the Expiration Date of 11:59 PM Eastern Time February 8, 2018, as may be extended in the Company’s sole discretion. The Company will not accept any alternative or contingent exercises. By execution of this Election to Participate and Exercise Warrants, you waive any right to receive any notice of the acceptance of the Series W Warrants, except as provided in the Offer to Exercise.

 

To effect your acceptance of the Offer to Exercise you must:

 

  1. Complete, sign, and return this Election to Participate and Exercise Warrants.
     
  2. Tender the original copy of your Series W Warrants or an Affidavit of Loss and Indemnification Agreement or, if applicable, provide a book-entry confirmation (as described below) of the transfer of your the Series W Warrants into the Depositary Agent’s account.
     
  3. Pay the exercise price ($2.00 x the number of shares of common stock you elect to purchase pursuant to the Series W Warrants), in the form of a check payable to Continental Stock Transfer & Trust Company as agent for PAVmed Inc., or by wire transfer to the Company’s escrow account at the Depositary Agent, as set forth below.

 

No signature guarantee is required if either:

 

  (a)   this Election to Participate and Exercise Warrants is signed by the registered holder of the Series W Warrants exactly as the name of the registered holder appears on the certificate tendered with this Election to Participate and Exercise Warrants, the certificates for the shares of common stock are to be issued in the name of the registered holder of the Series W Warrants and the certificate for the shares of common stock are to be delivered to the person in whose name such shares of common stock are to be issued; or
     
  (b)   such Series W Warrants are tendered for the account of a member firm of a registered national securities exchange, a member of the Financial Industry Regulatory Authority, Inc., or a commercial bank or trust company (not a savings bank or savings and loan association) having an office, branch or agency in the United States which is a participant in an approval Signature Guarantee Medallion Program (each such entity, an “Eligible Institution”).

 

In all other cases, an Eligible Institution must guarantee all signatures on this Election to Participate and Exercise Warrants.

 

If a registered owner of Series W Warrants wants to tender his, her or its Series W Warrants pursuant to the Offer to Exercise, but the Series W Warrant certificates are not immediately available or time will not permit all required documents to reach the Depositary prior to the Expiration Date, Series W Warrant holders can still tender their Series W Warrants pursuant to the guaranteed delivery procedure set forth in the Offer to Exercise, which requires the following:

 

 

 

 

  (a)  the tender must be made by or through an Eligible Institution;
     
  (b)   the Depositary must receive by hand, mail or overnight courier on or prior to the Expiration Date, a properly completed and duly executed Notice of Guaranteed Delivery in the form the provided with the Offer to Exercise, with signatures guaranteed by an Eligible Institution and proper payment of the reduced exercise price of the Series W Warrants; and
     
  (c)   the Depositary must receive, within two NASDAQ trading days after the execution of the Notice of Guaranteed Delivery, as provided in the Offer to Exercise:

 

  (i)   the certificates for all physically delivered Series W Warrants (or an Affidavit of Loss and Indemnification Agreement as set forth below) in proper form for transfer by delivery, or a confirmation of a book-entry transfer into the Depositary’s account at DTC of all Series W Warrants delivered electronically;
     
  (ii)   a properly completed and duly elected Election to Participate and Exercise Warrants with any required signature guarantees; and
     
  (iii)   any other documents required by this Election to Participate and Exercise Warrants.

 

Except as specifically permitted by the Offer to Exercise, no alternative or contingent exercises will be accepted.

 

If you cannot locate your Series W Warrant certificate(s), please contact the Depositary at the phone number or address below to obtain an Affidavit of Loss and Indemnification Agreement form:

 

Continental Stock Transfer & Trust Company

1 State Street 30th Floor

New York, NY 10004

Phone: 917-262-2378

 

Each registered holder who elects to exercise Series W Warrants pursuant to the Offer to Exercise shall also deliver to the Depositary a correct taxpayer identification number on form W-9 (request for taxpayer identification number and certification), a copy of which is included as Annex A hereto. Failure to provide the information on the form may subject such holder to penalties for each such failure and to U.S. Federal income tax backup withholding (currently at a 24% rate) with respect to distributions that may be paid by the company on shares of common stock purchased upon the exercise of the Series W Warrants.

 

 

 

 

The Election to Participate and Exercise Warrants, the Series W Warrants Warrants, and the exercise price must be received at the respective addresses below (or in the case of a wire, pursuant to the wire instructions set forth below) on or before the Expiration Date of 11:59 p.m. (Eastern Time) on the evening of February 8, 2018, as may be extended by the Company in its sole discretion. The method of delivery of all documents is at the election and risk of the tendering warrant holder, and the delivery will be deemed made only when actually received by the Depositary Agent. If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.

 

ADDRESS FOR DELIVERY OF ACCEPTANCE AND EXERCISE DOCUMENTS (i.e., ITEMS 1- 3 ABOVE):  

Continental Stock Transfer & Trust Company

1 State Street Plaza, 30th Floor, New York, NY 10004
Attn: Reorganization Department
Phone: (917) 262-2378
Facsimile: (212) 616-7610

     
WIRE TRANSFER INSTRUCTIONS FOR EXERCISE PRICE OF SERIES W WARRANTS:*   Continental Stock Transfer & Trust Company
ABA Routing No.: 021 000 021
SWIFT CODE: CHASUS33
Account Name: PAVmed Inc.
Account Number: 475472403
Reference: [insert name of beneficial holder]
     
    * MUST INCLUDE THE WARRANT HOLDER’S
NAME AND ADDRESS
     
ADDRESS FOR DELIVERY OF CHECKS FOR EXERCISE PRICE OF SERIES W WARRANTS:**   Continental Stock Transfer & Trust Company
1 State Street Plaza, 30th Floor, New York, NY 10004
Attn:
     
    ** CHECK MUST INCLUDE THE WARRANT HOLDER’S NAME AND ADDRESS AND BE MADE PAYABLE TO “CONTINENTAL STOCK TRANSFER & TRUST COMPANY AS AGENT FOR PAVMED INC.”

  

DELIVERY OF THE ITEMS SET FORTH ABOVE OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.

 

 

 

 

Annex A