WARRANT AGENCY AGREEMENT
WARRANT AGENCY AGREEMENT, dated as of March __, 2020 (Agreement), between TransEnterix, Inc., a Delaware corporation (the Company), and Continental Stock Transfer & Trust Company, a New York Corporation (the Warrant Agent).
W I T N E S S E T H
WHEREAS, pursuant to a registered offering by the Company of shares of common stock, par value $0.001 per share (the Common Stock), Series A Convertible Preferred Stock, par value $0.01 per share (the Series A Preferred Stock) and Series C Common Stock Purchase Warrants and Series D Common Stock Purchase Warrants (collectively, the Warrants) to purchase Common Stock made pursuant to an effective registration statement on Form S-3 (File No. 333-217865) (the Registration Statement), the Company wishes to issue the Warrants in book entry form entitling the respective holders of the Warrants (the Holders, which term shall include a Holders transferees, successors and assigns and Holder shall include, if the Warrants are held in street name, a Participant (as defined below) or a designee appointed by such Participant) to purchase an aggregate of up to ____ shares of Common Stock at an exercise price of $___ per share (subject to adjustment as provided in the Warrant) (the Exercise Price) upon the terms and subject to the conditions hereinafter set forth (the Offering);
WHEREAS, the Series C Common Stock Purchase Warrant has a one-year term from the date of issuance and the Series D Common Stock Purchase Warrant has a five-year term from the date of issuance, otherwise, the Warrants are identical;
WHEREAS, the shares of Common Stock, Series A Preferred Stock and Warrants to be issued in connection with the Offering shall be immediately separable and will be issued separately, but will be purchased together in the Offering; and
WHEREAS, the Company wishes the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the issuance, registration, transfer, exchange, exercise and replacement of the Warrants and, in the Warrant Agents capacity as the Companys transfer agent, the delivery of the Warrant Shares (as defined below).
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the following terms have the meanings indicated:
(a) Business Day means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which the New York Stock Exchange is authorized or required by law or other governmental action to close.
(b) Close of Business on any given date means 5:00 p.m., New York City time, on such date; provided, however, that if such date is not a Business Day it means 5:00 p.m., New York City time, on the next succeeding Business Day.
(c) Person means an individual, corporation, association, partnership, limited liability company, joint venture, trust, unincorporated organization, government or political subdivision thereof or governmental agency or other entity.