Exhibit 4.1
THIS WARRANT AND THE SECURITIES PURCHASABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS, UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
SOCIETAL CDMO, Inc.
COMMON STOCK PURCHASE WARRANT
dated as of November 17, 2017
THIS CERTIFIES THAT, for value received, Warberg WF XI LP or its successors or permitted assigns (such Person and such successors and assigns each being the “Warrant Holder” with respect to the Warrant held by it), at any time and from time to time on any Business Day on or prior to 5:00 p.m. (New York City time) on the Expiration Date (as herein defined), is entitled (a) to purchase from Societal CDMO, Inc., a Pennsylvania corporation (the “Company”), 348,664 Shares at a price per Share equal to the Exercise Price (as herein defined), and (b) to the other rights set forth herein; provided that the number of Shares issuable upon any exercise of this Warrant and the Exercise Price shall be adjusted and readjusted from time to time in accordance with Section 5. By accepting delivery of this Common Stock Purchase Warrant (this “Warrant”), the Warrant Holder agrees to be bound by the provisions hereof.
This Warrant has been issued by the Company to the Warrant Holder following the assignment, dated as of July 10, 2023 (the “Assignment Date”), to the Warrant Holder by OTA LLC of its rights to purchase 174,332 Warrant Shares under each of those certain Common Stock Purchase Warrants issued by the Company on November 17, 2017 (the “Original Warrants”) pursuant to Section 6 of the Original Warrants. This Warrant replaces the Original Warrants in their entirety.
IN FURTHERANCE THEREOF, the Company irrevocably undertakes and agrees for the benefit of Warrant Holder as follows:
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with such Person.
“Appraised Value” means at any time the fair market value thereof determined in good faith by the Board of Directors of the Company as of a date which is within ten (10) days of the date as of which the determination is to be made, subject to the rights of the Requisite Holders pursuant to Section 5(m).
“Asset Sale” has the meaning set forth in Section 2(h)(iii).
“Assignment Date” has the meaning set forth in the preamble hereto.
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized by law to close.
“Cash/Public Sale Transaction” has the meaning set forth in Section 2(h)(i).
“Closing Price” means, for any trading day with respect to a Share, (a) the last reported bid price on such day on the Principal Trading Market, as reported by Bloomberg, or (b) if no bid price is reported for such security by Bloomberg, the average of the bid prices of any market makers for such security as reported by OTC Markets Group.
“Commission” means the Securities and Exchange Commission or any other federal agency administering the Securities Act at the time.
“Company” has the meaning set forth in the preamble hereto.
“Convertible Securities” has the meaning set forth in Section 5(c)(ii).
“Corporate Reorganization” means the occurrence of any of the following: (i) a capital reorganization; (ii) a reclassification of the capital stock of the Company; (iii) a merger, consolidation or reorganization or other similar transaction or series of related transactions which results in the voting securities of the Company outstanding immediately prior thereto representing immediately thereafter (either by remaining outstanding or by being converted into voting securities of the surviving or acquiring entity) less than 50% of the combined voting power of the voting securities of or economic interests in the Company or such surviving or acquiring entity outstanding immediately after such merger, consolidation or reorganization; (iv) the sale, lease, license, transfer, conveyance or other disposition of all or substantially all of the assets of the Company; (v) the sale of shares of capital stock of the Company, in a single transaction or series of related transactions, representing at least 50% of the voting power of the voting securities of or economic interests in the Company; or (vi) the acquisition by any “person” (together with his, her or its Affiliates) or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) acquires, directly or indirectly, the beneficial ownership (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) of outstanding shares of capital stock and/or other equity securities of the Company, in a single transaction or series of related transactions (including, without limitation, one or more tender offers or exchange offers), representing at least 50% of the voting power of or economic interests in the then outstanding shares of capital stock of the Company.
“Distributed Property” has the meaning set forth in Section 5(b).
“Exchange Act” means the Securities Exchange Act of 1934, or any successor federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.
“Exercise Amount” means for any number of Warrant Shares as to which this Warrant is being exercised the product of (i) such number of Warrant Shares multiplied by (ii) the Exercise Price.
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“Exercise Price” means $8.6043, as adjusted from time to time pursuant to Section 5.
“Expiration Date” means November 17, 2024.
“Fair Market Value” means the Closing Price on the trading day immediately prior to the date of such exercise (or if there is no such Closing Price, then based on the Appraised Value as of such day). Notwithstanding the foregoing if the determination of Fair Market Value is in connection with a Corporate Reorganization, then the Fair Market Value per share shall be the value per Warrant Share to be realized in such pending transaction (including any contingent consideration receivable in connection therewith).
“Liquid Securities” shall mean a class of securities registered under Section 12(b) of the Exchange Act, which are (i) listed or quoted for trading on a Trading Market, and (ii) have a sufficiently liquid market such that the Warrant Shares that are received by the Warrant Holder upon a Cash/Public Sale Transaction could be sold by the Warrant Holder in their entirety for cash within ten (10) trading days after the Cash/Public Sale Transaction, without a material adverse impact on the Market Price thereof.
“Market Price” on any day means the unweighted average of the daily Closing Prices per Share for the twenty (20) consecutive trading days prior to such date. If the Closing Price cannot be calculated for a security on a particular date pursuant to the definition of “Closing Price,” the Closing Price of such security on such date shall be the Appraised Value.
“Options” has the meaning set forth in Section 5(c)(ii).
“Original Warrants” has the meaning set forth in the preamble hereto.
“Person” means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Principal Trading Market” means the Trading Market on which the Shares are primarily listed and quoted for trading, which, as of the date of this Warrant, is the NASDAQ Capital Market.
“Pro-Rata Distribution” has the meaning set forth in Section 5(b).
“Requisite Holders” means at any time holders of Warrant Shares and Warrants representing at least a majority of the Warrant Shares outstanding or issuable upon the exercise of all the outstanding Warrants.
“Securities Act” means the Securities Act of 1933, or any successor federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.
“Share Distribution” has the meaning set forth in Section 5(c).
“Share Reorganization” has the meaning set forth in Section 5(a).
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“Shares” means the Company’s currently authorized common stock, $0.01 par value, and stock of any other class or other consideration into which such currently authorized capital stock may hereafter have been changed.
“Trading Market” means whichever of the New York Stock Exchange, the NYSE Alternext, the NASDAQ Global Select Market, the NASDAQ Global Market, or the NASDAQ Capital Market on which the Shares are listed or quoted for trading on the date in question.
“Warrant” has the meaning set forth in the preamble hereto and, as the context requires, includes any successor warrant or warrants issued upon a whole or partial exercise, transfer or assignment of this warrant or of any such successor warrant.
“Warrant Holder” has the meaning set forth in the preamble hereto.
“Warrant Securities” means this Warrant and the Warrant Shares, collectively.
“Warrant Shares” means Shares issued or issuable upon exercise of this Warrant as set forth in the preamble hereto.
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The Company acknowledges that the provisions of clause (ii) are intended, in part, to ensure that a full or partial exchange of this Warrant pursuant to such clause (ii) will qualify as a conversion, within the meaning of paragraph (d)(3)(iii) of Rule 144 under the Securities Act. At the request of any Warrant Holder, the Company will accept reasonable modifications to the exchange procedures provided for in this Section in order to accomplish such intent. For all purposes of this Warrant (other than this Section 2(a)), any reference herein to the exercise of this Warrant shall be deemed to include a reference to the exchange of this Warrant into Shares in accordance with the terms of clause (ii). If any portion of this Warrant is being exercised in accordance with clause (ii) and there is no applicable Closing Price, the Board of Directors shall notify the Warrant Holder within five (5) Business Days of a request by the Warrant Holder of its determination of the Appraised Value and the number of Warrant Shares issuable in accordance with clause (B) thereof (which determination shall be subject to Section 5(m) hereof).
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS, UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
Any certificate for Warrant Shares issued at any time in exchange or substitution for any certificate bearing such legend (unless at that time such Warrant Shares are registered under the Securities Act) shall also bear such legend unless, in the written opinion of counsel selected by the holder of such certificate (who may be an employee of such holder), which counsel and opinion shall be reasonably acceptable to the Company, the Warrant Shares represented thereby need no longer be subject to restrictions on resale under the Securities Act.
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(A) The Exercise Price shall be reduced to an amount equal to the product of (A) the Exercise Price in effect immediately prior to such issuance or sale multiplied by (B) a fraction, (I) the numerator of which shall be (x) the product of (1) the Market Price for the Shares as of the Determination Date multiplied by (2) the number of Shares outstanding immediately following the consummation of the Repurchase less (y) the Repurchase Premium (as defined below), and (II) the denominator of which shall be (x) the product of (1) the Market Price for the Shares as of the Determination Date multiplied by (2) the number of Shares outstanding immediately following the consummation of the Repurchase.
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(B) The number of Warrant Shares issuable upon exercise of this Warrant shall be increased to the number of Shares determined by multiplying (x) the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to such distribution times (y) a fraction (1) the numerator of which shall be the Exercise Price in effect immediately prior to the adjustment in clause (A) of this Section 5(d) and (2) the denominator of which shall be the Exercise Price in effect immediately after such adjustment.
The amount by which the aggregate repurchase price for all securities repurchased in any Repurchase (including for such purposes any fees or other direct or indirect consideration payable in connection therewith) exceeds the aggregate Market Price for such securities is referred to as the “Repurchase Premium.” The provisions of this Section 5(d) shall not operate to increase the Exercise Price or reduce the number of Shares subject to purchase upon exercise of this Warrant.
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The information requirements set forth in Sections 9(a)(i)-(iv) shall be deemed to be satisfied upon filing of such information via EDGAR with the Commission.
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the Company will send to the Warrant Holder a notice specifying (i) the date or expected date on which any such record is to be taken for the purpose of such dividend, distribution or right, and the amount and character of such dividend, distribution or right, (ii) the date or expected date on which any such reorganization, reclassification, recapitalization, consolidation, merger, transfer, or other Corporate Reorganization, or dissolution, liquidation or winding-up is to take place, (iii) the time, if any such time is to be fixed, as of which the holders of record of Shares (or other securities under Section 5(d)) shall be entitled to exchange their Shares (or other securities under Section 5(d)) for the securities or other property deliverable upon such reorganization, reclassification, recapitalization, consolidation, merger, transfer, or other Corporate Reorganization, or dissolution, liquidation or winding-up and a description in reasonable detail of the transaction and (iv) the date of such issuance, together with a description of the security so issued and the consideration received by the Company therefor. Such notice shall be mailed at least ten (10) days prior to the date therein specified.
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[signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized signatory as of the day and year first above written.
SOCIETAL CDMO, INC., a Pennsylvania
corporation
By: /s/ Ryan D. Lake
Name: Ryan D. Lake
Title: Chief Financial Officer
Address for Notices:
Ryan Lake
Chief Financial Officer
Societal CDMO, Inc.
1 E. Uwchlan Ave., Suite 112
Exton, Pennsylvania 19341
Email: ryan.lake@societalcdmo.com
Phone: (770) 531-8365
With a copy to:
Jennifer Porter
Goodwin Procter LLP
2929 Arch Street
Suite 1700
Philadelphia, PA 19104
Email: JPorter@goodwinlaw.com
Phone: (445) 207-7806
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Exhibit A to Warrant
Form of Notice of Exercise
_________________,20___
To: [ ]
Reference is made to the Warrant dated July [_], 2023. Terms defined therein are used herein as therein defined.
The undersigned, pursuant to the provisions set forth in the Warrant, hereby irrevocably elects and agrees to purchase Shares, and makes payment herewith in full therefor at the Exercise Price of $______________ in the following form: __________________.
[If the number of Shares as to which the Warrant is being exercised is less than all of the Shares purchasable thereunder, the undersigned hereby requests that a new Warrant representing the remaining balance of the Shares be registered in the name of __________________, whose address is: __________________.]
The undersigned hereby represents that it is exercising the Warrant for its own account or the account of an Affiliate for investment purposes and not with the view to any sale or distribution and that the Warrant Holder will not offer, sell or otherwise dispose of the Warrant or any underlying Warrant Shares in violation of applicable securities laws.
[NAME OF WARRANT HOLDER]
By:______________________________
Name:
Title:
[ADDRESS OF WARRANT HOLDER]
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Exhibit B to Warrant
Form of Warrant Assignment
Reference is made to the Warrant dated March [ ], 2023, issued by Societal CDMO, Inc. Terms defined therein are used herein as therein defined.
FOR VALUE RECEIVED (the “Assignor”) hereby sells, assigns and transfers all of the rights of the Assignor as set forth in such Warrant, with respect to the number of Warrant Shares covered thereby as set forth below, to the Assignee(s) as set forth below:
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All notices to be given by the Company to the Assignor as Warrant Holder shall be sent to the Assignee(s) at the above listed address(es), and, if the number of Shares being hereby assigned is less than all of the Shares covered by the Warrant held by the Assignor, then also to the Assignor.
In accordance with Section 7 of the Warrant, the Assignor requests that the Company execute and deliver a new Warrant or Warrants in the name or names of the assignee or assignees, as is appropriate, or, if the number of Shares being hereby assigned is less than all of the Shares covered by the Warrant held by the Assignor, new Warrants in the name or names of the assignee or the assignees, as is appropriate, and in the name of the Assignor.
The undersigned represents that the Assignee has represented to the Assignor that the Assignee is acquiring the Warrant for its own account or the account of an Affiliate for investment purposes and not with the view to any sale or distribution, and that the Assignee will not offer, sell or otherwise dispose of the Warrant or the Warrant Shares except under circumstances as will not result in a violation of applicable securities laws.
Dated: _______________, 20___
[NAME OF ASSIGNOR]
By:______________________________
Name:
Title:
[ADDRESS OF WARRANT HOLDER]
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