Exhibit 4.1
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED WITHOUT COMPLYING WITH THE APPLICABLE PROVISIONS OF THE BYLAWS (AS DEFINED BELOW) AND EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER THE ACT. THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF THIS WARRANT AND THE SECURITIES ISSUED UPON ITS EXERCISE UNTIL THE CONDITIONS THEREIN, INCLUDING THOSE SET FORTH IN SECTION 9 OF THIS WARRANT, HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER.
Date of Issuance |
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March 17, 2023 (the “Issuance Date”) |
| March 17, 2028 |
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DANIMER SCIENTIFIC, INC.
WARRANT TO PURCHASE COMMON STOCK
For value received, the receipt and sufficiency of which are hereby acknowledged, this Warrant is issued to Jefferies Funding LLC, a Delaware limited liability company (the “Holder”), by Danimer Scientific, Inc., a Delaware corporation (the “Company”). Capitalized terms used and not defined herein have the meaning ascribed to such terms either in (i) that certain Fourth Amended and Restated Certificate of Incorporation of the Company, dated December 29, 2020 (as amended, restated or otherwise modified from time to time, the “Certificate”), or (ii) those certain Second Amended and Restated Bylaws of the Company, dated January 28, 2022 (as amended, restated or otherwise modified from time to time, the “Bylaws”), as applicable.
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Notwithstanding the foregoing, or anything else herein to the contrary, if the closing price or last sale price quoted on a Trading Market (as defined below) of a share of Common Stock reported for the trading day immediately preceding the Expiration Date is higher than the Exercise Price, this Warrant shall be deemed to have been automatically exercised in full by the Holder pursuant to Section 4 below immediately prior to the Expiration Date. In the event of a Change of Control in which the consideration to be received by the Company’s shareholders consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities (a “Cash/Public Acquisition,”) which, for the avoidance of doubt shall not include a Change of Control in which the consideration to be received by any of the Company’s shareholders consists of consideration other than cash or Marketable Securities, including an equity rollover, each of the Company and the Holder may elect, by giving notice to the other party within fifteen (15) days prior to such Cash/Public Acquisition, to exchange this Warrant for the kind and amount of cash or Marketable Securities payable at the closing of such Cash/Public Acquisition (the “Sale Consideration”) which the Holder would have received with respect to the shares of Common Stock issuable upon the exercise of this Warrant if the Holder had exercised this Warrant on a cashless basis immediately prior to the occurrence of such Cash/Public Acquisition, and the Company had issued to such Holder a number of Warrant Shares computed using the following formula:
Y (A - B)
X = A
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Where
X = The number of Warrant Shares deemed to have been issued to the Holder.
Y = The number of Warrant Shares purchasable under this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being cancelled (at the date of such calculation).
A = The amount of Sale Consideration payable per share of Common Stock pursuant to the Change of Control, (i) with such amount expressed in U.S. dollars and, if applicable, rounded to the nearest whole cent, and (ii) with any non-cash portion of such Sale Consideration valued at the value attributed thereto in the Change of Control.
B = The lesser of (i) the Exercise Price (as may be adjusted to the date of such calculation) and (ii) the Black Scholes Adjusted Exercise Price.
For the avoidance of doubt, this formula shall only apply in the event of a Cash/Public Acquisition.
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Y (A - B)
X = A
Where
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X = The number of Warrant Shares to be issued to the Holder.
Y = The number of Warrant Shares purchasable under this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being cancelled (at the date of such calculation).
A = The fair market value of one (1) Warrant Share (at the date of such calculation).
B = The Exercise Price (as adjusted to the date of such calculation).
For purposes of this Section 4, the fair market value of a Warrant Share shall mean (i) if shares of Common Stock are then traded or quoted on a nationally recognized securities exchange, inter-dealer quotation system or over-the-counter market (a “Trading Market”), the closing price or last sale price of a share of Common Stock reported for the business day immediately before the date of determination (which, for the avoidance of doubt, in the case of a cashless exercise pursuant to this Section 4, shall be the date on which the Holder delivers its Notice of Exercise to the Company) or (ii) if shares of Common Stock are not then traded in a Trading Market, the value determined in good faith by the Board of Directors of the Company (the “Board”); provided, that if the Holder disagrees with the fair market value as determined by the Board, the Holder may require a determination of the fair market value to be made by a nationally recognized investment banking, accounting or valuation firm that is not affiliated with the Holder and which is mutually-agreed upon by the Company and the Holder, in which case, the determination of such firm shall be final and conclusive. If this Warrant is exercised in connection with a Change of Control, the fair market value per Warrant Share shall be the consideration to be paid or distributed in respect of a share of Common Stock of the Company in connection with such Change of Control.
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“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO, AND MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, ENCUMBERED, HYPOTHECATED OR OTHERWISE DISPOSED OF (“TRANSFERRED”) WITHOUT COMPLYING WITH, THE PROVISIONS OF THE SECOND AMENDED AND RESTATED BY LAWS OF DANIMER SCIENTIFIC, INC. (THE “COMPANY”), DATED AS OF JANUARY 28, 2022, AS THEY MAY BE AMENDED, RESTATED OR OTHERWISE
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MODIFIED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE WITH THE COMPANY. IN ADDITION TO THE RESTRICTIONS ON TRANSFER, NO TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS IN EFFECT THEREUNDER (THE “ACT”), AND ALL APPLICABLE STATE SECURITIES LAWS OR (B) IF SUCH TRANSFER IS PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT.”
To the extent certificated, the first legend above shall be removed from the certificates representing any Warrant Shares, at the request of the holder thereof, at such time as the Warrant Shares become eligible for resale pursuant to Rule 144(b)(1)(i) under the Act.
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If to the Company:
Danimer Scientific, Inc.
140 Industrial Boulevard
Bainbridge, Georgia 39817
Attention: Stephen E. Croskrey, CEO; Michael A. Hajost, CFO
Email: croskrey@danimer.com; mhajost@danimer.com
with a copy to:
Kane Kessler, P.C.
600 Third Avenue
35th FL
New York, NY 10016-1901
Attention: Robert L. Lawrence, Esq.
Email: rlawrence@kanekessler.com
If to Holder:
Jefferies Funding LLC
520 Madison Avenue
New York, NY 10002
Attn: General Counsel
with a copy to:
Milbank LLP
2029 Century Park East, Suite 3300
Los Angeles, CA 90067
Attention: Eric Reimer
Email: ereimer@milbank.com
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[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has executed this Warrant as of the date above written.
DANIMER SCIENTIFIC, INC.
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Chief Financial Officer
AGREED AND ACCEPTED:
JEFFERIES FUNDING LLC
By: /s/ Mark Sahler
Name: Mark Sahler
Title: Managing Director
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[Signature Page to Warrant Agreement]
NOTICE OF EXERCISE
To:_________________ Dated:____________
The undersigned, pursuant to the provisions set forth in the attached Warrant, hereby elects to purchase:
____ shares of Common Stock of Danimer Scientific, Inc. covered by such Warrant.
The undersigned herewith makes payment of the full purchase price for such Common Stock at the price per share provided for in such Warrant by providing a check or wire in the amount of $______ in lawful money of the United States.
Signature: ______________________
Address: _______________________
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