ACERAGEN, INC. AMENDED AND RESTATED WARRANT TO PURCHASE COMMON STOCK
Exhibit 4.22
THIS AMENDED AND RESTATED WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
AMENDED AND RESTATED
WARRANT TO PURCHASE COMMON STOCK
No. CS-1/A Original Issuance Date: March 24, 2021
Amended and Restated as of: March 30, 2023
Void After March 23, 2031 (the “Expiration Date”)
THIS CERTIFIES THAT, for value received, NOVAQUEST CO-INVESTMENT FUND XV, L.P., having an address at 0000 Xxx Xxxxx Xxxx, Xxxxx 000 Xxxxxxx, XX 00000, or assigns (the “Holder”), is entitled to subscribe for and purchase at the Exercise Price (defined below) from ACERAGEN, INC. (f/k/a Idera Pharmaceuticals, Inc.), a Delaware corporation (the “Company”), having an address at 00 X.X. Alexander Drive, Suite 000, Xxxxxxxx Xxxxxxxx Xxxx, XX 00000, shares of the common stock, par value $0.001 per share, of the Company (the “Common Stock”) on the terms and subject to the conditions set forth below.
RECITALS
Aceragen, LLC (f/k/a Aceragen, Inc.) (“Old Aceragen”) has previously issued a warrant to Holder to purchase shares of Old Aceragen common stock (“Old Aceragen Shares”) pursuant to the terms of the Stock and Warrant Purchase Agreement, dated March 24, 2021 by and among the Old Aceragen and the Holder (the “Original Warrant”);
Pursuant to that certain Agreement and Plan of Merger, dated as of September 28, 2022 by and among the Company, Old Aceragen, Bell Merger Sub I, Inc., a Delaware corporation, and Bell Merger Sub II, LLC, a Delaware limited liability company (the “Merger Agreement”), the Original Warrant was assumed by the Company and converted into a warrant to purchase Common Stock, and all rights of the Holder with respect to the Old Aceragen Shares were converted into rights with respect to Common Stock, in each case pursuant to the applicable provisions of the Merger Agreement;
Following the closing of the transactions contemplated by the Merger Agreement, the Company’s Board of Directors approved a one-for-seventeen (1:17) reverse split of the Company’s issued and outstanding Common Stock (the “Reverse Stock Split”), which became effective as of 4:59 p.m. Eastern Time on January 17, 2023; and
The Company and Holder desire to amend and restate the Original Warrant in its entirety to reflect the assumption of the Original Warrant by the Company in connection with the Merger Agreement, and effectiveness of the Reverse Stock Split.
AGREEMENT
The Original Warrant is hereby superseded in its entirety by the terms hereof and is no longer in effect.
The number of shares of Common Stock that the Holder may purchase by exercising this warrant (the “Warrant”) is 909,326 subject to adjustment pursuant to the terms herein, including but not limited to adjustment pursuant to Section 6 below.
Upon the exercise of the rights represented by the Warrant, a certificate or certificates for the Exercise Shares so purchased, registered in the name of the Holder or persons affiliated with the Holder, if the Holder so designates, shall be issued and delivered to the Holder within a reasonable time after the rights represented by the Warrant shall have been so exercised.
The person in whose name any certificate or certificates for Exercise Shares are to be issued upon exercise of the Warrant shall be deemed to have become the holder of record of such shares on the date on which the Warrant was surrendered and payment of the Exercise Price was made, irrespective of the date of delivery of such certificate or certificates, except that, if the date of such surrender and payment is a date when the stock transfer books of the Company are closed, such
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person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the stock transfer books are open.
X = Y (A-B)
A
Where X =the number of shares of Common Stock to be issued to the Holder
Y =the number of shares of Common Stock purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being canceled (at the date of such calculation)
A =the fair market value of one share of the Common Stock (at the date of such calculation)
B =Exercise Price (as adjusted to the date of such calculation)
For purposes of the above calculation, the fair market value of one share of Common Stock shall be determined by the Company’s Board of Directors in good faith; provided, however, that in the event that the Warrant is exercised pursuant to this Section 2.1 in connection with the Company’s initial public offering of its Common Stock, the fair market value per share shall be the per share offering price to the public of the Company’s initial public offering.
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THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Holder have caused the Warrant to be executed as of the date first written above.
ACERAGEN, INC. | |
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By: | /s/ Xxxx Xxxxxx |
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Name: | Xxxx Xxxxxx |
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Title: | Chief Executive Officer |
IN WITNESS WHEREOF, the Company and the Holder have caused the Warrant to be executed as of the date first written above.
HOLDER:
NovaQuest Co-Investment Fund XV, L.P.
By: NQ POF VGP, Ltd., its general partner
By: | /s/ Xxxx X. Xxxxxxx, Xx. |
Name: | Xxxx X. Xxxxxxx, Xx. |
Title: | Director |
NOTICE OF EXERCISE
TO: ACERAGEN, INC.
❑The undersigned hereby elects to purchase shares of the Common Stock of ACERAGEN, INC. (the “Company”) pursuant to the terms of the net exercise provisions set forth in Section 2.1 of the attached Warrant, and shall tender payment of all applicable transfer taxes, if any.
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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
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Dated: | | , 20 | |
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Holder’s Signature: | | ||
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NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant.
