Exhibit 4.1
[FORM
OF WARRANT]
THE
SECURITIES REPRESENTED HEREBY AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS AND MAY BE OFFERED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED OF (EACH, A “TRANSFER”) ONLY IF SUCH SECURITIES
ARE REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR IF SUCH TRANSFER IS MADE PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH STATE SECURITIES LAWS AFTER PROVIDING AN OPINION OF COUNSEL TO SUCH EFFECT.
COMMON
STOCK PURCHASE WARRANT
SORRENTO
THERAPEUTICS, INC.
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Warrant Shares: [•]
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Initial
Issuance Date: December 6, 2019
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THIS
COMMON STOCK PURCHASE WARRANT (this “Warrant”) certifies that, for value received, [NAME OF INVESTOR]
or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise
and the conditions hereinafter set forth, at any time and from time to time on or after June 6, 2020 (the “Initial
Exercise Date”) and on or prior to the close of business on June 6, 2030 (the “Termination Date”)
but not thereafter, to subscribe for and purchase from Sorrento Therapeutics, Inc., a Delaware corporation (the “Company”),
up to [•] duly authorized, validly issued, fully paid and nonassessable shares of Common Stock (as subject to adjustment
hereunder, the “Warrant Shares”). The purchase price of one share of Common Stock under this Warrant
shall be equal to the Exercise Price (as defined below).
Section
1. Definitions.
For purposes of this Warrant, the following capitalized terms have the meanings assigned to them in this Section 1.
a) “Aggregate
Exercise Price” means an amount equal to the product of (i) the number of Warrant Shares in respect of
which this Warrant is then being exercised pursuant to Section 2, multiplied by (ii) the Exercise Price in effect
as of the Exercise Date in accordance with the terms of this Warrant; provided that for the purposes of Section 3(a),
“Aggregate Exercise Price” shall mean an amount equal to the product of (x) the total number of
Warrant Shares initially issuable pursuant to this Warrant (as adjusted pursuant to Section 3(a)) multiplied by (y) the
Exercise Price in effect as of the date of the applicable adjustment pursuant to Section 3(a).
b) “Business
Day” means any day, excluding Saturday, Sunday and any day which is a legal holiday in the City of New York or San
Diego, California or is a day on which banking institutions located in the City of New York or San Diego, California are authorized
or required by law or other governmental action to close.
c) “Cashless
Exercise Date” has the meaning set forth in Section 2(c).
d) “Change
of Control” means, at any time, the occurrence of any of the following events or circumstances: (i) any “person”
or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) shall (A) become the “beneficial
owner” (within the meaning of Section 13(d) of the Exchange Act), directly or indirectly, of securities of the Company representing
35% or more of the total voting power represented by the Company’s then outstanding voting securities or (B) otherwise acquire,
directly or indirectly, the power to direct or cause the direction of the management or policies of the Company, whether through
the ability to exercise voting power, by contract or otherwise, (ii) persons who were (A) directors of the Company on the date
hereof or (B) appointed by directors who were directors of the Company on the date hereof or were nominated or approved by directors
who were directors of the Company on the date hereof shall cease to occupy a majority of the seats (excluding vacant seats) on
the board of directors of the Company, (iii) the consummation of a merger or consolidation of the Company with or into any other
Person, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent at least 50% of the total voting power represented by the voting securities of the Company
or such surviving entity or its parent outstanding immediately after such merger or consolidation or (iv) any direct or indirect
sale, transfer or other disposition, in one transaction or a series of related transactions, of all or substantially all of the
assets of the Company and its subsidiaries, taken as a whole (it being agreed that the sale, transfer or other disposition by
any Person of the Equity Interests of any subsidiary constitutes an indirect sale, transfer or disposition of the assets of such
subsidiary).
e) “Closing
Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (i) if
the Common Stock is then listed or quoted on a Trading Market, the last reported closing bid price of the Common Stock for such
date on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P., (ii) if the Common
Stock is not then listed on a Trading Market or quoted for trading on the OTC Bulletin Board and if prices for the Common Stock
are then reported in the “Pink Sheets” published by OTC Markets Group Inc. (or a similar organization or agency succeeding
to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported or (iii) in all
other cases, the fair market value of a share of Common Stock as determined by an independent nationally recognized investment
banking, accounting or valuation firm selected in good faith by the Company and reasonably acceptable to the Holder, the fees
and expenses of which shall be paid by the Company.
f) “Common
Stock” means shares of the common stock of the Company, par value $0.0001 per share.
g) “Company”
has the meaning set forth in the Preamble.
h) “DWAC”
has the meaning set forth in Section 2(d).
i) “Equity
Interests” means any and all shares, interests, participations or other equivalents (however designated) of equity
interests of a corporation, any and all equivalent ownership interests in a Person other than a corporation (including, without
limitation, partnership interests, membership interests and similar ownership interests), any and all warrants, rights or options
to purchase or other arrangements or rights to acquire any of the foregoing, and all other ownership or profit interests in a
Person (including partnership, member or trusts interests in such Person), in each case whether voting or non-voting and whether
or not outstanding on any date of determination.
j) “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder,
as the same may be amended from time to time.
k) “Exercise
Date” has the meaning set forth in Section 2(a).
l) “Exercise
Price” has the meaning set forth in Section 2(b).
m) “Governmental
Authority” means any supra-national, national, federal, provincial, state, municipal or other government, or political
subdivision thereof, and any governmental department, commission, board, bureau, court, agency, authority, regulatory body, central
bank, or instrumentality or other entity or officer exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government.
n) “Holder”
has the meaning set forth in the Preamble.
o) “Initial
Exercise Date” has the meaning set forth in the Preamble.
p) “Initial
Issuance Date” means December 6, 2019.
q) “Joint
Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other
legal form.
r) “Notice
of Exercise” has the meaning set forth in Section 2(a).
s) “Person”
means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts,
business trusts or other organizations, whether or not legal entities, and Governmental Authorities.
t) “SEC”
means the U.S. Securities and Exchange Commission.
u) “Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as the
same may be amended from time to time.
v) “Termination
Date” has the meaning set forth in the Preamble.
w) “Trading
Day” means a day on which the Common Stock
is traded on a Trading Market or, if the Common Stock is not traded on a Trading Market, then on the principal securities exchange
or securities market on which the Common Stock is then traded.
x) “Trading
Market” means any market or exchange of The Nasdaq Stock Market LLC or the
New York Stock Exchange.
y) “Transfer
Agent” has the meaning set forth in Section 2(d).
z) “VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (i) if the Common Stock is
then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City time)), (ii) if the Common Stock is not
then listed on a Trading Market or quoted for trading on the OTC Bulletin Board and if prices for the Common Stock are then reported
in the “Pink Sheets” published by OTC Markets Group Inc. (or a similar organization or agency succeeding to its functions
of reporting prices), the most recent bid price per share of the Common Stock so reported or (iii) in all other cases, the
fair market value of a share of Common Stock as determined by an independent nationally recognized investment banking, accounting
or valuation firm selected in good faith by the Company and reasonably acceptable to the Holder, the fees and expenses of which
shall be paid by the Company.
aa)
“Warrant” has the meaning set forth in the Preamble.
bb) “Warrant
Register” has the meaning set forth in Section 4(c).
cc)
“Warrant Share Delivery Date” has the meaning set forth in Section 2(d).
dd) “Warrant
Shares” has the meaning set forth in the Preamble.
Section
2. Exercise.
a) Exercise
of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial
Exercise Date and on or before the Termination Date by delivery to the principal office of the Company (or such other office or
agency of the Company as it may designate by notice in writing to the registered Holder at the address of the Holder appearing
on the books of the Company) of a duly executed facsimile or original copy of the Notice of Exercise Form annexed hereto (each,
a “Notice of Exercise”). Unless being exercised on a cashless basis in accordance with Section 2(c),
within three Trading Days following the date of exercise as aforesaid, the Holder shall deliver the Aggregate Exercise Price for
the shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank
(such date of delivery of the Aggregate Exercise Price, the “Exercise Date”). Notwithstanding anything
herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder
has purchased all of the Warrant Shares available hereunder and this Warrant has been exercised in full, in which case, the Holder
shall surrender this Warrant to the Company for cancellation within three Trading Days of the date the final Notice of Exercise
is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant
Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in
an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing
the number of Warrant Shares purchased and the date of such purchases. The Company shall inform the Holder if a Notice of Exercise
has not been duly completed within one Business Day of receipt of such notice, but shall not refuse or object to the issuance
of the Warrant Shares upon receipt of, and pursuant to, a duly completed Notice of Exercise. The Holder and any assignee, by
acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase
of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time
may be less than the amount stated on the face hereof.
b) Exercise
Price. The exercise price per share of the Common Stock under this Warrant shall be $3.26, subject to adjustment hereunder
(the “Exercise Price”).
c) Cashless
Exercise. If at the time of exercise of this Warrant there is no effective registration statement registering the resale of
the Warrant Shares by the Holder, the Holder, at its option, may exercise this Warrant, in whole or in part, by means of a “cashless
exercise” in which the Holder shall be entitled to receive a certificate for the number of Warrant Shares equal to the quotient
obtained by dividing [(Y)*(A-B)] by (A), where:
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(A) =
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the average of the Closing Bid Price of the shares of Common Stock for
the five consecutive Trading Days ending on the last Trading Day immediately preceding the date on which the Holder elects to
exercise this Warrant by means of a “cashless exercise,” as set forth in the applicable Notice of Exercise (such date,
the “Cashless Exercise Date”);
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(B) =
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the Exercise Price of this Warrant, as adjusted hereunder; and
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(Y) =
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the number of Warrant Shares that would be issuable upon exercise of
this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise pursuant to Section 2(a)
rather than a cashless exercise.
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d) Mechanics
of Exercise.
i.
Delivery of Certificates Upon Exercise. Certificates for shares purchased hereunder shall be transmitted by the
Company’s transfer agent (the “Transfer Agent”) to the Holder by, at the Holder’s option,
(A) crediting the account of the Holder’s prime broker with The Depository Trust Company through its Deposit or Withdrawal
at Custodian system (“DWAC”) if the Company is then a participant in such system and there is an effective
registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B)
physical delivery to the address specified by the Holder in the Notice of Exercise by the date that is three Trading Days after
the latest of (1) the delivery to the Company of the Notice of Exercise, (2) surrender of this Warrant (if required),
(3) payment of the Aggregate Exercise Price as set forth above and (4) three Trading Days following the Cashless Exercise
Date, if applicable (such date in (1), (2), (3) or (4), the “Warrant Share Delivery Date”). The applicable
Warrant Shares shall be deemed to have been issued, and the Holder or any other Person so designated to be named therein shall
be deemed to have become a holder of record of such shares for all purposes, as of the applicable Exercise Date or the date that
is three Trading Days following the Cashless Exercise Date, as applicable.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at
the request of the Holder and upon surrender of this Warrant, at the time of delivery of the certificate or certificates representing
the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant
Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder a certificate or the
certificates representing the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder
will have the right to rescind such exercise. Any rescission by the Holder pursuant to this Section 2(d)(iii) shall
not affect any other remedies available to the Holder under applicable law or equity as a result of the Company’s failure
to timely deliver the Warrant Shares.
iv.
No Fractional Shares. No fractional shares shall be issued upon the exercise of this Warrant. As to any fraction
of a Warrant Share that the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at the Holder’s
election, either (A) pay to such Holder an amount in cash (by delivery of a certified or official bank check or by wire transfer
of immediately available funds) equal to the product of (1) such fraction multiplied by (2) the Closing Bid Price of
one Warrant Share on the Exercise Date or the Cashless Exercise Date, as applicable, or (B) round up to the next whole share.
v.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely
exercise of this Warrant pursuant to the terms hereof.
e) Conditional
Exercise. Notwithstanding any other provision hereof, if an exercise of any portion of this Warrant is to be made in connection
with a public offering or a sale of the Company (pursuant to a merger, sale of stock, or otherwise), such exercise may, at the
election of the Holder (set forth in the applicable Notice of Exercise), be conditioned upon the consummation of such transaction,
in which case such exercise shall not be deemed to be effective until immediately prior to the consummation of such transaction.
f) Representations,
Warranties and Covenants of the Company. The Company hereby represents, covenants and agrees, as applicable:
i.
As of the Initial Issuance Date, the Company (A) is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, (B) has all requisite power and authority to own and operate its properties, to
carry on its business as now conducted and as currently proposed to be conducted, to issue and enter into the Warrant and to carry
out the transactions contemplated thereby, and (C) except where the failure to do so, individually or in the aggregate, has
not had, and could not be reasonably expected to have, a material adverse effect on the business, assets, financial condition
or operations of the Company, is qualified to do business and, where applicable is in good standing, in every jurisdiction where
such qualification is required.
ii.
This Warrant is, and any Warrant issued in substitution for or replacement of this Warrant (including pursuant to Section 2(d)(ii))
shall be, upon issuance, duly authorized and validly issued. This Warrant constitutes, and any Warrant issued in substitution
for or replacement of this Warrant shall be, upon issuance, a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency
or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.
iii.
As of the Initial Issuance Date, the execution, delivery and performance by the Company of the Warrant does not and will
not (A) violate any material provision of applicable law or the organizational documents of the Company, (B) conflict with,
result in a breach of, or constitute (with the giving of any notice, the passage of time, or both) a default under any material
agreement of the Company or (C) result in or require the creation or imposition of any lien upon any assets of the Company.
iv.
The Company covenants that, during the period this Warrant is outstanding, it will reserve from its authorized and unissued
Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase
rights represented by this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority
to its officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates
for the Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such action as may
be reasonably necessary or appropriate to assure that such Warrant Shares may be issued as provided herein without violation of
any applicable law or regulation, of any requirements of the Trading Market upon which the Common Stock may be listed or any preemptive
or similar rights of any equity holder of the Company. The Company covenants that all Warrant Shares which may be issued upon
the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this
Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges (other than taxes in respect of any transfer occurring contemporaneously with such
issue).
v.
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without
limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the rights of the Holder as set forth in this Warrant
against impairment. Without limiting the generality of the foregoing, the Company will (A) not increase the par value of
any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (B) take
all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable
Warrant Shares upon the exercise of this Warrant and (C) use its best efforts to obtain all such authorizations, exemptions
or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform
its obligations under this Warrant.
vi.
Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is
exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto,
as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
g) Representations
and Warranties of the Holder. The Holder, by the acceptance hereof, represents and warrants that it is an “accredited
investor” under Rule 501 promulgated pursuant to the Securities Act and that it is acquiring this Warrant and, upon any
exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for
distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
Section
3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of Common Stock or any other equity or equity equivalent securities payable in
shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon
exercise of this Warrant), (ii) subdivides (by any stock split, recapitalization or otherwise) outstanding shares of Common
Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common
Stock into a smaller number of shares or (iv) issues by reclassification of shares of Common Stock any shares of capital
stock of the Company, then in each case the Exercise Price shall be adjusted by multiplying the Exercise Price in effect immediately
prior to (x) the record date for the determination of stockholders entitled to receive such dividend or distribution or (y) the
effective date in the case of a subdivision, combination or re-classification by a fraction, the numerator of which shall be the
number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and the denominator
of which shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable
upon exercise of this Warrant shall be proportionately adjusted such that the Aggregate Exercise Price of this Warrant shall remain
unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision, combination or re-classification.
b) Pro
Rata Distributions. If the Company, at any time while this Warrant is outstanding, shall distribute to all holders of Common
Stock (and not to the Holder) evidences of its indebtedness or assets (including cash and cash dividends) or rights or warrants
to subscribe for or purchase any security, then in each such case the Exercise Price shall be adjusted by multiplying the Exercise
Price in effect immediately prior to the record date fixed for determination of stockholders entitled to receive such distribution
by a fraction, the numerator of which shall be such VWAP on such record date less the then fair market value (as determined by
the Board of Directors of the Company in good faith) at such record date of the portion of such assets or evidence of indebtedness
so distributed applicable to one outstanding share of Common Stock, and the denominator of which shall be the VWAP determined
as of the record date mentioned above. Such adjustment shall be made whenever any such distribution is made and shall become effective
immediately after the record date mentioned above.
c) Certain
Events. If any event of the type contemplated by the provisions of this Section 3 but not expressly provided for by
such provisions occurs, then the Board of Directors of the Company shall make an appropriate adjustment in the Exercise Price
and the number of Warrant Shares issuable upon exercise of this Warrant so as to protect the rights of the Holder in a manner
consistent with the provisions of this Section 3; provided, that no such adjustment pursuant to this Section
3(c) shall increase the Exercise Price or decrease the number of Warrant Shares issuable as otherwise determined pursuant
to this Section 3.
d) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case
may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of
a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
e) Notice
to the Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section
3, the Company shall, at the request of the Holder, promptly compute such adjustment, in good faith, in accordance with the
terms of this Warrant, and prepare a certificate setting forth such adjustment, including (A) a statement of the adjusted
Exercise Price and adjusted number or type of Warrant Shares or other securities issuable upon exercise of this Warrant (as applicable)
and (B) in the case of adjustment pursuant to Section 3(b), a statement of the portion of assets or evidences
of indebtedness so distributed or such subscription rights applicable to one share of Common Stock, and setting forth a brief
statement of the facts requiring such adjustment and certifying the calculation thereof. The Company will deliver a copy of each
such certificate to the Holder as promptly as reasonably practicable following any adjustment of the Exercise Price, but in any
event not later than ten Business Days thereafter.
ii.
Notice to Allow Exercise by the Holder. If (A) the Company shall declare a dividend (or any other distribution
in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption
of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock or rights or warrants
to subscribe for or purchase any shares of capital stock of any class or of any rights of the Company, (D) the Company enters
into or becomes bound by an agreement in connection with a Change of Control or (E) the Company shall authorize the voluntary
or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause
to be mailed to the Holder at its last address as it shall appear upon the Warrant Register (as defined below) of the Company,
at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a
record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distribution,
redemption, rights or warrants are to be determined or (y) the date on which such Change of Control is expected to become
effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities, cash or other property deliverable upon such Change of Control; provided that
the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the corporate
action required to be specified in such notice. The Holder shall remain entitled to exercise this Warrant during the period commencing
on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set
forth herein. Except as otherwise prohibited by applicable laws, to the extent that any notice provided pursuant to this Section 3(e)(ii)
contains material, non-public information regarding the Company, the Company shall disclose such information regarding the
Company in a Current Report on Form 8-K and file such Current Report on Form 8-K with the SEC no later than the second Trading
Day following the date such notice is delivered to the Holder.
Section
4. Transfer
of Warrant.
a) Transferability.
Subject to applicable securities laws, this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender
of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant
substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination
or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion
of this Warrant not so assigned, and this Warrant shall promptly be cancelled. This Warrant, if properly assigned in accordance
herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed
by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved
in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or
Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated
the Initial Issuance Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant
thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered
Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
Section
5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise. Except as provided in Section 3, this Warrant does not entitle the Holder
to any voting rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section
2(d).
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant
Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case
of this Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate,
if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation,
in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding
Business Day.
d) Governing
Law; Jurisdiction.
i.
Governing Law. This Warrant and any claims, controversy, dispute or cause of action (whether in contract or tort
or otherwise) based upon, arising out of or relating to this Warrant and the transactions contemplated hereby shall be governed
by, and construed in accordance with, the law of the State of New York.
ii.
Jurisdiction. Each party hereto irrevocably and unconditionally agrees that it will not commence any action, litigation
or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against any other
party hereto in any way relating to this Warrant or the transactions relating hereto, in any forum other than the courts of the
State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and
any appellate court from any thereof; and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction
of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined
in such New York State court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
iii.
Waiver of Venue. Each party hereto irrevocably and unconditionally waives, to the fullest extent permitted by applicable
law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating
to this Agreement in any court referred to in paragraph (ii) of this Section 5. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
iv.
Service of Process. Each party hereto irrevocably consents to service of process in the manner provided for notices
in Section 5(f).
e) Waiver
of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS WARRANT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED
TO ENTER INTO THIS WARRANT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5(E).
f) Notices.
Except as otherwise provided in this Warrant, all notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or e-mail
as follows:
i.
If to the Company:
Sorrento
Therapeutics, Inc.
4955
Directors Place
San
Diego, California 92121
E-mail:
hji@sorrentotherapeutics.com
Attn:
Chief Executive Officer
With
a copy (which shall not constitute notice) to:
Paul
Hastings LLP
1117 S. California Avenue
Palo Alto, CA 94304
E-mail:
jeffhartlin@paulhastings.com
Attn:
Jeff Hartlin, Esq.;
ii.
if to the Holder, to the address (or facsimile number or e-mail) set forth on Schedule A hereto;
With
a copy (which shall not constitute notice) to:
Sullivan
& Cromwell LLP
1888
Century Park East, 21st Floor
Los
Angeles, CA 90067
E-mail:
resslera@sullcrom.com
Attn:
Alison Ressler
Notices
or communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have
been given when received, notices or communications sent by facsimile shall be deemed to have been given when sent (except that,
if not given during normal business hours for the recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next Business Day for the recipient) and notices or communications sent by e-mail shall be deemed
received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written acknowledgement) (except that, if not given during the
normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business
on the next Business Day for the recipient).
g) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase
Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder
for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
h) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled
to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert
the defense in any action for specific performance that a remedy at law would be adequate.
i) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall be
binding upon and inure to the benefit of the parties hereto and their respective the successors and permitted assigns. The provisions
of this Warrant are intended to be for the benefit of the Holder from time to time of this Warrant and shall be enforceable by
the Holder or holder of Warrant Shares.
j) Amendment.
No provision of this Warrant may be amended, waived or modified other than by an instrument in writing signed by the Company and
the Holder.
k) Severability.
Any provision of this Warrant held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof, and the invalidity of a particular provision in a particular jurisdiction shall not invalidate
such provision in any other jurisdiction.
l) Headings.
Section headings herein are included for convenience of reference only and shall not constitute a part hereof for any other purpose
or be given any substantive effect.
m) Language;
Currency. This Warrant has been prepared in the English language and the English language shall control its interpretation.
In addition, all notices required or permitted to be given hereunder, and all written, electronic, oral or other communications
between the parties regarding this Warrant, shall be in the English language. All references to “$” contained in this
Warrant shall refer to United States Dollars unless otherwise stated.
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first
above indicated.
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SORRENTO THERAPEUTICS,
INC.
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By:
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Name:
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Henry Ji, Ph.D.
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Title:
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Chairman of the Board, President and Chief Executive Officer
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Accepted and agreed,
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[HOLDER]
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By:
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Name:
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Title:
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[Signature
Page to Common Stock Purchase Warrant]
Schedule
A
[Holder
Address]
NOTICE
OF EXERCISE
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To:
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SORRENTO
THERAPEUTICS, INC.
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(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Common
Stock Purchase Warrant (the “Warrant”), and tenders herewith payment of the applicable exercise price,
together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
¨
in lawful money of the United States; or
¨ if
permitted, the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in
Section 2(c) of the Warrant, to exercise the Warrant with respect to the maximum number of Warrant Shares purchasable
pursuant to the cashless exercise procedure set forth in Section 2(c) of the Warrant.
(3)
As to any fraction of a Warrant Share that the undersigned would otherwise be entitled to purchase in connection with this
Notice of Exercise, please (check applicable box):
¨ pay
an amount in cash pursuant to Section 2(d)(iv) of the Warrant; or
¨ round
up to the next whole share.
(4)
Please issue a certificate or certificates representing said Warrant Shares in the name of the undersigned or in such other
name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number or by physical delivery of a certificate to:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
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Name of Investing Entity:
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Signature of Authorized Signatory
of Investing Entity:
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Name of Authorized Signatory:
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Title of Authorized Signatory:
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ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute
this
form and supply required information.
Do
not use this form to exercise the warrant.)
FOR
VALUE RECEIVED, all of or [_______] of the shares of the foregoing Common Stock Purchase Warrant (the “Warrant”)
and all rights evidenced thereby are hereby assigned to
_______________________________________________
whose address is
_______________________________________________________________.
_______________________________________________________________
Dated:
______________, _______
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 whatsoever, and must be guaranteed by a bank or trust company. Officers of corporations and those
acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the Warrant.
Exhibit 4.2
AMENDMENT NO. 2
TO THE
REGISTRATION RIGHTS AGREEMENT
This Amendment No. 2 (this “Amendment”)
to the Registration Rights Agreement, dated as of November 7, 2018, as amended on May 3, 2019 (as amended, the “RRA”),
by and among Sorrento Therapeutics, Inc., a Delaware corporation (the “Company”), and the parties identified
on Schedule A thereto (each, a “Holder” and collectively, with such other Persons, if any, from time
to time, that become a party thereto as holders of Registrable Securities, the “Holders”), is dated as
of December 6, 2019. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the RRA.
WHEREAS, pursuant to the Letter Agreement,
dated as of December 6, 2019 (the “December 2019 Letter Agreement”), by and between the Company and Oaktree
Capital Management, L.P., concurrently with the execution of this Amendment, on the date hereof, the Company will issue to each
Holder a warrant to purchase such number of shares of Common Stock as is set forth opposite such Holder’s name under the
column “Shares Issuable Upon Exercise of December 2019 Warrants” on Schedule A hereto (as such number may be adjusted
pursuant to the terms of such warrant) (each, a “December 2019 Warrant” and, collectively, the “December
2019 Warrants”);
WHEREAS, the December 2019 Warrants will be
exercisable into shares of Common Stock from time to time on or after June 6, 2020 and on or prior to the close of business on
June 6, 2030 in each case in accordance with the terms thereof;
WHEREAS, pursuant to Section 4.8 of the RRA,
the RRA may be amended by an instrument in writing signed by the Company and the holders of a majority of the shares of Common
Stock issuable upon exercise of the then-outstanding Warrants;
WHEREAS, in connection with the issuance of
the December 2019 Warrants, the Company and the Holders holding a majority of the shares of Common Stock issuable upon exercise
of the Warrants outstanding as of immediately prior to the issuance of the December 2019 Warrants desire to amend certain terms
of the RRA as set forth in this Amendment; and
WHEREAS, the Company and each Holder has authorized
the execution and delivery of this Amendment by the undersigned authorized person.
NOW, THEREFORE, the RRA shall be amended as
follows:
1. Amendments.
a)
Definitions.
i.Section 1.1 is amended to add
the following definition before the definition of “Disclosure Package”:
““December
2019 Registrable Securities” means (i) the December 2019 Warrant Shares, and (ii) any Additional Shares with
respect to the December 2019 Warrant Shares; provided, however, that December 2019 Warrant Shares or Additional Shares with
respect to the December 2019 Warrant Shares shall cease to be treated as Registrable Securities on the earliest to occur of,
(a) the date such security has been disposed of pursuant to an effective registration statement, (b) the date on which such
security is sold pursuant to Rule 144, or (c) the date on which the Holder thereof, together with its Affiliates, is able to
dispose of all of its December 2019 Registrable Securities without restriction or limitation pursuant to Rule 144 and without
the requirement to be in compliance with Rule 144 (or any successor rule).”
ii.Section 1.1 is amended to add
the following definition between the definition of “December 2019 Registrable Securities” and the definition of “Disclosure
Package”:
““December 2019
Warrant Shares” means any and all shares of Common Stock issuable upon exercise of the December 2019 Warrants.”
iii.The definition of “Registrable
Securities” is amended and restated in its entirety as follows:
““Registrable
Securities” means the Initial Registrable Securities, the Subsequent Registrable Securities, the 2019 Registrable
Securities and the December 2019 Registrable Securities.”
iv.The definition of “Shares”
is amended and restated in its entirety as follows:
““Shares”
means the Initial Warrant Shares, the Subsequent Warrant Shares, the 2019 Warrant Shares and the December 2019 Warrant Shares.”
v.The definition of “Warrants”
is amended and restated in its entirety as follows:
““Warrants”
means the Initial Warrants, the Subsequent Warrants, the 2019 Warrants and the December 2019 Warrants.”
b)
The first two sentences of Section 2.1 of the RRA are replaced in their entirety with the following:
“Within
45 days following the date of issuance of each of the Initial Warrants, the Subsequent Warrants, the 2019 Warrants
and the December 2019 Warrants, the Company shall (a) file with the
SEC, or (b) have filed with the SEC, a Resale Registration Statement (together with any New Registration Statement (as
defined below), each, a “Resale Registration Statement” and collectively, the “Resale
Registration Statements”) pursuant to Rule 415 under the Securities Act pursuant to which all of the Initial
Registrable Securities, the Subsequent Registrable Securities, the 2019 Registrable Securities or the December
2019 Registrable Securities, respectively, shall be included (on the
initial filing or by supplement or amendment thereto) to enable the public resale on a delayed or continuous basis of the
Initial Registrable Securities, the Subsequent Registrable Securities, the 2019 Registrable Securities or the December
2019 Registrable Securities, respectively, by the Holders.
The Company shall file each Resale Registration Statement on such form as the Company may then utilize under the rules of the
SEC and use its best efforts to have such Resale Registration Statement declared effective under the Securities Act as soon
as practicable, but in any event by the earlier of: (A) 120 days following the date of issuance of each of the Initial
Warrants, the Subsequent Warrants, the 2019 Warrants and the December 2019 Warrants, respectively, and (B) five
trading days after the date the Company receives written notification from the SEC that such Resale Registration Statement
will not be reviewed.”
2. Miscellaneous. Except as expressly amended hereby, the RRA shall remain in full force and effect in accordance with
the terms hereof. All references in the RRA to “hereof” or “this Agreement” shall be deemed to refer to
the RRA as amended by this Amendment; provided that references in the RRA to “as of the date hereof” or “as
of the date of this Agreement” or words of like import shall refer to November 7, 2018.
3. Counterparts. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts),
each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of
an executed counterpart of a signature page of this Amendment by facsimile or in electronic (i.e., “pdf” or “tif”)
format shall be effective as delivery of a manually executed counterpart of this Amendment.
4. Governing Law. This Amendment and any claims, controversy, dispute or cause of action (whether in contract or tort
or otherwise) based upon, arising out of or relating to this Amendment and the transactions contemplated hereby shall be governed
by, and construed in accordance with, the law of the State of New York.
[remainder
of page intentionally blank]
IN WITNESS WHEREOF, the undersigned have each
duly executed this Amendment as of the date first above written.
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THE COMPANY:
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Sorrento Therapeutics,
Inc.,
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a Delaware corporation
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By:
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/s/ Henry Ji, Ph.D.
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Name:
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Henry Ji, Ph.D.
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Title:
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President and Chief Executive Officer
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[Signature Page to
Amendment No. 2 to Registration Rights Agreement]
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HOLDER:
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SC Investments E Holdings,
LLC
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By:
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Oaktree Fund GP IIA, LLC
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Its:
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Manager
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By:
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Oaktree Fund GP II, L.P.
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Its:
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Managing Member
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By:
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/s/ Brian Price
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Name:
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Brian Price
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Title:
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Authorized Signatory
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By:
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/s/ Peter Boos
|
|
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Name:
|
Peter Boos
|
|
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Title:
|
Authorized Signatory
|
[Signature Page
to Amendment No. 2 to Registration Rights Agreement]
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HOLDER:
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SC Investments NE Holdings, LLC
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By:
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Oaktree Fund GP IIA, LLC
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Its:
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Manager
|
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By:
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Oaktree Fund GP II, L.P.
|
|
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Its:
|
Managing Member
|
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By:
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/s/ Brian Price
|
|
|
Name:
|
Brian Price
|
|
|
Title:
|
Authorized Signatory
|
|
|
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By:
|
/s/ Peter Boos
|
|
|
Name:
|
Peter Boos
|
|
|
Title:
|
Authorized Signatory
|
[Signature Page to
Amendment No. 2 to Registration Rights Agreement]
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HOLDER:
|
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OCSL SRNE, LLC
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By:
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Oaktree Specialty Lending Corporation
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Its:
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Managing Member
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By:
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Oaktree Capital Management, L.P.
|
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Its:
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Investment Adviser
|
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By:
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/s/ Brian Price
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Name:
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Brian Price
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Title:
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Vice President
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By:
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/s/ Peter Boos
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|
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Name:
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Peter Boos
|
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Title:
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Assistant Vice President
|
[Signature Page to
Amendment No. 2 to Registration Rights Agreement]
|
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HOLDER:
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Oaktree Strategic Income II, Inc.
|
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By:
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Oaktree Capital Management, L.P.
|
|
|
Its:
|
Investment Adviser
|
|
|
|
|
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By:
|
/s/ Brian Price
|
|
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Name:
|
Brian Price
|
|
|
Title:
|
Vice President
|
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By:
|
/s/ Peter Boos
|
|
|
Name:
|
Peter Boos
|
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Title:
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Assistant Vice President
|
[Signature Page to
Amendment No. 2 to Registration Rights Agreement]
Schedule
A
Holders
|
Holder
|
Contact Information for Notices
|
Shares Issuable
Upon Exercise of
December 2019
Warrants
|
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SC Investments E Holdings, LLC
|
SC Investments E Holdings, LLC
c/o Oaktree Capital Management (UK) LLP
Verde, 10 Bressenden Place
London, SW1E 5DH
United Kingdom
Email: amkumar@oaktreecapital.com
Attn: Aman Kumar, Senior Vice President
With a copy to:
Oaktree Capital Management, L.P.
333 S. Grand Avenue, 28th Floor
Los Angeles, California 90071
Email: mgallegly@oaktreecapital.com
Attn: Mary Gallegly, Senior Vice President
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800,557
|
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SC Investments NE Holdings, LLC
|
SC Investments NE Holdings, LLC
c/o Oaktree Capital Management (UK) LLP
Verde, 10 Bressenden Place
London, SW1E 5DH
United Kingdom
Email: amkumar@oaktreecapital.com
Attn: Aman Kumar, Senior Vice President
With a copy to:
Oaktree Capital Management, L.P.
333 S. Grand Avenue, 28th Floor
Los Angeles, California 90071
Email: mgallegly@oaktreecapital.com
Attn: Mary Gallegly, Senior Vice President
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539,443
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OCSL SRNE, LLC
|
OCSL SRNE, LLC
c/o Oaktree Capital Management (UK) LLP
Verde, 10 Bressenden Place
London, SW1E 5DH
United Kingdom
Email: amkumar@oaktreecapital.com
Attn: Aman Kumar, Senior Vice President
With a copy to:
Oaktree Capital Management, L.P.
333 S. Grand Avenue, 28th Floor
Los Angeles, California 90071
Email: mgallegly@oaktreecapital.com
Attn: Mary Gallegly, Senior Vice President
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500,000
|
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Oaktree Strategic Income II, Inc.
|
Oaktree Strategic Income II, Inc.
c/o Oaktree Capital Management (UK) LLP
Verde, 10 Bressenden Place
London, SW1E 5DH
United Kingdom
Email: amkumar@oaktreecapital.com
Attn: Aman Kumar, Senior Vice President
With a copy to:
Oaktree Capital Management, L.P.
333 S. Grand Avenue, 28th Floor
Los Angeles, California 90071
Email: mgallegly@oaktreecapital.com
Attn: Mary Gallegly, Senior Vice President
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160,000
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TOTAL
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2,000,000
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