As filed with the Securities and Exchange Commission on September 21, 2021.

Registration No. 333-257987

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

AMENDMENT NO. 5

TO

FORM S-1

REGISTRATION STATEMENT

Under

The Securities Act of 1933

 

 

THORNE HEALTHTECH, INC.

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   2834   27-2877253

(State or other jurisdiction of

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification Number)

152 W. 57th Street

New York, New York 10019

(929) 251-6321

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

 

Paul Jacobson

Chief Executive Officer

Thorne HealthTech Inc.

152 W. 57th Street

New York, New York 10019

(929) 251-6321

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

Philip H. Oettinger

Jesse F. Schumaker

Jeffrey E. Nagashima

Wilson Sonsini Goodrich & Rosati

Professional Corporation

650 Page Mill Road

Palo Alto, California 94304

(650) 493-9300

 

Stelios G. Saffos

Alison A. Haggerty

Scott W. Westhoff

Latham & Watkins LLP

885 Third Avenue

New York, New York 10022

(212) 906-1200

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.

If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.  ☐

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company.” and “emerging growth company” in Rule 12b-2 of the Exchange Act.  ☐

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer      Smaller reporting company  
     Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Each Class of

Securities to be Registered

  Amount to be
Registered(1)
 

Proposed

Maximum

Offering Price

Per Shares(2)

 

Proposed

Maximum

Aggregate

Offering Price(1)(2)

 

Amount of

Registration Fee(3)

Common Stock $0.01 par value

  10,350,000   $15.00   $155,250,000   $16,937.78

 

 

(1)

Includes 1,350,000 additional shares of common stock that the underwriters have the option to purchase.

(2)

Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(a) under the Securities Act of 1933, as amended.

(3)

The entire amount of this registration fee was previously paid by the Registrant in connection with the prior filing of its Registration Statement on Form S-1 on July 16, 2021.

 

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 


EXPLANATORY NOTE

This Amendment No. 5 (Amendment No. 5) to the Registration Statement on Form S-1 (File No. 333-257987) of Thorne HealthTech, Inc. (Registration Statement) is being filed solely for the purpose of filing certain exhibits as indicated in Part II of this Amendment No. 5. This Amendment No. 5 does not modify any provision of the prospectus that forms a part of the Registration Statement. Accordingly, a preliminary prospectus has been omitted.


PART II

Information Not Required in the Prospectus

Item 13. Other Expenses of Issuance and Distribution

The following table sets forth the expenses to be incurred in connection with the offering described in this Registration Statement, other than underwriting discounts and commissions, all of which will be paid by us. All amounts are estimates except the Securities and Exchange Commission (SEC), registration fee, the Financial Industry Regulatory Authority, Inc. (FINRA), filing fee and the Nasdaq listing fee.

 

    

Amount Paid or

to Be Paid

 

SEC registration fee

   $ 16,938  

FINRA filing fee

     16,025  

Nasdaq listing fee

     150,000  

Printing and engraving expenses

     175,000  

Legal fees and expenses

     2,200,000  

Accounting fees and expenses

     1,250,000  

Transfer agent and registrar fees

     11,600  

Miscellaneous expenses

     1,500,000  
  

 

 

 

Total

   $ 5,319,563  
  

 

 

 

Item 14. Indemnification of Directors and Officers

Section 145 of the Delaware General Corporation Law empowers a corporation to indemnify its directors and officers and to purchase insurance with respect to liability arising out of their capacity or status as directors and officers, provided that the person acted in good faith and in a manner the person reasonably believed to be in our best interests, and, with respect to any criminal action, had no reasonable cause to believe the person’s actions were unlawful. The Delaware General Corporation Law further provides that the indemnification permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under the corporation’s bylaws, any agreement, a vote of stockholders or otherwise. The certificate of incorporation of the registrant to be in effect upon the completion of this offering provides for the indemnification of the registrant’s directors and officers to the fullest extent permitted under the Delaware General Corporation Law. In addition, the bylaws of the registrant to be in effect upon the completion of this offering require the registrant to fully indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that such person is or was a director or officer of the registrant, or is or was a director or officer of the registrant serving at the registrant’s request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, to the fullest extent permitted by applicable law.

Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for payments of unlawful dividends or unlawful stock repurchases or redemptions or (4) for any transaction from which the director derived an improper personal benefit. The registrant’s certificate of incorporation to be in effect upon the completion of this offering

 

II-1


provides that the registrant’s directors shall not be personally liable to it or its stockholders for monetary damages for breach of fiduciary duty as a director and that if the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the registrant’s directors shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.

Section 174 of the Delaware General Corporation Law provides, among other things, that a director who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.

As permitted by the Delaware General Corporation Law, the registrant has entered into separate indemnification agreements with each of the registrant’s directors and executive officers which would require the registrant, among other things, to indemnify them against certain liabilities which may arise by reason of their status as directors or executive officers.

The registrant expects to obtain and maintain insurance policies under which its directors and officers are insured, within the limits and subject to the limitations of those policies, against certain expenses in connection with the defense of, and certain liabilities which might be imposed as a result of, actions, suits or proceedings to which they are parties by reason of being or having been directors or officers. The coverage provided by these policies may apply whether or not the registrant would have the power to indemnify such person against such liability under the provisions of the Delaware General Corporation Law.

These indemnification provisions and the indemnification agreements entered into between the registrant and the registrant’s officers and directors may be sufficiently broad to permit indemnification of the registrant’s officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act of 1933, as amended.

The underwriting agreement between the registrant and the underwriters filed as Exhibit 1.1 to this registration statement provides for the indemnification by the underwriters of the registrant’s directors and officers and certain controlling persons against specified liabilities, including liabilities under the Securities Act with respect to information provided by the underwriters specifically for inclusion in the registration statement. The investors’ rights agreement with certain holders of our capital stock also provides for cross-indemnification in connection with the registration of the registrant’s common stock on behalf of such holders.

Item 15. Recent Sales of Unregistered Securities

The following list sets forth information regarding all unregistered securities sold by us since January 1, 2018. No underwriters were involved in the sales and the certificates representing the securities sold and issued contain legends restricting transfer of the securities without registration under the Securities Act or an applicable exemption from registration.

 

  (1)

On July 5, 2018, we sold and issued 13,505,750 shares of series E convertible preferred stock to Mitsui & Co. Ltd. (Mitsui), and 13,505,750 shares of series E convertible preferred stock to Kirin Holdings Company, Limited (Kirin), at a purchase price of $5.12 per share for an aggregate purchase price of approximately $138.4 million.

 

  (2)

On October 10, 2018, we issued a warrant for the purchase of 2,225,000 shares of common stock to Mitsui and a warrant for the purchase of 2,225,000 shares of common stock to Kirin with an exercise price of $5.12 per share.

 

II-2


  (3)

On October 10, 2018, we issued 2,342,035 shares of common stock to ELUS Holdings Corporation as a dividend on our Series B convertible preferred stock. The aggregate value of the share dividend was a total of $11,999,798.

 

  (4)

On January 6, 2021, we issued 6,179,270 shares of class B common stock to the stockholders of Onegevity LLC in exchange for their shares in Onegevity LLC as part of our merger with Onegevity. The aggregate value of the exchanged shares was $69,013,420.

 

  (5)

From January 2018 through September 13, 2021, we granted stock options to purchase an aggregate of 5,117,500 shares of common stock upon the exercise of options under our 2010 Plan at an exercise price of $5.12, for an aggregate exercise price of approximately $26.2 million.

 

  (6)

On July 29, 2021, we issued 875,760 restricted stock units (RSUs) to certain officers of the Company. The aggregate fair market of these RSUs was determined by the Board of Directors to be approximately $12.2 million.

The offers, sales and issuances of the securities described in Items 15(1), 15(2) and 15(3) and 15(4) were exempt from registration under the Securities Act under Section 4(a)(2) of the Securities Act or Regulation D promulgated thereunder as transactions by an issuer not involving a public offering. The recipients of securities in each of these transactions acquired the securities for investment only and not with a view to or for sale in connection with any distribution thereof and appropriate legends were affixed to the securities issued in these transactions. Each of the recipients of securities in these transactions was an accredited person and had adequate access, through employment, business or other relationships, to information about the registrant.

The offers, sales and issuances of the securities described in Items 15(4) and 15(5) were exempt from registration under the Securities Act under either (1) Rule 701 in that the transactions were under compensatory benefit plans and contracts relating to compensation as provided under Rule 701 or (2) Section 4(a)(2) of the Securities Act as transactions by an issuer not involving any public offering. The recipients of such securities were the registrant’s employees, consultants or directors and received the securities under our 2010 Plan. The recipients of securities in each of these transactions represented their intention to acquire the securities for investment only and not with view to or for sale in connection with any distribution thereof and appropriate legends were affixed to the securities issued in these transactions.

Item 16. Exhibit and Financial Statement Schedules

(a) Exhibits.

See the Exhibit Index immediately preceding the signature page hereto for a list of exhibits filed as part of this registration statement on Form S-1, which Exhibit Index is incorporated herein by reference.

(b) Financial Statement Schedules.

Schedules have been omitted because the information required to be set forth therein is not applicable or is shown in the financial statements or notes thereto.

Item 17. Undertakings

The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreements, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant

 

II-3


has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

The undersigned hereby undertakes that:

 

  (1)

For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective.

 

  (2)

For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

II-4


Exhibit Index

 

Exhibit
number

 

Description

  1.1*   Form of Underwriting Agreement.
  3.1*   Sixth Amended and Restated Certificate of Incorporation of the Registrant, as currently in effect.
  3.2*   Certificate of Amendment to the Sixth Amended and Restated Certificate of Incorporation of the Registrant, as currently in effect.
  3.3   Form of Amended and Restated Certificate of Incorporation of the Registrant, to be in effect upon the completion of this offering.
  3.4*   Bylaws of the Registrant, as currently in effect.
  3.5*   Form of Amended and Restated Bylaws of the Registrant, to be in effect upon the completion of this offering.
  4.1   Fourth Amended and Restated Registration Rights Agreement by and among the Registrant and certain of its stockholders, dated July 5, 2018.
  4.2*   Fourth Amended and Restated Stockholders Agreement by and among the Registrant and certain of its stockholders, dated July 5, 2018.
  4.3*   Specimen common stock certificate of the Registrant.
  4.4   Amended and Restated Common Stock Purchase Warrant issued to Kirin Holdings Company, Limited, dated as of July 15, 2020.
  4.5   Amended and Restated Common Stock Purchase Warrant issued to Mitsui & Co., Ltd, dated as of July 15, 2020.
  4.6   Amended and Restated Common Stock Purchase Warrant issued to Diversified Natural Products, Inc., dated as of May 10, 2011.
  4.7   Amended and Restated Common Stock Purchase Warrant issued to ELUS Holdings Corporation, dated as of May 10, 2011.
  4.8   Amendment to Warrant to Purchase Common Stock, between the Registrant and Diversified Natural Products, Inc., effective May 2, 2019.
  4.9   Amendment to Warrant to Purchase Common Stock, between the Registrant and ELUS Holdings Corporation, effective May 2, 2019.
  5.1*   Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1+*   Form of Indemnification Agreement between the Registrant and each of its directors and executive officers.
10.2+*   2010 Equity Incentive Plan, as amended, and forms of agreement thereunder.
10.3+*   Restated 2020 Onegevity Equity Plan, and forms of agreement thereunder.
10.4+*   2021 Equity Incentive Plan and forms of agreements thereunder, to be in effect upon the completion of this offering.
10.5+*   2021 Employee Stock Purchase Plan and forms of agreements thereunder, to be in effect upon the completion of this offering.
10.6(a)+*   Form of Confirmatory Employment Letter with Paul F. Jacobson.

 

II-5


Exhibit
number

 

Description

10.6(b)+*   Form of Confirmatory Employment Letter with William C. McCamy.
10.6(c)+*   Form of Confirmatory Employment Letter with Thomas P. McKenna.
10.7+*   Employee Incentive Compensation Plan.
10.8(a)+*   Form of Change in Control and Severance Agreement with Paul F. Jacobson.
10.8(b)+*   Form of Change in Control and Severance Agreement with William C. McCamy.
10.8(c)+*   Form of Change in Control and Severance Agreement with Thomas P. McKenna.
10.9+*   Outside Director Compensation Policy.
10.10#*   Lease Agreement between the Registrant and Summerville Owner LLC, dated September 16, 2019, as amended.
10.11*   Agreement of Lease between the Registrant and Carnegie Hall Tower II L.L.C, dated March 14, 2013, as amended.
10.12*   Multi-Tenant Industrial Triple Net Lease between the Registrant and Icon Owner Pool 1 SF Non-Business Parks, LLC, dated October 25, 2019.
10.13#*   Vendor Agreement between the Registrant and BioTE Medical, LLC, dated December 1, 2020.
10.14*   Uncommitted and Revolving Credit Line Agreement between the Registrant and Sumitomo Mitsui Banking Corporation, dated February 12, 2021.
10.15*   Fee Letter between the Registrant and Mitsui & Co., Ltd., dated February 12, 2021.
10.16*   Fee Letter between the Registrant and Kirin Holdings Company, Limited, dated February 12, 2021.
10.17*   Uncommitted and Revolving Credit Line Agreement between the Registrant and Sumitomo Mitsui Banking Corporation, dated February 14, 2020.
10.18*   Fee Letter between the Registrant and Mitsui & Co., Ltd., dated February 14, 2020.
10.19*   Fee Letter between the Registrant and Kirin Holdings Company, Limited, dated February 14, 2020.
10.20*   Reimbursement Agreement between the Registrant and Sumitomo Mitsui Banking Corporation, dated November 30, 2018.
10.21*   Fee Letter between the Registrant and Kirin Holdings Company, Limited, dated
November 30, 2018.
10.22*   Fee Letter between the Registrant and Mitsui & Co., Ltd., dated November 30, 2018.
10.23*   Unconditional Guaranty between the Registrant and Truist Bank, dated June 2, 2020.
10.24#*   Authorized Reseller Agreement between the Registrant and Pattern Inc., dated November 25, 2019, as amended.
10.25#*   First Amended and Restated Distribution Agreement between the Registrant and Emerson Ecologics, LLC, dated August 31, 2020, as amended.
10.26*   Form of Nominating, Observer, and Secondment Agreement between the Registrant, Kirin Holdings Company, Limited, and Mitsui & Co., Ltd.
21.1*   Subsidiaries of the Registrant
23.1*   Consent of Independent Registered Public Accounting Firm.
23.2*   Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1).

 

II-6


Exhibit
number

  

Description

24.1*    Power of Attorney (see page II-8 to this Form S-1).
99.1*    Consent of Sarah M. Kauss
99.2*    Consent of Saloni S. Varma

 

*

Previously filed.

+

Indicated management contract or compensatory plan.

#

Portions of the exhibit have been omitted as the Registrant has determined (i) the omitted information is not materials; and (ii) the Registrant customarily and actually treats the omitted information as private or confidential.

 

II-7


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in New York, New York on September 21, 2021.

 

THORNE HEALTHTECH, INC.
By:  

/s/ Paul F. Jacobson

  Paul F. Jacobson
  Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

  

Title

 

Date

/s/ Paul F. Jacobson

Paul F. Jacobson

  

President, Chief Executive Officer and Director (Principal Executive Officer)

  September 21, 2021

/s/ Scott S. Wheeler

Scott S. Wheeler

  

Chief Financial Officer (Principal Financial and Accounting Officer)

  September 21, 2021

*

Thomas P. McKenna

  

Chief Operating Officer and Director

  September 21, 2021

*

Riccardo C. Braglia

  

Director

  September 21, 2021

*

Yasuhiro Oki

  

Director

  September 21, 2021

*

Toru Yoshimura

  

Director

  September 21, 2021

*

Toshitaka Inuzuka

  

Director

  September 21, 2021

*

Tetsu Watanabe

  

Director

  September 21, 2021

 

*By:   /s/ Paul F. Jacobson
  Paul F. Jacobson
  Attorney-in-Fact

 

II-8

Exhibit 3.3

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

THORNE HEALTHTECH, INC.

(Pursuant to Sections 242 and 245 of the

General Corporation Law of the State of Delaware)

Thorne HealthTech, Inc., a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “General Corporation Law”),

DOES HEREBY CERTIFY:

1. That the name of this corporation is Thorne HealthTech, Inc., and that this corporation was initially incorporated under the name of Thorne Holding Corp., pursuant to a Certificate of Incorporation filed with the Secretary of State of Delaware on June 17, 2010 (the “Original Certificate”).

2. Pursuant to Sections 242 and 245 of the General Corporation Law, this Amended and Restated Certificate of Incorporation (this “Certificate”) amends and restates the Sixth Amended and Restated Certificate of Incorporation filed with the Secretary of State of Delaware on February 25, 2021 (the “Sixth Restated Certificate”) in its entirety.

3. This Certificate was duly adopted by the written consent of the Board of Directors of Thorne HealthTech, Inc. (the “Board of Directors”) and by the written consent of the stockholders of Thorne HealthTech, Inc., in accordance with the applicable provisions of Sections 141, 228, 242, and 245 of the General Corporation Law.

4. The text of the Sixth Restated Certificate is hereby restated and further amended to read in its entirety as follows:

FIRST: The name of this corporation is Thorne HealthTech, Inc. (the “Corporation”).

SECOND: The address of the registered office of the Corporation in the State of Delaware is Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808, County of New Castle. The name of its registered agent at such address is Corporation Service Company.

THIRD: The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law.


FOURTH:

1. The Corporation is authorized to issue two classes of stock, to be designated as Common Stock and Preferred Stock. The total number of shares of all classes of stock which the Corporation shall have authority to issue is 210,000,000 shares, consisting of (i) 200,000,000 shares of Common Stock, $0.01 par value per share (“Common Stock”), and (ii) 10,000,000 shares of Preferred Stock, $0.01 par value per share (“Preferred Stock”).

2. The following is a statement of the designations and the powers, privileges, and rights, and the qualifications, limitations, or restrictions thereof in respect to each class of capital stock of the Corporation.

3. Immediately upon the filing and effectiveness of this Certificate (the “Filing Time”) each share of Class A Common Stock, Class B Common Stock, and Series E Preferred Stock (as each such term is defined in the Sixth Restated Certificate as it may have been amended prior to the Filing Time) issued and outstanding or held in treasury immediately prior to the Filing Time is hereby reclassified into one share of Common Stock (the “Reclassification”). Each certificate that immediately prior to the Filing Time represented any of such shares of capital stock of the Corporation (“Old Certificates”) shall thereafter represent that number of shares of Common Stock into which the shares represented by the Old Certificate shall have been reclassified pursuant to the Reclassification

Common Stock.

a. The voting, dividend, and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights of the holders of the Preferred Stock of any series as may be designated by the Board of Directors on any issuance of the Preferred Stock of any series.

b. Each share of Common Stock outstanding as of the applicable record date shall entitle the holder thereof to one (1) vote on any matter submitted to a vote at a meeting of the stockholders; provided, however, that, except as required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Certificate (which, as used herein, shall mean the Certificate of Incorporation of the Corporation, as amended from time to time, including the terms of any certificate of designations of any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Certificate or the General Corporation Law of the State of Delaware. There shall be no cumulative voting.

c. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law.

d. Dividends may be declared and paid on the Common Stock if, as, and when determined by the Board of Directors subject to the rights of any then-outstanding Preferred Stock and to the requirements of applicable law.


e. On the dissolution or liquidation of the Corporation, whether voluntary or involuntary, holders of Common Stock shall be entitled to receive the assets of the Corporation available for distribution to its stockholders, subject to any preferential or other rights of any then-outstanding Preferred Stock.

Preferred Stock.

a. The Preferred Stock may be issued from time to time in one or more series pursuant to a resolution or resolutions providing for such issue duly adopted by the Board of Directors (authority to do so being hereby expressly vested in the Board of Directors).

b. The Board of Directors is further authorized, subject to limitations prescribed by law, to fix by resolution or resolutions the designations, powers, preferences, and rights, and the qualifications, limitations, or restrictions thereof, of any series of Preferred Stock, including, without limitation, authority to fix by resolution or resolutions the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices, and liquidation preferences of any such series, and the number of shares constituting any such series and the designation thereof, or any of the foregoing. The Board of Directors is further authorized to increase (but not above the total number of authorized shares of the class) or decrease (but not below the number of shares of any such series then outstanding) the number of shares of any series, subject to the powers, preferences, and rights, and the qualifications, limitations, and restrictions thereof stated in this Certificate or the resolution of the Board of Directors originally fixing the number of shares of such series. Except as may be otherwise specified by the terms of any series of Preferred Stock, if the number of shares of any series of Preferred Stock is so decreased, then the Corporation shall take all such steps as are necessary to cause the shares constituting such decrease to resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series.

c. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, without a separate vote of the holders of the class or classes the number of authorized shares of which are being increased or decreased, unless a vote of any holders of one or more series of Preferred Stock is required pursuant to the terms of any certificate of designation relating to any series of Preferred Stock, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law.

FIFTH:

1. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as otherwise provided by law, by this Certificate, or by the Bylaws of the Corporation.


2. Subject to the rights of holders of Preferred Stock, the number of directors that constitutes the entire Board of Directors shall be fixed only by resolution of the Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board. For the purposes of this Certificate, the term “Whole Board” shall mean the total number of authorized directorships whether or not there exist any vacancies or other unfilled seats in previously authorized directorships. At each annual meeting of stockholders, directors of the Corporation shall be elected to hold office until the expiration of the term for which they are elected and until their successors have been duly elected and qualified or until their earlier resignation or removal; except that if any such meeting shall not be so held, then such election shall take place at a stockholders’ meeting called and held in accordance with the General Corporation Law.

3. From and after the date of effectiveness of this Certificate, the directors of the Corporation (other than any who may be elected by holders of Preferred Stock under specified circumstances) shall be divided into three classes as nearly equal in size as is practicable, hereby designated as Class I, Class II, and Class III. Directors already in office shall be assigned to each class at the time such classification becomes effective in accordance with a resolution or resolutions adopted by the Board of Directors. At the first annual meeting of stockholders following the date of effectiveness of this Certificate, the term of office of the Class I directors shall expire and Class I directors shall be elected for a full term of three years. At the second annual meeting of stockholders following the date of effectiveness of this Certificate, the term of office of the Class II directors shall expire and Class II directors shall be elected for a full term of three years. At the third annual meeting of stockholders following the date of effectiveness of this Certificate, the term of office of the Class III directors shall expire and Class III directors shall be elected for a full term of three years. At each succeeding annual meeting of stockholders, directors shall be elected for a full term of three years to succeed the directors of the class whose terms expire at such annual meeting. If the number of directors is changed, any newly created directorships or decrease in directorships shall be so apportioned hereafter among the classes as to make all classes as nearly equal in number as is practicable, provided that no decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

4. From and after the effectiveness of this Certificate, only for so long as the Board of Directors is classified and subject to the rights of holders of Preferred Stock, any director or the entire Board of Directors may be removed from office at any time, but only for cause, and only by the affirmative vote of the holders of at least a majority of the voting power of the issued and outstanding capital stock of the Corporation entitled to vote in the election of directors.

5. Except as otherwise provided for or fixed by or pursuant to the provisions of this Article FIFTH in relation to the rights of the holders of Preferred Stock to elect directors under specified circumstances, or except as otherwise provided by resolution of a majority of the Whole Board, newly created directorships resulting from an increase in the number of directors, created in accordance with the Bylaws of the Corporation, and vacancies on the Board of Directors resulting from death, resignation, disqualification, removal, or other cause shall be filled only by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining director, and not by the stockholders. A person so elected by the Board of Directors to fill a vacancy or newly created directorship shall


hold office until the next election of the class for which such director shall have been chosen until his or her successor shall have been duly elected and qualified or until such director’s earlier death, resignation, or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

6. The election of directors need not be by written ballot unless the Bylaws of the Corporation so provide.

SIXTH: In furtherance and not in limitation of the powers conferred by law, the Board of Directors is expressly authorized to adopt, amend, alter, repeal, and rescind the Bylaws of the Corporation. The affirmative vote of at least a majority of the Whole Board shall be required in order for the Board of Directors to adopt, amend, alter, repeal or rescind the Bylaws of the Corporation. The Bylaws of the Corporation may also be adopted, amended, altered, repealed or rescinded by the stockholders of the Corporation. Notwithstanding the above or any other provision of this Certificate, the Bylaws of the Corporation may not be amended, altered, repealed or rescinded except in accordance with the provisions of the Bylaws relating to amendments to the Bylaws. No Bylaw hereafter legally adopted, amended, altered, repealed or rescinded shall invalidate any prior act of the directors or officers of the Corporation that would have been valid if such Bylaw had not been adopted, amended, altered, repealed or rescinded.

SEVENTH:

1. From and after the closing of a firm commitment underwritten initial public offering of securities of the Corporation pursuant to an effective registration statement filed under the Securities Act of 1933, as amended, and subject to the rights of holders of Preferred Stock, no action shall be taken by the stockholders of the Corporation except at an annual or special meeting of the Stockholders called in accordance with the Bylaws of the Corporation, and no action shall be taken by the stockholders by written consent. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner and to the extent provided in the Bylaws of the Corporation.

2. Subject to the terms of any series of Preferred Stock, special meetings of stockholders of the Corporation may be called only by the Chairperson of the Board of Directors, the Chief Executive Officer, or the Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board, but a special meeting may not be called by any other person or persons and any power of stockholders to call a special meeting of stockholders is specifically denied. Only such business shall be considered at a special meeting of stockholders as shall have been stated in the notice for such meeting.

3. Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation.


EIGHTH: To the fullest extent permitted by law, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the General Corporation Law or any other law of the State of Delaware is amended after approval by the stockholders of this Article EIGHTH to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of the foregoing provisions of this Article EIGHTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of, or increase the liability of any director of the Corporation with respect to any acts or omissions of such director occurring prior to, such repeal or modification.

NINTH:

1. Subject to any provisions in the Bylaws of the Corporation related to indemnification of directors of the Corporation, the Corporation shall indemnify, and advance expenses to, to the fullest extent permitted by applicable law, any director of the Corporation who was or is a party or is threatened to be made a party to a threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (a “Proceeding”) by reason of the fact that he or she is or was a director of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. Subject to any provisions in the Bylaws of the Corporation, the Corporation shall be required to indemnify a person in connection with a Proceeding (or part thereof) initiated by such person only if the Proceeding (or part thereof) was authorized by the Board of Directors.

2. The Corporation shall have the power to indemnify, to the extent permitted by applicable law, any officer, employee, or agent of the Corporation who was or is a party or is threatened to be made a party to a Proceeding by reason of the fact that he or she is or was a director, officer, employee, or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding.

3. Any amendment, repeal, or modification of the foregoing provisions of this Article NINTH shall not adversely affect any right or protection of any director, officer, or other agent of the Corporation existing at the time of such amendment, repeal, or modification.

TENTH: The Corporation reserves the right to amend or repeal any provision contained in this Certificate in the manner prescribed by the laws of the State of Delaware, and all rights conferred on stockholders are granted subject to this reservation; provided, however, that notwithstanding any other provision of this Certificate or any provision of law that might otherwise permit a lesser vote, the Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board and the affirmative vote of sixty-six and two-thirds percent (66 2/3%) of the voting power of the then-outstanding voting securities of the Corporation, voting together as a single class, shall be required for the amendment, repeal, or modification of the provisions of Section 2 of Article FOURTH, Sections 3-5 of Article FIFTH, Sections 1-2 of Article SEVENTH, this Article TENTH, or Article ELEVENTH of this Certificate.


ELEVENTH: The Corporation renounces, to the fullest extent permitted by law, any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, any Excluded Opportunity. An “Excluded Opportunity” is any matter, transaction or interest that is presented to, or acquired, created or developed by, or which otherwise comes into the possession of (i) any director of the Corporation who is not an employee of the Corporation or any of its subsidiaries, or (ii) any holder of Preferred Stock, or of Common Stock issued upon conversion of Preferred Stock, or any partner, member, director, stockholder, employee or agent of any such holder, other than someone who is an employee of the Corporation or any of its subsidiaries (collectively, “Covered Persons”), unless such matter, transaction or interest is presented to, or acquired, created or developed by, or otherwise comes into the possession of, a Covered Person expressly and solely in such Covered Person’s capacity as a director of the Corporation. Any person purchasing or otherwise acquiring any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and have consented to the provisions of this Article ELEVENTH. Neither the alteration, amendment or repeal of this Article ELEVENTH, nor the adoption of any provision of this Certificate inconsistent with this Article ELEVENTH, nor, to the fullest extent permitted by law, any modification of law, shall eliminate or reduce the effect of this Article ELEVENTH in respect of any Excluded Opportunity first identified or any other matter occurring, or any cause of action, suit or claim that, but for this Article ELEVENTH, would accrue or arise, prior to such alteration, amendment, repeal, adoption or modification. If any provision or provisions of this Article ELEVENTH shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (a) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article ELEVENTH (including, without limitation, each portion of any paragraph of this Article ELEVENTH containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) to the fullest extent possible, the provisions of this Article ELEVENTH (including, without limitation, each such portion of any paragraph of this Article ELEVENTH containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law. This Article ELEVENTH shall not limit any protections or defenses available to, or indemnification or advancement rights of, any director or officer of the Corporation under this Certificate, the Bylaws, applicable law, any agreement or otherwise.

TWELFTH: This Certificate shall become effective on the filing and acceptance hereof by the Secretary of State of Delaware.

IN WITNESS WHEREOF, Thorne HealthTech, Inc., has caused this Amended and Restated Certificate of Incorporation to be signed by the Chief Executive Officer of the Corporation on this ___ day of ___________, 2021.


By:    
  Paul F. Jacobson
  Chief Executive Officer

Exhibit 4.1

Execution Version

FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

This FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of July 5, 2018 and effective as of the Effective Time, is among (i) Thorne Holding Corp., a Delaware corporation (the “Company”), (ii) the Stockholders listed on Schedule 1 hereto (the “Initial Stockholders”), (iii) the individuals listed on Schedule 2 hereto (the “Purchasers”) and (iv) each person who shall, subsequent to the date hereof, join in and become a party to this Agreement pursuant to, and in accordance with, Section 2(1) hereof (“Additional Stockholders” and together with the Initial Stockholders and the Purchasers, the “Stockholders”).

WHEREAS, the Company and WestView Capital Partners II, L.P. (“WestView”), Tudor Ventures III L.P. (“Tudor”), Diversified Natural Products, Inc. (“DNP”), Albert Czap (“Czap”), ELUS Holdings Corporation (“ELUS”), IdB Holding S.p.A, the James L. Gilbert Trust – 1994 (“Gilbert”), Monashee Capital Master Fund L.P. and Mitsui & Co., Ltd. (“Mitsui”) are parties to that certain Third Amended and Restated Registration Rights Agreement, dated as of November 22, 2017, among the Company and the parties referred to therein (the “Amended Agreement”);

WHEREAS, the undersigned Stockholders and the Company, being all of the parties necessary to amend the Amended Agreement in accordance with the terms thereof, have agreed to amend and restate the Amended Agreement in its entirety in the form of this Agreement;

WHEREAS, the Company, the Purchasers, WestView, Tudor, Czap, Gilbert, ELUS and DNP have entered into a Preferred Stock Purchase and Securities Redemption Agreement (the “SPRA”), dated as of the date hereof, pursuant to which, among other things, (a) the Purchasers will purchase shares of the Company’s Series E Preferred Stock, $0.01 par value per share (the “Series E Preferred Stock”); (b) Mitsui will exchange its outstanding shares of the Company’s Series D Preferred Stock, $0.01 par value per share (the “Series D Preferred Stock”), for newly issued shares of Series E Preferred Stock; (c) the Company will redeem all outstanding capital stock of the Company held by WestView, Tudor, Czap and Gilbert; and (d) immediately after the consummation of the transactions described in the foregoing clauses (b) and (c), all remaining shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock shall be converted into shares of Common Stock;

WHEREAS, but for the execution and delivery of this Agreement, the Company and the Purchasers would not be willing to enter into the SPRA or to consummate the transactions contemplated thereby, which transactions will benefit the parties; and

WHEREAS, the parties hereto wish to set forth their respective rights with regard to the registration of shares of the Company’s capital stock for public sale and certain other matters relating thereto.


NOW, THEREFORE, the parties to this Agreement hereby agree to amend and restate the Amended Agreement in its entirety, as set forth herein, and further agree as follows:

1. DEFINITIONS. For all purposes of this Agreement, the following terms shall have the meanings set forth below:

Affiliate” shall mean, with respect to any Stockholder, any Person directly or indirectly controlling, controlled by or under direct or indirect common control with, such Stockholder and shall include, without limitation, (a) any Person who is a director or beneficial holder of more than fifty percent (50%) of the then outstanding capital stock of (or other beneficial interest in) such Stockholder and Family Members of any such Persons, (b) any Person of which such Stockholder or an Affiliate (as defined in clause (a) above) of such Stockholder directly or indirectly, either beneficially owns more than fifty percent (50%) of the then outstanding capital stock (or partnership interests or other shares of beneficial interest) or constitutes more than a fifty percent (50%) equity participant, (c) any Person of which an Affiliate (as defined in clause (a) above) of such Stockholder is a general partner, director, officer or executive employee, (d) in the case of a specified Person who is an individual, Family Members of such Person, and (e) if such Person is a limited partnership, any other limited partnership the general partner of which (or the general partner of such general partner, if such general partner is itself a partnership) is the same individual or group of individuals that serves as the general partner of such Person (or is the general partner of such general partner, if such general partner of such Person is a partnership).

Common Stock” shall mean the Company’s Common Stock, par value $0.01 per share.

Convertible Securities” shall mean any securities exercisable for, convertible into or exchangeable for any shares of Common Stock.

Effective Time” means the Closing, as defined in the SPRA.

ELUS” shall have the meaning set forth in the recitals hereof.

Exchange Act” shall mean the United States of America Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

Family Members” shall mean, with respect to any individual, any Related Person or Family Trust of such individual.

Family Trust” shall mean, with respect to any individual, any trust or limited liability company created solely for the benefit of one or more of such individual’s Related Persons and controlled by such individual.

Person” shall mean an individual, partnership, limited liability company, corporation, association, trust, joint venture, unincorporated organization, or any government, governmental department or agency or political subdivision thereof.

Preferred Stock” shall mean the Company’s Series E Preferred Stock.

 

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Public Sale” shall mean any sale of Common Stock to the public pursuant to a public offering registered under the Securities Act or to the public through a broker or market maker pursuant to the provisions of Rule 144 (or any successor rule) adopted under the Securities Act.

Registrable Securities” shall mean, without duplication: (a) all shares of Common Stock held by the Stockholders from time to time, including shares issued or issuable upon conversion of the Preferred Stock; (b) any shares of Common Stock issued as (or issuable upon the conversion or exercise of any warrant, option, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of the shares referenced in (a) above; and (c) any shares of Common Stock issuable upon the conversion or exercise of any Convertible Securities issued pursuant to the SPRA or otherwise, and held by the Stockholders; excluding in all cases, however, any shares for which registration rights have terminated pursuant to Section 10 of this Agreement.

Related Persons” shall mean, with respect to any individual, such individual’s parents, siblings, spouse, children and grandchildren.

SEC” shall mean the Securities and Exchange Commission.

Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulation promulgated thereunder.

Series A Preferred Stock” shall mean the Company’s Series A Preferred Stock, par value $0.01 per share.

Series B Preferred Stock” shall mean the Company’s Series B Preferred Stock, par value $0.01 per share.

Series C Preferred Stock” shall mean the Company’s Series C Preferred Stock, par value $0.01 per share.

Series D Preferred Stock” shall have the meaning set forth in the recitals hereof.

Series E Preferred Stock” shall have the meaning set forth in the recitals hereof.

SPRA” shall have the meaning set forth in the recitals hereof.

2. REGISTRATION RIGHTS.

(a) Demand Registration. At any time after the earlier of one hundred and eighty (180) days following the completion of a Public Sale or five (5) years after the Effective Time, upon the written request by Stockholders owning or holding, alone or with their Affiliates, more than fifty percent (50%) of the issued and outstanding Preferred Stock (including for purposes of this calculation any issued and outstanding shares of Common Stock issued upon conversion of shares of Preferred Stock), which such Stockholders shall, in all events, include Mitsui and Kirin, respectively, so long as

 

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Mitsui or Kirin, as applicable, owns at least fifty percent (50%) of the number of shares of Preferred Stock (including for purposes of this calculation any issued and outstanding shares of Common Stock issued upon conversion of shares of Preferred Stock) owned by them, respectively, as of the Effective Time (subject to proportionate adjustment in the case of any stock split, reverse stock split, recapitalization, reclassification stock dividend or other distribution with respect to such shares), requesting that the Company effect a public offering under the Securities Act of all or part of the Registrable Securities held by such Stockholders and specifying the intended method or methods of disposition of such Registrable Securities, the Company will promptly give written notice of such requested registration to all Stockholders and will use its best efforts to effect the registration under the Securities Act, as expeditiously as is reasonable, of:

(i) the Registrable Securities that the Company has been so requested to register by such Stockholders, for disposition in accordance with the intended method of disposition stated in such request; and

(ii) all other Registrable Securities that the Company has been requested to register by other Stockholders by written request delivered to the Company within 30 days after the receipt of such written notice delivered by the Company;

all to the extent required to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered. Anything herein to the contrary notwithstanding, the Company shall not be obligated to consummate more than two (2) registrations pursuant to this Section 2(a); provided, that in each case at least eighty percent (80%) of the Registrable Securities requested to be registered are registered and sold to the public. In connection with any underwritten offering with respect to which Stockholders shall have requested registration pursuant to this Section 2(a), the Company shall have the right to select the lead managing underwriter (being an underwriting firm of national standing) with respect to such offering, such underwriter to be reasonably acceptable to the Stockholders requesting the registration. Should the Stockholders requesting the registration so elect, they may select an underwriting firm of national standing which is reasonably acceptable to the Company to act as co-lead manager of such offering.

(b) Incidental Registration. If at any time after the Effective Time the Company proposes to file a registration statement under the Securities Act with respect to an offering for its own account or for the sale of equity securities of any holder of any class of equity security of the Company (excluding the Company’s initial public offering of Common Stock, unless such first public offering includes the registration of securities for the account of other Stockholders, and excluding a registration relating solely either to the sale of securities to employees of the Company pursuant to a stock purchase, stock option or similar plan, or a merger, recapitalization or reorganization), the Company shall promptly give each Stockholder written notice of such registration at least thirty (30) days prior to the anticipated filing date and such notice shall offer the Stockholders the opportunity to register such number of Registrable Securities as each Stockholder may request. Upon the written request of any such Stockholder given to the Company within twenty (20) days after receipt of such notice delivered by the Company, the Company shall, subject to the provisions of Section 2(d), use its best efforts to cause to be registered under the Securities Act all of the Registrable Securities that each such Stockholder has requested to be registered.

 

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(c) Registration on Form S-3. If at any time after the Effective Time (i) any Stockholder or Stockholders request that the Company file a registration statement on Form S-3 or any successor thereto for a public offering of all or any portion of the Registrable Securities held by such requesting holder or holders, the reasonably anticipated aggregate price to the public of which would exceed $3,000,000, and (ii) the Company is a registrant entitled to use Form S-3 or any successor thereto to register such Registrable Securities, then the Company shall use its best efforts to, as soon as practicable, register under the Securities Act on Form S-3 or any successor thereto, for public sale in accordance with the method of disposition specified in such notice, the number of Registrable Securities specified in such notice. The number of registrations on Form S-3 which may be requested and obtained under this Section 2(c) shall be limited to no more than two (2) per calendar year.

(d) Underwriting Requirements. In connection with any underwritten offering pursuant to Section 2(a), if the managing underwriter shall advise the Company that, in its view, the number or proposed mix of securities requested to be included in such registration (including securities which the Company desires to be included which are not Registrable Securities) exceeds the largest number of securities which can be sold without having a material adverse effect on such offering (the “Maximum Offering Size”), including the price at which such securities can be sold, the Company will include in such registration:

(i) first, shares of Common Stock issued or issuable upon conversion of the shares of Preferred Stock requested by the Stockholders to be included in such registration pursuant to Section 2(a), with the shares so included to be apportioned pro rata among the Stockholders according to the total number of such shares of Common Stock owned by each such Stockholder (including any shares of Common Stock issued or issuable upon conversion of the Preferred Stock) or in such other proportions as shall be agreed upon by such Stockholders, if the total number of shares requested to be included in such registration by the Stockholders exceeds the Maximum Offering Size;

(ii) second, any Registrable Securities other than the ones referenced in (i) above requested by the Stockholders to be included in such registration pursuant to Section 2(a), with the shares so included to be apportioned pro rata among the Stockholders according to the total number of Registrable Securities owned by each such Stockholder (excluding any shares of Preferred Stock or shares of Common Stock issued or issuable upon conversion of the Preferred Stock, but assuming the conversion into Common Stock of all outstanding Convertible Securities other than such Preferred Stock) or in such other proportions as shall be agreed upon by such Stockholders, to the extent such total amount of Registrable Securities requested to be included in such registration by the Stockholders exceeds the Maximum Offering Size; and

 

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(iii) third, after registration of the total amount of Registrable Securities requested to be included in such registration by the Stockholders, any securities to be sold for the account of other Persons (including the Company) which shall not cause the Maximum Offering Size to be exceeded, with such priorities among the Company and such other Persons as the Company shall determine.

In connection with any underwritten offering pursuant to Section 2(b), if the managing underwriter shall advise the Company that, in its view, the number or mix of securities (including all Registrable Securities) which the Company, the Stockholders and any other Persons intend to include in such registration exceeds the Maximum Offering Size, the Company will include in such registration, in the priority listed below, securities up to the Maximum Offering Size:

(iv) first, securities to be sold for the Company’s own account;

(v) second, Registrable Securities requested to be included in such registration by Stockholders pursuant to Section 2(b) with the shares so included to be apportioned pro rata among the Stockholders according to the total amount of Registrable Securities owned by each such Stockholder calculated on a fully diluted basis (i.e., assuming the conversion into Common Stock of all outstanding Convertible Securities) or in such other proportions as shall be agreed upon by such Stockholders (if necessary); and

(vi) third, shares of Common Stock requested to be included in such registration by all other Persons, allocated (if necessary) pro rata among such Persons on the basis of the relative number of securities each such Person has requested to be included in such registration, or as such Persons may otherwise agree.

(e) Expenses of Registration. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of shares with respect to registrations pursuant to this Section 2, including, without limitation, all registration, filing, qualification, Blue Sky, printing and accounting fees relating or apportionable thereto, but excluding underwriting discounts and commissions relating to shares being registered, applicable transfer taxes and expenses of counsel to the Stockholders, which shall be borne by the Stockholders selling shares being registered. Notwithstanding anything in this paragraph to the contrary, upon demand of the Stockholders, the Company shall pay the reasonable expenses of one separate counsel for the Stockholders to be selected by the Stockholders holding a majority of the Registrable Securities held by Stockholders and included in such registration, filing or qualification.

(f) Company Delay or Withdrawal of Registration. At the time of any request to register Registrable Securities pursuant to Section 2(a), if the Board of Directors of the Company determines in its good faith reasonable judgment that the Company should not file any registration statement otherwise required to be filed pursuant to such Section 2(a) because the Company is engaged in or plans to engage in any financing, acquisition or other material transaction which would be adversely affected by the filing of such a registration statement, the Company shall be entitled to postpone for the shortest reasonable period of time (but not exceeding ninety (90) days from the date of the request), the filing of such registration statement and shall promptly give the Stockholders who have requested the filing of such registration statement under Section 2(a) and any other Stockholders who have requested the

 

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registration of their Registrable Securities under Section 2(a) written notice of such determination, containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. If the Company shall so postpone the filing of the registration statement, the Stockholders who made the request for registration under Section 2(a) shall have the right to withdraw the request for registration by giving written notice to the Company within thirty (30) days after receipt of the notice of postponement. Such right to delay a request for registration pursuant to this Section 2(f) may not be exercised more than once in any twelve (12) month period. Without limiting the foregoing, the Company shall have no liability to any Stockholder for the Company’s withdrawal of any registration as to which a Stockholder has registration rights under Section 2(b) (except reimbursement of expenses incurred prior to such withdrawal in accordance with paragraph (e) above); provided, that such withdrawal is made by the Company in good faith and not for the purpose of impairing any Stockholder’s rights under such Section 2(b).

(g) Rule 144 Reporting. With a view to making available the benefits of certain rules and regulations of the SEC which may at any time permit the sale of the Registrable Securities by the Stockholders to the public without registration, at all times after ninety (90) days after any registration statement covering a public offering of securities of the Company under the Securities Act shall have become effective, the Company agrees to:

(i) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act;

(ii) use its best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and

(iii) furnish to each Stockholder holding Registrable Securities forthwith upon request a written statement by the Company as to its compliance with the reporting requirements of such Rule 144 and of the Securities Act and the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed by the Company as such Stockholder may reasonably request in availing itself of any rule or regulation of the SEC allowing such Stockholder to sell any Registrable Securities without registration.

(h) Obligations of the Company. Whenever required under this Section 2 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:

(i) prepare and file with the SEC a registration statement with respect to such shares and use its best efforts to cause such registration statement to become and remain effective until the disposition of all securities covered by the registration statement;

(ii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement;

 

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(iii) furnish to the Stockholders such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of the shares owned by them and covered by a registration statement filed under this Section 2;

(iv) use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such states or jurisdictions as shall be reasonably requested by the Stockholders; provided, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions;

(v) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering (and each Stockholder participating in such underwriting shall also enter into and perform its obligations under such an underwriting agreement);

(vi) notify each Stockholder holding shares covered by such registration statement as promptly as possible at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and promptly prepare (and file with the SEC) and furnish to such Stockholders a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;

(vii) furnish, at the request of any Stockholder requesting registration of shares pursuant to this Section 2, on the date that such shares are delivered to the underwriters for sale in connection with a registration pursuant to this Section 2 (if such shares are being sold through underwriters) or, if such shares are not being sold through underwriters, on the date that the registration statement with respect to such shares becomes effective, (i) an opinion, dated as of such date, of counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Stockholders participating in such registration of shares, and (ii) a “comfort” letter, dated as of such date, from the independent certified public accountants of the Company, in form and substance as in customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Stockholders requesting registration of shares;

 

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(viii) notify Stockholders whose shares are included in the registration statement promptly of any request by the SEC for the amendment or supplement of such registration statement or prospectus or for additional information, and notify such Stockholders promptly of the filing of each amendment or supplement to such registration statement or prospectus;

(ix) advise Stockholders whose shares are included in the registration statement, promptly after it shall receive notice, of the issuance of any stop order by the SEC suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for that purpose and promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;

(x) furnish to each Stockholder whose shares are included in the registration statement at least one conformed copy of the registration statement and any amendments thereto;

(xi) provide each Stockholder whose shares are included in the registration statement and its representatives a reasonable opportunity, after entering into a confidentiality agreement which is reasonably satisfactory to the Company, to conduct an inquiry of the Company’s financial and other records during normal business hours and make available during normal business hours and without unreasonable disruption to the Company’s business or operations, its officers, directors and employees to provide such information as such Stockholder may reasonably request to fulfill any due diligence obligations that such Stockholder may have;

(xii) keep the registration statement effective for a period ending on the earlier of the date that is ninety (90) days from the effective date of the registration statement or such time as the Stockholders have completed the distribution described in the registration statement;

(xiii) cause all Registrable Securities registered on the registration statement to be listed each national securities exchange on which similar securities issued by the Company are then listed; and

(xiv) provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration.

(i) Obligations of Stockholders. In connection with any registration required to be effected pursuant to this Section 2, the Stockholders selling any shares in connection with such registration shall furnish to the Company such information regarding themselves, the shares held by them and the intended method of disposition of such shares as shall be required or reasonably necessary to effect the registration of their shares.

 

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(j) Lock-Up Agreement. Each Stockholder hereby agrees that in connection with any registration of securities of the Company relating to an underwritten offering thereof to the general public, to the extent requested by the Company or the underwriter of such offering, such Stockholder (to the extent such Stockholder then holds, individually or together with its Affiliates, two percent (2%) or more of the outstanding shares of Common Stock, or is an officer, director or employee of the Company) shall not, whether or not such Stockholder is participating in such registration, sell, contract to sell, grant any option or right to purchase, lend, pledge, enter into any swap or other arrangement that transfers economic consequences of ownership or otherwise transfer or dispose of (other than in a private sale or to donees who agree to be similarly bound) any shares of Common Stock or any other securities convertible into Common Stock (other than those shares, if any, which are in fact included in such registration) without the prior written consent of the Company or the applicable underwriters, as the case may be, for such period (the “Lock-Up Period”) of time (not to exceed (x) one hundred eighty (180) days with respect to the initial public offering of the Common Stock, or (y) ninety (90) days with respect to any other offering) from the effective date of the registration statement for such registration as the Company or such underwriters may specify in writing. Each Stockholder hereby further agrees that (to the extent such Stockholder then holds, individually or together with its Affiliates, two percent (2%) or more of the outstanding shares of Common Stock, or is an officer, director or employee of the Company), if reasonably requested by any underwriter or underwriters in any such offering, such Stockholder shall enter into a lock-up agreement in the form (containing customary terms) reasonably requested by such underwriter or underwriters for such offering, provided, that such lock-up agreement does not provide (i) for a longer lock-up period than the Lock-Up Period contained in this Section 2(j) or (ii) terms that are more onerous to such Stockholder than those applicable to any similarly situated Stockholder. Each Stockholder further agrees that the underwriters of any such offering are intended to be third-party beneficiaries of this Section 2(j) and such beneficiaries shall be entitled to enforce the provisions of this Section 2(j) an their own behalf as though they were a party hereto. The provisions of this Section 2(j) shall not be deemed to prevent the Stockholders from exercising their rights under Section 2(b) hereof in connection with any such underwritten offering.

(k) Indemnification. The Company will, and hereby does, indemnify and hold harmless, in the case of any registration statement filed pursuant to this Section 2, each seller of any Registrable Securities covered by such registration statement, its directors and officers, each other person who participates as an underwriter in the offering or sale of such securities, each officer and director of each such underwriter, and each such other person, if any, who controls such seller or any such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, (collectively, the “Seller Indemnitees”), against any losses, claims, damages, liabilities and expenses, joint or several, to which such Seller Indemnitee may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus included therein, or any amendment or supplement thereto, or any document incorporated by reference therein; (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) any violation by the Company of any applicable securities laws in connection with such registration statement, preliminary prospectus, final prospectus or summary prospectus, or any related “free

 

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writing prospectus”, or amendment or supplement thereto or document incorporated by reference therein; and the Company will reimburse such Seller Indemnitee for any legal or any other expenses reasonably incurred by them in connection with investigating or defending such loss, claim, liability, action or proceeding; provided, however, that the Company shall not be liable to any Seller Indemnitee in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, or any document incorporated by reference therein, in reliance upon and in conformity with written information furnished to the Company for use in the preparation thereof by such Seller Indemnitee. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any Seller Indemnitee and shall survive the transfer of such securities by such seller.

The Company may require, as a condition to including any Registrable Securities in any registration statement pursuant to this Section 2, that the Company shall have received an undertaking satisfactory to it from each prospective seller of such securities, to, severally and not jointly, indemnify and hold harmless (in the same manner and to the same extent as set forth in the preceding paragraph, except that no such prospective seller shall in any event be liable pursuant thereto for any amount in excess of the net proceeds of sale received by such seller from the sale by it of Registrable Securities under such registration statement) the Company, each officer and director of each such underwriter and each other person, if any, who controls the Company or the underwriter, and each other seller, with respect to any statement in or omission from such registration statement, any preliminary prospectus, final prospectus or summary prospectus included therein, or any amendment or supplement thereto, or any related “free-writing prospectus”, or any document incorporated by reference therein, but only if such statement or omission was made in reliance upon and in conformity with written information furnished by such indemnifying prospective seller to the Company for use in the preparation of or inclusion in such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, or document incorporated by reference therein. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any such director, officer, controlling person or other seller and shall survive the transfer of such securities by such seller. The indemnity contemplated by this paragraph shall not apply to amounts paid in settlement of any losses, claims, damages, liabilities or expenses (or actions in respect thereof) if such settlement is effected without the consent of the Stockholder from whom indemnification is sought (which consent shall not be unreasonably withheld or delayed).

Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding (including a governmental investigation) involving a claim referred to in this Section 2(k), such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 2(k), give written notice to the latter of the commencement of such action; provided, however, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding provisions of this Section 2(k), except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties

 

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may exist in respect of such claim (in which case, the indemnifying party shall be liable for the fees and expenses of one counsel for the underwriters and other sellers in connection with any one action or separate but similar or related actions), the indemnifying party will be entitled to participate in and to assume the defense thereof, jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereon, the indemnifying party will not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof (except as expressly set forth above).

(l) Rights of Stockholders. No person shall be granted registration rights which conflict with or which are more favorable to such Stockholder than the registration rights set forth in this Agreement. At the election of the Company and the holders of greater than fifty percent (50%) of the total number of then issued and outstanding shares of Preferred Stock held by all Stockholders (including for purposes of this calculation any issued and outstanding shares of Common Stock issued upon conversion of shares of Preferred Stock), which Stockholders shall include Mitsui and Kirin, respectively, so long as Mitsui or Kirin, as applicable, owns at least fifty percent (50%) of the number of shares of Preferred Stock (including for purposes of this calculation any issued and outstanding shares of Common Stock issued upon conversion of shares of Preferred Stock) owned by them, respectively, as of the Effective Time (subject to proportionate adjustment in the case of any stock split, reverse stock split, recapitalization, reclassification stock dividend or other distribution with respect to such shares), new stockholders of the Company may be given the opportunity to receive the registration rights provided under this Agreement by being permitted to execute an Instrument of Accession to this Agreement in the form of Exhibit A attached hereto (and, upon execution, be added to Schedule 1) or be given registration rights on another basis less favorable to such new stockholder.

3. SEVERABILITY. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

4. ENTIRE AGREEMENT. Except as otherwise expressly set forth herein, from and after the Effective Time and unless and until thereafter amended, this document will embody the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and will supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, with respect to such subject matter.

5. SUCCESSORS AND ASSIGNS. This Agreement will bind and inure to the benefit of and be enforceable by the Company and the Stockholders and their respective successors and permitted assigns.

 

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6. COUNTERPARTS; EFFECTIVENESS OF AGREEMENT. This Agreement may be executed by original, facsimile, PDF or other electronic signature (including Docusign) and in separate counterparts each of which will be an original and all of which taken together will constitute one and the same agreement. This Agreement shall become effective as of the Effective Time but automatically shall terminate and be deemed null and void ab initio if the SPRA is terminated or the Closing (as defined in the SPRA) otherwise does not occur for any reason.

7. REMEDIES. The Stockholders will be entitled to enforce their rights under this Agreement specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor. The parties hereto acknowledge and agree that in the event of any breach of this Agreement by the Company, the Stockholders would be irreparably harmed and could not be made whole by monetary damages. Each party hereto accordingly agrees (a) not to assert by way of defense or otherwise that a remedy at law would be adequate, and (b) that the parties agree, in addition to any other remedy to which they may be entitled, that the remedy of specific performance of this Agreement is appropriate in any action in court. In the event of any dispute involving the terms of this Agreement, the prevailing party shall be entitled to collect reasonable fees and expenses incurred by the prevailing party in connection with such dispute from the non-prevailing parties to such dispute.

8. RECAPITALIZATION, ETC. In the event that any capital stock or other securities are issued in respect of, in exchange for, or in substitution of, any shares of Common Stock by reason of any reorganization, recapitalization, reclassification, merger, consolidation, spin-off, partial or complete liquidation, stock dividend, split-up, sale of assets, distribution to Stockholders or combination of the Common Stock or any other change in capital structure of the Company, appropriate adjustments shall be made with respect to the relevant provisions of this Agreement so as to fairly and equitably preserve, as far as practicable, the original rights and obligations of the parties hereto under this Agreement.

9. AMENDMENT AND WAIVER. No modification, amendment or waiver of any provision of this Agreement will be effective against the Company or the Stockholders unless such modification, amendment or waiver is approved in writing by the Company and the holders of greater than fifty percent (50%) of the total number of then issued and outstanding shares of Preferred Stock held by all Stockholders, which holders shall include Mitsui and Kirin, respectively, so long as Mitsui or Kirin, as applicable, owns at least fifty percent (50%) of the number of shares of Preferred Stock (including for purposes of this calculation any issued and outstanding shares of Common Stock issued upon conversion of shares of Preferred Stock) owned by them, respectively, as of the Effective Time (subject to proportionate adjustment in the case of any stock split, reverse stock split, recapitalization, reclassification stock dividend or other distribution with respect to such shares); provided, however that no such modification, amendment or waiver shall be effective against any Stockholder who has not consented to such modification, amendment or waiver to the extent that such modification, amendment or waiver would be adverse to the interests of such Stockholder in any material respect and would have a disproportionate impact in any material respect on the rights of such Stockholder in its capacity as a Stockholder hereunder when measured against the impact of such modification, amendment or waiver on the rights of other Stockholders in their capacities as Stockholders hereunder.

 

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The Company shall notify all Stockholders of each modification, amendment or waiver of any provision of this Agreement that could reasonably be expected to affect the rights of such Stockholder hereunder at least five (5) business days prior to the effectiveness of such modification, amendment or waiver. The failure of any party to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

10. TERMINATION. This Agreement (and the right of any Stockholder to request registration or inclusion of Registrable Securities in any registration) will terminate with respect to each applicable Stockholder upon the earliest to occur of:

(a) any Liquidation Event (as defined in the Company’s Fifth Amended and Restated Certificate of Incorporation as in effect as of the Effective Time or as amended or modified from time to time);

(b) such time after consummation of an initial public offering of the Common Stock under the Securities Act as Rule 144 or another similar exemption under the Securities Act is available for the sale of all of such Stockholder’s shares without limitation during a three-month period without registration; or

(c) a termination of this Agreement pursuant to Section 6 hereof;

provided, that the provisions of Section 2(e) and Section 2(k) shall survive any termination pursuant to Section 10(a) or Section 10(b) above.

11. GOVERNING LAW; JURY TRIAL WAIVER. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE PARTIES HERETO AGREE TO WAIVE ANY RIGHT TO HAVE ANY DISPUTE ARISING HEREUNDER OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY ADJUDICATED BY A JURY, AND HEREBY AGREE TO SUBMIT TO THE COURTS OF THE STATE OF DELAWARE IN CONNECTION WITH THE RESOLUTION OF ANY SUCH DISPUTE.

12. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

13. CONSTRUCTION. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.

 

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14. NOTICES. All notices, demands, and other communications hereunder shall be in writing or by written telecommunication, and shall be deemed to be duly given if delivered personally or by overnight courier or if mailed by certified mail, return receipt requested, postage prepaid, or sent by telecopier, as follows:

If to the Company, to:

Thorne Holding Corp.

152 West 57th Street

New York, NY 10019

Attn: Paul Jacobson

(917) 859-2505

Email: pjacobson@thorne.com

With copies (which shall not constitute notice) sent contemporaneously to:

Womble Bond Dickinson (US) LLP

One West Fourth Street

Winston-Salem, NC 27101

Attn: Christopher J. Gyves

(336) 721-3634

Email: christopher.gyves@wbd-us.com

If to the Stockholders, to the addresses set forth on Schedules 1 and 2 attached hereto.

If to any Additional Stockholder, to the address for such Additional Stockholder on Schedule 1 attached hereto (or such other address as such Additional Stockholder shall specify by written notice given pursuant to this Agreement).

[Balance of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the day and year first above written.

 

COMPANY:
THORNE HOLDING COMPANY
By:   /s/ Paul Jacobson
Name: Paul Jacobson
Title: Chief Executive Officer

 

Signature Page to Fourth Amended and Restated Registration Rights Agreement


 

INITIAL STOCKHOLDER:
DIVERSIFIED NATURAL PRODUCTS, INC.
By:   /s/ Paul Jacobson
Name: Paul Jacobson
Title: Authorized Signatory

 

Signature Page to Fourth Amended and Restated Registration Rights Agreement


INITIAL STOCKHOLDER:
IDB HOLDING S.P.A
By:   /s/ Daniele Giovini
Name: Daniele Giovini
Title:   General Manager

 

Signature Page to Fourth Amended and Restated Registration Rights Agreement


INITIAL STOCKHOLDER:
MONASHEE CAPITAL MASTER FUND LP
By:   /s/ Tom Wynn
Name: Tom Wynn
Title:   Partner

 

Signature Page to Fourth Amended and Restated Registration Rights Agreement


INITIAL STOCKHOLDER:
ELUS HOLDING CORPORATION
By:  

/s/ Riccardo Braglia

Name:   Riccardo Braglia
Title:   Chairman

 

Signature Page to Fourth Amended and Restated Registration Rights Agreement


PURCHASER:
MITSUI & CO. LTD.
By:  

/s/ Masami Yokoyama

Name:   Masami Yokoyama
Title:   General Manager, NutriScience Div.

 

Signature Page to Fourth Amended and Restated Registration Rights Agreement


PURCHASER:
KIRIN HOLDINGS COMPANY, LIMITED
By:  

/s/ Keisuke Nishimura

Name:   Keisuke Nishimura
Title:   Senior Executive Vice President

 

Signature Page to Fourth Amended and Restated Registration Rights Agreement


Schedule 1

Initial Stockholders

 

Stockholder

  

Address

Diversified Natural Products, Inc.

c/o Paul Jacobson

  

152 West 57th St.

New York, NY 10019

ELUS Holding Corporation c/o William Mann   

1140 US Highway 22, Suite 101

Bridgewater, New Jersey 08807

Facsimile:

 

With copies of all notices to:

Helsinn Healhcare, S.A.

P.O. Box 357

6915 Lugano/Pambio-Noranco

Switzerland

Attention: Matteo Missaglia, General Counsel

Facsimile:

IbD Holding S.p.A.   

Viale Ortles 12

20139 Milan, Italy

Monashee Capital Master Fund LP   

125 High Street

High Street Tower, 28th Floor

Boston, MA 02110


Schedule 2

Purchasers

 

Stockholder

  

Address

Mitsui & Co., Ltd.   

c/o Yasutaka Yamakawa

General Manager, Food Science Dept. I

Nutri Science Div. Nutrition & Agriculture

Business Unit

1-3, Marunocuchi 1-chome, Chiyoda-ku, Tokyo

100-8631, Japan

Facsimile:

E-mail:

 

With a copy (which shall not constitute notice) to:

 

Morgan, Lewis & Bockius LLP

300 South Grand Avenue, Twenty-Second Floor

Los Angeles, CA 90071-3132

Attention: John L. Filippone

Facsimile:

Email:

Kirin Holdings Company, Limited   

Kirin Holdings Company, Limited

Nakano Central Park South

4-10-2 Nakano

Nakano-ku, Tokyo 164-0001

 

With a copy (which shall not constitute notice) to:

 

Morrison & Foerster LLP

250 West 55th Street

New York, New York 10019-9601

Attention: Stan Yukevich: Enrico Granata

Email:

Exhibit 4.4

NEITHER THIS WARRANT NOR THE SHARES ISSUED OR ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, ENDORSED, PLEDGED, MORTGAGED, HYPOTHECATED OR OTHERWISE CONVEYED OR DISPOSED OF, UNLESS THEY ARE (1) SO REGISTERED OR (2) AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND IF REASONABLY REQUESTED BY THE COMPANY, A WRITTEN LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY IS PROVIDED BY THE TRANSFEROR. THIS WARRANT AND THE SHARES ISSUED OR ISSUABLE UPON EXERCISE OF THIS WARRANT, IF NOT TRANSFERRED PURSUANT TO AND IN CONFORMITY WITH AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IN ACCORDANCE WITH RULE 144 PROMULGATED UNDER THE SECURITIES ACT, ALSO ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN ARTICLE IX OF THIS WARRANT, AND NO TRANSFER OF THIS WARRANT AND/OR SUCH SHARES SHALL BE VALID OR EFFECTIVE IF IT IS NOT EFFECTED IN COMPLIANCE WITH SUCH RESTRICTIONS ON TRANSFER.

 

No. 10    Dated: July 15, 2020

THORNE HOLDING CORP.

AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT

THIS IS TO CERTIFY THAT, Kirin Holdings Company, Limited (the “Initial Warrant Holder”) and its successors and permitted assigns are entitled to purchase from Thorne Holding Corp., a Delaware corporation (the “Company”), at any time or from time to time after 9:00 A.M., New York City time, on October 11, 2018 (such day, the “Initial Exercise Date”), and prior to 5:00 P.M., New York City time, on the ten (10) year anniversary of the Initial Exercise Date (the “Expiration Date”), any or all of one hundred twenty-seven (127) shares (the “Initial Warrant Shares”) of Common Stock (as defined below) of the Company at a purchase price per share equal to $2,280.03 per share (the “Initial Exercise Price”). The number and character of the Initial Warrant Shares and the Initial Exercise Price are subject to adjustment as provided herein.

The Company and the Initial Warrant Holder each acknowledge and agree that this Amended and Restated Common Stock Purchase Warrant supersedes and replaces in its entirety that certain Common Stock Purchase Warrant No. 10, dated July 5, 2018, to purchase five thousand (5,000) shares of Common Stock (the “Original Warrant”). This Amended and Restated Common Stock Purchase Warrant is being issued to reflect that, on July 15, 2020, the Initial Warrant Holder partially exercised the Original Warrant and was issued four thousand eight hundred seventy-three (4,873) shares of Common Stock, and this Amended and Restated Common Stock Purchase Warrant represents the remaining one hundred twenty-seven (127) shares of Common Stock under the Original Warrant.


ARTICLE I

DEFINITIONS

Section 1.01. Defined Terms. As used in this warrant, the following terms shall have the respective meanings set forth below or elsewhere in this Warrant as referred to below:

Affiliate” shall have the meaning set forth in the Stockholders Agreement.

Change of Control” shall mean (x) the sale or transfer of more than fifty percent (50%) of the outstanding capital stock of the Company in a single transaction or series of related transactions to Persons who are not then stockholders of the Company, (y) the issuance of shares of Common Stock, or securities convertible into or exercisable for shares of Common Stock, constituting more than fifty percent (50%) of the outstanding capital stock of the Company immediately after issuance, to Persons who were not holders of Common Stock, on an as converted basis, immediately prior to such issuance or (z) the sale, exclusive license or other disposition of all or substantially all of the consolidated assets of the Company and its majority-owned subsidiaries in a single transaction or series of related transactions to Persons who are not then stockholders of the Company.

Common Stock” shall mean the Company’s Common Stock, $0.01 par value per share.

Company” shall have the meaning set forth in the preamble hereof.

Exercise Date” shall have the meaning set forth in Section 2.02 hereof.

Exercise Price” shall mean the Initial Exercise Price, as adjusted from time to time pursuant to the terms of this Warrant.

Expiration Date” shall have the meaning set forth in the preamble hereof.

Fair Market Value” shall mean the fair market value per share of Common Stock, as determined in good faith by the Board of Directors of the Company, from time to time. Notwithstanding the forgoing, (i) in the event this Warrant is exercised in connection with a Change of Control, the Fair Market Value of the Common Stock shall be equal to the per share consideration paid for a share of Common Stock in such Change of Control transaction, and (ii) in the event that this Warrant is exercised in connection with an Initial Public Offering, the Fair Market Value of the Common Stock shall be equal to the price at which shares of Common Stock are sold to the public in such offering.

Holder” shall mean, as applicable, (i) the Initial Warrant Holder, (ii) any successor of the Initial Warrant Holder or (iii) any other Person to whom this Warrant shall have been transferred in whole or in part in accordance with the provisions of Article IX hereof.

Initial Exercise Date” shall have the meaning set forth in the preamble hereof.

Initial Exercise Price” shall have the meaning set forth in the preamble hereof.

 

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Initial Public Offering” shall mean the first sale of Common Stock by the Company to the public pursuant to a public offering registered under the Securities Act (other than a registration statement relating either to the sale of securities to employees of the Company

pursuant to its stock option, stock purchase or similar plan or an SEC Rule 145 transaction).

Initial Warrant Holder” shall have the meaning set forth in the preamble hereof.

Initial Warrant Shares” shall have the meaning set forth in the preamble hereof.

Original Warrant” shall have the meaning set forth in the preamble hereof.

Person” shall mean an individual, partnership, limited liability company, corporation,

association, trust, joint venture, unincorporated organization, or any government, governmental

department or agency or political subdivision thereof or other entity of whatever nature. “Property” shall have the meaning set forth in Section 4.02 hereof.

Registered Sale” shall have the meaning set forth in Section 9.02 hereof.

Registration Rights Agreement” shall mean that certain Fourth Amended and Restated Registration Rights Agreement, dated as of the date hereof, by and among the Company and the stockholders of the Company party thereto (as amended, restated or otherwise modified, and including any successor agreement).

Securities Act” shall mean the Securities Act of 1933, as amended.

Stock” shall mean (i) the Common Stock and/or (ii) any class or series of capital stock of the Company (other than Common Stock) or any other Person or any other securities of the Company or any other Person in each case that the Holder is entitled to receive, or receives, in lieu of or in addition to Common Stock, pursuant to Article IV hereof upon exercise of this Warrant.

Stockholder Agreement” shall mean that certain Fourth Amended and Restated

Stockholder Agreement, dated as of the date hereof, by and among the Company and the stockholders of the Company party thereto (as amended, restated or otherwise modified, and

including any successor agreement).

Warrant” shall have the meaning set forth in Section 2.01(a).

Warrant Shares” shall mean the Initial Warrant Shares as adjusted from time to time pursuant to the terms of this Warrant. It is understood and agreed that, depending on the context in which the term “Warrant Shares” is used in this Warrant, such term is sometimes used to refer to (i) the Stock or other property (including cash) issued upon exercise of this Warrant, (ii) the Stock or other property (including cash) that from time to time is issuable upon exercise of this Warrant or (iii) the Stock or other property (including cash) referred to in both of the foregoing clauses (i) and (ii).

 

3


ARTICLE II

EXERCISE OF WARRANT

Section 2.01. Method of Exercise.

(a) Subject to and upon the terms and conditions set forth in this Amended and Restated Common Stock Purchase Warrant (this “Warrant”), the Holder may exercise this Warrant, in whole or in part with respect to any Warrant Shares, at any time and from time to time prior to 5:00 P.M., New York City time, on the Expiration Date, by presentation and surrender of this Warrant to the Company at its principal office, together with (x) a properly completed and duly executed subscription form, in the form attached hereto as Exhibit A, which subscription form shall specify the number of Warrant Shares for which this Warrant is then being exercised and the Person to whom the Warrant Shares shall be issued, who may be the Holder or an Affiliate of the Holder, (y) payment of the aggregate Exercise Price payable hereunder in respect of the number of Warrant Shares being purchased upon exercise of this Warrant, and (z) if applicable, the payment of any transfer taxes required to be paid by the Holder pursuant to Section 2.07. Payment of such aggregate Exercise Price shall be made in cash, by money order, certified or bank cashier’s check or wire transfer (in each case in lawful currency of the United States of America) or through a “cashless exercise” in the manner provided in Section 2.01(b).

(b) In lieu of making payment in the manner provided in Section 2.01(a) of all or any portion of the aggregate Exercise Price payable in respect of the number of Warrant Shares for which this Warrant is being exercised, the Holder may pay all or such portion of such aggregate Exercise Price on a “cashless” basis by electing not to receive all of such Warrant Shares otherwise issuable upon such exercise but only to receive that number of such Warrant Shares as shall be determined in accordance with the following formula:

X = Y(A-B)

        A

 

Where: X =

   the number of Warrant Shares to be issued to the Holder pursuant to this Section 2.01(b)

         Y=

   the number of Warrant Shares for which this Warrant is being exercised as of the applicable Exercise Date

         A=

   the Fair Market Value as of the applicable Exercise Date of a share of Common Stock constituting such Warrant Shares

         B=

   the Exercise Price for such Warrant Shares in effect as of the applicable Exercise Date

 

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The Holder may elect to make payment of all or any portion of such aggregate Exercise Price pursuant to, and in the manner set forth in, this Section 2.01(b) by surrendering this Warrant to the Company at its principal office, together with (x) a properly completed and duly executed net issue exercise election, in the form attached hereto as Exhibit B, which net issue exercise election shall specify the number of Warrant Shares for which this Warrant is then being exercised (which shall include the number of Warrant Shares to be surrendered as payment therefor) and the Person to whom the Warrant Shares shall be issued, who may be the Holder or an Affiliate of the Holder, (y) if not already a party thereto, an instrument of accession to the Stockholder Agreement and the Registration Rights Agreement, in each case, dated as of the Initial Exercise Date, in substantially the form reasonably requested by the Company, and (z) if applicable, the payment of any transfer taxes required to be paid by the Holder pursuant to Section 2.07. For the avoidance of doubt, unless indicated otherwise, references to “exercise” herein shall refer to an exercise of this Warrant under Section 2.01(a) or a net issue exercise under Section 2.01(b).

Section 2.02. Effectiveness of Exercise; Ownership. Each exercise of this Warrant by the Holder shall be deemed to have been effected immediately prior to the close of business on the date upon which all of the requirements of Section 2.01(a) or 2.01(b), as applicable, with respect to such exercise shall have been complied with in full (each such date, an “Exercise Date”). On the applicable Exercise Date with respect to any exercise of this Warrant by the Holder, the Company shall be deemed to have issued to the Holder or its applicable Affiliate, and the Holder or its applicable Affiliate shall be deemed to have become the holder of record and legal owner of, the number of Warrant Shares being purchased upon such exercise of this Warrant, notwithstanding that the stock transfer books of the Company may then be closed or that certificates representing such number of Warrant Shares being purchased may not then be actually delivered to the Holder or its applicable Affiliate.

Section 2.03. Delivery of Stock Certificates on Exercise. As soon as practicable after the exercise of this Warrant, and in any event within thirty (30) days thereafter, the Company, at its expense, will cause to be issued in the name of and delivered to the Holder or its applicable Affiliate, or as the Holder or its applicable Affiliate may direct (upon payment by the Holder of any applicable transfer taxes as required by Section 2.07 and subject to, in all cases, the provisions of Article IX), a certificate or certificates for the number of Warrant Shares to be issued to the Holder or its applicable Affiliate on such exercise, plus, in lieu of any fractional share to which the Holder would otherwise be entitled, cash equal to such fraction multiplied by the Fair Market Value.

Section 2.04. Shares To Be Fully Paid and Nonassessable. All Warrant Shares issued upon the exercise of this Warrant shall be validly issued, fully paid and nonassessable, free of all liens, taxes, charges and other encumbrances or restrictions on sale (other than those set forth herein, including restrictions under the Stockholder Agreement and the Registration Rights Agreement) and free and clear of all preemptive rights and will be issued in compliance with all applicable federal and state securities laws.

Section 2.05. Fractional Shares. No fractional Warrant Shares or scrip representing fractional Warrant Shares shall be issued upon the exercise of this Warrant. With respect to any fraction of a Warrant Share called for upon any exercise hereof, the Company shall make a cash payment to the Holder as set forth in Section 2.03.

 

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Section 2.06. Issuance of New Warrants; Company Acknowledgment. Upon any partial exercise or transfer of this Warrant, the Company, at its expense, will forthwith issue and deliver to the Holder a new warrant or warrants of like tenor, registered in the name of the Holder, and exercisable, in the aggregate, for the balance of the Warrant Shares. Moreover, the Company shall, at the time of any exercise of this Warrant, upon the request of the Holder, acknowledge in writing its continuing obligation to afford to the Holder any rights to which the Holder shall continue to be entitled after such exercise in accordance with the provisions of this Warrant; provided, however, that if the Holder shall fail to make any such request, such failure shall not affect the continuing obligation of the Company to afford to the Holder any such rights.

Section 2.07. Payment of Taxes and Expenses. The Holder shall be required to pay any tax which may be payable in respect of any transfer involved in the issuance of, and the preparation and delivery of certificates (if applicable) representing, (i) any Warrant Shares purchased upon exercise of this Warrant and issued in a name other than that of the Holders and/or (ii) new or replacement warrants in a name other than that of the Holder.

Section 2.08. Expiration. This Warrant and the Holder’s rights hereunder, to the extent not previously exercised, shall expire as of 5:00 P.M., New York City time, on the Expiration Date.

ARTICLE III

ADJUSTMENTS FOR STOCK DIVIDENDS, SUBDIVISIONS

AND COMBINATIONS.

In the event that, at any time and from time to time after the Initial Exercise Date, the Company shall (a) issue additional shares of Common Stock (or other applicable Warrant Shares) as a dividend or other distribution on outstanding shares of Common Stock (or other applicable Warrant Shares), (b) subdivide its outstanding shares of Common Stock (or other applicable Warrant Shares) into a greater number of shares of Common Stock (or other applicable Warrant Shares) or (c) combine its outstanding shares of Common Stock (or other applicable Warrant Shares) into a smaller number of shares of Common Stock (or other applicable Warrant Shares), then, in each such event, (x) the Exercise Price shall, simultaneously with the happening of such event, be adjusted by multiplying the then current Exercise Price by a fraction, (i) the numerator of which shall be the total number of shares of Common Stock (or other applicable Warrant Shares) outstanding immediately prior to such event, and (ii) the denominator of which shall be the total number of shares of Common Stock (or other applicable Warrant Shares) outstanding immediately after such event, and the product so obtained shall thereafter be the Exercise Price then in effect, and (y) the number of Warrant Shares shall be adjusted by increasing or decreasing, as the case may be, the number of shares of Common Stock (or other applicable Warrant Shares) included within the Warrant Shares by the percentage increase or decrease in the total number of shares of Common Stock (or other applicable Warrant Shares) outstanding immediately after such event over the total number of shares of Common Stock (or other applicable Warrant Shares) outstanding immediately prior to such event and the result so obtained shall be the Warrant Shares then in effect. The Exercise Price and the Warrant Shares, as so adjusted, shall be readjusted in the same manner upon the happening of any successive event or events described in this Article III.

 

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ARTICLE IV

ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION OR MERGER

Section 4.01. Reorganization, Consolidation or Merger. Subject to the terms of Section 4.02, in case that, at any time or from time to time after the Initial Exercise Date, the Company shall (a) effect a reorganization, (b) consolidate with or merge into any other Person or (c) transfer (including by exclusive license) all or substantially all of its properties or assets to any other Person under any plan or arrangement contemplating the dissolution of the Company, then, in each such case, the Holder, on the exercise of this Warrant as provided in Article II at any time or from time to time after the consummation of such reorganization, consolidation or merger or the effective date of such dissolution, as the case may be, shall receive, in lieu of the Warrant Shares issuable on such exercise immediately prior to such consummation or such effective date, as the case may be, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this Warrant and received Warrant Shares immediately prior thereto, all subject to successive adjustments thereafter from time to time pursuant to, and in accordance with, the provisions of Article III and this Article IV.

Section 4.02. Dissolution. In the event of any dissolution of the Company following the transfer (including by exclusive license) of all or substantially all of its properties or assets at any time after the Initial Exercise Date, the Company shall retain for a period of at least sixty (60) days after the effective date of such dissolution the stock and other securities and property (including cash, where applicable) (collectively, the “Property”) receivable by the Holder pursuant to Section 4.01 upon exercise of this Warrant at any time after the effective date of such dissolution. If the Holder fails to exercise this Warrant within the sixty (60) day period following the effective date of such dissolution, then such Property shall be distributed pro rata to those Persons who were stockholders of record of the Company on the effective date of such dissolution or as otherwise provided by the Company.

Section 4.03. Continuation of Terms. Notwithstanding any reorganization, consolidation, merger or transfer (and any dissolution following any such transfer) referred to in this Article IV, this Warrant shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable upon the exercise of this Warrant after the consummation of such reorganization, consolidation or merger or the effective date of dissolution following any such transfer, as the case may be, and shall be binding upon the issuer of any such stock or other securities whether or not such Person shall have expressly assumed the terms of this Warrant.

ARTICLE V

OFFICER’S CERTIFICATE AS TO ADJUSTMENTS.

In each case of any adjustment or readjustment in the number and kind of Warrant Shares, or property, issuable hereunder from time to time, or the Exercise Price, the Company, at its expense, will promptly cause an officer of the Company to compute such adjustment or readjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment or readjustment and showing the facts upon which such adjustment or readjustment is based. The Company will forthwith mail a copy of each such certificate to the Holder.

 

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ARTICLE VI

NOTICES OF RECORD DATE

In the event of:

(a) any taking by the Company of a record of the holders of Warrant Shares for the purpose of determining the holders thereof who are entitled to receive any shares of Common Stock or other securities as a dividend or other distribution or pursuant to a stock split;

(b) any reorganization of the Company, any transfer (including by exclusive license) of all or substantially all the assets of the Company to or consolidation or merger of the Company with or into any other Person, or any other event constituting a Change of Control;

(c) any voluntary or involuntary dissolution, liquidation or winding-up of the Company; or

(d) an Initial Public Offering;

then and in each such event the Company will mail or cause to be mailed to the Holder a notice specifying (i) the date on which any such record is to be taken for the purpose of such dividend, distribution or stock split, and stating the amount and character of such dividend, distribution or stock split, (ii) the date on which any such reorganization, transfer, consolidation, merger, Change of Control, dissolution, liquidation or winding-up is to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable on such reorganization, transfer, consolidation, merger, dissolution, liquidation or winding-up, or (iii) the date on which such Initial Public Offering is anticipated to close. Such notice shall be delivered at least ten (10) business days prior to the date specified in such notice on which any such action is to be taken or event shall occur.

ARTICLE VII

EXCHANGE OF WARRANT

Subject to the provisions of Article IX, this Warrant shall be exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for new warrants of like tenor, each registered in the name of the Holder or in the name of such other Persons as the Holder may direct (upon payment by the Holder of any applicable transfer taxes). Each of such new warrants shall be exercisable for such number of Warrant Shares as the Holder shall direct, provided that all of such new warrants (together with any portion of this Warrant retained by the Holder) shall represent, in the aggregate, the right to purchase the same number of Warrant Shares which may be purchased by the Holder upon exercise of this Warrant at the time of its surrender.

 

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ARTICLE VIII

REPLACEMENT OF WARRANT

On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction of this Warrant, on and subject to delivery of an indemnity agreement or security reasonably satisfactory in form and amount to the Company or, in the case of any such mutilation, on surrender and cancellation of the mutilated Warrant, the Company at its expense will issue and deliver, in lieu thereof, a new warrant of like tenor. In the event of any amendment, modification or adjustment to this Warrant in accordance with Article III or the last sentence of Section 11.06, the Company at its expense will execute and deliver, in lieu hereof, a new warrant reflecting such changes and a certificate setting forth any applicable adjustments and showing the facts upon which such adjustments are based and send each to the Holder in accordance with the notice provisions hereof.

ARTICLE IX

RESTRICTIONS ON TRANSFER; COMPLIANCE WITH

SECURITIES ACT; MECHANICS OF TRANSFER

Section 9.01. Contractual Transfer Restrictions. Notwithstanding anything expressed or implied in this Warrant to the contrary, in no event shall the Holder sell, assign, transfer, endorse, pledge, mortgage, hypothecate or otherwise convey or dispose of all or any portion of this Warrant, any Warrant Shares issued from time to time upon exercise of this Warrant, or any interest in any of the foregoing to any Person unless in accordance with the provisions of this Warrant and the Stockholder Agreement and Registration Rights Agreement to which the Holder is required to be or become a party in accordance with Section 2.01. If not already a party thereto, any Affiliate of the Holder who is issued Warrant Shares, upon exercise of this Warrant, shall execute and deliver to the Company an instrument of accession to the Stockholder Agreement and the Registration Rights Agreement, in substantially the form reasonably requested by the Company, in accordance with Section 2.01.

Section 9.02. Securities Laws Restrictions. Neither this Warrant nor any of the Warrant Shares issued from time to time upon exercise of this Warrant may be offered, sold, assigned, transferred, endorsed, pledged, mortgaged, hypothecated or otherwise conveyed or disposed of by the Holder, unless (i) any such offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation or other conveyance or disposition is effected (A) pursuant to and in conformity with an effective registration statement under the Securities Act (a “Registered Sale”) or any then available exemption from the registration requirements of the Securities Act, and (B) pursuant to and in conformity with any applicable state securities or blue sky laws, and (ii) in the case of any offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation or other conveyance or disposition other than pursuant to a Registered Sale, if reasonably requested by the Company, the Holder shall have obtained and delivered to the Company a written legal opinion of counsel (reasonably satisfactory to the Company as to such counsel and as to the substance of such opinion) to the effect that any such proposed offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation or other conveyance or

disposition by the Holder does not violate the registration provisions of the Securities Act and any applicable state securities or blue sky laws.

 

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Section 9.03. Effect of Violation of Transfer Restrictions. Any offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation, or other conveyance or disposition of all or any portion of this Warrant or any Warrant Shares issued from time to time upon exercise of this Warrant, or of any interest in this Warrant or any of such Warrant Shares, in violation of this Article IX or the other applicable portions of this Warrant shall be null and void.

Section 9.04. Legends.

(a) Each certificate representing any Warrant Shares issued upon exercise of this Warrant shall bear the legends required pursuant to the Stockholders Agreement and Registration Rights Agreement.

(b) Each certificate representing any Warrant Shares issued from time to time upon exercise of this Warrant shall also bear any legend required under any applicable state securities or blue sky laws.

Section 9.05. Survival. The obligations of the Holder (and/or of any transferee of the Warrant or any Warrant Shares issued from time to time upon exercise of this Warrant) under this Article IX shall, with respect to any Warrant Shares issued from time to time upon exercise of this Warrant, survive the exercise, expiration or other termination, or transfer, of this Warrant indefinitely.

Section 9.06. Mechanics of Transfer. Any transfer of all or any portion of this Warrant, or of any interest therein, to an Affiliate of the Holder or that is otherwise in

compliance with the provisions of this Article IX and the other applicable provisions of this Warrant shall be effected by surrendering this Warrant to the Company at its principal office, together with (i) a duly executed form of assignment, in the form attached hereto and (ii) payment pursuant to Section 2.07 of any applicable transfer taxes, if any. In the event of any such transfer of this Warrant, in whole, the Company shall issue a new warrant of like tenor to the transferee, representing the right to purchase the same number of Warrant Shares which were purchasable by the Holder upon exercise of this Warrant at the time of its transfer. In the event of any such transfer of any portion of this Warrant, (i) the Company shall issue a new warrant of like tenor to the transferee, representing the right to purchase the same number of Warrant Shares which were purchasable by the Holder upon exercise of the transferred portion of this Warrant at the time of such transfer, and (ii) the Company shall issue a new warrant of like tenor to the Holder, representing the right to purchase the number of Warrant Shares purchasable by the Holder upon exercise of the portion of this Warrant not transferred to such transferee. Until this Warrant or any portion thereof is transferred in accordance with this Warrant, the Company may treat the Holder as the absolute holder of this Warrant and all right, title and interest therein for all purposes, notwithstanding any notice to the contrary.

 

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ARTICLE X

INVESTMENT REPRESENTATIONS

Section 10.01. Investment Representations.

(a) This Warrant and the Warrant Shares to be acquired by the Holder as contemplated hereby are being acquired for the Holder’s own account, for investment, and not with a view to the resale or distribution thereof or with the present intention of distributing or selling any of such securities. The Holder understands that such securities have not been registered under the Securities Act of 1933, on the ground that the offer and sale of such securities by the Company to the Holder are exempt from the registration requirements of the Securities Act under Section 4(2) thereof as a transaction not involving any public offering of such securities. The Holder understands that the Company’s reliance on such exemption is predicated in part on the representations of the Holder contained herein.

(b) The Holder understands that it may bear the economic risk of investment in the Warrant and the Warrant Shares to be acquired by it hereunder for an indefinite period of time because such securities have not been registered under the Securities Act, and therefore may not be sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available.

(c) The Holder acknowledges and agrees that this Warrant and each certificate representing Warrant Shares acquired by it hereunder shall bear appropriate restrictive legends referring to the restrictions on transfer applicable to such securities. Holder is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. Holder has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment in the Company. Holder has been furnished with all information and materials it has requested concerning the Company.

ARTICLE XI

GENERAL

Section 11.01. Statement on Warrant. Irrespective of any adjustments in the Exercise Price or the number or kind of Warrant Shares, and without limiting or affecting such adjustments, this Warrant may continue to express the same Exercise Price and the same number and kind of Warrant Shares as are stated on the front page hereof, subject to Article III.

Section 11.02. Reserved.

Section 11.03. Authorized Shares; Reservation of Shares for Issuance. At all times while this Warrant is outstanding, the Company shall maintain its corporate authority to issue, and shall have authorized and reserved for issuance upon exercise of this Warrant, such number of Warrant Shares as shall be sufficient to perform its obligations under this Warrant (after giving effect to any and all adjustments to the number and kind of Warrant Shares purchasable upon exercise of this Warrant).

 

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Section 11.04. No Impairment. The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer (including by exclusive license) of assets, consolidation, merger, dissolution, issuance or sale of securities, sale or other transfer of any of its assets or properties, 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 action as may be necessary or appropriate in order to protect the rights of the Holder hereunder against impairment. Without limiting the generality of the foregoing, the Company (a) will not increase the par value of any Warrant Shares receivable upon the exercise of this Warrant above the amount payable therefor on such exercise, and (b) will take all action that may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares on the exercise of this Warrant.

Section 11.05. No Rights as Stockholder. The Holder shall not be entitled to vote or to receive dividends or to be deemed the holder of Warrant Shares that may at any time be issuable upon exercise of this Warrant for any purpose whatsoever, nor shall anything contained herein be construed to confer upon the Holder any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance or reclassification of stock, change of par value or change of stock to no par value, consolidation, merger or conveyance or otherwise), or to receive notice of meetings (except to the extent otherwise provided in this Warrant), or to receive dividends or subscription rights, until the Holder shall have exercised the Warrant in accordance with the provisions hereof.

Section 11.06. Notice. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service, or (iv) when delivered by email (in each case in this clause (iv), solely if receipt is confirmed), addressed as follows:

 

  (a)

If to Holder, to:

Kirin Holdings Company, Limited

Nakano Central Park South

4-10-2 Nakano

Nakano-ku, Tokyo 164-0001, Japan

Attention: Toru Yoshimura, General Manager, Corporate Strategy

Department

E-mail: to-yoshimura@Kirin.co.jp

 

  (b)

If to the Company, to:

Thorne Holding Corp.

620 Omni Industrial Boulevard

Summerville, South Carolina 29483

Attention: Scott Wheeler and Kim Pearson

Email: SWheeler@thorne.com and KPearson@thorne.com

 

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Section 11.07. Amendment and Waiver. No failure or delay of the Holder in

exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Holder are cumulative and not exclusive of any rights or remedies which it would otherwise have. The provisions of this Warrant may be amended, modified or waived with (and only with) the written consent of the Company and the Holder.

Section 11.08. Governing Law. This Warrant will be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).

Section 11.09. Covenants To Bind Successor and Assigns. All covenants, stipulations, promises and agreements in this Warrant contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.

Section 11.10. Severability. In case anyone or more of the provisions contained in this Warrant shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

Section 11.11. Construction. The definitions of this Warrant shall apply equally to both the singular and the plural forms of the terms defined. Wherever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The section and paragraph headings used herein are for convenience of reference only, are not part of this Warrant and are not to affect the construction of or be taken into consideration in interpreting this Warrant.

Section 11.12. 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 the terms of 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 the defense in any action for specific performance or other equitable relief that a remedy at law would be adequate. In any action or proceeding brought to enforce any provision of this Warrant or where any provision hereof is validly asserted as a defense, the successful party to such action or proceeding shall be entitled to recover its reasonable attorneys’ fees and costs in addition to any other available remedy.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the Company has caused this Amended and Restated Common Stock Purchase Warrant No. 10 to be executed in its corporate name by one of its officers thereunto duly authorized, all as of the day and year first above written.

 

THORNE HOLDING CORP.
By:  

/s/ Scott Wheeler

Name:   Scott Wheeler
Title:   CFO

[Signature Page to Amended and Restated Common Stock Purchase Warrant]


EXHIBIT A

FORM OF SUBSCRIPTION

(To be executed upon exercise of Warrant)

To: THORNE HOLDING CORP.

The undersigned hereby irrevocably elects to exercise the right of purchase represented by the attached Warrant for, and to exercise thereunder, [             ] shares of common stock, $0.01 par value per share (“Common Stock”)1, of THORNE HOLDING CORP., a Delaware corporation, and [tenders herewith payment of $[             ], representing the aggregate purchase price for such shares based on the price per share provided for in such Warrant] OR [in lieu of making payment of the aggregate purchase price for such shares based on the price per share provided for in such Warrant, the undersigned shall pay such aggregate purchase price on a “cashless” basis in the manner provided for in such Warrant]. Such payment is being made in lawful money of the United States by certified or bank cashier’s check or wire transfer or through a “cashless exercise” in the manner provided for in the Warrant.

Please issue a certificate or certificates for such shares of Common Stock in the name of [             ] at the address set forth below:

[______]

[______]

[______]

[______]

If said number of shares of Common Stock shall not be all the shares of Common Stock issuable upon exercise of the attached Warrant, a new Warrant is to be issued in the name of the undersigned for the balance remaining of such shares of Common Stock/other Stock less any fraction of a share of Common Stock paid in cash.

Dated:                     , 20___

[•]

 

 

1 

To be modified throughout for other applicable Warrant Shares issuable upon exercise of the Warrant.


EXHIBIT B

FORM OF ASSIGNMENT

(To be executed upon assignment of Warrant)

For value received, [             ] hereby sells, assigns and transfers unto [             ] [the attached Warrant / [    _]% of the attached Warrant], together with all right, title and interest therein, and does hereby irrevocably constitute and appoint Thorne Holding Corp. as attorney to transfer [said Warrant / said percentage of said Warrant] on the books of Thorne Holding Corp., a Delaware corporation, with full power of substitution in the premises.

[If not all of the attached Warrant is to be so transferred, a new Warrant is to be issued in the name of [             ] for the balance of said Warrant.]

The undersigned acknowledges that transfers of the attached Warrant are subject to all of the restrictions on transfer contained or referenced in Section 9 of the Warrant and hereby represents and warrants that the transfer made hereby does not violate any of such restrictions in any respect. Any such transfer in violation of such restrictions shall be null and void.

Dated:                     , 20

[•]

Exhibit 4.5

NEITHER THIS WARRANT NOR THE SHARES ISSUED OR ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, ENDORSED, PLEDGED, MORTGAGED, HYPOTHECATED OR OTHERWISE CONVEYED OR DISPOSED OF, UNLESS THEY ARE (1) SO REGISTERED OR (2) AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND IF REASONABLY REQUESTED BY THE COMPANY, A WRITTEN LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY IS PROVIDED BY THE TRANSFEROR. THIS WARRANT AND THE SHARES ISSUED OR ISSUABLE UPON EXERCISE OF THIS WARRANT, IF NOT TRANSFERRED PURSUANT TO AND IN CONFORMITY WITH AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IN ACCORDANCE WITH RULE 144 PROMULGATED UNDER THE SECURITIES ACT, ALSO ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN ARTICLE IX OF THIS WARRANT, AND NO TRANSFER OF THIS WARRANT AND/OR SUCH SHARES SHALL BE VALID OR EFFECTIVE IF IT IS NOT EFFECTED IN COMPLIANCE WITH SUCH RESTRICTIONS ON TRANSFER.

 

No. 11    Dated: July 15, 2020

THORNE HOLDING CORP.

AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT

THIS IS TO CERTIFY THAT, Mitsui & Co., Ltd. (the “Initial Warrant Holder”) and its successors and permitted assigns are entitled to purchase from Thorne Holding Corp., a Delaware corporation (the “Company”), at any time or from time to time after 9:00 A.M., New York City time, on October 11, 2018 (such day, the “Initial Exercise Date”), and prior to 5:00 P.M., New York City time, on the ten (10) year anniversary of the Initial Exercise Date (the “Expiration Date”), any or all of one hundred twenty-seven (127) shares (the “Initial Warrant Shares”) of Common Stock (as defined below) of the Company at a purchase price per share equal to $2,280.03 per share (the “Initial Exercise Price”). The number and character of the Initial Warrant Shares and the Initial Exercise Price are subject to adjustment as provided herein.

The Company and the Initial Warrant Holder each acknowledge and agree that this Amended and Restated Common Stock Purchase Warrant supersedes and replaces in its entirety that certain Common Stock Purchase Warrant No. 11, dated July 5, 2018, to purchase five thousand (5,000) shares of Common Stock (the “Original Warrant”). This Amended and Restated Common Stock Purchase Warrant is being issued to reflect that, on July 15, 2020, the Initial Warrant Holder partially exercised the Original Warrant and was issued four thousand eight hundred seventy-three (4,873) shares of Common Stock, and this Amended and Restated Common Stock Purchase Warrant represents the remaining one hundred twenty-seven (127) shares of Common Stock under the Original Warrant.


ARTICLE I

DEFINITIONS

Section 1.01. Defined Terms. As used in this warrant, the following terms shall have the respective meanings set forth below or elsewhere in this Warrant as referred to below:

Affiliate” shall have the meaning set forth in the Stockholders Agreement.

Change of Control” shall mean (x) the sale or transfer of more than fifty percent (50%) of the outstanding capital stock of the Company in a single transaction or series of related transactions to Persons who are not then stockholders of the Company, (y) the issuance of shares of Common Stock, or securities convertible into or exercisable for shares of Common Stock, constituting more than fifty percent (50%) of the outstanding capital stock of the Company immediately after issuance, to Persons who were not holders of Common Stock, on an as converted basis, immediately prior to such issuance or (z) the sale, exclusive license or other disposition of all or substantially all of the consolidated assets of the Company and its majority-owned subsidiaries in a single transaction or series of related transactions to Persons who are not then stockholders of the Company.

Common Stock” shall mean the Company’s Common Stock, $0.01 par value per share.

Company” shall have the meaning set forth in the preamble hereof.

Exercise Date” shall have the meaning set forth in Section 2.02 hereof.

Exercise Price” shall mean the Initial Exercise Price, as adjusted from time to time pursuant to the terms of this Warrant.

Expiration Date” shall have the meaning set forth in the preamble hereof.

Fair Market Value” shall mean the fair market value per share of Common Stock, as determined in good faith by the Board of Directors of the Company, from time to time. Notwithstanding the forgoing, (i) in the event this Warrant is exercised in connection with a Change of Control, the Fair Market Value of the Common Stock shall be equal to the per share consideration paid for a share of Common Stock in such Change of Control transaction, and (ii) in the event that this Warrant is exercised in connection with an Initial Public Offering, the Fair Market Value of the Common Stock shall be equal to the price at which shares of Common Stock are sold to the public in such offering.

Holder” shall mean, as applicable, (i) the Initial Warrant Holder, (ii) any successor of the Initial Warrant Holder or (iii) any other Person to whom this Warrant shall have been transferred in whole or in part in accordance with the provisions of Article IX hereof.

Initial Exercise Date” shall have the meaning set forth in the preamble hereof. “Initial Exercise Price” shall have the meaning set forth in the preamble hereof.

 

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Initial Public Offering” shall mean the first sale of Common Stock by the Company to the public pursuant to a public offering registered under the Securities Act (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to its stock option, stock purchase or similar plan or an SEC Rule 145 transaction).

Initial Warrant Holder” shall have the meaning set forth in the preamble hereof.

Initial Warrant Shares” shall have the meaning set forth in the preamble hereof.

Original Warrant” shall have the meaning set forth in the preamble hereof.

Person” shall mean an individual, partnership, limited liability company, corporation, association, trust, joint venture, unincorporated organization, or any government, governmental department or agency or political subdivision thereof or other entity of whatever nature.

Property” shall have the meaning set forth in Section 4.02 hereof.

Registered Sale” shall have the meaning set forth in Section 9.02 hereof.

Registration Rights Agreement” shall mean that certain Fourth Amended and Restated Registration Rights Agreement, dated as of the date hereof, by and among the Company and the stockholders of the Company party thereto (as amended, restated or otherwise modified, and including any successor agreement).

Securities Act” shall mean the Securities Act of 1933, as amended.

Stock” shall mean (i) the Common Stock and/or (ii) any class or series of capital stock of the Company (other than Common Stock) or any other Person or any other securities of the Company or any other Person in each case that the Holder is entitled to receive, or receives, in lieu of or in addition to Common Stock, pursuant to Article IV hereof upon exercise of this Warrant.

Stockholder Agreement” shall mean that certain Fourth Amended and Restated Stockholder Agreement, dated as of the date hereof, by and among the Company and the stockholders of the Company party thereto (as amended, restated or otherwise modified, and including any successor agreement).

Warrant” shall have the meaning set forth in Section 2.01(a).

Warrant Shares” shall mean the Initial Warrant Shares as adjusted from time to time pursuant to the terms of this Warrant. It is understood and agreed that, depending on the context in which the term “Warrant Shares” is used in this Warrant, such term is sometimes used to refer to (i) the Stock or other property (including cash) issued upon exercise of this Warrant, (ii) the Stock or other property (including cash) that from time to time is issuable upon exercise of this Warrant or (iii) the Stock or other property (including cash) referred to in both of the foregoing clauses (i) and (ii).

 

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ARTICLE II

EXERCISE OF WARRANT

Section 2.01. Method of Exercise.

(a) Subject to and upon the terms and conditions set forth in this Amended and Restated Common Stock Purchase Warrant (this “Warrant”), the Holder may exercise this Warrant, in whole or in part with respect to any Warrant Shares, at any time and from time to time prior to 5:00 P.M., New York City time, on the Expiration Date, by presentation and surrender of this Warrant to the Company at its principal office, together with (x) a properly completed and duly executed subscription form, in the form attached hereto as Exhibit A, which subscription form shall specify the number of Warrant Shares for which this Warrant is then being exercised and the Person to whom the Warrant Shares shall be issued, who may be the Holder or an Affiliate of the Holder, (y) payment of the aggregate Exercise Price payable hereunder in respect of the number of Warrant Shares being purchased upon exercise of this Warrant, and (z) if applicable, the payment of any transfer taxes required to be paid by the Holder pursuant to Section 2.07. Payment of such aggregate Exercise Price shall be made in cash, by money order, certified or bank cashier’s check or wire transfer (in each case in lawful currency of the United States of America) or through a “cashless exercise” in the manner provided in Section 2.01(b).

(b) In lieu of making payment in the manner provided in Section 2.01(a) of all or any portion of the aggregate Exercise Price payable in respect of the number of Warrant Shares for which this Warrant is being exercised, the Holder may pay all or such portion of such aggregate Exercise Price on a “cashless” basis by electing not to receive all of such Warrant Shares otherwise issuable upon such exercise but only to receive that number of such Warrant Shares as shall be determined in accordance with the following formula:

X = Y(A-B)

A

Where: X = the number of Warrant Shares to be issued to the Holder pursuant to this Section 2.01(b)

 

  Y

= the number of Warrant Shares for which this Warrant is being exercised as of the applicable Exercise Date

 

  A

= the Fair Market Value as of the applicable Exercise Date of a share of Common Stock constituting such Warrant Shares

 

  B

= the Exercise Price for such Warrant Shares in effect as of the applicable Exercise Date

The Holder may elect to make payment of all or any portion of such aggregate Exercise Price pursuant to, and in the manner set forth in, this Section 2.01(b) by surrendering this Warrant to the Company at its principal office, together with (x) a properly completed and duly executed net

 

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issue exercise election, in the form attached hereto as Exhibit B, which net issue exercise election shall specify the number of Warrant Shares for which this Warrant is then being exercised (which shall include the number of Warrant Shares to be surrendered as payment therefor) and the Person to whom the Warrant Shares shall be issued, who may be the Holder or an Affiliate of the Holder, (y) if not already a party thereto, an instrument of accession to the Stockholder Agreement and the Registration Rights Agreement, in each case, dated as of the Initial Exercise Date, in substantially the form reasonably requested by the Company, and (z) if applicable, the payment of any transfer taxes required to be paid by the Holder pursuant to Section 2.07. For the avoidance of doubt, unless indicated otherwise, references to “exercise” herein shall refer to an exercise of this Warrant under Section 2.01(a) or a net issue exercise under Section 2.01(b).

Section 2.02. Effectiveness of Exercise; Ownership. Each exercise of this Warrant by the Holder shall be deemed to have been effected immediately prior to the close of business on the date upon which all of the requirements of Section 2.01(a) or 2.01(b), as applicable, with respect to such exercise shall have been complied with in full (each such date, an “Exercise Date”). On the applicable Exercise Date with respect to any exercise of this Warrant by the Holder, the Company shall be deemed to have issued to the Holder or its applicable Affiliate, and the Holder or its applicable Affiliate shall be deemed to have become the holder of record and legal owner of, the number of Warrant Shares being purchased upon such exercise of this Warrant, notwithstanding that the stock transfer books of the Company may then be closed or that certificates representing such number of Warrant Shares being purchased may not then be actually delivered to the Holder or its applicable Affiliate.

Section 2.03. Delivery of Stock Certificates on Exercise. As soon as practicable after the exercise of this Warrant, and in any event within thirty (30) days thereafter, the Company, at its expense, will cause to be issued in the name of and delivered to the Holder or its applicable Affiliate, or as the Holder or its applicable Affiliate may direct (upon payment by the Holder of any applicable transfer taxes as required by Section 2.07 and subject to, in all cases, the provisions of Article IX), a certificate or certificates for the number of Warrant Shares to be issued to the Holder or its applicable Affiliate on such exercise, plus, in lieu of any fractional share to which the Holder would otherwise be entitled, cash equal to such fraction multiplied by the Fair Market Value.

Section 2.04. Shares To Be Fully Paid and Nonassessable. All Warrant Shares issued upon the exercise of this Warrant shall be validly issued, fully paid and nonassessable, free of all liens, taxes, charges and other encumbrances or restrictions on sale (other than those set forth herein, including restrictions under the Stockholder Agreement and the Registration Rights Agreement) and free and clear of all preemptive rights and will be issued in compliance with all applicable federal and state securities laws.

Section 2.05. Fractional Shares. No fractional Warrant Shares or scrip representing fractional Warrant Shares shall be issued upon the exercise of this Warrant. With respect to any fraction of a Warrant Share called for upon any exercise hereof, the Company shall make a cash payment to the Holder as set forth in Section 2.03.

 

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Section 2.06. Issuance of New Warrants; Company Acknowledgment. Upon any partial exercise or transfer of this Warrant, the Company, at its expense, will forthwith issue and deliver to the Holder a new warrant or warrants of like tenor, registered in the name of the Holder, and exercisable, in the aggregate, for the balance of the Warrant Shares. Moreover, the Company shall, at the time of any exercise of this Warrant, upon the request of the Holder, acknowledge in writing its continuing obligation to afford to the Holder any rights to which the Holder shall continue to be entitled after such exercise in accordance with the provisions of this Warrant; provided, however, that if the Holder shall fail to make any such request, such failure shall not affect the continuing obligation of the Company to afford to the Holder any such rights.

Section 2.07. Payment of Taxes and Expenses. The Holder shall be required to pay any tax which may be payable in respect of any transfer involved in the issuance of, and the preparation and delivery of certificates (if applicable) representing, (i) any Warrant Shares purchased upon exercise of this Warrant and issued in a name other than that of the Holders and/or (ii) new or replacement warrants in a name other than that of the Holder.

Section 2.08. Expiration. This Warrant and the Holder’s rights hereunder, to the extent not previously exercised, shall expire as of 5:00 P.M., New York City time, on the Expiration Date.

ARTICLE III

ADJUSTMENTS FOR STOCK DIVIDENDS, SUBDIVISIONS

AND COMBINATIONS.

In the event that, at any time and from time to time after the Initial Exercise Date, the Company shall (a) issue additional shares of Common Stock (or other applicable Warrant Shares) as a dividend or other distribution on outstanding shares of Common Stock (or other applicable Warrant Shares), (b) subdivide its outstanding shares of Common Stock (or other applicable Warrant Shares) into a greater number of shares of Common Stock (or other applicable Warrant Shares) or (c) combine its outstanding shares of Common Stock (or other applicable Warrant Shares) into a smaller number of shares of Common Stock (or other applicable Warrant Shares), then, in each such event, (x) the Exercise Price shall, simultaneously with the happening of such event, be adjusted by multiplying the then current Exercise Price by a fraction, (i) the numerator of which shall be the total number of shares of Common Stock (or other applicable Warrant Shares) outstanding immediately prior to such event, and (ii) the denominator of which shall be the total number of shares of Common Stock (or other applicable Warrant Shares) outstanding immediately after such event, and the product so obtained shall thereafter be the Exercise Price then in effect, and (y) the number of Warrant Shares shall be adjusted by increasing or decreasing, as the case may be, the number of shares of Common Stock (or other applicable Warrant Shares) included within the Warrant Shares by the percentage increase or decrease in the total number of shares of Common Stock (or other applicable Warrant Shares) outstanding immediately after such event over the total number of shares of Common Stock (or other applicable Warrant Shares) outstanding immediately prior to such event and the result so obtained shall be the Warrant Shares then in effect. The Exercise Price and the Warrant Shares, as so adjusted, shall be readjusted in the same manner upon the happening of any successive event or events described in this Article III.

 

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ARTICLE IV

ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION OR MERGER

Section 4.01. Reorganization, Consolidation or Merger. Subject to the terms of Section 4.02, in case that, at any time or from time to time after the Initial Exercise Date, the Company shall (a) effect a reorganization, (b) consolidate with or merge into any other Person or (c) transfer (including by exclusive license) all or substantially all of its properties or assets to any other Person under any plan or arrangement contemplating the dissolution of the Company, then, in each such case, the Holder, on the exercise of this Warrant as provided in Article II at any time or from time to time after the consummation of such reorganization, consolidation or merger or the effective date of such dissolution, as the case may be, shall receive, in lieu of the Warrant Shares issuable on such exercise immediately prior to such consummation or such effective date, as the case may be, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this Warrant and received Warrant Shares immediately prior thereto, all subject to successive adjustments thereafter from time to time pursuant to, and in accordance with, the provisions of Article III and this Article IV.

Section 4.02. Dissolution. In the event of any dissolution of the Company following the transfer (including by exclusive license) of all or substantially all of its properties or assets at any time after the Initial Exercise Date, the Company shall retain for a period of at least sixty (60) days after the effective date of such dissolution the stock and other securities and property (including cash, where applicable) (collectively, the “Property”) receivable by the Holder pursuant to Section 4.01 upon exercise of this Warrant at any time after the effective date of such dissolution. If the Holder fails to exercise this Warrant within the sixty (60) day period following the effective date of such dissolution, then such Property shall be distributed pro rata to those Persons who were stockholders of record of the Company on the effective date of such dissolution or as otherwise provided by the Company.

Section 4.03. Continuation of Terms. Notwithstanding any reorganization, consolidation, merger or transfer (and any dissolution following any such transfer) referred to in this Article IV, this Warrant shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable upon the exercise of this Warrant after the consummation of such reorganization, consolidation or merger or the effective date of dissolution following any such transfer, as the case may be, and shall be binding upon the issuer of any such stock or other securities whether or not such Person shall have expressly assumed the terms of this Warrant.

ARTICLE V

OFFICER’S CERTIFICATE AS TO ADJUSTMENTS.

In each case of any adjustment or readjustment in the number and kind of Warrant Shares, or property, issuable hereunder from time to time, or the Exercise Price, the Company, at its expense, will promptly cause an officer of the Company to compute such adjustment or readjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment or readjustment and showing the facts upon which such adjustment or readjustment is based. The Company will forthwith mail a copy of each such certificate to the Holder.

 

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ARTICLE VI

NOTICES OF RECORD DATE

In the event of:

(a) any taking by the Company of a record of the holders of Warrant Shares for the purpose of determining the holders thereof who are entitled to receive any shares of Common Stock or other securities as a dividend or other distribution or pursuant to a stock split;

(b) any reorganization of the Company, any transfer (including by exclusive license) of all or substantially all the assets of the Company to or consolidation or merger of the Company with or into any other Person, or any other event constituting a Change of Control;

(c) any voluntary or involuntary dissolution, liquidation or winding-up of the Company; or

(d) an Initial Public Offering;

then and in each such event the Company will mail or cause to be mailed to the Holder a notice specifying (i) the date on which any such record is to be taken for the purpose of such dividend, distribution or stock split, and stating the amount and character of such dividend, distribution or stock split, (ii) the date on which any such reorganization, transfer, consolidation, merger, Change of Control, dissolution, liquidation or winding-up is to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable on such reorganization, transfer, consolidation, merger, dissolution, liquidation or winding-up, or (iii) the date on which such Initial Public Offering is anticipated to close. Such notice shall be delivered at least ten (10) business days prior to the date specified in such notice on which any such action is to be taken or event shall occur.

ARTICLE VII

EXCHANGE OF WARRANT

Subject to the provisions of Article IX, this Warrant shall be exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for new warrants of like tenor, each registered in the name of the Holder or in the name of such other Persons as the Holder may direct (upon payment by the Holder of any applicable transfer taxes). Each of such new warrants shall be exercisable for such number of Warrant Shares as the Holder shall direct, provided that all of such new warrants (together with any portion of this Warrant retained by the Holder) shall represent, in the aggregate, the right to purchase the same number of Warrant Shares which may be purchased by the Holder upon exercise of this Warrant at the time of its surrender.

 

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ARTICLE VIII

REPLACEMENT OF WARRANT

On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction of this Warrant, on and subject to delivery of an indemnity agreement or security reasonably satisfactory in form and amount to the Company or, in the case of any such mutilation, on surrender and cancellation of the mutilated Warrant, the Company at its expense will issue and deliver, in lieu thereof, a new warrant of like tenor. In the event of any amendment, modification or adjustment to this Warrant in accordance with Article III or the last sentence of Section 11.06, the Company at its expense will execute and deliver, in lieu hereof, a new warrant reflecting such changes and a certificate setting forth any applicable adjustments and showing the facts upon which such adjustments are based and send each to the Holder in accordance with the notice provisions hereof.

ARTICLE IX

RESTRICTIONS ON TRANSFER; COMPLIANCE WITH

SECURITIES ACT; MECHANICS OF TRANSFER

Section 9.01. Contractual Transfer Restrictions. Notwithstanding anything expressed or implied in this Warrant to the contrary, in no event shall the Holder sell, assign, transfer, endorse, pledge, mortgage, hypothecate or otherwise convey or dispose of all or any portion of this Warrant, any Warrant Shares issued from time to time upon exercise of this Warrant, or any interest in any of the foregoing to any Person unless in accordance with the provisions of this Warrant and the Stockholder Agreement and Registration Rights Agreement to which the Holder is required to be or become a party in accordance with Section 2.01. If not already a party thereto, any Affiliate of the Holder who is issued Warrant Shares, upon exercise of this Warrant, shall execute and deliver to the Company an instrument of accession to the Stockholder Agreement and the Registration Rights Agreement, in substantially the form reasonably requested by the Company, in accordance with Section 2.01.

Section 9.02. Securities Laws Restrictions. Neither this Warrant nor any of the Warrant Shares issued from time to time upon exercise of this Warrant may be offered, sold, assigned, transferred, endorsed, pledged, mortgaged, hypothecated or otherwise conveyed or disposed of by the Holder, unless (i) any such offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation or other conveyance or disposition is effected (A) pursuant to and in conformity with an effective registration statement under the Securities Act (a “Registered Sale”) or any then available exemption from the registration requirements of the Securities Act, and (B) pursuant to and in conformity with any applicable state securities or blue sky laws, and (ii) in the case of any offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation or other conveyance or disposition other than pursuant to a Registered Sale, if reasonably requested by the Company, the Holder shall have obtained and delivered to the Company a written legal opinion of counsel (reasonably satisfactory to the Company as to such counsel and as to the substance of such opinion) to the effect that any such proposed offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation or other conveyance or disposition by the Holder does not violate the registration provisions of the Securities Act and any applicable state securities or blue sky laws.

 

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Section 9.03. Effect of Violation of Transfer Restrictions. Any offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation, or other conveyance or disposition of all or any portion of this Warrant or any Warrant Shares issued from time to time upon exercise of this Warrant, or of any interest in this Warrant or any of such Warrant Shares, in violation of this Article IX or the other applicable portions of this Warrant shall be null and void.

Section 9.04. Legends.

(a) Each certificate representing any Warrant Shares issued upon exercise of this Warrant shall bear the legends required pursuant to the Stockholders Agreement and Registration Rights Agreement.

(b) Each certificate representing any Warrant Shares issued from time to time upon exercise of this Warrant shall also bear any legend required under any applicable state securities or blue sky laws.

Section 9.05. Survival. The obligations of the Holder (and/or of any transferee of the Warrant or any Warrant Shares issued from time to time upon exercise of this Warrant) under this Article IX shall, with respect to any Warrant Shares issued from time to time upon exercise of this Warrant, survive the exercise, expiration or other termination, or transfer, of this Warrant indefinitely.

Section 9.06. Mechanics of Transfer. Any transfer of all or any portion of this Warrant, or of any interest therein, to an Affiliate of the Holder or that is otherwise incompliance with the provisions of this Article IX and the other applicable provisions of this Warrant shall be effected by surrendering this Warrant to the Company at its principal office, together with (i) a duly executed form of assignment, in the form attached hereto and (ii) payment pursuant to Section 2.07 of any applicable transfer taxes, if any. In the event of any such transfer of this Warrant, in whole, the Company shall issue a new warrant of like tenor to the transferee, representing the right to purchase the same number of Warrant Shares which were purchasable by the Holder upon exercise of this Warrant at the time of its transfer. In the event of any such transfer of any portion of this Warrant, (i) the Company shall issue a new warrant of like tenor to the transferee, representing the right to purchase the same number of Warrant Shares which were purchasable by the Holder upon exercise of the transferred portion of this Warrant at the time of such transfer, and (ii) the Company shall issue a new warrant of like tenor to the Holder, representing the right to purchase the number of Warrant Shares purchasable by the Holder upon exercise of the portion of this Warrant not transferred to such transferee. Until this Warrant or any portion thereof is transferred in accordance with this Warrant, the Company may treat the Holder as the absolute holder of this Warrant and all right, title and interest therein for all purposes, notwithstanding any notice to the contrary.

 

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ARTICLE X

INVESTMENT REPRESENTATIONS

Section 10.01. Investment Representations.

(a) This Warrant and the Warrant Shares to be acquired by the Holder as contemplated hereby are being acquired for the Holder’s own account, for investment, and not with a view to the resale or distribution thereof or with the present intention of distributing or selling any of such securities. The Holder understands that such securities have not been registered under the Securities Act of 1933, on the ground that the offer and sale of such securities by the Company to the Holder are exempt from the registration requirements of the Securities Act under Section 4(2) thereof as a transaction not involving any public offering of such securities. The Holder understands that the Company’s reliance on such exemption is predicated in part on the representations of the Holder contained herein.

(b) The Holder understands that it may bear the economic risk of investment in the Warrant and the Warrant Shares to be acquired by it hereunder for an indefinite period of time because such securities have not been registered under the Securities Act, and therefore may not be sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available.

(c) The Holder acknowledges and agrees that this Warrant and each certificate representing Warrant Shares acquired by it hereunder shall bear appropriate restrictive legends referring to the restrictions on transfer applicable to such securities. Holder is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. Holder has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment in the Company. Holder has been furnished with all information and materials it has requested concerning the Company.

ARTICLE XI

GENERAL

Section 11.01. Statement on Warrant. Irrespective of any adjustments in the Exercise Price or the number or kind of Warrant Shares, and without limiting or affecting such adjustments, this Warrant may continue to express the same Exercise Price and the same number and kind of Warrant Shares as are stated on the front page hereof, subject to Article III.

Section 11.02. Reserved.

Section 11.03. Authorized Shares; Reservation of Shares for Issuance. At all times while this Warrant is outstanding, the Company shall maintain its corporate authority to issue, and shall have authorized and reserved for issuance upon exercise of this Warrant, such number of Warrant Shares as shall be sufficient to perform its obligations under this Warrant (after giving effect to any and all adjustments to the number and kind of Warrant Shares purchasable upon exercise of this Warrant).

Section 11.04. No Impairment. The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer (including by exclusive

 

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license) of assets, consolidation, merger, dissolution, issuance or sale of securities, sale or other transfer of any of its assets or properties, 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 action as may be necessary or appropriate in order to protect the rights of the Holder hereunder against impairment. Without limiting the generality of the foregoing, the Company (a) will not increase the par value of any Warrant Shares receivable upon the exercise of this Warrant above the amount payable therefor on such exercise, and (b) will take all action that may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares on the exercise of this Warrant.

Section 11.05. No Rights as Stockholder. The Holder shall not be entitled to vote or to receive dividends or to be deemed the holder of Warrant Shares that may at any time be issuable upon exercise of this Warrant for any purpose whatsoever, nor shall anything contained herein be construed to confer upon the Holder any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance or reclassification of stock, change of par value or change of stock to no par value, consolidation, merger or conveyance or otherwise), or to receive notice of meetings (except to the extent otherwise provided in this Warrant), or to receive dividends or subscription rights, until the Holder shall have exercised the Warrant in accordance with the provisions hereof.

Section 11.06. Notice. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service, or (iv) when delivered by email (in each case in this clause (iv), solely if receipt is confirmed), addressed as follows:

 

  (a)

If to Holder, to:

Mitsui & Co., Ltd.

2-1, Otemachi 1-Chome

Chiyoda-ku, Tokyo 100-8631, Japan

Attention: Yasutaka Yamakawa, General Manager, Wellness

Dept., Nutri Science Div. Nutrition & Agriculture Business Unit

E-mail: Ya.Yamakawa@mitsui.com

 

  (b)

If to the Company, to:

Thorne Holding Corp.

620 Omni Industrial Boulevard

Summerville, South Carolina 29483

Attention: Scott Wheeler and Kim Pearson

Email: SWheeler@thorne.com and KPearson@thorne.com

 

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Section 11.07. Amendment and Waiver. No failure or delay of the Holder in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Holder are cumulative and not exclusive of any rights or remedies which it would otherwise have. The provisions of this Warrant may be amended, modified or waived with (and only with) the written consent of the Company and the Holder.

Section 11.08. Governing Law. This Warrant will be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).

Section 11.09. Covenants To Bind Successor and Assigns. All covenants, stipulations, promises and agreements in this Warrant contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.

Section 11.10. Severability. In case anyone or more of the provisions contained in this Warrant shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

Section 11.11. Construction. The definitions of this Warrant shall apply equally to both the singular and the plural forms of the terms defined. Wherever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The section and paragraph headings used herein are for convenience of reference only, are not part of this Warrant and are not to affect the construction of or be taken into consideration in interpreting this Warrant.

Section 11.12. 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 the terms of 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 the defense in any action for specific performance or other equitable relief that a remedy at law would be adequate. In any action or proceeding brought to enforce any provision of this Warrant or where any provision hereof is validly asserted as a defense, the successful party to such action or proceeding shall be entitled to recover its reasonable attorneys’ fees and costs in addition to any other available remedy.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the Company has caused this Amended and Restated Common Stock Purchase Warrant No. 11 to be executed in its corporate name by one of its officers thereunto duly authorized, all as of the day and year first above written.

 

THORNE HOLDING CORP.
By:  

/s/ Scott Wheeler

Name:   Scott Wheeler
Title:   CFO

[Signature Page to Amended and Restated Common Stock Purchase Warrant]


EXHIBIT A

FORM OF SUBSCRIPTION

(To be executed upon exercise of Warrant)

To: THORNE HOLDING CORP.

The undersigned hereby irrevocably elects to exercise the right of purchase represented by the attached Warrant for, and to exercise thereunder, [             ] shares of common stock, $0.01 par value per share (“Common Stock”)1, of THORNE HOLDING CORP., a Delaware corporation, and [tenders herewith payment of $[             ], representing the aggregate purchase price for such shares based on the price per share provided for in such Warrant] OR [in lieu of making payment of the aggregate purchase price for such shares based on the price per share provided for in such Warrant, the undersigned shall pay such aggregate purchase price on a “cashless” basis in the manner provided for in such Warrant]. Such payment is being made in lawful money of the United States by certified or bank cashier’s check or wire transfer or through a “cashless exercise” in the manner provided for in the Warrant.

Please issue a certificate or certificates for such shares of Common Stock in the name of [             ] at the address set forth below:

[______]

[______]

[______]

[______]

If said number of shares of Common Stock shall not be all the shares of Common Stock issuable upon exercise of the attached Warrant, a new Warrant is to be issued in the name of the undersigned for the balance remaining of such shares of Common Stock/other Stock less any fraction of a share of Common Stock paid in cash.

Dated: , 20___

[•]

 

1 

To be modified throughout for other applicable Warrant Shares issuable upon exercise of the Warrant.


EXHIBIT B

FORM OF ASSIGNMENT

(To be executed upon assignment of Warrant)

For value received, [             ] hereby sells, assigns and transfers unto [             ] [the attached Warrant / [_]% of the attached Warrant], together with all right, title and interest therein, and does hereby irrevocably constitute and appoint Thorne Holding Corp. as attorney to transfer [said Warrant / said percentage of said Warrant] on the books of Thorne Holding Corp., a Delaware corporation, with full power of substitution in the premises.

[If not all of the attached Warrant is to be so transferred, a new Warrant is to be issued in the name of [             ] for the balance of said Warrant.]

The undersigned acknowledges that transfers of the attached Warrant are subject to all of the restrictions on transfer contained or referenced in Section 9 of the Warrant and hereby represents and warrants that the transfer made hereby does not violate any of such restrictions in any respect. Any such transfer in violation of such restrictions shall be null and void.

Dated:                     , 20

[•]

Exhibit 4.6

EXECUTION COPY

NEITHER THIS WARRANT NOR THE SHARES ISSUED OR ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, ENDORSED, PLEDGED, MORTGAGED, HYPOTHECATED OR OTHERWISE CONVEYED OR DISPOSED OF, UNLESS THEY ARE (1) SO REGISTERED OR (2) AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND IF REQUESTED BY THE COMPANY, A WRITTEN LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY IS PROVIDED BY THE TRANSFEROR. THIS WARRANT AND THE SHARES ISSUED OR ISSUABLE UPON EXERCISE OF THIS WARRANT IF NOT TRANSFERRED PURSUANT TO AND IN CONFORMITY WITH AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 OR IN ACCORDANCE WITH RULE 144 OF THE SECURITIES ACT OF 1933, ARE ALSO SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 9 OF THIS WARRANT, AND NO TRANSFER OF THIS WARRANT AND/OR SUCH SHARES SHALL BE VALID OR EFFECTIVE IF IT IS NOT EFFECTED IN COMPLIANCE WITH SUCH RESTRICTIONS ON TRANSFER.

 

No. 6    Dated: May 10, 2011

THORNE HOLDING CORP.

AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT

WHEREAS, Diversified Natural Products, Inc., a Delaware corporation (the “Initial Warrant Holder”), is the holder of that certain Common Stock Purchase Warrant No. 3 (the “Original Warrant”), dated as of June 23, 2010, and issued by Thorne Holding Corp., a Delaware corporation (the “Company”) for the purchase of up to six thousand four hundred eighty (6,480) shares of the Company’s Common Stock (as defined hereafter).

WHEREAS, pursuant to that certain Asset Contribution and Sale Agreement (the “Asset Purchase Agreement”), dated as of June 23, 2010, among the Company, the Initial Warrant Holder and Thorne Research, Inc., a Delaware corporation and a wholly owned subsidiary of the Company, the Initial Warrant holder is the holder of issued and outstanding shares of Common Stock of the Company.

WHEREAS, pursuant to that certain Common Stock Repurchase Agreement, dated of even date herewith, between the Company and the Initial Warrant Holder, the Company has repurchased from the Initial Warrant Holder, and the Initial Warrant Holder has sold to the Company certain of the shares of Common Stock of the Company issued to the Original Warrant Holder in connection with the Asset Purchase Agreement.

WHEREAS, in connection with the Common Stock Repurchase Agreement, the Initial Warrant Holder and the Company desire to amend and restate the Original Warrant to reduce the number of Warrant Shares (as defined hereafter), proportionate with the reduction in the number issued and outstanding shares of Common Stock held by the Initial Warrant Holder


NOW, THEREFORE, in consideration of the covenants and provisions set forth herein, the parties agree that Original Warrant be amended and restated in its entirety as set forth herein.

THIS IS TO CERTIFY THAT, the Initial Warrant Holder, and its registered successors and permitted assigns are entitled to purchase from the Company at any time or from time to time after 9:00 A.M., Boston, Massachusetts time, on the date hereof (the “Initial Exercise Date”) and prior to 5:00 P.M., Boston, Massachusetts time, on June 23, 2020 (the “Expiration Date”), but subject to earlier termination in accordance with Section 4.2, any or all of five thousand six hundred ninety (5,690) shares (the “Warrant Shares”), of Common Stock (as defined below), of the Company at a purchase price per share equal to $3,000.00 per share (the “Initial Exercise Price”). The number and character of the Warrant Shares and the Initial Exercise Price are subject to adjustment as provided herein. Upon execution and delivery of this Agreement, the Original Warrant is hereby terminated and cancelled, and shall be of no further force or effect, without the requirement of the surrender of the Original Warrant or any other action by either the Company or the Initial Warrant Holder, or by any other party.

1. Definitions. As used in this warrant, the following terms shall have the respective meanings set forth below or elsewhere in this Warrant as referred to below:

Change of Control” shall mean (x) the sale or transfer of fifty percent (50%) or more of the outstanding capital stock of the Company in a single transaction or series of related transactions to Persons who are not then stockholders of the Company, (y) the issuance of shares of Common Stock, or securities convertible into or exercisable for shares of Common Stock, constituting fifty percent (50%) or more of the outstanding capital stock of the Company immediately after issuance, to Persons who were not holders of Common Stock, on an as converted basis, immediately prior to such issuance, or (z) the sale, license or other disposition of all or substantially all of the assets of the Company in a single transaction or series of related transactions to Persons who are not then stockholders of the Company.

Common Stock” shall mean the Company’s Common Stock, $0.01 par value per share.

Exercise Date” shall have the meaning set forth in Section 2.2 hereof.

Exercise Price” shall mean the Initial Exercise Price as adjusted from time to time pursuant to the terms of this Warrant.

Fair Market Value” shall mean the fair market value per share of Common Stock, as determined in good faith by the Board of Directors of the Company, from time to time. Notwithstanding the forgoing, (i) in the event this Warrant is exercised in connection with a Change of Control, the Fair Market Value of the Common Stock shall be equal to the per share consideration paid for a share of Common Stock in such Change of Control transaction, and (ii) in the event that this Warrant is exercised in connection with an Initial Public Offering, the Fair Market Value of the Common Sock shall be equal to the price at which shares of Common Stock are sold in such offering.

Holder” shall mean, as applicable, (i) the Initial Warrant Holder, (ii) any successor of the Initial Warrant Holder or (iii) any other holder of record of this Warrant to whom this Warrant shall have been transferred in accordance with the provisions of Section 9 hereof.

 

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Initial Public Offering” shall mean the first sale of Common Stock by the Company pursuant to a public offering registered under the Securities Act.

Person” shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature.

Property” shall have the meaning set forth in Section 4.2 hereof.

Securities Act” shall mean the Securities Act of 1933, as amended.

Stock” shall mean (i) the Common Stock and/or (ii) any class or series of capital stock of the Company (other than Common Stock) or any other Person or any other securities of the Company or any other Person that the Holder is entitled to receive, or receives, in lieu of or in addition to Common Stock, pursuant to Section 4 hereof upon exercise of this Warrant.

Warrant Shares” shall mean the Warrant Shares as adjusted from time to time pursuant to the terms of this Warrant. It is understood and agreed that, depending on the context in which the term “Warrant Shares” is used in this Warrant, such term is sometimes used to refer to (i) the Stock or other property (including cash) that has been issued upon a prior exercise of this Warrant, (ii) the Stock or other property (including cash) that is still subject to issuance upon exercise of this Warrant or (iii) the Stock or other property (including cash) referred to in both of the foregoing clauses (i) and (ii).

2. Exercise Of Warrant.

2.1 Method of Exercise.

(a) Subject to and upon all of the terms and conditions set forth in this Warrant, the Holder may exercise this Warrant, in whole or in part with respect to any Warrant Shares, at any time and from time to time during the period commencing on the Initial Exercise Date and ending on the earlier of (i) the Expiration Date, or (ii) the termination of this Warrant pursuant to Section 4.2, by presentation and surrender of this Warrant to the Company at its principal office, together with (a) a properly completed and duly executed subscription form, in the form attached hereto, which subscription form shall specify the number of Warrant Shares for which this Warrant is then being exercised, (b) if requested by the Company, a duly executed instrument or certificate, in form and substance satisfactory to the Company, pursuant to which the Holder makes such representations and warranties to the Company, and provides or confirms such information concerning the Holder, as the Company may reasonably request (including, without limitation, such representations and warranties and such information as may be required in order to confirm compliance with applicable securities laws), (c) if the Company shall have in place and the Holder is not already a party to a stockholder’s, voting, or other like agreement of the Company, an instrument of accession to such agreement or agreements in substantially the form requested by the Company, and (d) payment of the aggregate Exercise Price payable hereunder in respect of the number of Warrant Shares being purchased upon exercise of this Warrant, and (iv) if applicable, the payment of any transfer taxes required to be paid by the Holder pursuant to Section 2.7 hereof. Payment of such aggregate Exercise Price and any such transfer taxes shall be made in cash, by money order, certified or bank cashier’s check or wire transfer (in each case in lawful currency of the United States of America) or, with respect to the payment of such aggregate Exercise Price only, in the manner provided in Section 2.1(b) below.

 

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(b) Solely in connection with the closing of a Change of Control or Initial Public Offering and in lieu of making payment, in the manner provided in Section 2.1 above, of all or any portion of the aggregate Exercise Price payable in respect of the number of Warrant Shares for which this Warrant is being exercised, the Holder may pay all or such portion of such aggregate Exercise Price by electing not to receive all of such Warrant Shares otherwise issuable upon such exercise but only to receive that number of such Warrant Shares as shall be determined in accordance with the following formula:

X = Y(A-B)

A

 

Where:   

X  = the number of Warrant Shares to be issued to the Holder pursuant to this Section 2.1(b)

  

Y  = the number of Warrant Shares for which this Warrant is being exercised as of the applicable Exercise Date

  

A  = the Fair Market Value as of the applicable Exercise Date of a share of Common Stock constituting such Warrant Shares

  

B   = the Exercise Price in effect as of the applicable Exercise Date of Common Stock constituting such Warrant Shares

The Holder may elect to make payment of all or any portion of such aggregate Exercise Price pursuant to, and in the manner set forth in, this Section 2.1(b) by surrendering this Warrant to the Company at its principal office, together with (a) a properly completed and duly executed net issue exercise election, in the form attached hereto, which net issue exercise election shall specify the number of Warrant Shares for which this Warrant is then being exercised (which shall include the number of Warrant Shares to be surrendered as payment therefore), (b) if requested by the Company, a duly executed instrument or certificate, in form and substance satisfactory to the Company, pursuant to which the Holder makes such representations and warranties to the Company, and provides or confirms such information concerning the Holder, as the Company may reasonably request (including, without limitation, such representations and warranties and such information as may be required in order to confirm compliance with applicable securities laws), (c) if the Company shall have in place and the Holder is not already a party to a stockholder’s, voting, or other like agreement of the Company, an instrument of accession to such agreement or agreements in substantially the form requested by the Company, and (d) if applicable, the payment of any transfer taxes required to be paid by the Holder pursuant to Section 2.7 hereof. Payment of such transfer taxes shall be made in cash, by money order, certified or bank cashier’s check or wire transfer (in each case in lawful currency of the United States of America). Any such exercise pursuant to this Section 2.1(b) may be made contemporaneous with, and contingent upon, the applicable Change of Control or Initial Public Offering.

 

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2.2 Effectiveness of Exercise; Ownership. Each exercise of this Warrant by the Holder shall be deemed to have been effected immediately prior to the close of business on the date upon which all of the requirements of Section 2.1(a) or 2.1(b) hereof, as applicable, with respect to such exercise shall have been complied with in full (each such date, an “Exercise Date”). On the applicable Exercise Date with respect to any exercise of this Warrant by the Holder, the Company shall be deemed to have issued to the Holder, and the Holder shall be deemed to have become the holder of record and legal owner of, the number of Warrant Shares being purchased upon such exercise of this Warrant, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such number of Warrant Shares being purchased shall not then be actually delivered to the Holder.

2.3 Delivery of Stock Certificates on Exercise. As soon as practicable after the exercise of this Warrant, and in any event within thirty (30) days thereafter, the Company, at its expense, will cause to be issued in the name of and delivered to the Holder, or as the Holder may direct (upon payment by the Holder of any applicable transfer taxes as required by Section 2.7 hereof and subject to, in all cases, the provisions of Section 9 hereof), a certificate or certificates for the number of Warrant Shares purchased by the Holder on such exercise, plus, in lieu of any fractional share to which the Holder would otherwise be entitled, cash equal to such fraction multiplied by the Fair Market Value.

2.4 Shares To Be Fully Paid and Nonassessable. All Warrant Shares issued upon the exercise of this Warrant shall be validly issued, fully paid and nonassessable, free of all liens, taxes, charges and other encumbrances or restrictions on sale (other than those set forth herein, including restrictions under the stockholders agreements referenced in Section 2.1) and free and clear of all preemptive rights and, assuming no change in the federal and state securities laws and assuming the Holder exercising the Warrants is an accredited investor, will be issued in compliance with all applicable federal and state securities laws.

2.5 Fractional Shares. No fractional shares of Stock or scrip representing fractional shares of Stock shall be issued upon the exercise of this Warrant. With respect to any fraction of a share of Stock called for upon any exercise hereof, the Company shall make a cash payment to the Holder as set forth in Section 2.3 hereof.

2.6 Issuance of New Warrants; Company Acknowledgment. Upon any partial exercise of this Warrant, the Company, at its expense, will forthwith issue and deliver to the Holder a new warrant or warrants of like tenor, registered in the name of the Holder, and exercisable, in the aggregate, for the balance of the Warrant Shares. Moreover, the Company shall, at the time of any exercise of this Warrant, upon the request of the Holder, acknowledge in writing its continuing obligation to afford to the Holder any rights to which the Holder shall continue to be entitled after such exercise in accordance with the provisions of this Warrant; provided, however, that if the Holder shall fail to make any such request, such failure shall not affect the continuing obligation of the Company to afford to the Holder any such rights.

 

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2.7 Payment of Taxes and Expenses. The Holder shall be required to pay any tax which may be payable in respect of any transfer involved in the issuance of, and the preparation and delivery of certificates (if applicable) representing, (i) any Warrant Shares purchased upon exercise of this Warrant and issued in a name other than that or the Holders and/or (ii) new or replacement warrants in a name other than that of the Holder, and, until the payment of such tax, the Company shall not be required to issue or cause to be issued any such purchased Warrant Shares or any such new or replacement warrants, and the Company shall also not be required to prepare and deliver, or to cause to be prepared and delivered, certificates representing any such purchased Warrant Shares.

2.8 Expiration. Unless earlier terminated in accordance with Section 4.2, this Warrant and the Holder’s rights hereunder, to the extent not previously exercised, shall expire as of 5:00 P.M., Boston, Massachusetts time, on the Expiration Date.

3. Adjustments for Stock Dividends, Subdivisions and Combinations. In the event that, at any time and from time to time after the Initial Exercise Date, the Company shall (a) issue additional shares of Common Stock as a dividend or other distribution on outstanding shares of Common Stock, (b) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (c) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, then, in each such event, (x) the Exercise Price shall, simultaneously with the happening of such event, be adjusted by multiplying the then current Exercise Price by a fraction, (i) the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to such event, and (ii) the denominator of which shall be the total number of shares of Common Stock outstanding immediately after such event, and the product so obtained shall thereafter be the Exercise Price then in effect, and (y) the number of Warrant Shares shall be adjusted by increasing or decreasing, as the case may be, the number of shares of Common Stock included within the Warrant Shares by the percentage increase or decrease in the total number of shares of Common Stock outstanding immediately after such event over the total number of shares of Common Stock outstanding immediately prior to such event and the result so obtained shall be the Warrant Shares then in effect. The Exercise Price and the Warrant Shares, as so adjusted, shall be readjusted in the same manner upon the happening of any successive event or events described in this Section 3.

4. Adjustment for Reorganization; Consolidation or Merger.

4.1 Reorganization; Consolidation or Merger. Subject to the terms of Section 4.2, in case that, at any time or from time to time after the Initial Exercise Date, the Company shall (a) effect a reorganization, (b) consolidate with or merge into any other Person, or (c) transfer all or substantially all of its properties or assets to any other Person under any plan or arrangement contemplating the dissolution of the Company, then, in each such case, the Holder, on the exercise of this Warrant as provided in Section 2 hereof at any time or from time to time after the consummation of such reorganization, consolidation or merger or the effective date of such dissolution, as the case may be, shall receive, in lieu of the Warrant Shares issuable on such exercise immediately prior to such consummation or such effective date, as the case may be, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this Warrant immediately prior thereto, all subject to successive adjustments thereafter from time to time pursuant to, and in accordance with, the provisions of Section 3 hereof and this Section 4.

 

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4.2 Termination on Change of Control or Initial Public Offering. Unless exercised in connection therewith (which exercise may be made contemporaneous with and contingent upon the closing of such transaction), this Warrant shall terminate immediately after the consummation of any Change of Control or Initial Public Offering.

4.3 Dissolution. In the event of any dissolution of the Company following the transfer of all or substantially all of its properties or assets at any time after the Initial Exercise Date, the Company shall retain for a period of at least thirty (30) days after the effective date of such dissolution the stock and other securities and property (including cash, where applicable) (collectively, the “Property”) receivable by the Holder pursuant to Section 4.1 hereof upon exercise of this Warrant at any time after the effective date of such dissolution. If the Holder fails to exercise this Warrant within the thirty (30) day period following the effective date of such dissolution, then such Property shall be distributed pro rata to those Persons who were stockholders of record of the Company on the effective date of such dissolution or as otherwise provided by the Company.

4.4 Continuation of Terms. Unless earlier terminated in accordance with Section 4.2, upon any reorganization, consolidation, merger or transfer (and any dissolution following any such transfer) referred to in this Section 4, this Warrant shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable upon the exercise of this Warrant after the consummation of such reorganization, consolidation or merger or the effective date of dissolution following any such transfer, as the case may be, and shall be binding upon the issuer of any such stock or other securities whether or not such Person shall have expressly assumed the terms of this Warrant.

5. Officer’s Certificate as to Adjustments. In each case of any adjustment or readjustment in the number and kind of Warrant Shares, or property, issuable hereunder from time to time, or the Exercise Price, the Company, at its expense, will promptly cause an officer of the Company to compute such adjustment or readjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment or readjustment and showing the facts upon which such adjustment or readjustment is based. The Company will forthwith mail a copy of each such certificate to the Holder.

6. Notices of Record Date. In the event of:

(a) any taking by the Company of a record of the holders of Common Stock for the purpose of determining the holders thereof who are entitled to receive any shares of Common Stock as a dividend or other distribution or pursuant to a stock split,

(b) any reorganization of the Company, any transfer of all or substantially all the assets of the Company to or consolidation or merger of the Company with or into any other Person, or any other event constituting a Change of Control;

(c) any voluntary or involuntary dissolution, liquidation or winding-up of the Company; or

(d) an Initial Public Offering,

 

7


then and in each such event the Company will mail or cause to be mailed to the Holder a notice specifying (i) the date on which any such record is to be taken for the purpose of such dividend, distribution or stock split, and stating the amount and character of such dividend, distribution or stock split, (ii) the date on which any such reorganization, transfer, consolidation, merger, dissolution, liquidation or winding-up is to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable on such reorganization, transfer, consolidation, merger, dissolution, liquidation or winding-up; or (iii) the date on which such Initial Public Offering is anticipated to close. Such notice shall be mailed at least ten (10) days prior to the date specified in such notice on which any such action is to be taken or event shall occur.

7. Exchange of Warrant. Subject to the provisions of Section 9 hereof (if and to the extent applicable), this Warrant shall be exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for new warrants of like tenor, each registered in the name of the Holder or in the name of such other Persons as the Holder may direct (upon payment by the Holder of any applicable transfer taxes). Each of such new warrants shall be exercisable for such number of Warrant Shares as the Holder shall direct, provided that all of such new warrants shall represent, in the aggregate, the right to purchase the same number of Warrant Shares which may be purchased by the Holder upon exercise of this Warrant at the time of its surrender.

8. Replacement of Warrant. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction of this Warrant, on delivery of an indemnity agreement or security reasonably satisfactory in form and amount to the Company or, in the case of any such mutilation, on surrender and cancellation of this Warrant, the Company at its expense will execute and deliver, in lieu thereof, a new warrant of like tenor.

9. Restrictions on Transfer; Compliance with Securities Act; Mechanics of Transfer.

9.1 Contractual Transfer Restrictions. Notwithstanding anything expressed or implied in this Warrant to the contrary, in no event shall the Holder sell, assign, transfer, endorse, pledge, mortgage, hypothecate or otherwise convey or dispose of all or any portion of the Warrant, any Warrant Shares issued from time to time upon exercise of this Warrant, or any interest in any of the foregoing without the prior written consent of the Board of Directors of the Company and in conformity with the provisions of this Warrant and of any stockholder’s, voting, or other like agreement of the Company to which the Holder may be required to become a party in accordance with Section 2.1 above.

9.2 Securities Laws Restrictions. Neither this Warrant nor any of the Warrant Shares issued from time to time upon exercise of this Warrant may be offered, sold, assigned, transferred, endorsed, pledged, mortgaged, hypothecated or otherwise conveyed or disposed of by the Holder, unless (i) any such offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation or other conveyance or disposition shall be effected (A) pursuant to and in conformity with an effective registration statement under the Securities Act (a “Registered

 

8


Sale”) or any then available exemption from the registration requirements of the Securities Act, and (B) pursuant to and in conformity with any applicable state securities or blue sky laws, and (ii) in the case of any offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation or other conveyance or disposition other than pursuant to a Registered Sale, if requested by the Company, the Holder shall have obtained and delivered to the Company a written legal opinion of counsel (reasonably satisfactory to the Company as to such counsel and as to the substance of such opinion) to the effect that any such proposed offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation or other conveyance or disposition by the Holder does not violate the registration provisions of the Securities Act and any applicable state securities or blue sky laws.

9.3 Effect of Violation of Transfer Restrictions; Preventive Measures. Any offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation, or other conveyance or disposition of all or any portion of this Warrant or any Warrant Shares issued from time to time upon exercise of this Warrant, or of any interest in this Warrant or any of such Warrant Shares, in violation of this Section 9 shall be null and void. The Company may make a notation on its records or give instructions to any of its transfer agents in order to implement the restrictions on transfer set forth in this Section 9. The Company shall not incur any liability for any delay in recognizing any transfer of this Warrant or of any Warrant Shares issued from time to time upon exercise of this Warrant if the Company reasonably believes that any such transfer may have been or would be in violation of the provisions of the Securities Act, applicable blue sky laws or this Section 9.

9.4 Legends.

(a) Each certificate representing any Warrant Shares issued upon exercise of this Warrant shall bear the following legend:

“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, ENDORSED, PLEDGED, MORTGAGED, HYPOTHECATED OR OTHERWISE CONVEYED OR DISPOSED OF, UNLESS SUCH SHARES ARE (1) SO REGISTERED OR (2) AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND, IF REQUESTED BY THE COMPANY, A WRITTEN LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY IS PROVIDED BY THE TRANSFEROR. IF THE SHARES REPRESENTED BY THIS CERTIFICATE ARE NOT TRANSFERRED PURSUANT TO AN IN CONFORMITY WITH AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 OR IN ACCORDANCE WITH RULE 144 OF THE SECURITIES ACT OF 1933, SUCH SHARES ARE ALSO SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THE COMPANY’S STOCKHOLDERS’ AGREEMENT, AND NO TRANSFER OF SUCH SHARES SHALL BE VALID OR EFFECTIVE IF IT IS NOT EFFECTED IN COMPLIANCE WITH ALL OF SUCH RESTRICTIONS ON TRANSFER. COPIES OF SUCH COMMON STOCK PURCHASE WARRANT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF SUCH SHARES TO THE SECRETARY OF THORNE HOLDING, CORP.”

 

9


(b) Each certificate representing any Warrant Shares issued from time to time upon exercise of this Warrant shall also bear any legend required under any applicable state securities or blue sky laws.

9.5 Survival. The obligations of the Holder (and/or of any transferee of the Warrant or any Warrant Shares issued from time to time upon exercise of this Warrant) under this Section 9 shall, with respect to any Warrant Shares issued from time to time upon exercise of this Warrant, survive the exercise, expiration or other termination, or transfer, of this Warrant indefinitely.

9.6 Mechanics of Transfer. Any transfer of all or any portion of this Warrant, or of any interest therein, that has been approved in writing by the Board of Directors of the Company and that is otherwise in compliance with the provisions of this Section 9 shall be effected by surrendering this Warrant to the Company at its principal office, together with (i) a duly executed form of assignment, in the form attached hereto, (ii) if the Company shall have in place, and the Transferee is not already a party to a stockholder’s, voting, or other like agreement of the Company, an instrument of accession, executed by the transferee, to such agreement or agreements in substantially the form requested by the Company, and (iii) payment of any applicable transfer taxes, if any. In the event of any such transfer of this Warrant, in whole, the Company shall issue a new warrant of like tenor to the transferee, representing the right to purchase the same number of Warrant Shares which were purchasable by the Holder upon exercise of this Warrant at the time of its transfer. In the event of any such transfer of any portion of this Warrant, (i) the Company shall issue a new warrant of like tenor to the transferee, representing the right to purchase the same number of Warrant Shares which were purchasable by the Holder upon exercise of the transferred portion of this Warrant at the time of such transfer, and (ii) the Company shall issue a new warrant of like tenor to the Holder, representing the right to purchase the number of Warrant Shares purchasable by the Holder upon exercise of the portion of this Warrant not transferred to such transferee. Until this Warrant or any portion thereof is transferred on the books of the Company, the Company may treat the Holder as the absolute holder of this Warrant and all right, title and interest therein for all purposes, notwithstanding any notice to the contrary.

10. Investment Representations.

(a) This Warrant and the Warrant Shares to be acquired by the Holder as contemplated hereby shall be acquired for the Holder’s own account, for investment, and not with a view to the resale or distribution thereof or with the present intention of distributing or selling any of such securities. Holder understands that such securities have not been registered under the Securities Act of 1933, on the ground that the offer and sale of such securities by the Company to the Holder are exempt from the registration requirements of the Securities Act under Section 4(2) thereof as a transaction not involving any public offering of such securities. The Holder understands that the Company’s reliance on such exemption is predicated in part on the representations of the Holder contained herein.

 

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(b) Holder understands that it must bear the economic risk of investment in the Warrant and the Warrant Shares to be acquired by it hereunder for an indefinite period of time because such securities have not been registered under the Securities Act, and therefore cannot be sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available.

(c) Holder acknowledges and agrees that this Warrant and each certificate representing Warrant Shares acquired by it hereunder shall bear appropriate restrictive legends referring to the restrictions on transfer applicable to such securities. Holder is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933. Holder has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment in the Company. Holder has been furnished with all information and materials it has requested concerning the Company.

(d) Holder acknowledges and agrees that the Company shall make a notation regarding the restrictions on transfer of the Warrant and the Warrant Shares to be acquired by Holder hereunder in the stock books of the Company, and any purported transfer of such securities shall be reflected in the stock books of the Company only if and when transferred in compliance with all of the terms and conditions herein.

11. General.

11.1 Statement on Warrant. Irrespective of any adjustments in the Exercise Price or the number or kind of Warrant Shares, and without limiting or affecting such adjustments, this Warrant may continue to express the same Exercise Price and the same number and kind of Warrant Shares as are stated on the front page hereof.

11.2 Authorized Shares; Reservation of Shares for Issuance. At all times while this Warrant is outstanding, the Company shall maintain its corporate authority to issue, and shall have authorized and reserved for issuance upon exercise of this Warrant, such number of shares of Common Stock as shall be sufficient to perform its obligations under this Warrant (after giving effect to any and all adjustments to the number and kind of Warrant Shares purchasable upon exercise of this Warrant).

11.3 No Impairment. The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issuance or sale of securities, sale or other transfer of any of its assets or properties, 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 action as may be necessary or appropriate in order to protect the rights of the Holder hereunder against impairment. Without limiting the generality of the foregoing, the Company (a) will not increase the par value of any shares of Stock receivable upon the exercise of this Warrant above the amount payable therefor on such exercise, and (b) will take all action that may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Stock on the exercise of this Warrant.

 

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11.4 No Rights as Stockholder. The Holder shall not be entitled to vote or to receive dividends or to be deemed the holder of Stock that may at any time be issuable upon exercise of this Warrant for any purpose whatsoever, nor shall anything contained herein be construed to confer upon the Holder any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance or reclassification of stock, change of par value or change of stock to no par value, consolidation, merger or conveyance or otherwise), or to receive notice of meetings (except to the extent otherwise provided in this Warrant), or to receive dividends or subscription rights, until the Holder shall have exercised the Warrant in accordance with the provisions hereof.

11.5 Notices. (i) Any notices, reports or other correspondence (hereinafter collectively referred to as “correspondence”) required or permitted to be given hereunder shall be sent by courier (overnight or same day) or telecopy or delivered by hand to the party to whom such correspondence is required or permitted to be given hereunder. The date of giving any notice shall be the date of its actual receipt.

(ii) All correspondence to the Company shall be addressed as follows :

Thorne Holding Corp.

c/o Richard J. Williams

125 High Street

High Street Tower, 26th Floor

Boston, Massachusetts 02110

Fax: (617) 261-2060

with copies sent contemporaneously to:

Bob Forlenza

c/o Tudor Ventures III L.P.

50 Rowes Wharf, 5th floor

Boston, Massachusetts 02110

and:

Johan V. Brigham, Esq.

Latham & Watkins LLP

John Hancock Tower

200 Clarendon Street, 20th Floor

Boston, Massachusetts 02116

Fax: (617) 948-6001

(iii) All correspondence to the Holder shall be addressed as follows:

Diversified Natural Products, Inc.

c/o Paul Jacobson

41 West Putnam Avenue

Greenwich, Connecticut 06830

Fax: (203) 661-2014

 

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With a copy to:

David Kovacs, Esq.

Edwards Angell Palmer & Dodge LLP

750 Lexington Avenue

New York, NY 10022

11.6 Amendment and Waiver. No failure or delay of the Holder in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Holder arc cumulative and not exclusive of any rights or remedies which it would otherwise have. The provisions of this Warrant may be amended, modified or waived with (and only with) the written consent of the Company and the Holder.

11.7 Governing Law. This Warrant shall be construed in accordance with and governed by the laws of the State of Delaware.

11.8 Covenants To Bind Successor and Assigns. All covenants, stipulations, promises and agreements in this Warrant contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.

11.9 Severability. In case anyone or more of the provisions contained in this Warrant shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

11.10 Construction. The definitions of this Warrant shall apply equally to both the singular and the plural forms of the terms defined. Wherever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The section and paragraph headings used herein are for convenience of reference only, are not part of this Warrant and are not to affect the construction of or be taken into consideration in interpreting this Warrant.

 

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11.11 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 the defense in any action for specific performance that a remedy at law would be adequate. In any action or proceeding brought to enforce any provision of this Warrant or where any provision hereof is validly asserted as a defense, the successful party to such action or proceeding shall be entitled to recover reasonable attorneys’ fees in addition to any other available remedy.

[REMAINDER OF PAGE INTENTIONALLY LE FT BLANK]

 

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IN WITNESS WHEREOF, the Company has caused this Amended and Restated Common Stock Purchase Warrant No. 6 to be executed in its corporate name by one of its officers thereunto duly authorized, all as of the day and year first above written.

 

THORNE HOLDING CORP.
By:  

/s/ Richard J. Williams

Name: Richard J. Williams

Title: President

[Signature Page to the Restated Common Stock Purchase Warrant No. 6]


FORM OF SUBSCRIPTION

(To be executed upon exercise of Warrant)

 

To:

THORNE HOLDING CORP.

The undersigned hereby irrevocably elects to exercise the right of purchase represented by the attached Warrant for, and to exercise thereunder,                          shares of common stock, $0.01 par value per share (“Common Stock”), of THORNE HOLDING CORP., a Delaware corporation, and tenders herewith payment of $                                                   , representing the aggregate purchase price for such shares based on the price per share provided for in such Warrant. Such payment is being made in lawful money of the United States by certified or bank cashier’s check or wire transfer.

Please issue a certificate or certificates for such shares of Common Stock in the name of Diversified Natural Products, Inc. at the address set forth below:

Diversified Natural Products, Inc.

[___________]

[___________]

[___________]

If said number of shares of Common Stock shall not be all the shares of Common Stock issuable upon exercise of the attached Warrant, a new Warrant is to be issued in the name of the undersigned for the balance remaining of such shares of Common Stock/other Stock less any fraction of a share of Common Stock paid in cash.

 

Dated,                 , 20                                                                                
 

Diversified Natural Products, Inc.

 

    By:

  Title:


FORM OF NET ISSUE EXERCISE ELECTION

(To be executed upon net issue exercise of Warrant)

 

To:

THORNE HOLDING CORP.

The undersigned hereby irrevocably elects to exercise the right of purchase represented by the attached Warrant for, and to exercise thereunder,                          shares (the “Net Issue Purchased Warrant Shares”) of Common Stock, $0.01 par value per share (“Common Stock”), of THORNE HOLDING CORP., a Delaware corporation (the “Company”). The aggregate exercise price payable by the undersigned in connection with the purchase of the Purchased Warrant Shares is $                                         (the “Purchase Price”). Pursuant to Section 2.1(b) of the attached Warrant, the undersigned hereby elects to make payment of such aggregate exercise price by surrendering the right to receive that number of the Purchased Warrant Shares (the “Surrendered Purchased Warrant Shares”) as may be required to be surrendered upon the exercise of the Purchased Warrant Shares in accordance with provisions of Section 2.1(b).

Please issue a certificate or certificates for the number of Purchase Warrant Shares equal to the difference obtained by subtracting the number of Surrendered Purchased Warrant Shares from the number of Purchased Warrant Shares in the name of Diversified Natural Products, Inc. at the address set forth below:

Diversified Natural Products, Inc.

[___________]

[___________]

[___________]

 

Dated,                 , 20                                                                                
 

Diversified Natural Products, Inc.

 

    By:

  Title:


FORM OF ASSIGNMENT

(To be executed upon assignment of Warrant)

For value received,                                          hereby sells, assigns and transfers unto                                          the attached Warrant [__% of the attached Warrant], together with all right, title and interest therein, and does hereby irrevocably constitute and appoint                                               attorney to transfer said Warrant [said percentage of said Warrant] on the books of THORNE HOLDING CORP., a Delaware corporation, with full power of substitution in the premises.

If not all of the attached Warrant is to be so transferred, a new Warrant is to be issued in the name of Diversified Natural Products, Inc. for the balance of said Warrant.

The undersigned acknowledges that transfers of the attached Warrant are subject to all of the restrictions on transfer thereof contained or referenced in Section 9 thereof and hereby represents and warrants that the transfer made hereby does not violate any of such restrictions in any respect. Any such transfer in violation of such restrictions shall be null and void.

 

Dated,                 , 20                                                                                
 

Diversified Natural Products, Inc.

 

    By:

  Title:

Exhibit 4.7

EXECUTION COPY

NEITHER THIS WARRANT NOR THE SHARES ISSUED OR ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, ENDORSED, PLEDGED, MORTGAGED, HYPOTHECATED OR OTHERWISE CONVEYED OR DISPOSED OF, UNLESS THEY ARE (1) SO REGISTERED OR (2) AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND IF REASONABLY REQUESTED BY THE COMPANY, A WRITTEN LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY IS PROVIDED BY THE TRANSFEROR. THIS WARRANT AND THE SHARES ISSUED OR ISSUABLE UPON EXERCISE OF THIS WARRANT, IF NOT TRANSFERRED PURSUANT TO AND IN CONFORMITY WITH AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 OR IN ACCORDANCE WITH RULE 144 OF THE SECURITIES ACT OF 1933, ARE ALSO SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 9 OF THIS WARRANT, AND NO TRANSFER OF THIS WARRANT AND/OR SUCH SHARES SHALL BE VALID OR EFFECTIVE IF IT IS NOT EFFECTED IN COMPLIANCE WITH SUCH RESTRICTIONS ON TRANSFER.

 

No. 9    Dated: May 10, 2011

THORNE HOLDING CORP.

COMMON STOCK PURCHASE WARRANT

THIS IS TO CERTIFY THAT, ELUS Holdings Corporation (the “Initial Warrant Holder”), and its successors and permitted assigns are entitled to purchase from Thorne Holding Corp. (the “Company”), at any time or from time to time after 9:00 A.M., Boston, Massachusetts time, on the date hereof (the “Initial Exercise Date”), and prior to 5:00 P.M., Boston, Massachusetts time, on June 23, 2020 (the “Expiration Date”), but subject to earlier termination in accordance with Section 4.2, any or all of one thousand nineteen (1,019) shares (the “Warrant Shares”), of Common Stock (as defined below), of the Company at a purchase price per share equal to $3,000.00 per share (the “Initial Exercise Price”). The number and character of the Warrant Shares and the Initial Exercise Price are subject to adjustment as provided herein.

1. Definitions. As used in this warrant, the following terms shall have the respective meanings set forth below or elsewhere in this Warrant as referred to below:

Affiliate” shall have the meaning set forth in the Stockholders Agreement.

Change of Control” shall mean (w) the sale or transfer of fifty percent (50%) or more of the outstanding capital stock of the Company in a single transaction or series of related transactions to Persons who are not then stockholders of the Company, (x) the issuance of shares of Common Stock, or securities convertible into or exercisable for shares of Common Stock, constituting fifty percent (50%) or more of the outstanding capital stock of the Company immediately after issuance, to Persons who were not holders of Common Stock, on an as converted basis, immediately prior to such issuance, (y) the sale, license or other disposition of all or substantially all of the assets of the Company in a single transaction or series of related transactions to Persons who are not then stockholders of the Company, or (z) any exercise of the DNP Warrant (as defined below).


Common Stock” shall mean the Company’s Common Stock, $0.01 par value per share.

DNP” shall mean Diversified Natural Products, Inc., a Delaware corporation.

DNP Warrant” shall mean the Amended and Restated Common Stock Purchase Warrant No. 6, dated as of the Initial Exercise Date, issued by the Company to DNP, pursuant to which, as of the Initial Exercise Date, DNP shall have the right to purchase five thousand six hundred ninety (5,690) shares of Common Stock, in accordance with the terms thereof.

Exercise Date” shall have the meaning set forth in Section 2.2 hereof.

Exercise Price” shall mean the Initial Exercise Price as adjusted from time to time pursuant to the terms of this Warrant.

Fair Market Value” shall mean the fair market value per share of Common Stock, as determined in good faith by the Board of Directors of the Company, from time to time. Notwithstanding the forgoing, (i) in the event this Warrant is exercised in connection with a Change of Control, the Fair Market Value of the Common Stock shall be equal to the per share consideration paid for a share of Common Stock in such Change of Control transaction, and (ii) in the event that this Warrant is exercised in connection with an Initial Public Offering, the Fair Market Value of the Common Sock shall be equal to the price at which shares of Common Stock are sold in such offering.

Holder” shall mean, as applicable, (i) the Initial Warrant Holder, (ii) any successor of the Initial Warrant Holder or (iii) any other holder of record of this Warrant to whom this Warrant shall have been transferred in accordance with the provisions of Section 9 hereof.

Initial Public Offering” shall mean the first sale of Common Stock by the Company pursuant to a public offering registered under the Securities Act.

Person” shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature.

Property” shall have the meaning set forth in Section 4.2 hereof.

Registration Rights Agreement” shall mean that certain Amended and Restated Registration Rights Agreement, dated as of the date hereof, by and among the Company and the stockholders of the Company party thereto (as amended, restated or otherwise modified, and including any successor agreement).

Securities Act” shall mean the Securities Act of 1933, as amended.

Stock” shall mean (i) the Common Stock and/or (ii) any class or series of capital stock of the Company (other than Common Stock) or any other Person or any other securities of the Company or any other Person that the Holder is entitled to receive, or receives, in lieu of or in addition to Common Stock, pursuant to Section 4 hereof upon exercise of this Warrant.

 

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Stockholder Agreement” shall mean that certain Amended and Restated Stockholder Agreement, dated as of the date hereof, by and among the Company and the stockholders of the Company party thereto (as amended, restated or otherwise modified, and including any successor agreement).

Warrant Shares” shall mean the Warrant Shares as adjusted from time to time pursuant to the terms of this Warrant. It is understood and agreed that, depending on the context in which the term “Warrant Shares” is used in this Warrant, such term is sometimes used to refer to (i) the Stock or other property (including cash) that has been issued upon a prior exercise of this Warrant, (ii) the Stock or other property (including cash) that is still subject to issuance upon exercise of this Warrant or (iii) the Stock or other property (including cash) referred to in both of the foregoing clauses (i) and (ii).

2. Exercise Of Warrant.

2.1 Method of Exercise.

(a) Subject to and upon all of the terms and conditions set forth in this Warrant, the Holder may exercise this Warrant, in whole or in part with respect to any Warrant Shares, at any time and from time to time during the period commencing on the Initial Exercise Date and ending on the earlier of (i) the Expiration Date, or (ii) the termination of this Warrant pursuant to Section 4.2, by presentation and surrender of this Warrant to the Company at its principal office, together with (w) a properly completed and duly executed subscription form, in the form attached hereto, which subscription form shall specify the number of Warrant Shares for which this Warrant is then being exercised and the Person to whom the Warrant Shares shall be issued, who may be an Affiliate of the Holder, (x) if requested by the Company, a duly executed instrument or certificate, in form and substance satisfactory to the Company, pursuant to which the Holder or such Affiliate makes such representations and warranties to the Company, and provides or confirms such information, in each case, concerning the Holder or such Affiliate, as the Company may reasonably request (including, without limitation, such representations and warranties and such information as may be required in order to confirm compliance with applicable securities laws), (y) payment of the aggregate Exercise Price payable hereunder in respect of the number of Warrant Shares being purchased upon exercise of this Warrant, and (z) if applicable, the payment of any transfer taxes required to be paid by the Holder pursuant to Section 2.7 hereof. Payment of such aggregate Exercise Price and any such transfer taxes shall be made in cash, by money order, certified or bank cashier’s check or wire transfer (in each case in lawful currency of the United States of America) or, with respect to the payment of such aggregate Exercise Price only, in the manner provided in Section 2.1(b) below.

(b) Solely in connection with the closing of a Change of Control or Initial Public Offering and in lieu of making payment, in the manner provided in Section 2.1 above, of all or any portion of the aggregate Exercise Price payable in respect of the number of Warrant Shares for which this Warrant is being exercised, the Holder may pay all or such portion of such aggregate Exercise Price by electing not to receive all of such Warrant Shares otherwise issuable upon such exercise but only to receive that number of such Warrant Shares as shall be determined in accordance with the following formula:

 

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X = Y(A-B)

      A

 

Where: X =

   the number of Warrant Shares to be issued to the Holder pursuant to this Section 2.1(b)

         Y =

   the number of Warrant Shares for which this Warrant is being exercised as of the applicable Exercise Date

         A =

   the Fair Market Value as of the applicable Exercise Date of a share of Common Stock constituting such Warrant Shares

         B =

   the Exercise Price in effect as of the applicable Exercise Date of Common Stock constituting such Warrant Shares

The Holder may elect to make payment of all or any portion of such aggregate Exercise Price pursuant to, and in the manner set forth in, this Section 2.1(b) by surrendering this Warrant to the Company at its principal office, together with (a) a properly completed and duly executed net issue exercise election, in the form attached hereto, which net issue exercise election shall specify the number of Warrant Shares for which this Warrant is then being exercised (which shall include the number of Warrant Shares to be surrendered as payment therefore) and the Person to whom the Warrant Shares shall be issued, who may be an Affiliate of the Holder, (b) if requested by the Company, a duly executed instrument or certificate, in form and substance satisfactory to the Company, pursuant to which the Holder or such Affiliate makes such representations and warranties to the Company, and provides or confirms such information, in each case, concerning the Holder or such Affiliate, as the Company may reasonably request (including, without limitation, such representations and warranties and such information as may be required in order to confirm compliance with applicable securities laws), (c) if not already a party thereto, an instrument of accession to the Stockholder Agreement and the Registration Rights Agreement, in each case, dated as of the Initial Exercise Date, in substantially the form requested by the Company, and (d) if applicable, the payment of any transfer taxes required to be paid by the Holder pursuant to Section 2.7 hereof. Payment of such transfer taxes shall be made in cash, by money order, certified or bank cashier’s check or wire transfer (in each case in lawful currency of the United States of America). Any such exercise pursuant to this Section 2.1(b) may be made contemporaneous with, and contingent upon, the applicable Change of Control or Initial Public Offering. For the avoidance of doubt, unless indicated otherwise, references to “exercise” herein shall refer to an exercise of this Warrant under Section 2.1(a) or a net issue exercise under Section 2.1(b).

2.2 Effectiveness of Exercise; Ownership. Each exercise of this Warrant by the Holder shall be deemed to have been effected immediately prior to the close of business on the date upon which all of the requirements of Section 2.1(a) or 2.1(b) hereof, as applicable, with respect to such exercise shall have been complied with in full (each such date, an “Exercise Date”). On the applicable Exercise Date with respect to any exercise of this Warrant by the

 

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Holder, the Company shall be deemed to have issued to the Holder, and the Holder shall be deemed to have become the holder of record and legal owner of, the number of Warrant Shares being purchased upon such exercise of this Warrant, notwithstanding that the stock transfer books of the Company may then be closed or that certificates representing such number of Warrant Shares being purchased may not then be actually delivered to the Holder.

2.3 Delivery of Stock Certificates on Exercise. As soon as practicable after the exercise of this Warrant, and in any event within thirty (30) days thereafter, the Company, at its expense, will cause to be issued in the name of and delivered to the Holder, or as the Holder may direct (upon payment by the Holder of any applicable transfer taxes as required by Section 2.7 hereof and subject to, in all cases, the provisions of Section 9 hereof), a certificate or certificates for the number of Warrant Shares purchased by the Holder on such exercise, plus, in lieu of any fractional share to which the Holder would otherwise be entitled, cash equal to such fraction multiplied by the Fair Market Value.

2.4 Shares To Be Fully Paid and Nonassessable. All Warrant Shares issued upon the exercise of this Warrant shall be validly issued, fully paid and nonassessable, free of all liens, taxes, charges and other encumbrances or restrictions on sale (other than those set forth herein, including restrictions under the Stockholder Agreement and the Registration Rights Agreement) and free and clear of all preemptive rights and, assuming no change in the federal and state securities laws and assuming the Holder exercising the Warrants is an accredited investor, will be issued in compliance with all applicable federal and state securities laws.

2.5 Fractional Shares. No fractional shares of Stock or scrip representing fractional shares of Stock shall be issued upon the exercise of this Warrant. With respect to any fraction of a share of Stock called for upon any exercise hereof, the Company shall make a cash payment to the Holder as set forth in Section 2.3 hereof.

2.6 Issuance of New Warrants; Company Acknowledgment. Upon any partial exercise of this Warrant, the Company, at its expense, will forthwith issue and deliver to the Holder a new warrant or warrants of like tenor, registered in the name of the Holder, and exercisable, in the aggregate, for the balance of the Warrant Shares. Moreover, the Company shall, at the time of any exercise of this Warrant, upon the request of the Holder, acknowledge in writing its continuing obligation to afford to the Holder any rights to which the Holder shall continue to be entitled after such exercise in accordance with the provisions of this Warrant; provided, however, that if the Holder shall fail to make any such request, such failure shall not affect the continuing obligation of the Company to afford to the Holder any such rights.

2.7 Payment of Taxes and Expenses. The Holder shall be required to pay any tax which may be payable in respect of any transfer involved in the issuance of, and the preparation and delivery of certificates (if applicable) representing, (i) any Warrant Shares purchased upon exercise of this Warrant and issued in a name other than that or the Holders and/or (ii) new or replacement warrants in a name other than that of the Holder, and, until the payment of such tax, the Company shall not be required to issue or cause to be issued any such purchased Warrant Shares or any such new or replacement warrants, and the Company shall also not be required to prepare and deliver, or to cause to be prepared and delivered, certificates representing any such purchased Warrant Shares.

 

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2.8 Expiration. Unless earlier terminated in accordance with Section 4.2, this Warrant and the Holder’s rights hereunder, to the extent not previously exercised, shall expire as of 5:00 P.M., Boston, Massachusetts time, on the Expiration Date.

3. Adjustments for Stock Dividends, Subdivisions and Combinations. In the event that, at any time and from time to time after the Initial Exercise Date, the Company shall (a) issue additional shares of Common Stock as a dividend or other distribution on outstanding shares of Common Stock, (b) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (c) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, then, in each such event, (x) the Exercise Price shall, simultaneously with the happening of such event, be adjusted by multiplying the then current Exercise Price by a fraction, (i) the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to such event, and (ii) the denominator of which shall be the total number of shares of Common Stock outstanding immediately after such event, and the product so obtained shall thereafter be the Exercise Price then in effect, and (y) the number of Warrant Shares shall be adjusted by increasing or decreasing, as the case may be, the number of shares of Common Stock included within the Warrant Shares by the percentage increase or decrease in the total number of shares of Common Stock outstanding immediately after such event over the total number of shares of Common Stock outstanding immediately prior to such event and the result so obtained shall be the Warrant Shares then in effect. The Exercise Price and the Warrant Shares, as so adjusted, shall be readjusted in the same manner upon the happening of any successive event or events described in this Section 3. Without limiting the foregoing, if at any time after the Initial Exercise Date, the DNP Warrant is amended, restated, supplemented or otherwise modified (including by issuance of additional warrants or stock purchase rights pursuant to a separate instrument or instruments, other than additional warrants or stock purchase rights under a separate instrument or instruments acquired by DNP for new and additional fair market value consideration) to (A) increase the number of shares of Common Stock (or shares of Stock or other securities of the Company) purchasable by DNP or its successors or assigns, (B) reduce the exercise price for warrant shares purchasable by DNP or its successors or assigns, (C) extend the exercise period thereof, or (D) any other change with similar effect, and corresponding and appropriate adjustments are not made to this Warrant pursuant to Section 3 or Section 4, then corresponding and proportionate adjustments shall automatically be made to the terms and conditions of this Warrant, including the number of Warrant Shares and the Exercise Price hereunder, if applicable, to reflect the DNP Warrant (including any additional warrants or stock purchase rights) as so modified.

4. Adjustment for Reorganization; Consolidation or Merger.

4.1 Reorganization; Consolidation or Merger. Subject to the terms of Sections 4.2 and 4.3 hereof, in case that, at any time or from time to time after the Initial Exercise Date, the Company shall (a) effect a reorganization, (b) consolidate with or merge into any other Person, or (c) transfer all or substantially all of its properties or assets to any other Person under any plan or arrangement contemplating the dissolution of the Company, then, in each such case, the Holder, on the exercise of this Warrant as provided in Section 2 hereof at any time or from time to time after the consummation of such reorganization, consolidation or merger or the effective date of such dissolution, as the case may be, shall receive, in lieu of the Warrant Shares issuable on such exercise immediately prior to such consummation or such effective date, as the case may

 

6


be, the stock and other securities and property (including cash) to which the Holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if the Holder had so exercised this Warrant immediately prior thereto, all subject to successive adjustments thereafter from time to time pursuant to, and in accordance with, the provisions of Section 3 hereof and this Section 4.

4.2 Termination on Change of Control or Initial Public Offering. Subject to Section 4.3 and the Company’s compliance with Section 6 hereof, unless exercised in connection therewith (which exercise may be made contemporaneous with and contingent upon the closing of such transaction), this Warrant shall terminate immediately after the consummation of any Change of Control or Initial Public Offering.

4.3 Dissolution. In the event of any dissolution of the Company following the transfer of all or substantially all of its properties or assets at any time after the Initial Exercise Date, the Company shall retain for a period of at least thirty (30) days after the effective date of such dissolution the stock and other securities and property (including cash, where applicable) (collectively, the “Property”) receivable by the Holder pursuant to Section 4.1 hereof upon exercise of this Warrant at any time after the effective date of such dissolution. If the Holder fails to exercise this Warrant within the thirty (30) day period following the effective date of such dissolution, then such Property shall be distributed pro rata to those Persons who were stockholders of record of the Company on the effective date of such dissolution or as otherwise provided by the Company.

4.4 Continuation of Terms. Unless earlier terminated in accordance with Section 4.2, upon any reorganization, consolidation, merger or transfer (and any dissolution following any such transfer) referred to in this Section 4, this Warrant shall continue in full force and effect and the terms hereof shall be applicable to the shares of stock and other securities and property receivable upon the exercise of this Warrant after the consummation of such reorganization, consolidation or merger or the effective date of dissolution following any such transfer, as the case may be, and shall be binding upon the issuer of any such stock or other securities whether or not such Person shall have expressly assumed the terms of this Warrant.

5. Officer’s Certificate as to Adjustments. In each case of any adjustment or readjustment in the number and kind of Warrant Shares, or property, issuable hereunder from time to time, or the Exercise Price, the Company, at its expense, will promptly cause an officer of the Company to compute such adjustment or readjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment or readjustment and showing the facts upon which such adjustment or readjustment is based. The Company will forthwith mail a copy of each such certificate to the Holder.

6. Notices of Record Date. In the event of:

(a) any taking by the Company of a record of the holders of Common Stock for the purpose of determining the holders thereof who are entitled to receive any shares of Common Stock as a dividend or other distribution or pursuant to a stock split,

 

7


(b) any reorganization of the Company, any transfer of all or substantially all the assets of the Company to or consolidation or merger of the Company with or into any other Person, or any other event constituting a Change of Control;

(c) any voluntary or involuntary dissolution, liquidation or winding-up of the Company; or

(d) an Initial Public Offering,

then and in each such event the Company will mail or cause to be mailed to the Holder a notice specifying (i) the date on which any such record is to be taken for the purpose of such dividend, distribution or stock split, and stating the amount and character of such dividend, distribution or stock split, (ii) the date on which any such reorganization, transfer, consolidation, merger, Change of Control, dissolution, liquidation or winding-up is to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock shall be entitled to exchange their shares of Common Stock for securities or other property deliverable on such reorganization, transfer, consolidation, merger, dissolution, liquidation or winding-up; or (iii) the date on which such Initial Public Offering is anticipated to close. Such notice shall be delivered at least ten (10) days prior to the date specified in such notice on which any such action is to be taken or event shall occur. Notwithstanding anything contained in this Section 6, in the event of an exercise of the DNP Warrant, the Company shall not be required to provide notice to the Holder prior to such exercise, but shall instead mail notice to the Holder promptly following such exercise (but in no event later than five (5) business days following such exercise); and any corresponding “Change of Control” to occur hereunder as a result of the exercise of the DNP Warrant (including any acceleration and/or termination of this Warrant) in connection with such exercise of the DNP Warrant shall be deemed to occur ten (10) days following the delivery of such notice, or on such other date (not less than ten (10) days after delivery of such notice) as is specified in such notice, or as otherwise mutually agreed between the Company and the Holder.

7. Exchange of Warrant. Subject to the provisions of Section 9 hereof (if and to the extent applicable), this Warrant shall be exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for new warrants of like tenor, each registered in the name of the Holder or in the name of such other Persons as the Holder may direct (upon payment by the Holder of any applicable transfer taxes). Each of such new warrants shall be exercisable for such number of Warrant Shares as the Holder shall direct, provided that all of such new warrants shall represent, in the aggregate, the right to purchase the same number of Warrant Shares which may be purchased by the Holder upon exercise of this Warrant at the time of its surrender.

8. Replacement of Warrant. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction of this Warrant, on delivery of an indemnity agreement or security reasonably satisfactory in form and amount to the Company or, in the case of any such mutilation, on surrender and cancellation of this Warrant, the Company at its expense will execute and deliver, in lieu thereof, a new warrant of like tenor. In the event of any amendment, modification or adjustment to this Warrant in accordance with the last sentence of Section 3 or the last sentence of Section 11.6, the Company at its expense will execute and deliver, in lieu hereof, a new warrant reflecting such changes and a certificate setting forth such adjustments and showing the facts upon which such adjustments are based and send each to the Holder in accordance with the notice provisions hereof.

 

8


9. Restrictions on Transfer; Compliance with Securities Act; Mechanics of Transfer.

9.1 Contractual Transfer Restrictions. Notwithstanding anything expressed or implied in this Warrant to the contrary, in no event shall the Holder sell, assign, transfer, endorse, pledge, mortgage, hypothecate or otherwise convey or dispose of all or any portion of the Warrant, any Warrant Shares issued from time to time upon exercise of this Warrant, or any interest in any of the foregoing to any Person other than an Affiliate (as defined in the Stockholders Agreement) without the prior written consent of the Board of Directors of the Company and in conformity with the provisions of this Warrant and the Stockholder Agreement and Registration Rights Agreement to which the Holder may be required to become a party in accordance with Section 2.1 above. If not already a party thereto, any Affiliate of the Holder shall, upon exercise of this Warrant, execute and deliver to the Company an instrument of accession to the Stockholder Agreement and the Registration Rights Agreement, in substantially the form requested by the Company, in accordance with Section 2.1.

9.2 Securities Laws Restrictions. Neither this Warrant nor any of the Warrant Shares issued from time to time upon exercise of this Warrant may be offered, sold, assigned, transferred, endorsed, pledged, mortgaged, hypothecated or otherwise conveyed or disposed of by the Holder, unless (i) any such offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation or other conveyance or disposition shall be effected (A) pursuant to and in conformity with an effective registration statement under the Securities Act (a “Registered Sale”) or any then available exemption from the registration requirements of the Securities Act, and (B) pursuant to and in conformity with any applicable state securities or blue sky laws, and (ii) in the case of any offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation or other conveyance or disposition other than pursuant to a Registered Sale, if reasonably requested by the Company, the Holder shall have obtained and delivered to the Company a written legal opinion of counsel (reasonably satisfactory to the Company as to such counsel and as to the substance of such opinion) to the effect that any such proposed offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation or other conveyance or disposition by the Holder does not violate the registration provisions of the Securities Act and any applicable state securities or blue sky laws.

9.3 Effect of Violation of Transfer Restrictions; Preventive Measures. Any offer, sale, assignment, transfer, endorsement, pledge, mortgage, hypothecation, or other conveyance or disposition of all or any portion of this Warrant or any Warrant Shares issued from time to time upon exercise of this Warrant, or of any interest in this Warrant or any of such Warrant Shares, in violation of this Section 9 shall be null and void. The Company may make a notation on its records or give instructions to any of its transfer agents in order to implement the restrictions on transfer set forth in this Section 9. The Company shall not incur any liability for any delay in recognizing any transfer of this Warrant or of any Warrant Shares issued from time to time upon exercise of this Warrant if the Company reasonably believes that any such transfer may have been or would be in violation of the provisions of the Securities Act, applicable blue sky laws or this Section 9.

 

9


9.4 Legends.

(a) Each certificate representing any Warrant Shares issued upon exercise of this Warrant shall bear the legends required pursuant to the Stockholders Agreement and Registration Rights Agreement.

(b) Each certificate representing any Warrant Shares issued from time to time upon exercise of this Warrant shall also bear any legend required under any applicable state securities or blue sky laws.

9.5 Survival. The obligations of the Holder (and/or of any transferee of the Warrant or any Warrant Shares issued from time to time upon exercise of this Warrant) under this Section 9 shall, with respect to any Warrant Shares issued from time to time upon exercise of this Warrant, survive the exercise, expiration or other termination, or transfer, of this Warrant indefinitely.

9.6 Mechanics of Transfer. Any transfer of all or any portion of this Warrant, or of any interest therein, to an Affiliate of the Holder or that has been approved in writing by the Board of Directors of the Company and that is otherwise in compliance with the provisions of this Section 9 shall be effected by surrendering this Warrant to the Company at its principal office, together with (i) a duly executed form of assignment, in the form attached hereto and (ii) payment of any applicable transfer taxes, if any. In the event of any such transfer of this Warrant, in whole, the Company shall issue a new warrant of like tenor to the transferee, representing the right to purchase the same number of Warrant Shares which were purchasable by the Holder upon exercise of this Warrant at the time of its transfer. In the event of any such transfer of any portion of this Warrant, (i) the Company shall issue a new warrant of like tenor to the transferee, representing the right to purchase the same number of Warrant Shares which were purchasable by the Holder upon exercise of the transferred portion of this Warrant at the time of such transfer, and (ii) the Company shall issue a new warrant of like tenor to the Holder, representing the right to purchase the number of Warrant Shares purchasable by the Holder upon exercise of the portion of this Warrant not transferred to such transferee. Until this Warrant or any portion thereof is transferred in accordance with this Warrant, the Company may treat the Holder as the absolute holder of this Warrant and all right, title and interest therein for all purposes, notwithstanding any notice to the contrary.

10. Investment Representations.

(a) This Warrant and the Warrant Shares to be acquired by the Holder as contemplated hereby shall be acquired for the Holder’s own account, for investment, and not with a view to the resale or distribution thereof or with the present intention of distributing or selling any of such securities. Holder understands that such securities have not been registered under the Securities Act of 1933, on the ground that the offer and sale of such securities by the Company to the Holder are exempt from the registration requirements of the Securities Act under Section 4(2) thereof as a transaction not involving any public offering of such securities. The Holder understands that the Company’s reliance on such exemption is predicated in part on the representations of the Holder contained herein.

 

10


(b) Holder understands that it may bear the economic risk of investment in the Warrant and the Warrant Shares to be acquired by it hereunder for an indefinite period of time because such securities have not been registered under the Securities Act, and therefore may not be sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available.

(c) Holder acknowledges and agrees that this Warrant and each certificate representing Warrant Shares acquired by it hereunder shall bear appropriate restrictive legends referring to the restrictions on transfer applicable to such securities. Holder is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933. Holder has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment in the Company. Holder has been furnished with all information and materials it has requested concerning the Company.

(d) Holder acknowledges and agrees that the Company shall make a notation regarding the restrictions on transfer of the Warrant and the Warrant Shares to be acquired by Holder hereunder in the stock books of the Company, and any purported transfer of such securities shall be reflected in the stock books of the Company only if and when transferred in compliance with all of the terms and conditions herein.

11. General.

11.1 Statement on Warrant. Irrespective of any adjustments in the Exercise Price or the number or kind of Warrant Shares, and without limiting or affecting such adjustments, this Warrant may continue to express the same Exercise Price and the same number and kind of Warrant Shares as are stated on the front page hereof, subject to Section 3.

11.2 Authorized Shares; Reservation of Shares for Issuance. At all times while this Warrant is outstanding, the Company shall maintain its corporate authority to issue, and shall have authorized and reserved for issuance upon exercise of this Warrant, such number of shares of Common Stock as shall be sufficient to perform its obligations under this Warrant (after giving effect to any and all adjustments to the number and kind of Warrant Shares purchasable upon exercise of this Warrant).

11.3 No Impairment. The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issuance or sale of securities, sale or other transfer of any of its assets or properties, 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 action as may be necessary or appropriate in order to protect the rights of the Holder hereunder against impairment. Without limiting the generality of the foregoing, the Company (a) will not increase the par value of any shares of Stock receivable upon the exercise of this Warrant above the amount payable therefor on such exercise, and (b) will take all action that may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Stock on the exercise of this Warrant.

 

11


11.4 No Rights as Stockholder. The Holder shall not be entitled to vote or to receive dividends or to be deemed the holder of Stock that may at any time be issuable upon exercise of this Warrant for any purpose whatsoever, nor shall anything contained herein be construed to confer upon the Holder any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance or reclassification of stock, change of par value or change of stock to no par value, consolidation, merger or conveyance or otherwise), or to receive notice of meetings (except to the extent otherwise provided in this Warrant), or to receive dividends or subscription rights, until the Holder shall have exercised the Warrant in accordance with the provisions hereof.

11.5 Notices. (i) Any notices, reports or other correspondence (hereinafter collectively referred to as “correspondence”) required or permitted to be given hereunder shall be sent by courier (overnight or same day) or telecopy or delivered by hand to the party to whom such correspondence is required or permitted to be given hereunder. The date of giving any notice shall be the date of its actual receipt.

 

  (ii)

All correspondence to the Company shall be addressed as follows :

Thorne Holding Corp.

c/o Richard J. Williams

125 High Street

High Street Tower, 26th Floor

Boston, Massachusetts 02110

Fax: (617) 261-2060

with copies sent contemporaneously to:

Bob Forlenza

c/o Tudor Ventures III L.P.

50 Rowes Wharf, 5th floor

Boston, Massachusetts 02110

and:

Johan V. Brigham, Esq.

Latham & Watkins LLP

John Hancock Tower

200 Clarendon Street, 20th Floor

Boston, Massachusetts 02116

Fax: (617) 948-6001

 

12


  (iii)

All correspondence to the Holder shall be addressed as

follows: ELUS Holdings Corporation

1140 US Highway 22, Suite 101

Bridgewater, New Jersey 08807

Attn: William Mann

Facsimile: (908)231-1459

with copies (which shall not constitute notice)to:

Helsinn Healthcare, S.A.

P.O. Box 357

6915 Lugano/Pambio-Noranco

Switzerland

Attn: Matteo Missaglia, General Counsel

Facsimile: +41 (0) 91 993.21.22

Asher M. Rubin

Hogan Lovells US LLP

100 International Drive, Suite 2000

Baltimore, MD 21202

Facsimile: (410) 659-2701

David A. Gibbons

Hogan Lovells US LLP

100 International Drive, Suite 2000

Baltimore, MD 21202

Facsimile: (410) 659-2701

11.6 Amendment and Waiver. No failure or delay of the Holder in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Holder arc cumulative and not exclusive of any rights or remedies which it would otherwise have. The provisions of this Warrant may be amended, modified or waived with (and only with) the written consent of the Company and the Holder. Notwithstanding the foregoing, if any amendment is made to the terms or conditions of the DNP Warrant that results in a material benefit to DNP or its successors or assigns (including by granting to any such Person any material right or privilege, or by removing any material restriction or condition), the corresponding terms and conditions of this Warrant shall automatically be amended, in like manner, without the requirement of any action on the part of the Holder or the Company (except as set forth in Section 8).

11.7 Governing Law. This Warrant shall be construed in accordance with and governed by the laws of the State of New York.

11.8 Covenants To Bind Successor and Assigns. All covenants, stipulations, promises and agreements in this Warrant contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.

 

13


11.9 Severability. In case anyone or more of the provisions contained in this Warrant shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

11.10 Construction. The definitions of this Warrant shall apply equally to both the singular and the plural forms of the terms defined. Wherever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The section and paragraph headings used herein are for convenience of reference only, are not part of this Warrant and are not to affect the construction of or be taken into consideration in interpreting this Warrant.

11.11 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 the defense in any action for specific performance that a remedy at law would be adequate. In any action or proceeding brought to enforce any provision of this Warrant or where any provision hereof is validly asserted as a defense, the successful party to such action or proceeding shall be entitled to recover reasonable attorneys’ fees in addition to any other available remedy.

[REMAINDER OF PAGE INTENTIONALLY LE FT BLANK]

 

14


IN WITNESS WHEREOF, the Company has caused this Common Stock Purchase Warrant No. 9 to be executed in its corporate name by one of its officers thereunto duly authorized, all as of the day and year first above written.

 

THORNE HOLDING CORP.
By:  

/s/ Richard J. Williams

Name: Richard J. Williams
Title: President

 

[Signature Page to the Common Stock Purchase Warrant No. 9]


FORM OF SUBSCRIPTION

(To be executed upon exercise of Warrant)

To: THORNE HOLDING CORP.

The undersigned hereby irrevocably elects to exercise the right of purchase represented by the attached Warrant for, and to exercise thereunder,                      shares of common stock, $0.01 par value per share (“Common Stock”), of THORNE HOLDING CORP., a Delaware corporation, and tenders herewith payment of $                                     , representing the aggregate purchase price for such shares based on the price per share provided for in such Warrant. Such payment is being made in lawful money of the United States by certified or bank cashier’s check or wire transfer.

Please issue a certificate or certificates for such shares of Common Stock in the name of [                         ] at the address set forth below:

[                    ]

[                    ]

[                    ]

[                    ]

If said number of shares of Common Stock shall not be all the shares of Common Stock issuable upon exercise of the attached Warrant, a new Warrant is to be issued in the name of the undersigned for the balance remaining of such shares of Common Stock/other Stock less any fraction of a share of Common Stock paid in cash.

 

Dated,             , 20    

 

 
    [ELUS Holdings Corporation]  
        By:  
      Title:  


FORM OF NET ISSUE EXERCISE ELECTION

(To be executed upon net issue exercise of Warrant)

To: THORNE HOLDING CORP.

The undersigned hereby irrevocably elects to exercise the right of purchase represented by the attached Warrant for, and to exercise thereunder,                      shares (the “Net Issue Purchased Warrant Shares”) of Common Stock, $0.01 par value per share (“Common Stock”), of THORNE HOLDING CORP., a Delaware corporation (the “Company”). The aggregate exercise price payable by the undersigned in connection with the purchase of the Purchased Warrant Shares is $                     (the “Purchase Price”). Pursuant to Section 2.1(b) of the attached Warrant, the undersigned hereby elects to make payment of such aggregate exercise price by surrendering the right to receive that number of the Purchased Warrant Shares (the “Surrendered Purchased Warrant Shares”) as may be required to be surrendered upon the exercise of the Purchased Warrant Shares in accordance with provisions of Section 2.1(b).

Please issue a certificate or certificates for the number of Purchase Warrant Shares equal to the difference obtained by subtracting the number of Surrendered Purchased Warrant Shares from the number of Purchased Warrant Shares in the name of [                 ] at the address set forth below:

[                    ]

[                    ]

[                    ]

[                    ]

 

Dated,             , 20      

 

 
      [ELUS Holdings Corporation]  
          By:  
        Title:  


FORM OF ASSIGNMENT

(To be executed upon assignment of Warrant)

For value received,                                  hereby sells, assigns and transfers unto                      the attached Warrant [        % of the attached Warrant], together with all right, title and interest therein, and does hereby irrevocably constitute and appoint                              attorney to transfer said Warrant [said percentage of said Warrant]

on the books of THORNE HOLDING CORP., a Delaware corporation, with full power of substitution in the premises.

If not all of the attached Warrant is to be so transferred, a new Warrant is to be issued in the name of [ELUS Holdings Corporation] for the balance of said Warrant.

The undersigned acknowledges that transfers of the attached Warrant are subject to all of the restrictions on transfer thereof contained or referenced in Section 9 thereof and hereby represents and warrants that the transfer made hereby does not violate any of such restrictions in any respect. Any such transfer in violation of such restrictions shall be null and void.

 

 

Dated,                  , 20      

 

 
      [ELUS Holdings Corporation]  
        By:  
        Title:  

Exhibit 4.8

THORNE HEALTHTECH, INC.

AMENDMENT TO WARRANT TO PURCHASE COMMON STOCK

This Amendment to Warrant to purchase Common Stock (this “Amendment”) is entered into effective as of May 2, 2019, by and between Thorne HealthTech, Inc., previously Thorne Holding Corp. (the “Issuer”) and Diversified Natural Products, Inc. (the “Holder”), and amends that certain Warrant (No. 6) to purchase Common Stock, issued by the Issuer to the Holder, dated as of May 10, 2011 (the “Warrant”). Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Warrant.

WHEREAS, pursuant to Section 11.6 of the Warrant, the provisions of the Warrant may be amended, modified or waived with the written consent of the Issuer and the Holder.

WHEREAS, the Issuer and the Holder desire to amend the Warrant to modify the Expiration Date from June 23, 2020 to June 23, 2030.

NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree that the Warrant is amended as follows:

1.    Amendment. The definition of Expiration Date in the preamble of the Warrant is hereby amended from June 23, 2020 to June 23, 2030.

2.    Full Force and Effect. To the extent not expressly amended hereby, the Warrant remains in full force and effect.

3.    Entire Agreement. This Amendment, together with the Warrant, and all exhibits attached thereto, constitute the entire agreement and understanding of the Issuer and the Holder with respect to the subject matter hereof and supersede all prior agreements and understandings relating to the subject matter hereof.

4.    Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its principles regarding conflicts of law.

5.    Counterparts. This Amendment may be executed by the parties in various counterparts, all of which shall constitute but one and the same agreement among the parties, and shall be binding upon the respective parties.

[Signature Page Follows]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first above written.

 

ISSUER:
THORNE HEALTHTECH, INC. (previously Thorne Holding Corp.)
By:   /s/ Paul Jacobson
Name:   Paul Jacobson
Title:   Chief Executive Officer

 

HOLDER:
DIVERSIFIED NATURAL PRODUCTS, INC.
By:   /s/ Paul Jacobson
Name:   Paul Jacobson
Title:   Chief Executive Officer

[Signature page to Amendment to Warrant No. 6]

Exhibit 4.9

THORNE HEALTHTECH, INC.

AMENDMENT TO WARRANT TO PURCHASE COMMON STOCK

This Amendment to Warrant to purchase Common Stock (this “Amendment”) is entered into effective as of May 2, 2019, by and between Thorne HealthTech, Inc., previously Thorne Holding Corp. (the “Issuer”) and Elus Holdings Corporation (the “Holder”), and amends that certain Warrant (No. 9) to purchase Common Stock, issued by the Issuer to the Holder, dated as of May 10, 2011 (the “Warrant”). Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Warrant.

WHEREAS, pursuant to Section 11.6 of the Warrant, the provisions of the Warrant may be amended, modified or waived with the written consent of the Issuer and the Holder.

WHEREAS, the Issuer and the Holder desire to amend the Warrant to modify the Expiration Date from June 23, 2020 to June 23, 2030.

NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree that the Warrant shall be amended as follows:

1. Amendment. The definition of Expiration Date in the preamble of the Warrant is hereby amended from June 23, 2020 to June 23, 2030.

2. Full Force and Effect. To the extent not expressly amended hereby, the Warrant remains in full force and effect.

3. Entire Agreement. This Amendment, together with the Warrant, and all respective exhibits attached thereto, constitute the entire agreement and understanding of the Issuer and the Holder with respect to the subject matter hereof and supersede all prior agreements and understandings relating to the subject matter hereof.

4. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its principles regarding conflicts of law.

5. Counterparts. This Amendment may be executed by the parties in various counterparts, all of which shall constitute but one and the same agreement among the parties, and shall be binding upon the respective parties.

[Signature Page Follows]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first above written.

 

ISSUER:

THORNE HEALTHTECH, INC. (previously Thorne Holding Corp.)
By:   /s/ Paul Jacobson
Name:   Paul Jacobson
Title:   Chief Executive Officer

 

HOLDER:

ELUS HOLDINGS CORPORATION
By:   /s/ Riccardo C. Braglia
Name:   Riccardo C. Braglia
Title:   Chief Executive Officer

 

[Signature page to Amendment to Warrant No. 9]