DNMR Danimer Scientific Inc

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): July 12, 2024

 

 

DANIMER SCIENTIFIC, INC.

(Exact name of Registrant as Specified in Its Charter)

 

 

Delaware			001-39280	84-1924518
(State or Other Jurisdiction of Incorporation)			(Commission File Number)	(IRS Employer Identification No.)
140 Industrial Boulevard
Bainbridge, Georgia				39817
(Address of Principal Executive Offices)				(Zip Code)

 

Registrant’s Telephone Number, Including Area Code: 229 243-7075

 

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

Securities registered pursuant to Section 12(b) of the Act:

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Class A Common stock, $0.0001 par value per share		DNMR		The New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

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 13(a) of the Exchange Act. ☐

 

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Item 1.01 Entry into Material Definitive Agreement.

On May 2, 2024, Danimer Scientific, Inc., a Delaware corporation (“Company”), announced that the Company had declared a distribution to the holders of record, as of May 13, 2024 (“Record Date”) of (a) the Company’s shares of Class A common stock, par value $0.0001 per share (the “Common Stock”), (b) the Company’s 3.250% Convertible Senior Notes due 2026 (“Convertible Notes”), and (c) our pre-funded common stock purchase warrants dated March 25, 2024 (collectively, “other eligible recipients”) in the form of warrants to purchase shares of Common Stock (“Dividend Warrants”). The Dividend Warrants were issued on the terms and conditions described in the Warrant Agreement (as defined below and attached as an exhibit hereto) are being distributed to such stockholders and other eligible recipients on July 12, 2024.

Pursuant to the terms of the Warrant Agreement, dated as of July 12, 2024, between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent (“Warrant Agreement”), each holder of record of Common Stock as of the Record Date will receive one (1) Dividend Warrant for every three (3) shares of Common Stock held as of the Record Date, rounded down to the nearest whole number for any fractional Dividend Warrant. Other eligible recipients that held Convertible Notes or pre-funded common stock purchase warrants as of the Record Date will receive Dividend Warrants based on the same ratio in the manner determined by the agreements governing such securities and the Warrant Agreement.

The Dividend Warrants are expected to trade on the OTCQX market, commencing on July 15, 2024. Separately, Danimer Scientific’s Common Stock will continue to trade on the New York Stock Exchange under the ticker symbol “DNMR”. Each Dividend Warrant entitles the holder to purchase, at the holder’s sole and exclusive election, one share of Common Stock plus, if applicable and as described below, the Bonus Share Fraction (defined below), at an initial exercise price of $5.00 per share (“Exercise Price”).

Dividend Warrant holders may exercise their Dividend Warrants to purchase the Company’s Common Stock with cash or, after July 26, 2024, with the Company’s Convertible Notes at face value, as specified under the terms of the Warrant Agreement. Each $1,000 principal amount of Convertible Notes is equal to the aggregate Exercise Price for 200 Dividend Warrants. The Dividend Warrants include a provision that provides an additional one-half share of Common Stock (“Bonus Share Fraction”) to holders that exercise their Dividend Warrants prior to the Bonus Share Expiration Date (defined below). Furthermore, the right of Dividend Warrant holders to exercise their Dividend Warrants by delivering Convertible Notes will terminate on the Bonus Share Expiration Date and in the other circumstances described in the Warrant Agreement.

The Bonus Share Fraction feature referenced above entitles a holder of a Dividend Warrant to receive an additional one-half of a share of Common Stock for each Dividend Warrant exercised under certain circumstances without payment of any additional exercise price. The right to receive the Bonus Share Fraction will expire at 5:00 p.m. New York City time on the first trading day (“Bonus Share Expiration Date”) following the date on which the daily volume-weighted average price (“VWAP”) of the shares of Common Stock has been at least equal to a specified price, initially $2.00 per share, for at least 20 trading days each falling on or after August 1, 2024 (whether or not consecutive) out of 30 consecutive trading days (“Bonus Share Expiration Price Condition”). Any Dividend Warrant exercised after the Bonus Share Expiration Date will not be entitled to the Bonus Share Fraction. The Company will make a public announcement of the Bonus Share Expiration Date prior to market open on the Bonus Share Expiration Date if the Bonus Share Expiration Price Condition is met.

The Dividend Warrants are redeemable by the Company upon 20 calendar days’ notice, from and after the first trading day following the date on which the VWAP of the shares of Common Stock has been at least equal to a specified price, initially equal to the Exercise Price, for at least 20 trading days each falling on or after August 1, 2024 (whether or not consecutive) out of 30 consecutive trading days. Any unredeemed Dividend Warrants will expire at 5:00 p.m. on July 15, 2025.

The number of shares of Common Stock issuable upon exercise is subject to certain anti-dilution adjustments, including for share dividends, splits, reverse splits, subdivisions, spin-offs, consolidations, reclassifications, combinations, non-cash distributions and cash dividends.

The foregoing description of the Dividend Warrants and the Warrant Agreement is only a summary and is qualified in its entirety by reference to the complete description of the terms of the Dividend Warrants set forth in the Warrant Agreement (including the Form of Warrant attached thereto), which is filed as Exhibit 4.1 to this Form 8-K and incorporated herein by reference.

No Offer or Solicitation

This communication shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of, these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction. A Form 8-A registration statement and prospectus supplement describing the terms of the Dividend Warrants have been or will be filed with the SEC and will be available on the SEC’s website located at http://www.sec.gov. Holders of the Dividend Warrants should read the prospectus supplement carefully, including the Risk Factors section included and incorporated by reference therein. This communication contains a general summary of the Dividend Warrants. Please read the Warrant Agreement, as it contains important information about the terms of the Dividend Warrants.

Forward Looking Statements

This Form 8-K contains forward-looking statements, including statements made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These statements may be identified by words such as “may,” “anticipate,” “believe,” “could,” “expect,” “forecast,” “intend,” “plan,” “possible,” “potential,” and other words and terms

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of similar meaning. Such statements are based largely on our current expectations and projections about future events. Such statements speak only as of the date of this Form 8-K and are subject to a number of risks, uncertainties and assumptions, including, but not limited to, whether the Company will derive the anticipated benefits of the transaction described in this communication and any unanticipated impacts of the Dividend Warrant distribution on the Company’s business operations, and including those described in the section entitled “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2023, and future reports to be filed with the SEC. In light of these risks, uncertainties and assumptions, the forward-looking statements and events discussed in this Form 8-K are inherently uncertain and may not occur, and actual results could differ materially and adversely from those anticipated or implied in the forward-looking statements. Accordingly, you should not rely upon forward-looking statements as predictions of future events. Except as required by law, we disclaim any intention or responsibility for updating or revising any forward-looking statements contained in this news release.

 

Item 9.01. Financial Statements and Exhibits

 

On July 12, 2024, Kane Kessler, P.C. delivered an opinion (“Warrant Shares Opinion”) to the Company in connection with the Company’s issuance of up to 70,134,322 shares of Common Stock upon exercise of the Dividend Warrants. Such shares will be issued pursuant to the Company’s shelf registration statement on Form S-3 (Reg. No. 333-279371), which became effective on June 5, 2024 (the “Registration Statement”), including the prospectus dated June 5, 2024, and the prospectus supplement relating to such shares, dated July 12, 2024, as the same may be amended or supplemented. The Warrant Shares Opinion is being filed herewith as Exhibit 5.1, and thereby automatically incorporated by reference into the Registration Statement, in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (“Securities Act”).

On July 12, 2024, Kane Kessler, P.C. also delivered a separate opinion (“Advisory Shares Opinion”) to the Company in connection with the Company’s issuance of up to 5,939,560 shares of Common Stock that the Company shall issue from time to time directly to B. Dyson Capital Advisors, and/or its affiliates (collectively, “Advisor”), in consideration of the financial and investment banking advisory services provided by the Advisor to the Company in connection with the Company’s distribution of the Dividend Warrants.Such shares will be issued pursuant to the Registration Statement, including the prospectus dated June 5, 2024, and the prospectus supplement relating to such shares, dated July 12, 2024, as the same may be amended or supplemented. The Advisory Shares Opinion is being filed herewith as Exhibit 5.2, and thereby automatically incorporated by reference into the Registration Statement, in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

(d) Exhibits.

 

Exhibit		Description
4.1		Warrant Agreement (including Form of Warrant), dated July 12, 2024, between Danimer Scientific, Inc. and Continental Stock Transfer & Trust Company, as Warrant Agent.
5.1		Opinion of Kane Kessler, P.C., with respect to the shares of Common Stock underlying the Dividend Warrants.
5.2		Opinion of Kane Kessler, P.C., with respect to the shares of Common Stock issuable to the Advisor.
104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

			Danimer Scientific, Inc
Date:	July 12, 2024	By:	/s/ Stephen A. Martin
			Stephen A. Martin Chief Legal Officer & Corporate Secretary

 

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EXHIBIT 4.1

 

WARRANT AGREEMENT

Dated as of July 12, 2024

between

DANIMER SCIENTIFIC, INC.

and

CONTINENTAL STOCK TRANSFER & TRUST COMPANY

as Warrant Agent

____________________

Warrants for
Shares of Common Stock of
Danimer Scientific, Inc.

__________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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TABLE OF CONTENTS

Page

Article I
Definitions

Section 1.01	Definitions	1
Section 1.02	Other Definitions	5
Section 1.03	Rules of Construction. Unless the text or context otherwise requires:	6

 

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Article II

Form of Warrant; Beneficial Interests

Section 2.01	Issuance and Registration	7
Section 2.02	Warrant Certificates	8
Section 2.03	Warrant Register	9
Section 2.04	Transfer and Exchange	9
Section 2.05	Definitive Warrants	11
Section 2.06	Replacement Certificates	11
Section 2.07	Outstanding Warrants	12
Section 2.08	Cancellation	12
Section 2.09	CUSIP Numbers	12

Article III

Exercise Terms

Section 3.01	Exercise	13
Section 3.02	Exercise Period	13
Section 3.03	Expiration	14
Section 3.04	Manner of Exercise	14
Section 3.05	Issuance of Warrant Shares	15
Section 3.06	Fractional Warrant Shares	16
Section 3.07	Reservation of Warrant Shares	16
Section 3.08	Ownership Limitation	17
Section 3.09	Adjustments of Prices	17

Article IV

Adjustment and Notice Provisions

Section 4.01	Adjustments	18
Section 4.02	Calculation of Adjustments; Timing of Issuance of Additional Warrant Shares Upon Certain Adjustments; Adjustment Rules	22
Section 4.03	Business Combinations and Reorganizations	23
Section 4.04	Notice of Adjustments	23
Section 4.05	Adjustment to Warrant Certificate	24
Section 4.06	Amendments	24

 

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Article V

Registration of Warrant Shares

Section 5.01	Effectiveness of Registration Statement	26
Section 5.02	Suspension	26
Section 5.03	Expenses	26

Article VI
Redemption

Section 6.01	Redemption	27
Section 6.02	Redemption Notice	27
Section 6.03	Payment of Redeemed Warrants	27

Article VII

Warrant Agent

Section 7.01	Appointment of Warrant Agent	28
Section 7.02	Rights and Duties of Warrant Agent	28
Section 7.03	Individual Rights of Warrant Agent	29
Section 7.04	Warrant Agent’s Disclaimer	29
Section 7.05	Compensation and Indemnity	29
Section 7.06	Successor Warrant Agent	31
Section 7.07	Bank Accounts	32
Section 7.08	Delivery of Exercise Price	32
Section 7.09	Further Assurances	32
Section 7.10	Force Majeure	32
Section 7.11	Confidentiality	33

Article VIII

Miscellaneous

Section 8.01	Persons Benefiting	34
Section 8.02	Rights of Holders	34
Section 8.03	Notices	34
Section 8.04	Governing Law	35
Section 8.05	Successors	35
Section 8.06	Counterparts	35
Section 8.07	Severability	36
Section 8.08	Withholding Rights	36
Section 8.09	Calculations; Calculation Agent	36
Section 8.10	Limited Responsibility of Calculation Agent and Independent Advisor	36
Section 8.11	Entire Agreement	37

 

EXHIBIT A Form of Warrant

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EXHIBIT B Protocol for Exercise of Warrants with Payment in Designated Notes

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WARRANT AGREEMENT, dated as of July 12, 2024 (this “Agreement”), between Danimer Scientific, Inc., a corporation incorporated under the laws of the state of Delaware (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation (“Continental”), as Warrant Agent (the “Warrant Agent”) (each a “Party” and collectively, the “Parties”).

The Board of Directors has declared a dividend distribution (the “Warrant Distribution”) to the holders of record of the Company’s common stock, par value $0.0001 per share, subject to Section 4.03 (the “Common Stock”) and Other Eligible Recipients, as of 5:00 p.m., New York City time, on May 13, 2024 (such date and time, the “Distribution Record Date”), in the form of warrants to purchase shares of Common Stock. The Company desires to issue the warrants on the terms and conditions described herein (the “Warrants”) in satisfaction of the Warrant Distribution. The Warrants will be issued on or about July 12, 2024 (the date of the actual distribution, the “Issue Date”).

The Company desires the Warrant Agent to act on behalf of the Company in connection with the issuance, registration, transfer, exchange, exercise, redemption and cancellation of the Warrants as provided herein, and the Warrant Agent is willing to so act.

Each Party hereto agrees for the benefit of the other Party and for the equal and ratable benefit of the registered holders of the Warrants (the “Holders”):

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ARTICLE I

Definitions

 

Section 1.01 Definitions.

 

“Affiliate” of any Person means any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person. For purposes hereof, “control” of a Person means the power, direct or indirect, to direct or cause the direction or actions of the management and policies of such Person whether by contract or otherwise.

“Basic Warrant Exercise Rate” means initially one (1) share of Common Stock, subject to adjustment from time to time in accordance with Article IV.

“Board of Directors” means the Board of Directors of the Company or any committee thereof duly authorized to act on behalf of such Board of Directors.

“Bonus Share Expiration Date” means the first Business Day following the last day of the Reference Period.

“Bonus Share Expiration Price Condition” means the first occurrence of a 30 consecutive Trading Day period (i) that includes 20 Qualifying Trading Days (whether or not consecutive) and (ii) the last day of which is the 20th such Qualifying Trading Day (such 30 consecutive Trading Day period, the “Reference Period”), where “Qualifying Trading Day” means any Trading Day (falling on or after August 1, 2024) on which the VWAP of the Common Stock on such Trading Day is at least equal to the Bonus Share Expiration Trigger Price in effect on such Trading Day.

“Bonus Share Expiration Trigger Price” is initially $2.00, subject to adjustment concurrently with any adjustment to the Basic Warrant Exercise Rate. The adjusted Bonus Share Expiration Trigger Price shall equal the product (rounded to the nearest whole multiple of $0.0001 (with $0.00005 being rounded upwards)) of (i) the Bonus Share Expiration Trigger Price applicable immediately prior to such adjustment and (ii) a fraction, the numerator of which is the Basic Warrant Exercise Rate in effect immediately prior to such adjustment and the denominator of which is the Basic Warrant Exercise Rate as so adjusted, all as determined by the Calculation Agent.

“Bonus Share Fraction” means initially one half (0.5) of a share of Common Stock per Warrant, subject to adjustment concurrently with any adjustment to the Basic Warrant Exercise Rate. The adjusted Bonus Share Fraction shall equal the product (rounded to the nearest whole multiple of 0.00001 (with 0.000005 being rounded upwards) share of Common Stock) of (i) the Bonus Share Fraction applicable immediately prior to such adjustment and (ii) a fraction, the numerator of which is the Basic Warrant Exercise Rate as so adjusted and the denominator of which is the Basic Warrant Exercise Rate in effect immediately prior to such adjustment, all as determined by the Calculation Agent.

“Bonus Share Period” means each of (i) the period from Issue Date until the Close of Business on the Bonus Share Expiration Date and (ii) (if applicable) any period after the Bonus Share Expiration Date specified by the Company to be a Bonus Share Period in accordance with Section 4.05(a)(v).

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“Business Combination” means a merger, consolidation, amalgamation, statutory share exchange or similar transaction that requires the approval of the Company’s shareholders.

“Business Day” means day that is not (i) a Saturday, (ii) a Sunday, or (iii) a day on which banking institutions are allowed by law, regulation or executive order to be closed in the State of New York.

“Calculation Agent” means ConvEx Capital Markets LLC, or such successor Person as may be appointed by the Company to serve as calculation agent for the Warrants.

“Capital Stock” means (i) with respect to any Person that is a corporation or company, any and all shares, interests, participations or other equivalents (however designated) of capital or capital stock of such Person and (ii) with respect to any Person that is not a corporation or company, any and all partnership or other equity interests of such Person.

“Close of Business” means 5:00 p.m., New York City time.

“Convertible Notes” means the Company’s 3.250% Convertible Senior Notes due December 15, 2026.

“DefinitiveWarrant” means a Warrant Certificate in definitive form that is not deposited with the Depositary or with the Warrant Agent as the Warrant Custodian.

“Depositary” means The Depository Trust Company, its nominees, and their respective successors.

“Designated Notes” means, collectively, any of the issued and outstanding notes of the Company as designated or undesignated by the Company from time to time; provided that any designation by the Company of a particular series of notes as “Designated Notes” shall retain such designation for a minimum of 20 consecutive Business Days from (and including) the date of publication of notice of the same by press release. The Company also has the right, but not the obligation, to remove one or more series of its notes from being “Designated Notes,” but such redesignation shall only be effective 20 consecutive Business Days from (and including) the date of publication of notice of the same by press release. Notwithstanding anything to the contrary otherwise herein provided, upon the Bonus Share Expiration Date, all notes that are “Designated Notes” as of that date shall automatically lose their qualification as “Designated Notes” hereunder. The Company initially designates the Convertible Notes as Designated Notes commencing on July 26, 2024.

“Ex-Date” means the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of shares of Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market. For the avoidance of doubt, any alternative trading convention on the applicable exchange or market in respect of the Common Stock under a separate ticker symbol or CUSIP number (excluding for the avoidance of doubt any “.BC” addition to the “DNMR” trading symbol) will not be considered “regular way” for this purpose.

“Exchange Act” means the U.S. Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder, as they may be amended from time to time.

“Fair Market Value” means, with respect to any security or other property, the fair market value of such security or other property as determined by the Board of Directors, acting in good faith.

“Implied Per Share Exercise Price” in effect at any time means the Exercise Price (i.e., $5.00 per Warrant) divided by the Warrant Exercise Rate in effect at such time, the resulting price being rounded to the nearest whole multiple of $0.0001 (with $0.00005 being rounded upwards). For the avoidance of doubt, the initial Implied Per Share Exercise Price is $3.3333 per Warrant.

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“Indenture” means the indenture for the Convertible Notes, dated as of December 21, 2021, between the Company and U.S. Bank, National Association, as trustee.

“Independent Advisor” means a nationally recognized independent investment banking firm or financial advisor with appropriate expertise (which may include the person acting as the Calculation Agent or any affiliate thereof) retained by the Company at its own expense.

“Last Reported Sale Price” means, with respect to the Common Stock (or other security), on any given day, the last sale price, regular way, or, in case no such sale takes place on such day, the average of the last bid price and last ask price (or, if more than one in either case, the arithmetic average of the average last bid prices and the average last prices), regular way, of the Common Stock (or such other security, as the case may be) as reported in composite transactions for the New York Stock Exchange on such day, without regard to after-hours or extended market trading, provided that if the Common Stock (or such other security, as the case may be) is not listed on the New York Stock Exchange on any date of determination, the Last Reported Sale Price of the Common Stock (or such other security, as the case may be) on such date of determination means the closing sale price as reported in the composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock (or such other security, as the case may be)is so listed or quoted, or, if no closing sale price is reported, the last reported sale price on the principal U.S. national or regional securities exchange on which the Common Stock (or such other security, as the case may be) is so listed or quoted, or, if the Common Stock (or such other security, as the case may be) is not so listed or quoted on a U.S. national or regional securities exchange, the last quoted bid price for the Common Stock (or such other security, as the case may be) in the over-the-counter market as reported by OTC Markets Group Inc. or a similar organization, or, if that bid price is not available, the Last Reported Sale Price of the Common Stock (or such other security, as the case may be) on that date shall mean the Fair Market Value per share of Common Stock (or such other security, as the case may be) as of such day.

“Officer” means, with respect to the Company, the Chief Executive Officer, the President, the Chief Financial Officer, or the Chief Legal Officer and Corporate Secretary of the Company or, with respect to any other Person, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, any Assistant Treasurer, or the Secretary or an Assistant Secretary of such Person.

“Other Eligible Recipient” means a holder of record of the Convertible Notes or a holder of record of the Pre-Funded Warrants as of the Distribution Record Date.

“Person” means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof, or any other entity.

“Pre-Funded Warrants” means the pre-funded common stock purchase warrants of the Company dated March 25, 2024.

“Qualifying Trading Day” has the meaning set forth in the definition of “Bonus Share Expiration Price Condition”.

“Record Date” means, for the purposes of Sections ‎4.01 and ‎4.02, with respect to any dividend, distribution or other transaction or event in which the holders of the Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of the Common Stock entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise).

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“Redemption Price Condition” means the first occurrence of a 30 consecutive Trading Day period (i) that includes 20 Redemption Qualifying Trading Days (whether or not consecutive) and (ii) the last day of which is the 20th such Redemption Qualifying Trading Day (such 30 consecutive Trading Day period, the “Redemption Reference Period”), where “Redemption Qualifying Trading Day” means any Trading Day (falling on or after August 1, 2024) on which the VWAP of the Common Stock on such Trading Day is at least equal to the Redemption Trigger Price in effect on such Trading Day.

“Redemption Qualifying Trading Day” has the meaning set forth in the definition of “Redemption Price Condition”.

“Redemption Reference Period” has the meaning set forth in the definition of “Redemption Price Condition”.

“Redemption Trigger Price” is initially $5.00, subject to adjustment concurrently with any adjustment to the Basic Warrant Exercise Rate. The adjusted Redemption Trigger Price shall be equal the product (rounded to the nearest whole multiple of $0.0001 (with $0.00005 being rounded upwards)) of (i) the Redemption Trigger Price applicable immediately prior to such adjustment and (ii) a fraction, the numerator of which is the Basic Warrant Exercise Rate in effect immediately prior to such adjustment and the denominator of which is the Basic Warrant Exercise Rate as so adjusted, all as determined by the Calculation Agent.

“Reference Period” has the meaning set forth in the definition of “Bonus Share Expiration Price Condition”.

“SEC” means the U.S. Securities and Exchange Commission.

“Securities Act” means the U.S. Securities Act of 1933 and the rules and regulations promulgated thereunder, as they may be amended from time to time.

“Trading Day” means a day on which the Common Stock (or other security)(i) at the close of regular way trading (not including after-hours or extended market trading) is not suspended from trading on the New York Stock Exchange or, if the Common Stock (or such other security, as the case may be) is not listed on the New York Stock Exchange, any U.S. national or regional securities exchange or association or over-the-counter market that is the primary market for the trading the Common Stock (or such other security, as the case may be) at the Close of Business, and (ii) has traded at least once regular way on the New York Stock Exchange or, if the Common Stock (or such other security, as the case may be) is not listed on the New York Stock Exchange, such other U.S. national securities exchange or association or over-the-counter market that is the primary market for the trading of the Common Stock (or such other security, as the case may be); provided that if the Common Stock (or such other security, as the case may be) is not so listed or traded, “Trading Day” means a Business Day.

“VWAP” of the Common Stock (or other security) on any date of determination means, (i) in the case of the Common Stock, for any day on which trading in the Common Stock generally occurs on the New York Stock Exchange (or, if the Common Stock is not listed on the New York Stock Exchange, the U.S. national or regional securities exchange or association or over-the-counter market that is the primary market for the trading of the Common Stock on such day), the per-share volume-weighted average price based on all trades in the consolidated tape system as displayed on Bloomberg page “DNMR US Equity HP” (setting: “Weighted Average Line”) (or its equivalent successor if such page or setting is not available) in respect of such day and (ii) in the case of any other security, for any day on which trading in such security generally occurs on the New York Stock Exchange (or, if such security is not listed on the New York Stock Exchange, the U.S. national or regional securities exchange or association or over-the-counter market that is the primary market for the trading of such security on such day), the per-share volume-weighted average price based on all trades in the consolidated tape system as displayed on Bloomberg page “HP” for such security in respect of such day. If such information is not so available for the

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Common Stock or such other security, the VWAP on such date shall be the Last Reported Sale Price for the Common Stock or such other security on such day.

“Warrant Certificate” means any Global Warrant or Definitive Warrant issued by the Company under this Agreement.

“Warrant Custodian” means the custodian with respect to a Global Warrant (as appointed by the Depositary) or any successor Person thereto.

“Warrant Exercise Rate” in effect at any time means:

“Warrant Shares” means the shares of Common Stock issuable on exercise of the Warrants.

“Whole Number” means any non-negative number, including zero, that is not a fraction or decimal.

Section 1.02 Other Definitions.

 

Term	Defined in Section
Agent Members	2.01(c)(ii)
Agreement	Preamble
Common Stock	Recitals
Common Stock Shelf Registration Statement	5.01
Company	Preamble
Continental	Preamble
Distribution Record Date	Recitals
Exercise Date	3.04(a)
Exercise Notice	3.04(a)(ii)
Exercise Price	3.01(a)
Exercise Suspension Period	5.01
Expiration Date	3.02(b)
Global Warrant	2.01(a)(iii)
Holders	Recitals
Issue Date	Recitals
Ownership Limitation	3.08(a)
Parties	Preamble
Party	Preamble
PDF	2.02
Redemption Date	6.02
Redemption Notice	6.02
Redemption Price	6.01
Spin-Off	4.01(c)(ii)
Stock Transfer Agent	3.05(a)
Unit of Reference Property	4.03
Valuation Period	4.01(c)(ii)

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Valuation Trading Day	4.01(c)(ii)
Warrant Agent	Preamble
Warrant Distribution	Recitals
Warrant Register	2.03
Warrants	Recitals

 

 

Section 1.03 Rules of Construction. Unless the text or context otherwise requires:

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ARTICLE II

Form of Warrant; Beneficial Interests

 

Section 2.01 Issuance and Registration.

 

 

(a) Warrants.

 

 

 

(ii) The Warrant Agent shall allocate the Warrants to, and register the Warrants in the names of, such registered holders in accordance with the Company’s direct registration system or the Warrant Agent’s other book-entry procedures pursuant to an allocation schedule approved by the Company, and in the case of the registered holders of Convertible Notes, in cooperation with the trustee under the Indenture. Any Warrants registered through the Company’s direct registration system or the Warrant Agent’s other book-entry procedures shall be issued in uncertificated form and shall not be represented by Warrant Certificates.

 

(iii) Notwithstanding the foregoing, some or all of the Warrants may, at initial issuance or any time thereafter, be represented by one or more permanent Global Warrants, in definitive, fully registered form with the global securities legend set forth in Exhibit A hereto (each, a “Global Warrant”). Any such Global Warrant shall be deposited on behalf of the relevant Holders with the Warrant Agent, as custodian for the Depositary (or with such other custodian as the Depositary may direct), registered in the name of the Depositary or a nominee of the Depositary, and duly executed by the Company and countersigned by the Warrant Agent as hereinafter provided.

 

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(b) Definitive Warrants. Holders of Warrants or holders of beneficial interests in any Global Warrant will not be entitled to physical delivery of Definitive Warrants (except as provided in Section ‎2.05).

 

(c) Procedures for Global Warrants. This Section ‎2.01(c)shall apply only to any Global Warrant deposited with or on behalf of the Depositary.

 

(i) If any Warrants are to be represented by a Global Warrant, the Company shall execute and the Warrant Agent shall, in accordance with Section ‎2.02, countersign and deliver initially one or more Global Warrants that (a) shall be registered in the name of the Depositary for such Global Warrant or Global Warrants or of the nominee of the Depositary and (b) shall be delivered by the Warrant Agent to the Depositary or pursuant to the Depositary’s instructions or held by the Warrant Agent as custodian for the Depositary.

 

(ii) Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Agreement with respect to any Global Warrant held on their behalf by the Depositary or by the Warrant Agent as the custodian of the Depositary or under such Global Warrant, and the Depositary may be treated by the Company, the Warrant Agent and any agent of the Company or the Warrant Agent as the absolute owner of such Global Warrant for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Warrant Agent or any agent of the Company or the Warrant Agent from giving effect to any written certification, proxy or other authorization furnished by the Depositary, or impair, as between the Depositary and its Agent Members, the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Warrant.

 

(d) No Fractional Warrants. The Company shall not issue fractional Warrants or distribute Warrant Certificates which evidence fractional Warrants. If any fractional Warrant would otherwise be required to be issued or distributed pursuant to the Warrant Distribution, the Company or Warrant Agent, as applicable, to the extent reasonably practicable, shall first aggregate the total number of Warrants to be issued to the relevant holder of Common Stock or Other Eligible Recipient and then round down the total number to the nearest Whole Number and no cash or other adjustment will be made in lieu of the fraction of a Warrant so rounded down.

 

 

Section 2.02 Warrant Certificates. If any Warrant Certificates are issued hereunder, then at least one Officer shall sign such Warrant Certificates for the Company by manual, facsimile or portable document format (“PDF”) signature or by means of other electronic transmission.

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Section 2.03 Warrant Register. The Warrants shall be issued in registered form only. Upon the receipt of all relevant information from the Company or its agents, the Warrant Agent shall keep a register (the “Warrant Register”) of the Warrants (and Warrant Certificates, if applicable) and of their transfer and exchange. The Warrant Register shall show the names and addresses of the respective Holders and the date and number of Warrants owned by such Holders (as evidenced on the face of each of the Warrant Certificates, if applicable). The Holder of any Global Warrant will be the Depositary or a nominee in whose name the Global Warrant is registered.

The Company and the Warrant Agent may deem and treat the Person in whose name Warrants are registered in the Warrant Register as the absolute owner of such Warrants for all purposes and regardless of any notice to the contrary.

Section 2.04 Transfer and Exchange.

 

 

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Section 2.05 Definitive Warrants.

 

 

Section 2.06 Replacement Certificates. If a mutilated Warrant Certificate is surrendered to the Warrant Agent or if the Holder of a Warrant Certificate provides proof reasonably satisfactory to the Company and the Warrant Agent that the Warrant Certificate has been lost, destroyed or wrongfully taken, the Company shall issue and the Warrant Agent shall countersign, by either manual, facsimile or PDF signature or by means of other electronic transmission, a replacement Warrant Certificate representing an equivalent number of Warrants, if the reasonable requirements of the Warrant Agent are met and absent notice to Warrant Agent that such certificates have been acquired by a bona fide purchaser. Such Holder shall

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furnish an open penalty surety bond sufficient in the judgment of the Company and the Warrant Agent to protect the Company and the Warrant Agent from any loss that either of them may suffer if a Warrant Certificate is replaced. The Warrant Agent may, at its option, issue replacement Warrants for mutilated certificates upon presentation thereof without such indemnity. The Company and the Warrant Agent may charge the Holder for their expenses in replacing a Warrant Certificate. Every replacement Warrant Certificate evidences an additional obligation of the Company.

 

Section 2.07 Outstanding Warrants. All Warrants evidenced as outstanding in the Warrant Register shall be deemed to be outstanding for purposes of this Agreement (which, in the case of Warrants represented by Warrant Certificates, shall include all Warrant Certificates authenticated by the Warrant Agent excluding those canceled by it and those delivered to it for cancellation). A Warrant does not cease to be outstanding because an Affiliate of the Company holds the Warrant. A Warrant ceases to be outstanding if the Company holds the Warrant.

If a Warrant Certificate is replaced pursuant to Section ‎2.06, the Warrants evidenced thereby cease to be outstanding unless the Warrant Agent and the Company receive proof satisfactory to them that the replaced Warrant Certificate is held by a protected purchaser (as defined for purposes of the Delaware Uniform Commercial Code).

Section 2.08 Cancellation. In the event the Company shall purchase or otherwise acquire Definitive Warrants, the Company may, at its option, deliver the same to the Warrant Agent for cancellation.

The Warrant Agent and no one else shall cancel all Warrant Certificates surrendered for transfer, exchange, replacement, exercise or cancellation. The Company may not issue new Warrant Certificates to replace Warrant Certificates to the extent they evidence Warrants which have been exercised or Warrants which the Company has canceled.

Section 2.09 CUSIP Numbers. The Company has assigned a “CUSIP” number in connection with the issuance of the Warrants and the Warrant Agent may use such “CUSIP” number in notices as a convenience to Holders; provided, however, that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on the Warrant Certificates or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Warrant Certificates.

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ARTICLE III

 

Exercise Terms

Section 3.01 Exercise.

Section 3.02 Exercise Period.

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Section 3.03 Expiration A Warrant shall terminate and become void as of the earliest of (i) the Close of Business on the Expiration Date, (ii) upon payment of the Redemption Price on the Redemption Date and (iii) the time such Warrant is exercised.

 

Section 3.04 Manner of Exercise.

 

 

provided that if any of (i), (ii) or (iii) above has occurred on or after the Close of Business on any day, it shall instead be deemed to have occurred on the immediately following Business Day; and provided further that the Exercise Date shall be the first Business Day on which all of (i), (ii) and (iii) above have occurred, as determined by the Company in consultation with the Warrant Agent. Notwithstanding anything to the contrary set forth herein, the Company may, in its sole discretion, from time to time offer Holders or their brokers the right to deliver a notice of guaranteed delivery on the Exercise Date with respect to Warrants or Designated Notes in order to satisfy the delivery requirements of clause (i) or (iii)(B) above as of the Exercise Date.

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Section 3.05 Issuance of Warrant Shares.

 

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Section 3.06 Fractional Warrant Shares.The Company shall not be required to issue fractional shares of Common Stock on the exercise of Warrants or pay cash in lieu thereof. The number of full shares of Common Stock that shall be issuable upon an exercise of Warrants by a Holder at any time shall be computed on the basis of the aggregate number of shares of Common Stock which may be purchased pursuant to the Warrants being exercised by that Holder pursuant to any one Exercise Notice. If any fraction of a share of Common Stock would be issuable upon the exercise of Warrants, the total number of shares of Common Stock to be issued to the relevant Holder shall be rounded down to the nearest Whole Number and no cash or other adjustment will be made in lieu of the fraction of a share so rounded down.

 

Section 3.07 Reservation of Warrant Shares.

 

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Section 3.08 Ownership Limitation.

 

 

Section 3.09 Adjustments of Prices. Whenever any provision of this Agreement requires the Calculation Agent to calculate the average of the daily Last Reported Sale Prices over a span of multiple days (if the Calculation Agent determines in its sole discretion it is able to make such adjustment in its capacity as Calculation Agent), the Calculation Agent shall make appropriate adjustments, if any, to each to account for any adjustment to the Basic Warrant Exercise Rate that becomes effective, or any event requiring an adjustment to the Basic Warrant Exercise Rate where the Ex-Date or effective date, as the case may be, of the event occurs, at any time during or after the period when the daily VWAPs or the Last Reported Sale Prices are to be calculated. If the Calculation Agent is not able to make such adjustment, the Company may make such adjustment or appoint an Independent Advisor.

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ARTICLE IV

Adjustment and Notice Provisions

 

Section 4.01 Adjustments.

Subject to the provisions of this Article ‎IV, the Basic Warrant Exercise Rate shall be subject to adjustment, without duplication, as follows, except that the Company shall not make any such adjustments if the Company determines that each Holder has the opportunity to participate, at the same time and upon the same terms as holders of the shares of Common Stock and solely as a result of holding the Warrants in any of the transactions described in this Section ‎4.01, without having to exercise such Holder’s Warrants, as if such Holder held a number of shares of Common Stock equal to the product (rounded down to the nearest Whole Number) of (i) the Warrant Exercise Rate in effect on the Record Date for such transaction and (ii) the number of Warrants held by it on such Record Date:

where:

BWER1	=	the Basic Warrant Exercise Rate in effect at the open of business on the Ex-Date for such dividend or distribution, or at the open of business on the effective date of such subdivision, combination, consolidation or reclassification, as applicable;
BWER0	=	the Basic Warrant Exercise Rate in effect immediately prior to the open of business on the Ex-Date for such dividend or distribution, or immediately prior to open of business on the effective date of such subdivision, combination, consolidation or reclassification, as applicable;
OS1	=	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, subdivision, combination, consolidation or reclassification, as applicable;
OS0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on the Ex-Date for such dividend or distribution or immediately prior to the open of business on the effective date of such subdivision, combination, consolidation or reclassification, as applicable (before giving effect to any such

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		dividend, distribution, or subdivision, consolidation, combination or reclassification, as applicable).

Any adjustment made under this clause ‎(a) shall become effective at the open of business on such Ex-Date for such dividend or distribution, or at the open of business on the effective date for such subdivision, consolidation, combination or reclassification, as applicable. If an adjustment to the Basic Warrant Exercise Rate is made in respect of any dividend or distribution, subdivision, consolidation, combination or reclassification of the type described in this clause ‎(a) but such dividend or distribution, subdivision, consolidation, combination or reclassification is not so paid or made, the Basic Warrant Exercise Rate shall be readjusted, effective as of the date the Board of Directors determines not to pay or make such dividend or distribution, subdivision, consolidation, combination or reclassification, to the Basic Warrant Exercise Rate that would then be in effect at such time had no such adjustment been made.

 

where:

BWER1	=	the Basic Warrant Exercise Rate in effect at the open of business on the Ex-Date for such issuance;
BWER0	=	the Basic Warrant Exercise Rate in effect immediately prior to the open of business on the Ex-Date for such issuance;
OS0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on the Ex-Date for such issuance;
X	=	the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and
Y	=	the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the arithmetic average of the Last Reported Sale Prices of the Common Stock on each Trading Day comprised in the period of 10 consecutive Trading Days immediately preceding the date of announcement of the issuance of such rights, options or warrants.

Any adjustment to the Basic Warrant Exercise Rate made under this clause ‎(b) shall be made whenever any such rights, options or warrants are issued and shall become effective at the open of business on the Ex-Date for such issuance. To the extent that shares of the Common Stock are not delivered after the expiration of such rights, options or warrants, the Basic Warrant Exercise Rate shall be decreased to the Basic Warrant Exercise

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Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If an adjustment to the Basic Warrant Exercise Rate is made in respect of any such issuance of rights, options or warrants but such rights, options or warrants are not so issued, the Basic Warrant Exercise Rate shall be readjusted, effective as of the date the Board of Directors determines not to issue such rights, options or warrants, to the Basic Warrant Exercise Rate that would then be in effect at such time had no such adjustment been made.

For purposes of this clause ‎(b), in determining whether any rights, options or warrants entitle the holders of the Common Stock to subscribe for or purchase shares of the Common Stock at less than such arithmetic average of the Last Reported Sale Prices of the Common Stock on each Trading Day comprised in the period of 10 consecutive Trading Days immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.

 

then the Basic Warrant Exercise Rate shall be increased based on the following formula:

where:

BWER1	=	the Basic Warrant Exercise Rate in effect at the open of business on the Ex-Date for such distribution;
BWER0	=	the Basic Warrant Exercise Rate in effect immediately prior to the open of business on the Ex-Date for such distribution;

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SP0	=	the arithmetic average of the Last Reported Sale Prices of the Common Stock on each Trading Day comprised in the period of ten consecutive Trading Days immediately preceding the Ex-Date for such distribution; and
FMV	=	the Fair Market Value, as of the open of business on the Ex-Date for such distribution, of the shares of Capital Stock, evidences of indebtedness, assets or property of the Company, cash, rights or warrants distributed with respect to each outstanding share of Common Stock.

Any adjustment to the Basic Warrant Exercise Rate under this clause (c)(i) shall become effective at the open of business on the Ex-Date for such distribution.

 

where:

BWER1 = the Basic Warrant Exercise Rate in effect at the open of business on the Ex-Date of the Spin-Off;

BWER0 = the Basic Warrant Exercise Rate in effect immediately prior to the open of business on the Ex-Date of the Spin-Off;

FMV = the arithmetic average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock on each day which is a Trading Day for both the Common Stock and the Capital Stock or similar equity interest so distributed (each, a “Valuation Trading Day”) comprised in the period of ten consecutive Valuation Trading Days commencing on the Ex-Date for such Spin-Off (or, if such Ex-Date is not a Valuation Trading Day, commencing on the immediately following Valuation Trading Day) (such period, the “Valuation Period”); and

SP0 = the arithmetic average of the Last Reported Sale Prices of the Common Stock on each Trading Day comprised in the Valuation Period.

Any adjustment to the Basic Warrant Exercise Rate under this clause (c)(ii) shall be made immediately after the Close of Business on the last day of the Valuation Period, but shall become effective at the open of business on the Ex-Date for the Spin-Off, subject to Section 4.02(b).

If an adjustment to the Basic Warrant Exercise Rate is made in respect of any distribution of the type described in this clause (c) but such distribution is not so made, the Basic Warrant Exercise Rate shall be readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Basic Warrant Exercise Rate that would then be in effect at such time had no such adjustment been made.

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where:

BWER1 = the Basic Warrant Exercise Rate in effect at the open of business on the Ex-Date for such dividend or distribution; and

BWER0 = the Basic Warrant Exercise Rate in effect immediately prior to the open of business on the Ex-Date for such dividend or distribution;

SP0 = the arithmetic average of the Last Reported Sale Prices of the Common Stock on each Trading Day comprised in the period of ten consecutive Trading Days immediately preceding the Ex-Date for such dividend or distribution;

C = the amount in cash per share the Company distributes to holders of the Common Stock;

Any adjustment to the Basic Warrant Exercise Rate made under this clause (d) shall become effective at the open of business on the Ex-Date for such dividend or distribution. If an adjustment to the Basic Warrant Exercise Rate is made in respect of any dividend or distribution of the type described in this clause (d) but such dividend or distribution is not so paid, the Basic Warrant Exercise Rate shall be readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Basic Warrant Exercise Rate that would then be in effect at such time had no such adjustment been made.

 

Section 4.02 Calculation of Adjustments; Timing of Issuance of Additional Warrant Shares Upon Certain Adjustments; Adjustment Rules.

 

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Section 4.03 Business Combinations and Reorganizations. In case of any Business Combination or reclassification of Common Stock (other than a reclassification of Common Stock referred to in Section ‎4.01), the Holder’s right to receive Warrant Shares upon exercise of a Warrant shall be converted into the right to exercise a Warrant to acquire, per each Warrant, the number of shares or other securities or property (including cash) that a number of shares of Common Stock equal to the Warrant Exercise Rate (in effect at the time of such Business Combination or reclassification) immediately prior to such Business Combination or reclassification would have been entitled to receive upon consummation of such Business Combination or reclassification (the amount of such shares, other securities or property in respect of a share of Common Stock being herein referred to as a “Unit of Reference Property”); and in any such case, if necessary, the provisions set forth herein with respect to the rights and interests thereafter of the Holder shall be appropriately adjusted so as to be applicable, as nearly as may reasonably be achievable, to the Holder’s right to exercise such Warrant in exchange for a Unit of Reference Property pursuant to this paragraph. If the Business Combination causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election), then the composition of the Unit of Reference Property into which the Warrants will be exercisable shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock.

 

Section 4.04 Notice of Adjustments. Whenever any adjustment is made pursuant to this Article ‎IV, the Company shall cause notice of such adjustment to be delivered to the Warrant Agent as soon as practicable following the effective date of such adjustment, such notice to include in reasonable detail (i) the reason for the adjustment, (ii) the computation of any adjustments, and (iii) the new or amended exercise terms, including, as applicable, the adjusted Basic Warrant Exercise Rate, the adjusted Bonus Share Fraction and the resulting Warrant Exercise Rate (or the number of shares or the Units of Reference Property purchasable upon exercise of each Warrant), the Implied Per Share Exercise Price and the Bonus Share Expiration Trigger Price after giving effect to such adjustment. The calculations, adjustments and determinations included in the Company’s notice shall, absent manifest error, be final and binding on the Company, the Warrant Agent and the Holders. The Warrant Agent shall be entitled to rely on such notice and any adjustment therein contained and the Warrant Agent shall not be deemed to have knowledge of any such adjustment unless and until it shall have received such notice. The Warrant Agent shall have no obligation under any section of this Agreement to determine whether an adjustment is required or to calculate any of the adjustments set forth herein. The Company shall provide notice to holders of the Warrant of any such adjustment by press release or such other method as the Company may reasonably

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determine adequately informs holders of Warrants of such adjustment. The Warrant Agent shall as soon as practicable after receipt of such notice from the Company (which notice must specifically direct the Warrant Agent to perform delivery) cause a similar notice to be delivered to the Depositary pursuant to the customary procedures of the Depositary.

 

Section 4.05 Adjustment to Warrant Certificate. The form of Warrant Certificate need not be changed because of any adjustment made pursuant to this Article ‎IV, and Warrant Certificates issued after such adjustment may state the same Warrant Exercise Rate as are stated in any Warrant Certificates issued prior to such adjustment. The Company, however, may at any time in its sole discretion make any change in the form of Warrant Certificate that it may deem appropriate to give effect to such adjustments and that does not affect the substance of the Warrant Certificate, and any Warrant Certificate thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant Certificate or otherwise, may be in the form as so changed. For the avoidance of doubt, no change to the Warrant Certificate or this Agreement as a result of an adjustment pursuant to this Article ‎IV shall require the consent of the Holders of the Warrants or the Warrant Agent.

Section 4.06 Amendments.

 

Any amendment authorized by the provisions of this ‎Section 4.06(a) may be executed by the Company and the Warrant Agent without the consent of the Holders of any of the Warrants at the time outstanding, notwithstanding any of the provisions of ‎Section 4.06(b). The Warrant Agent shall not unreasonably refuse to execute any such amendment proposed by the Company.

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Article v

Registration of Warrant Shares

 

Section 5.01 Effectiveness of Registration Statement. The Company shall use commercially reasonable efforts to cause a shelf registration statement (including, at the Company’s election, an existing registration statement or a replacement thereof), filed pursuant to Rule 415 (or any successor provision) of the Securities Act, covering the issuance of Warrant Shares to the Holders upon exercise of the Warrants by the Holders thereof (the “Common Stock Shelf Registration Statement”) to, subject to certain exceptions, (i) become effective as promptly as reasonably practicable after the date of this Agreement and (ii) remain effective at least until the earlier of (x) such time as all Warrants have been exercised and (y) the earlier of the Close of Business on the Expiration Date and the Close of Business on the Redemption Date. The Company shall promptly inform the Warrant Agent of any change in the status of the effectiveness or availability of the Common Stock Shelf Registration Statement. For the avoidance of doubt, no Warrants shall be exercisable at any time until a Common Stock Shelf Registration Statement becomes effective. If a Common Stock Shelf Registration Statement is not effective at any time or from time to time for any reason, the right to exercise Warrants shall be automatically suspended until such Common Stock Shelf Registration Statement becomes effective (any such period, an “Exercise Suspension Period”). As promptly as practicable upon the occurrence of an Exercise Suspension Period, the Company shall provide notice by press release, with a copy to the Warrant Agent, of any Exercise Suspension Period. Notwithstanding anything to the contrary in this Agreement, (i) no Bonus Share Expiration Date, and no calculation of the VWAP for purposes of determining the Bonus Share Expiration Date, shall occur during any Exercise Suspension Period, and (ii) if the Expiration Date or a Redemption Date would otherwise fall in an Exercise Suspension Period, the Expiration Date or the Redemption Date, as the case may be, shall be extended by the number of days comprised in such Exercise Suspension Period.

 

Section 5.02 Suspension. The Company shall be entitled to suspend the availability of the Common Stock Shelf Registration Statement from time to time if the Board of Directors determines in the exercise of its reasonable judgment that such suspension is necessary and provides notice via press release that such determination was made to the Warrant Agent and Holders of the Warrants (provided that upon request by the Company, the Stock Transfer Agent will deliver a copy of such notice to the Depositary pursuant to the customary procedures of the Depositary); provided, however, that (i) if the Company exercises such right in a period in which the Bonus Share Expiration Date, the Expiration Date and the Redemption Date would otherwise fall, the Bonus Share Expiration Date, the Expiration Date or the Redemption Date, as the case may be, shall be delayed by the number of days during such period for which the availability of the Common Stock Shelf Registration Statement was suspended and (ii) in no event shall the Company be required to disclose the business purpose for such suspension if the Company determines in good faith that such business purpose must remain confidential.

 

Section 5.03 Expenses. Subject to Section ‎2.04(c)(ii), all expenses incurred directly by the Company that are incident to the Company’s performance of or compliance with its obligations under this Article ‎Vrelating to the issuance of the Warrant Shares will be borne by the Company, including without limitation: (i) all SEC, stock exchange or Financial Industry Regulatory Authority registration and filing fees, (ii) all fees and expenses incurred by the Company in connection with the compliance with state securities or blue sky laws, (iii) all expenses of any Persons incurred by or on behalf of the Company with the prior written consent of the Company in preparing or assisting in preparing, printing and distributing the Common Stock Shelf Registration Statement or any other registration statement, prospectus, any amendments or supplements thereto and other documents relating to the performance of and compliance with this Article ‎V, (iv) the fees and disbursements of counsel for the Company and (v) the fees and disbursements of the independent public accountants of the Company.

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article vi

Redemption

Section 6.01 Redemption. If the Redemption Price Condition occurs, the Company may, at its option in its sole discretion, elect to redeem all (but not less than all) of the outstanding Warrants (at a price per Warrant so redeemed equal to the Redemption Price) at any time (subject to Section 6.02 below) following the last day of the Redemption Reference Period For the avoidance of doubt, the Company may redeem the Warrants as provided above at its sole option in its sole discretion at any time after the Redemption Price Condition has occurred, even if the trading price of the Common Stock subsequently declines. The “Redemption Price” shall be $0.001 per Warrant.

 

Section 6.02 Redemption Notice. In case the Company exercises its right to redeem all the Warrants pursuant to Section ‎6.01, it shall fix a date for redemption (the “Redemption Date”) and shall issue a press release giving notice of such redemption (the “Redemption Notice”) not fewer than 20 calendar days prior to the Redemption Date. The Company shall deliver a copy of such Redemption Notice to the Warrant Agent. The Warrant Agent shall as soon as practicable after receipt of such notice from the Company (which notice must specifically direct the Warrant Agent to perform delivery) cause such notice to be delivered to the Depositary pursuant to the customary procedures of the Depositary. The Company shall deliver a copy of the Redemption Notice to the New York Stock Exchange (or, if the Common Stock is not listed on the New York Stock Exchange at such time, the principal U.S. national or regional securities exchange (if any) on which the Common Stock is so listed or quoted). The Redemption Date must be a Business Day. The Redemption Notice, if issued in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. The Redemption Notice shall specify (a) the Redemption Date, (b) the Redemption Price, (c) that on the Redemption Date, the Redemption Price will become due and payable with respect to each Warrant, and (d) that Holders may exercise their Warrants until the Close of Business on the Business Day immediately preceding the Redemption Date. A Redemption Notice shall be irrevocable.

 

Section 6.03 Payment of Redeemed Warrants. Prior to the open of business on the Redemption Date, the Company shall deposit with the Warrant Agent an amount of cash (in immediately available funds if deposited on the Redemption Date), sufficient to pay the Redemption Price of all of the Warrants outstanding on the Redemption Date. Subject to receipt of Funds by the Warrant Agent, payment for the Warrants to be redeemed shall be made on the Redemption Date. The Warrant Agent shall, promptly after such payment and upon written demand by the Company, return to the Company any Funds in excess of the Redemption Price.

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ARTICLE VII

Warrant Agent

 

Section 7.01 Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the express provisions of this Agreement and the Warrant Agent hereby accepts such appointment.

 

Section 7.02 Rights and Duties of Warrant Agent.

 

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Section 7.03 Individual Rights of Warrant Agent. The Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company or its Affiliates or become pecuniary interested in transactions in which the Company or its Affiliates may be interested, or contract with or lend money to the Company or its Affiliates or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.

 

Section 7.04 Warrant Agent’s Disclaimer. The Warrant Agent shall not be responsible for and makes no representation as to the validity or adequacy of this Agreement or the Warrant Certificates (other than its countersignature thereof) and it shall not be responsible for any statements of fact or recitals contained in this Agreement or the Warrant Certificates other than its countersignature thereof by the Company, or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only; nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant Certificate; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Agreement or any Warrant Certificate or as to whether any shares of Common Stock will, when issued, be duly authorized, validly issued, fully paid and nonassessable.

 

Section 7.05 Compensation and Indemnity.

 

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Section 7.06 Successor Warrant Agent.

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Section 7.07 Bank Accounts. All funds received by the Warrant Agent under this Agreement that are to be distributed or applied by the Warrant Agent in the performance of services hereunder (the “Funds”) shall be held by the Warrant Agent as agent for the Company and deposited in one or more bank accounts to be maintained by the Warrant Agent in its name as agent for the Company. Until paid pursuant to this Agreement, the Warrant Agent may hold or invest the Funds through such accounts in: (a) funds backed by obligations of, or guaranteed by, the United States of America; (b) Government and Treasury backed AAA-rated Fixed NAV money market funds that comply with Rule 2a-7 of the Investment Company Act of 1940, as amended; or (c) bank accounts with commercial banks with Tier 1 capital exceeding $1 billion, and with an “AA” and “AA” (high credit quality) rating by S&P (LT Local Issuer Credit Rating), Moody’s (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). The Warrant Agent shall have no responsibility or liability for any diminution of the Funds that may result from any deposit or investment made in accordance with this paragraph, including any losses resulting from a default by any bank, financial institution or other third party. The Warrant Agent may from time to time receive interest, dividends or other earnings in connection with such deposits or investments. the Warrant Agent shall not be obligated to pay such interest, dividends or earnings to the Company, any holder or any other party.

 

Section 7.08 Delivery of Exercise Price. The Warrant Agent shall forward funds received for warrant exercises in a given month by the fifth (5th) Business Day of the following month or by one (1) Business Day upon written request of the Company by wire transfer to an account designated by the Company.

 

Section 7.09 Further Assurances. The Company shall perform, acknowledge and deliver or cause to be performed, acknowledged and delivered all such further and other acts, documents, instruments and assurances as may be reasonably required by the Warrant Agent for the carrying out or performing by the Warrant Agent of the provisions of this Agreement.

 

Section 7.10 Force Majeure. Notwithstanding anything to the contrary contained herein, the Company and Warrant Agent will not be liable for any delays or failures in performance to the extent that they result from acts beyond its reasonable control including, without limitation, acts of God, epidemics, pandemics,

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terrorist acts (including cyberbreaches of any type of a Party’s electronic information systems), shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest.

 

Section 7.11 Confidentiality. The Warrant Agent and the Company agree that all books, records, information and data pertaining to the business of the other party, including inter alia, personal, non-public Holder information, which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement including the fees for services set forth in the attached schedule shall remain confidential, and shall not be voluntarily disclosed to any other person, except as may be required by law, including, without limitation, pursuant to subpoenas from state, or federal or national government authorities (e.g., in divorce and criminal actions); provided, that for the avoidance of doubt, this Agreement may be filed by the Company with the SEC (without including any fee information).

 

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ARTICLE VIII

Miscellaneous

Section 8.01 Persons Benefiting. Nothing in this Agreement is intended or shall be construed to confer upon any Person other than the Company, the Warrant Agent and the Holders any right, remedy or claim under or by reason of this Agreement or any part hereof.

 

Section 8.02 Rights of Holders. Holders of unexercised Warrants, as such, have no rights as shareholders and are not entitled to exercise any rights whatsoever as shareholders of the Company, including, but not limited to the rights to (a) receive dividends or other distributions, (b) receive notice of or vote at any meeting of the shareholders, (c) consent to any action of the shareholders, (d) receive notice of any other proceedings of the Company or (e) exercise any preemptive right.

 

Section 8.03 Notices. Any notice or communication between the parties to this Agreement shall be in writing and delivered in Person or by email or mailed by first-class mail with overnight delivery service, provided that all notices must also be sent by email even if mailed. Notices sent by mail as described in this section should be addressed as follows:

if to the Company:

Danimer Scientific, Inc.
140 Industrial Boulevard
Bainbridge, GA 39817
Attn: Michael A. Hajost, CFO; Stephen A. Martin, Chief Legal Officer

and email to: mhajost@danimer.com and stevemartin@danimer.com

 

With a copy to:

Kane Kessler, P.C.

600 Third Avenue, 35thFloor

New York, NY 10016
Attn: Robert L. Lawrence, Esq.
and email to: rlawrence@kanekessler.com

and

ConvEx Capital Markets LLC
1177 Avenue of the Americas
5th Floor
New York, New York 10036
Email: calculation.agent@conv-ex.com
Attention: Calculation Agency Team

if to the Warrant Agent:

Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004

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Email: vamodeo@continentalstock.com
Attention: Vincent Amodeo

 

with a copy to:

ConvEx Capital Markets LLC
1177 Avenue of the Americas 5th Floor
New York, New York 10036
Email: calculation.agent@conv-ex.com
Attention: Calculation Agency Team

The Company or the Warrant Agent each by notice to the other may designate in writing additional or different physical addresses or e-mail addresses for subsequent notices or communications.

Except for any notice which may be given by issuance of a press release pursuant to the terms of this Agreement, any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s address as it appears on the Warrant Register, and shall be sufficiently given if so mailed within the time prescribed. Failure to deliver a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is delivered in the manner provided above, it is duly given when sent, whether or not the addressee receives it.

Notwithstanding any other provision of this Agreement, where this Agreement provides for notice of any event to the Holders, such notice shall be sufficiently given to any Holder of a Warrant represented by a Global Warrant if given to the Depositary pursuant to the customary procedures of the Depositary.

Except for any notice which provides for a shorter period pursuant to the terms of this Agreement, any notice delivered pursuant to this Agreement that restricts the ability of a Holder to exercise its Warrant not otherwise described in this Agreement shall only be effective at least five (5) Business Days after the delivery of such notice.

Notwithstanding anything to the contrary herein, Issuance by the Company of a press release in accordance with its customary procedures or as prescribed by this Agreement shall satisfy any requirement to provide public notice or notice in writing or by email under this Agreement (except for notices required to be delivered to the Warrant Agent).

Section 8.04 Governing Law. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS AGREEMENT, THE WARRANT CERTIFICATES AND THE WARRANTS. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE WARRANT CERTIFICATES AND THE WARRANTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

Section 8.05 Successors. All agreements of the Company in this Agreement and the Warrant Certificates shall bind its successors. All agreements of the Warrant Agent in this Agreement shall bind its successors.

 

Section 8.06 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together constitute one and the same instrument. Counterparts may be delivered via facsimile, PDF, electronic mail (including any electronic signature

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covered by the U.S. federal ESIGN of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, including docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

Section 8.07 Severability. The provisions of this Agreement are severable, and if any clause or provision shall be held invalid, illegal or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect in that jurisdiction only such clause or provision, or part thereof, and shall not in any manner affect such clause or provision in any other jurisdiction or any other clause or provision of this Agreement in any jurisdiction; provided, however, that if such excluded provision shall materially and adversely affect the rights, immunities, liabilities, duties or obligations of the Warrant Agent, the Warrant Agent shall be entitled to resign immediately upon written notice to the Company.

 

Section 8.08 Withholding Rights. In the event that the Company, the Warrant Agent or their agents determine that they are obligated to withhold or deduct any tax or other governmental charge under any applicable law on behalf of a Holder (whether upon the distribution of the Warrants under this Agreement, upon any adjustment made pursuant to Article ‎IV, upon exercise or otherwise), the Company, the Warrant Agent or their agents shall be entitled, but not obligated, to deduct and withhold such amount by withholding a portion or all of the Warrants or Warrant Shares otherwise deliverable or by otherwise using any property (including, without limitation, Warrants, Warrant Shares or cash) that would otherwise be delivered to or is owned by such Holder, in each case in such amounts as they deem necessary to meet their withholding obligations, and shall also be entitled, but not obligated, to sell all or a portion of such withheld Warrants, Warrant Shares or such other property by public or private sale in such amounts and in such manner as they deem necessary and practicable to pay such taxes and charges. In such case, (i) the Company, the Warrant Agent or their agents, as applicable, shall remit to the applicable tax or other authority the required withholding amount or other charge, and (ii) any withheld amounts (and, if applicable in connection with adjustments pursuant to Article ‎IV, other property) shall be treated for all purposes of this Agreement as having been distributed to the Holders in respect of which such deduction and withholding was made.

 

Section 8.09 Calculations; Calculation Agent. ConvEx Capital Markets LLC shall be the initial Calculation Agent, pursuant and subject to the terms of the Calculation Agency Agreement, dated on or about the date of this Agreement. The Calculation Agent will be responsible for making all calculations and other determinations specified to be made by it under this Agreement and the Warrants, and any calculations and determinations not so specified will be the responsibility of the Company or an Independent Advisor. All calculations and determinations will be made in good faith and, absent manifest error, such calculations and determinations will be final and binding on Holders of the Warrants and the Warrant Agent. The Company will provide with reasonable notice a schedule of the calculations and determinations made by the Company, the Calculation Agent or an Independent Advisor, as applicable, to the Warrant Agent. The Warrant Agent is entitled to rely conclusively upon the accuracy of the calculations and determinations made by the Company, the Calculation Agent and any Independent Advisor appointed in accordance with this Agreement without independent verification.

 

Section 8.10 Limited Responsibility of Calculation Agent and Independent Advisor. The Calculation Agent (and any Independent Advisor appointed in connection with the Warrants) is acting exclusively as an agent for, and upon request by, the Company. Neither the Calculation Agent (acting in such capacity) nor any Independent Advisor appointed in connection with the Warrants (acting in such capacity) shall have any relationship of agency or trust with, nor shall the Calculation Agent (acting in such capacity) nor any Independent Advisor appointed as aforesaid shall be liable to nor shall they incur any liability as against, the Holders, or the Warrant Agent.

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Section 8.11 Entire Agreement. This Agreement and the Warrant Certificate contain the entire agreement and understanding among the parties hereto with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. Notwithstanding anything to the contrary contained in this Agreement, in the event of inconsistency between any provision in this Agreement and any provision in a Warrant Certificate, as it may from time to time be amended, the terms of this Agreement shall prevail.

[Signature pages follow]

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date first written above.

DANIMER SCIENTIFIC, INC.

By: /s/ Stephen Croskrey
Name: Stephen Croskrey
Title: Chief Executive Officer

 

CONTINENTAL STOCK TRANSFER & TRUST COMPANY
as Warrant Agent

On behalf of both entities

By: /s/ Steven Vacante
Name: Steven Vacante
Title: Vice President

 

 

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EXHIBIT A

FORM OF WARRANT

[Global Securities Legend]

UNLESS THIS GLOBAL WARRANT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL WARRANT SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE WARRANT AGREEMENT REFERRED TO BELOW.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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No. [ ] Certificate for [ ] Warrants

WARRANTS TO PURCHASE SHARES OF COMMON STOCK OF
DANIMER SCIENTIFIC, INC.

THIS CERTIFIES THAT [ ], or its registered assigns, is the registered holder of the number of Warrants set forth above (the “Warrants”). Each Warrant entitles the holder thereof (the “Holder”), at its option and subject to the provisions contained herein and in the Warrant Agreement referred to below, to purchase from Danimer Scientific, Inc., a corporation organized under the laws of the State of Delaware (including any successor thereto, the “Company”) a number of shares of common stock, par value of $0.0001 per share, of the Company (the “Common Stock”) equal to the Warrant Exercise Rate (which is initially one (1) plus, in the Bonus Share Period, the Bonus Share Fraction, initially, one half (0.5)) at an exercise price of $5.00 (the “Exercise Price”), payable in cash, or subject to certain conditions, payable using Designated Notes, in each case as described in the Warrant Agreement. This Warrant Certificate shall terminate and become void as of the earlier of (x) 5:00 p.m., New York City time, on the Expiration Date, (y) upon payment of the Redemption Price on the Redemption Date, (z) or upon the exercise hereof as to all the shares of Common Stock subject hereto. The number of shares issuable upon exercise of the Warrants shall be subject to adjustment from time to time as set forth in the Warrant Agreement.

This Warrant Certificate is issued under and in accordance with a Warrant Agreement, dated as of July 12, 2024 (the “Warrant Agreement”), between the Company and Continental Stock Transfer & Trust Company (the “Warrant Agent,” which term includes any successor Warrant Agent under the Warrant Agreement), and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. The Warrant Agreement is hereby incorporated herein by reference and made a part hereof. Reference is hereby made to the Warrant Agreement for a full statement of the respective rights, limitations of rights, duties and obligations of the Company, the Warrant Agent and the Holders of the Warrants. In the event of an inconsistency between the terms of this Warrant Certificate and the Warrant Agreement, the terms of the Warrant Agreement shall prevail. The Company shall amend any provisions of the Warrant Certificate in compliance with Section 4.06 of the Warrant Agreement.

Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Warrant Agreement. A copy of the Warrant Agreement may be obtained for inspection by the Holder hereof upon written request to the Warrant Agent, 1 State Street, 30thFloor, New York, NY 10004.

This Warrant is redeemable at any time after the Redemption Price Condition (as defined in the Warrant Agreement) has occurred at the option of the Company in its sole discretion on not fewer than 20 calendar days’ notice (any such date of redemption, the “Redemption Date”) at a price of $0.001 per Warrant in the circumstances set forth in the Warrant Agreement.

Subject to the terms of the Warrant Agreement, the Warrants may be exercised in whole or in part prior to 5:00 p.m., New York City time, on any Business Day (each, an “Exercise Date”), in accordance with Section 3.04 of the Warrant Agreement; provided however, that no Warrant shall be exercisable after the Close of Business on the earlier of (x) the Expiration Date and (y) the Business Day prior to the Redemption Date.

If the date specified as the Exercise Date is not a Business Day, the Warrants will be deemed to be received and exercised on the next succeeding Business Day. If a notice of Exercise of Warrants is received or deemed to be received after the earlier of (x) the Close of Business on the Expiration Date and (y) the Close of Business on the Business Day prior to the Redemption Date, the exercise thereof will be null and void and any funds delivered to the Warrant Agent will be returned to the Holder as soon as practicable. In no event will interest accrue on funds deposited with the Warrant Agent in respect of an exercise or attempted exercise of Warrants.

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Notwithstanding the foregoing, holders of Warrants will be able to exercise their Warrants only if the Common Stock Shelf Registration Statement relating to the Warrant Shares is effective and not subject to suspension pursuant to the Warrant Agreement and such securities are qualified for sale or exempt from qualification under the applicable securities laws of any relevant states or other jurisdictions;

Upon any partial exercise of the Warrants, there shall be countersigned and issued to the Holder hereof a new Warrant Certificate representing those Warrants which were not exercised. This Warrant Certificate may be exchanged at the office of the Warrant Agent by presenting this Warrant Certificate properly endorsed with a request to exchange this Warrant Certificate for other Warrant Certificates evidencing an equal number of Warrants. No fractional Warrant Shares will be issued upon the exercise of the Warrants. If any fraction of a Warrant Share would be issuable upon the exercise of Warrants, the Company shall round down the total number of shares of Common Stock to be issued to the relevant Holder to the nearest Whole Number.

All Warrant Shares shall, upon such issue, be duly and validly issued and fully paid and non-assessable.

The holder in whose name the Warrant Certificate is registered may be deemed and treated by the Company and the Warrant Agent as the absolute owner of the Warrant Certificate for all purposes whatsoever and neither the Company nor the Warrant Agent shall be affected by notice to the contrary.

Holders of Warrants do not have any rights as a stockholder with respect to the shares of Common Stock issuable upon exercise of the warrants prior to the time such warrants are validly exercised in accordance with all the terms and conditions of this Warrant Agreement, and the exercise price is paid.

[Signature page follows]

 

 

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This Warrant Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Warrant Agent.

DANIMER SCIENTIFIC, INC.

By:
Name:
Title:

DATED: July 12, 2024

Countersigned:

CONTINENTAL STOCK TRANSFER & TRUST COMPANY
as Warrant Agent

 

By: __________________________
Name:

Title:
 

 

 

 

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FORM OF ELECTION TO PURCHASE WARRANT SHARES

(to be executed only upon exercise of Warrants)

DANIMER SCIENTIFIC, INC.

The undersigned hereby irrevocably elects to exercise the number of Warrants set forth below, each of which entitles the holder to acquire a number of shares of Common Stock, par value $0.0001 per share, of Danimer Scientific, Inc. equal to the Warrant Exercise Rate, at an exercise price of $5.00 per Warrant, payable in cash, or subject to certain conditions, payable using Designated Notes, in each case on the terms and conditions specified in the Warrant Certificate and the Warrant Agreement therein referred to, surrenders all right, title and interest in the number of Warrants exercised hereby to Danimer Scientific, Inc. and directs that the shares of Common Stock deliverable upon the exercise of such Warrants, and interests in any Global Warrant or Definitive Warrant representing unexercised Warrants, be registered or placed in the name and at the address specified below and delivered thereto. If other than the registered holder of the Warrants, the undersigned must pay all transfer taxes, assessments or similar governmental charges in connection with any exercise of such Warrants. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Warrant Agreement. For the protocol for exercise of Warrants with payment in Designated Notes, see Exhibit B of the Warrant Certificate.

The undersigned hereby represents and warrants that (each Holder must choose one):

☐ upon the exercise of the number of Warrants listed below the Holder (together with such Holder’s Affiliates, and any other Persons acting as a group with such Holder and its Affiliates) shall not beneficially own 9.9% or more of the then issued and outstanding Common Stock; or

☐ the Holder’s receipt of shares of Common Stock pursuant to the exercise of such Warrants is permitted by prior written approval of the Company.

Any attempted exercise of a Warrant contrary to the immediately preceding sentence shall be voidab initio to the extent that such exercise violates the preceding sentence.

A. Number of Warrants exercised hereby: _____________

B.

Date: _____________
	(Name of Owner)
	(Signature of Owner)[1]
	(Street Address)
	(City) (State) (Zip Code)

[1] The signature must correspond with the name as written upon the face of the within Warrant Certificate in every particular, without alteration or enlargement or any change whatsoever.

Securities to be issued to:

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If held in book-entry form through the Depositary:

Depositary Account Number:

Name of Agent Member:

If in definitive or uncertificated form:

Social security or identifying number:

Name:

Street Address:

City, State and Zip Code:

Any unexercised Warrants evidenced by the exercising Holder’s interest in the Global Warrant or Definitive Warrant, as the case may be, to be issued to:

If in book-entry form through the Depositary:

Depositary Account Number:

Name of Agent Member:

If in definitive form:

Social security or identifying number:

Name:

Street Address:

City, State and Zip Code:

Designated Notes used to pay the Exercise Price (only applicable if exercised when a series of notes are designated by the Company):

If held in book-entry form through the Depositary:

 

DTC Participant Name	DTC Participant Number	Interest rate and maturity date of the applicable series of Designated Notes	CUSIP	Principal Amount of such Designated Notes surrendered

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FORM OF WARRANT TRANSFER

For value received, the undersigned hereby sells, assigns and transfers unto the right to purchase [ ] Warrant Shares representing shares of Common Stock, par value $0.0001 per share, of Danimer Scientific, Inc. (the “Company”) pursuant to the attached Warrant Certificate and does hereby irrevocably constitute and appoint attorney to transfer the Warrant, or such portion as is transferred hereby, on the books of the Company with full power of substitution in the premises. The undersigned requests said attorney to issue to the transferee a Warrant Certificate evidencing such transfer and to issue to the undersigned a new Warrant Certificate evidencing the right to purchase Warrant Shares for the balance not so transferred, if any.

Date: _____________
	(Signature of Owner)[2]
	(Street Address)
	(City) (State) (Zip Code)
	Medallion Guarantee by:

Name in which new Warrant(s) should be registered:
(Name)
(Street Address)
(City) (State) (Zip Code)
(social security or identifying number)

 

 

 

[2] The signature must correspond with the name as written upon the face of the within Warrant Certificate in every particular, without alteration or enlargement or any change whatsoever, and must be medallion guaranteed by an eligible guarantor institution.

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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY[3]

The initial number of Warrants represented by the Global Warrants is [ ].

The following increases or decreases in this Global Security have been made:

Date of Exercise or Exchange	Decrease in number of Warrants in this Global Warrant Certificate	Increase in number of Warrants in this Global Warrant Certificate	Number of Warrants in this Global Warrant Certificate following such change	Signature of authorized officer of Warrant Agent

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[3] To be included only if Warrants are in global form.

 

 

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EXHIBIT B

Protocol for Exercise of Warrants with Payment in Designated Notes

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July 12, 2024

 

Danimer Scientific, Inc.

140 Industrial Boulevard

Bainbridge, GA 39817

 

Ladies and Gentlemen:

 

We have acted as special counsel to Danimer Scientific, Inc., a Delaware corporation (the “Company”), in connection with its filing on May 13, 2024, of a Registration Statement on Form S-3 (File No. 333-279371) with the Securities and Exchange Commission (the “Commission”) relating to the registration of the offering by the Company of up to $350,000,000 of any combination of securities of the types specified therein. The Registration Statement was declared effective by the Commission on June 5, 2024. The Registration Statement contained a prospectus dated June 5, 2024 (the “Base Prospectus”) and a prospectus supplement, dated July 12, 2024, which was filed with the Commission pursuant to Rule 424(b) under the Securities Act on July 12, 2024 (“Prospectus Supplement” and together with the Base Prospectus, the “Prospectus”). The Prospectus Supplement relates to the sale by the Company of up to an aggregate amount of 70,134,322 shares of the Class A common stock, $0.0001 par value per share (the “Common Stock”) of the Company (“Shares”) upon the exercise of warrants (the “Warrants”) issued by us on or about July 12, 2024 as a distribution to holders of (a) shares of Common Stock, (b) 3.250% Convertible Senior Notes due 2026 (on an as-converted basis) (the “Convertible Notes”), and (c) pre-funded common stock purchase warrants dated March 25, 2024 (on an as-exercised basis) (the “pre-funded warrants”) on the record date of May 13, 2024 (each, a “Pre-Funded Warrant” and, collectively, the “Pre-Funded Warrants”), which Common Stock Warrants were issued by the Company pursuant to a Warrant Agreement, dated as of July 12, 2024, between Continental Stock Transfer & Trust Company, as Warrant Agent, and the Company (the “Warrant Agreement”).

 

In our capacity as special counsel to the Company in connection with the matters referred to above, we have examined copies of the following: (i) the Fifth Amended and Restated Certificate of Incorporation of the Company currently in effect (the “Amended and Restated Certificate”), (ii) the Second Amended and Restated By-laws of the Company currently in effect (the “Amended and Restated By-laws”), (iii) certain records of the Company’s corporate proceedings as reflected in its minute books, (iv) the Warrant Agreement, (v) the form of

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Warrants, (vi) the form of Pre-Funded Warrant, (vii) the form of Convertible Notes, (viii) the Registration Statement, in the form it was filed with the Commission, and (ix) the Prospectus with respect to the shares of Common Stock, in the form filed with the Commission. We have also examined a certified copy of the resolutions of the Company’s Board of Directors (the “Board”) adopted at a meeting of the Board held on April 30, 2024 authorizing the offering and the transaction, documents and agreements related thereto. We have also examined such other documents, papers, authorities and statutes as we have deemed necessary to form the basis of the opinions hereinafter set forth.

 

In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such documents. As to certain facts material to this opinion, we have relied upon oral or written statements and representations of officers and other representatives of the Company including that the number of shares of Common Stock which the Company is authorized to issue in its Amended and Restated Certificate exceeds the sum of (a) the number of shares of Common Stock currently outstanding, (b) the number of shares of Common Stock held as treasury shares, (c) the number of shares of Common Stock the Company has otherwise reserved for issuance for any purpose, and (d) the number of Shares the Company is obligated to issue pursuant to the Warrant Agreement in connection with the exercise by holders of any of the Warrants, and that such condition will remain true at all future times relevant to this opinion. We have also assumed the delivery of the Prospectus with respect to the Shares of Common Stock offered and issued upon the exercise of Warrants, in compliance with the Securities Act. We have also assumed the absence of any undisclosed modifications to the agreements and instruments reviewed by us, and that each party to the Warrant Agreement (other than the Company) will have duly authorized, executed and delivered such agreement and complied with all legal requirements pertaining to its status as such status relates to the right to enforce such agreements against the Company and will have satisfied those legal requirements applicable to it to the extent necessary to make such agreements enforceable against it. We have also relied on certificates of public officials, and such other documents and information as we have deemed necessary or appropriate to enable us to render the opinions expressed below. We have not undertaken any independent investigation to determine the accuracy of any such facts.

 

Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we are of the opinion that following the (a) execution and delivery by the Company of the Warrants pursuant to the terms of the Warrant Agreement, (b) receipt by the Company of the consideration for the Warrants specified in the Warrant Agreement, and (c) exercise of the Warrants pursuant to their terms, receipt by the Company of the exercise price for the Shares as specified in the Warrants, and issuance by the Company of the Shares thereunder, including issuance thereof by the Company’s transfer agent and registrar, the Shares will be validly issued, fully paid, and non-assessable.

We hereby consent to the filing of this opinion as an exhibit to the Current Report on Form 8-K to be filed by the Company and its incorporation by reference into the Registration Statement and further consent to the reference to our name under the caption “Legal Matters” in the Prospectus Supplement, which is a part of the Registration Statement. In giving this consent, we

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do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

 

We are qualified to practice law in the State of New York and do not purport to be experts on any law other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the Federal law of the United States generally applicable to the transactions set forth in the Prospectus Supplement. We are not admitted or qualified to practice in the State of Delaware; however, we are generally familiar with the Delaware General Corporation Law as currently in effect and have made such inquiries as we deem necessary to render the opinions contemplated herein. We express no opinion regarding the Securities Act, or any other federal or state securities laws or regulations.

 

This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. This opinion letter is limited to the specific legal matters expressly set forth herein and is limited to present statutes, regulations and administrative and judicial interpretations. We assume no obligation to revise or supplement this opinion in the event of future changes in such laws or regulations.

 

 

Very truly yours,

 

KANE KESSLER, P.C.

 

/s/ Kane Kessler, P.C.

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July 12, 2024

 

Danimer Scientific, Inc.

140 Industrial Boulevard

Bainbridge, GA 39817

 

Ladies and Gentlemen:

 

We have acted as special counsel to Danimer Scientific, Inc., a Delaware corporation (the “Company”), in connection with its filing on May 13, 2024, of a Registration Statement on Form S-3 (File No. 333-279371) (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”), which was declared effective by the Commission on June 5, 2024. The Registration Statement contained a prospectus dated June 5, 2024 (the “Base Prospectus”) and a prospectus supplement, dated July 12, 2024, which was filed with the Commission pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “Securities Act”), on July 12, 2024 (“Prospectus Supplement” and together with the Base Prospectus, the “Prospectus”). The Prospectus Supplement relates to the issuance by the Company of up to an aggregate amount of 5,939,560 shares of the Class A common stock, $0.0001 par value per share (the “Common Stock”) of the Company (“Shares”) directly to B. Dyson Capital Advisors and/or its affiliates (collectively, the “Advisor”) from time to time in consideration of financial and investment banking advisory services (the “Services”) provided by the Advisor to the Company in connection with the Company’s distribution of certain transferable Warrants (the “Warrants”) to holders of shares of Common Stock and certain other eligible recipients, which Warrants were issued by the Company on July 12, 2024. The Company will issue the Shares from time to time to the Advisor in partial satisfaction of the advisory fee payable to Advisor in connection with exercise of Warrants.

 

In connection with the matters referred to above, we have examined copies of the following: (a) the Fifth Amended and Restated Certificate of Incorporation of the Company currently in effect (the “Amended and Restated Certificate of Incorporation”), (b) the Second Amended and Restated By-laws of the Company currently in effect (the “Amended and Restated By-laws”), (c) certain records of the Company’s corporate proceedings as reflected in its minute books, (d) the Registration Statement, in the form it was filed with the Commission, (e) the Prospectus with respect to the shares of Common Stock, in the form filed with the Commission, and (f) the financial advisory services agreement between the Company and the Advisor. We have also examined a certified copy of the resolutions of the Company’s Board of Directors (the “Board”) adopted at a meeting of the Board held on April 30, 2024 and May 17, 2024 authorizing the issuance and the transaction, documents and agreements related thereto. We have also

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examined such other agreements, documents, papers, authorities and statutes as we have deemed necessary to form the basis of the opinions hereinafter set forth. We have also assumed the absence of any undisclosed modifications to the agreements and instruments reviewed by us.

 

In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such documents. As to certain facts material to this opinion, we have relied upon oral or written statements and representations of officers and other representatives of the Company including that the number of shares of Common Stock which the Company is authorized to issue in its Amended and Restated Certificate of Incorporation exceeds the sum of (a) the number of shares of Common Stock currently outstanding, (b) the number of shares of Common Stock held as treasury shares, (c) the number of shares of Common Stock the Company has otherwise reserved for issuance for any purpose, including the maximum number of Shares the Company has reserved for issuance to the holders of Warrants upon exercise thereof, and (d) the maximum number of Shares the Company is obligated to issue to Advisor pursuant to the financial advisory services agreement between the Company and the Advisor if all Warrants were exercised, and that such condition will remain true at all future times relevant to this opinion. We have also relied on certificates of public officials, and such other documents and information as we have deemed necessary or appropriate to enable us to render the opinions expressed below. We have not undertaken any independent investigation to determine the accuracy of any such facts.

 

Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we are of the opinion that following the issuance by the Company of the Shares against the consideration therefor set forth in the financial advisory services agreement between the Company and the Advisor, including issuance thereof by the Company’s transfer agent and registrar, the Shares will be validly issued, fully paid, and non-assessable.

We hereby consent to the filing of this opinion as an exhibit to the Current Report on Form 8-K to be filed by the Company and its incorporation by reference into the Registration Statement and further consent to the reference to our name under the caption “Legal Matters” in the Prospectus Supplement, which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

 

We are qualified to practice law in the State of New York and do not purport to be experts on any law other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the Federal law of the United States generally applicable to the transactions set forth in the Prospectus Supplement. We are not admitted or qualified to practice in the State of Delaware; however, we are generally familiar with the Delaware General Corporation Law as currently in effect and have made such inquiries as we deem necessary to render the opinions contemplated herein. We express no opinion regarding the Securities Act, or any other federal or state securities laws or regulations.

 

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This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. This opinion letter is limited to the specific legal matters expressly set forth herein and is limited to present statutes, regulations and administrative and judicial interpretations. We assume no obligation to revise or supplement this opinion in the event of future changes in such laws or regulations.

 

 

Very truly yours,

KANE KESSLER, P.C.

 

/s/ Kane Kessler, P.C.

 

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v3.24.2

Document And Entity Information	Jul. 12, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jul. 12, 2024
Entity Registrant Name	DANIMER SCIENTIFIC, INC.
Entity Central Index Key	0001779020
Entity Emerging Growth Company	false
Entity File Number	001-39280
Entity Incorporation, State or Country Code	DE
Entity Tax Identification Number	84-1924518
Entity Address, Address Line One	140 Industrial Boulevard
Entity Address, City or Town	Bainbridge
Entity Address, State or Province	GA
Entity Address, Postal Zip Code	39817
City Area Code	229
Local Phone Number	243-7075
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Class A Common stock, $0.0001 par value per share
Trading Symbol	DNMR
Security Exchange Name	NYSE

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