CPSR 8-K
Calamos S&P 500 Structured Alt Protection ETF - March (CPSR)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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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:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act: None
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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.
Item 1.01 Entry into a Material Definitive Agreement.
As previously disclosed in the Current Report on Form 8-K of Gelesis Holdings Inc. (“Gelesis” or the “Company”) filed with the SEC on February 23, 2023, the Company entered into that certain Note and Warrant Purchase Agreement dated February 21, 2023 (as amended by that certain Amendment No. 1 to Note and Warrant Purchase Agreement, dated May 1, 2023, certain Limited Waiver and Issuance of Additional Notes, dated May 26, 2023, certain Amendment No. 2 to Note and Warrant Purchase Agreement, dated June 12, 2023 and certain Amendment No. 3 to Note and Warrant Purchase Agreement, dated June 28, 2023, the “NPA”), by and among the Company and Gelesis Inc. (together, the “Note Issuers”), Gelesis 2012, Inc., Gelesis, LLC, and other subsidiaries of the Note Issuers party thereto from time to time (collectively with the Note Issuers, the “Note Parties”), PureTech Health LLC (the “Initial Investor”) and certain other investors party thereto from time to time, pursuant to which the Note Issuers may issue convertible senior secured promissory notes (each, a “Note” and collectively, the “Notes) and warrants (the “Warrants”) to purchase shares of common stock, par value $0.0001, of the Company (the “Common Stock”).
As previously disclosed in the Company’s Current Reports on Form 8-K filed with the SEC on February 23, 2023, May 3, 2023, May 31, 2023, June 13, 2023 and June 29, 2023, for an aggregate cash purchase price of $10.35 million, the Note Issuers have issued to the Initial Investor $10.35 million aggregate principal amount of Notes, together with Warrants to purchase an aggregate of 259,129,542 shares of Common Stock.
Amendment No. 4 to the NPA and Issuance of Additional Note
On September 20, 2023, the Note Parties and the Initial Investor entered into Amendment No. 4 to the NPA (“Amendment No. 4”), pursuant to which the Company issued to the Initial Investor an Additional Note (“Fifth Closing Note”) in the principal amount of $1.5 million.
The Notes, including the Fifth Closing Note, have not been and will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and are issued in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder, and on similar exemptions under applicable state laws. The NPA, as amended, provides for registration rights with respect to all shares of Common Stock issuable upon conversion of the Notes and upon exercise of the Warrants pursuant to which the Company is required to file a shelf registration statement under the Securities Act to register such shares for resale.
The foregoing description of Amendment No. 4 and Fifth Closing Note do not purport to be complete and are qualified in their entirety by the full text of such agreements, which are attached as exhibit 10.1 and 10.2, respectively, to this Current Report and incorporated herein by reference.
Important Information and Where to Find It
In connection with the proposed transaction between the Company and PureTech Health LLC (“PureTech”), the Company will file relevant materials with the U.S. Securities and Exchange Commission (the “SEC”), including a proxy statement, the definitive version of which will be sent or provided to the Company’s stockholders. The Company and affiliates of PureTech have jointly filed a transaction statement on Schedule 13E-3. The Company may also file other documents with the SEC regarding the proposed transaction. This document is not a substitute for the proxy statement or any other document which the Company may file with the SEC or send to its stockholders in connection with the proposed merger. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE PROXY STATEMENT, THE SCHEDULE 13E-3 AND ANY OTHER RELEVANT DOCUMENTS THAT ARE FILED OR WILL BE FILED WITH THE SEC, AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THESE DOCUMENTS AND DOCUMENTS INCORPORATED BY REFERENCE THEREIN, CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY CONTAIN OR WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND RELATED MATTERS. Investors and security holders may obtain free copies of the proxy statement (when it is available), the Schedule 13E-3 (when it is available) and other documents that are filed or will be filed with the SEC by the Company through the website maintained by the SEC at www.sec.gov and the Company’s investor relations website at ir.gelesis.com.
Contact
Media & Investor Relations
Katie Sullivan
Participants in the Solicitation
The Company and certain of its directors and executive officers, as well as PureTech and its affiliates, may be deemed to be participants in the solicitation of proxies from the Company’s stockholders in respect of the proposed transaction and any other matters to be voted on at the special meeting. Information regarding the Company’s directors and executive officers, including a description of their direct interests, by security holdings or otherwise, is contained in the Company’s Annual Report on Form 10-K, which was filed with the SEC on March 28, 2023, and will be included in the proxy statement (when available). The Company’s stockholders may obtain additional information regarding the direct and indirect interests of the participants in the solicitation of proxies in connection with the proposed transaction, including the interests of the Company’s directors and executive officers in the transaction, which may be different than those of the Company’s stockholders generally, by reading the proxy statement and any other relevant documents that are filed or will be filed with the SEC relating to the transaction. You may obtain free copies of these documents using the sources indicated above.
Cautionary Statement Regarding Forward-Looking Statements
Certain statements, estimates, targets and projections in this Current Report may constitute “forward-looking statements” within the meaning of the federal securities laws. The words “anticipate,” “believe,” continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “strive,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that statement is not forward looking. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Forward-looking statements include, but are not limited to, statements regarding Gelesis’ or its management team’s expectations, hopes, beliefs, intentions or strategies regarding the future, including those relating to Gelesis’ expected operating and financial performance and market opportunities as well as Plenity’s effectiveness and marketability. In addition, any statements that refer to guidance, projections, forecasts, or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking statements. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and Gelesis assumes no obligation and does not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. Gelesis gives no assurance that any expectations set forth in this Current Report will be achieved. Factors that may affect future results and may cause these forward-looking statements to be inaccurate include, but are not limited to: (i) the ability of Gelesis to raise financing, if and when needed; (ii) the ability of Gelesis to continue as a going concern; (iii) Gelesis’ ability to achieve and maintain widespread market acceptance of Plenity; (iv) the impact of current and future applicable laws and regulations and Gelesis’ ability to comply with such laws and regulations; (v) Gelesis’ ability to produce adequate supply of Plenity, including Gelesis’ ability to continue to invest in manufacturing capacity and to build additional manufacturing sites; (vi) the development of the telehealth market and regulations related to remote healthcare; (vii) global economic, political and social conditions and uncertainties in the markets that Gelesis serves, including risks and uncertainties caused by any natural or man-made disasters; (viii) Gelesis’ ability to enter into strategic collaborations, to acquire businesses or products or form strategic alliances and to realize the benefits of such collaborations, acquisitions and alliances; (ix) the level of demand, and willingness of potential members to pay out-of-pocket for, Plenity; (x) the ability of Gelesis to enforce its intellectual property rights and proprietary technology ; (xi) the risk that a third-party’s activities, including with respect to third parties that Gelesis has granted outlicenses to or granted limited exclusive or non-exclusive commercial rights, may overlap or interfere with the commercialization of Plenity; (xii) Gelesis’ ability to successfully develop and expand its operations and manufacturing and to effectively manage such growth; (xiii) Gelesis’ business partners’ ability to successfully launch and commercialize Plenity in certain key markets; (xiv) risk relating to the loss of Gelesis’ suppliers or distributors, or their inability to provide adequate supply of materials or distribution; (xv) the risk that Gelesis’ business partners may experience significant disruptions in their operations; (xvi) Gelesis’ ability to retain its senior executive officers and to attract and keep senior management and key scientific and commercial personnel; (xvii) Gelesis’ ability to identify and discover additional product candidates and to obtain and maintain regulatory approval for such candidates; (xviii) risks related to potential product liability exposure for Plenity or other future product candidates; (xix) risks related to adverse publicity in the weight management industry, changes in the perception of Gelesis’ brands, and the impact of negative information or inaccurate information about Gelesis on social media; (xx) Gelesis’ ability to enhance its brand recognition, increase distribution of Plenity and generate product sales and reduce operating losses going forward; (xxi) the impact of risks associated with economic, financial, political, environmental and social matters and conditions on Gelesis’ supply chain, its manufacturing operations and other aspects of its business; (xxii) Gelesis’ ability to accurately forecast revenue and appropriately monitor its associated expenses in the future; (xxiii) Gelesis’ ability to compete against other weight management and wellness industry participants or other more effective or more favorably perceived weight management methods, including pharmaceuticals, devices and surgical procedures; (xxiv) foreign currency fluctuations and inflation; (xxv) the risk that Gelesis fails to maintain adequate operational and financial resources or to raise additional capital or generate sufficient cash flows; (xxvi) Gelesis’ ability to successfully protect against security breaches and other disruptions to its information technology structure; and (xxvii) Gelesis’s ability to complete the proposed merger transaction with PureTech, which may be affected by various risks and uncertainties including, but not limited to: (i) the occurrence of any event, change
or other circumstance that could give rise to the termination of the proposed merger; (ii) the failure to satisfy any of the conditions to the completion of the proposed merger, including the failure to obtain company stockholder approval; (iii) potential delays in consummating the merger; (iv) the effect of the announcement of the proposed merger on the ability of the Company to retain and hire key personnel and maintain relationships with its key business partners and customers, and others with whom it does business, or on its operating results and businesses generally; (iv) the ability of the Company to timely and successfully achieve the anticipated benefits of the proposed transaction; (v) response of the Company’s competitors to the proposed merger; (vi) risks associated with the disruption of management’s attention from ongoing business operations due to the proposed merger; (vii) the ability to meet expectations regarding the timing and completion of the proposed merger; (viii) significant costs associated with the proposed merger; (ix) potential litigation relating to the proposed merger; (x) restrictions during the pendency of the proposed merger that may impact the Company’s ability to pursue certain business opportunities; (xi) the outcome of any legal proceedings that may be instituted against the parties and others following announcement of the proposed merger; and (xii) the timing and result of the United States Food and Drug Administration’s review of the Company’s submission of K230133/S001. Various risks and uncertainties (some of which are beyond Gelesis’ control) or other factors could cause actual future results, performance or events to differ materially from those described herein. For a description of such other factors, please see the section entitled “Risk Factors” in Gelesis’ most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q and in other filings that Gelesis makes with the SEC. These filings address important risks and uncertainties that could cause actual results and events to differ materially from those contained in the forward-looking statements.
Item 9.01 Exhibits.
(d) Exhibits.
Exhibit Number |
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Description |
10.1 |
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10.2 |
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Convertible Senior Secured Promissory Note, dated September 20, 2023, issued to PureTech Health LLC |
104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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 hereunto duly authorized.
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Gelesis Holdings, Inc. |
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Date: |
September 20, 2023 |
By: |
/s/ Yishai Zohar |
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Yishai Zohar |
AMENDMENT NO. 4 TO
NOTE AND WARRANT PURCHASE AGREEMENT
This AMENDMENT NO. 4 (this “Amendment No. 4”) is made and entered into as of September 20, 2023, and amends that certain Note and Warrant Purchase Agreement, dated as of February 21, 2023 (as amended by that certain Amendment No. 1 to Note and Warrant Purchase Agreement, dated as of May 1, 2023, that certain Amendment No. 2 to Note and Warrant Purchase Agreement, dated as of June 12, 2023, and that certain Amendment No. 3 to Note and Warrant Purchase Agreement, dated as of June 28, 2023, and as may be further amended or modified from time to time, the “Agreement”), by and among Gelesis Holdings, Inc. a Delaware corporation (the “Company”), Gelesis, Inc., a Delaware corporation (the “Co-Issuer”), Gelesis 2012, Inc., a Delaware corporation (“Gelesis 2012”), and Gelesis, LLC, a Delaware limited liability company (together with Gelesis 2012, any other grantors party to the Security Agreement from time to time, the Company and the Co-Issuer, the “Note Parties”), and PureTech Health LLC (the “Initial Investor”). Capitalized terms used herein without definition shall have the meanings ascribed to them in the Agreement.
WHEREAS, the Initial Investor owns $5.0 million principal amount of the Initial Note and $5.35 million principal amount of Additional Notes, which are all of the Notes that have been issued pursuant to the Agreement prior to this Amendment No. 4;
WHEREAS, the Company desires to increase the aggregate principal amount of Additional Notes issuable pursuant to the Agreement to $6.85 million and to sell and issue to the Initial Investor, and the Initial Investor desires to purchase from the Company, an additional $1.5 million aggregate principal amount of the Additional Notes, and the Company and Initial Investor desire to amend the Agreement to permit such increase, issuance and sale; and
WHEREAS, as the date hereof, the Initial Investor holds all Notes heretofore issued and outstanding pursuant to the Agreement and may, pursuant to Section 14.8 of the Agreement, consent to (i) amend the Agreement to increase the aggregate principal amount of Additional Notes Amount by $1.5 million, and (ii) permit the issuance and sale of $1.5 million aggregate principal amount of the Additional Notes subject to the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
(a) The following paragraph is hereby inserted as Section 1(g) of the Agreement immediately after Section 1(f), and Section 1(g) through 1(ddd) are hereby renumbered as Sections 1(h) through 1(eee):
“(g) “Amendment No. 3” shall mean that certain Amendment No. 3 to Note and Warrant Purchase Agreement, dated as of June 28, 2023, by and among the Initial Investor and the Note Parties party thereto.”
(b) Section 1(k) of the Agreement is hereby amended and restated in its entirety as follows:
“(k) “Closing” shall mean the First Closing, the Second Closing, the Third Closing, the Fourth Closing, the Fifth Closing or any Subsequent Closing.”
(c) Section 1(hh) of the Agreement is hereby amended and restated in its entirety as follows:
“(hh) “Maturity Date” shall mean March 31, 2024.”
(d) Section 1(kk) of the Agreement is hereby amended and restated in its entirety as follows:
“(kk) “Note Documents” shall mean this Agreement, Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, the Notes, the Limited Waiver, the Warrants, the Security Agreement and each other Collateral Document.”
(e) Section 1(ll) of the Agreement is hereby amended and restated in its entirety as follows:
“(ll) “Notes” shall mean all Convertible Senior Secured Notes due March 31, 2024 issued to the Investors pursuant to Section 2.1 through Section 2.3 below, the form of which is attached hereto as Exhibit C, including the Initial Notes, the Additional Notes and the Other Investor Notes considered as a single series.”
(f) Section 2.2 of the Agreement is hereby amended and restated in its entirety as follows:
“(a) The aggregate principal amount of additional Notes (the “Additional Notes”) issuable to the Initial Investor pursuant to this Agreement is $6.85 million (the “Aggregate Principal Amount of Additional Notes”).
(b) In return for Consideration in the amount of $2.0 million paid by the Initial Investor, the Company sold and issued to the Initial Investor, and the Initial Investor purchased Additional Notes in the aggregate principal amount of $2.0 million (the “First Issuance of Additional Notes”) on the Second Closing Date (as defined below).
(c) In return for Consideration in the amount of $350,000 paid by the Initial Investor, the Company sold and issued to the Initial Investor, and the Initial Investor purchased Additional Notes in the aggregate principal amount of $350,000 million on the Third Closing Date (as defined below).
(d) In return for Consideration in the amount of $3.0 million paid by the Initial Investor, the Company sold and issued to the Initial Investor, and the Initial Investor purchased Additional Notes in the aggregate principal amount of $3.0 million on the Fourth Closing Date (as defined below).
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(e) In return for Consideration in the amount of $1.5 million paid by the Initial Investor, the Company shall sell and issue to the Initial Investor, and the Initial Investor shall purchase Additional Notes in aggregate principal amount of $1.5 million on the Fifth Closing Date (as defined below), which shall be the final borrowing of Additional Notes.”
(g) Section 2.4 of the Agreement is hereby amended and restated in its entirety as follows:
“2.4 Several Obligations; Maximum Principal Amount. The obligations of the Initial Investors and any other investor to purchase Notes are several and not joint. The aggregate principal amount for all Notes issued hereunder shall not exceed of the sum of (i) $5,000,000 aggregate principal amount of Initial Notes sold pursuant to Section 2.1 on the First Closing Date in accordance with Section 4.1 below, (ii) $6,850,000 aggregate principal amount of Additional Notes sold to the Initial Investor pursuant to Section 2.2 on the Additional Closing Dates (as defined below) in accordance with Section 4.2 below, (iii) (A) up to $40,000,000 aggregate principal amount of Other Investor Notes to be offered and sold to Other Investors pursuant to Section 2.3(a) and (B) up to such aggregate principal amount of Other Investor Notes to be offered and sold to the Initial Investor pursuant to Section 2.3(b), at one or more Subsequent Closings (as defined below) in accordance with Section 4.3.”
(h) The first sentence of Section 3.1 of the Agreement is hereby amended and restated in its entirety as follows:
“Upon an Investor’s purchase of Notes, and in return for the Company’s receipt of the Consideration for such Notes, at the Closing for such purchase, the Company shall deliver to such Investor a Warrant to purchase Common Stock in the applicable Warrant Coverage Amount for each Note; provided that no Warrants shall be issued or delivered to the Initial Investor in connection with Additional Notes purchased by the Initial Investor at the Fourth Closing (as defined below) or at the Fifth Closing (as defined below).”
(i) Section 4.2 of the Agreement is hereby amended and restated in its entirety as follows:
“4.2 Additional Closings. The Closing of the First Issuance of Additional Notes in aggregate principal amount of $2.0 million (the “Second Closing”) occurred on May 1, 2023 (the “Second Closing Date”). The closing of the issuance of $350,000 aggregate principal amount of Additional Notes (the “Third Closing”) occurred on May 26, 2023 (the “Third Closing Date”). The closing of the issuance of $3.0 million aggregate principal amount of Additional Notes (the “Fourth Closing”) occurred on June 12, 2023 (the “Fourth Closing Date”). The closing of the issuance of $1.5 million aggregate principal amount of Additional Notes (the “Fifth Closing” and together with the Second Closing, the Third Closing and the Fourth Closing, the “Additional Closings” and each an “Additional Closing”) shall take place on September 20, 2023 (the “Fifth
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Closing Date” and together with the Second Closing Date, the Third Closing Date and the Fourth Closing Date, the “Additional Closing Dates” and each an “Additional Closing Date”) in return for the Consideration therefor paid by the Initial Investor. The Fifth Closing shall take place at such location as shall be mutually agreed upon orally or in writing by the Company and the Initial Investor.”
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 4 as of the date first written above.
GELESIS HOLDINGS, INC.:
By: /s/ Yishai Zohar
Name: Yishai Zohar
Title: Chief Executive Officer
GELESIS, INC.:
By: /s/ Yishai Zohar
Name: Yishai Zohar
Title: Chief Executive Officer
GELESIS 2012, INC.:
By: /s/ Yishai Zohar
Name: Yishai Zohar
Title: Chief Executive Officer
GELESIS, LLC:
By: /s/ Yishai Zohar
Name: Yishai Zohar
Title: Chief Executive Officer
[Signature Page to Amendment No. 4 to Note and Warrant Purchase Agreement]
PURETECH HEALTH LLC:
By:/s/ Bharatt Chowrira
Name: Bharatt Chowrira
Title: Chief Executive Officer
Address for Notices:
PureTech Health LLC
6 Tide Street, Suite 400
Boston, MA 02210
Attention: Legal Department
[Signature Page to Amendment No. 4 to Note and Warrant Purchase Agreement]
Schedule I
Schedule of Investors
Investor |
Total Consideration |
Principal Balance of Convertible Senior Secured Notes Purchased |
PureTech Health LLC |
$5,000,000 |
$5,000,000 |
PureTech Health LLC |
$2,000,000 |
$2,000,000 |
PureTech Health LLC |
$350,000 |
$350,000 |
PureTech Health LLC |
$3,000,000 |
$3,000,000 |
PureTech Health LLC |
$1,500,000 |
$1,500,000 |
Other Investors |
Total Consideration |
Principal Balance of Convertible Senior Secured Notes Purchased |
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THIS NOTE AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
CONVERTIBLE SENIOR SECURED PROMISSORY NOTE
Note No. 5 September 20, 2023
$1,500,000
FOR VALUE RECEIVED, Gelesis Holdings, Inc. a Delaware corporation (the “Company”) and Gelesis, Inc., a Delaware corporation (the “Co-Issuer”), hereby promises to pay to the order of PureTech Health LLC as nominee (the “Holder”), the principal sum of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000) (or so much thereof as shall not have been converted, redeemed or prepaid), together with interest, which shall accrue at a rate of twelve percent (12%) per annum, compounded annually, on the Maturity Date.
This Note is one of a series of Notes issued pursuant to that certain Note and Warrant Purchase Agreement, dated February 21, 2023 and amended on May 1, 2023, June 12, 2023, June 28, 2023 and September 20, 2023, by and among the Company, the Co-Issuer, the Guarantors, and the Investors named therein (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time, the “Purchase Agreement”). Capitalized terms not defined herein shall have the meaning set forth in the Purchase Agreement.
1. Payments. All payments shall be made in lawful money of the United States of America, at the principal office of the Company, via wire transfer of immediately available funds to the Holder, or at such other place as the holder hereof may from time to time designate in writing to the Company. Prepayment of principal, together with accrued interest, may not be made without the Holder’s consent. The Company hereby waives demand, notice, presentment, protest and notice of dishonor.
2. Guarantee. This Note is guaranteed by the Guarantors to the extent provided in Section 13 of the Purchase Agreement. Reference is hereby made to Section 13 of the Purchase Agreement for a description of the nature and extent of such guaranty of this Note and the rights with respect to such guaranty of the Holder.
3. Security. This Note is secured under that certain Security Agreement (the “Security Agreement”) between the Company and Holder, dated as of February 21, 2023, attached hereto as Annex A. Reference is hereby made to the Security Agreement for a description of the nature and extent of the security for this Note and the rights with respect to such security of the Holder.
4. Priority. This Note shall be senior in all respects (including right of payment) to all other Indebtedness of the Company, now existing or hereafter.
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5. Conversion of Note. This Note and any amounts due hereunder shall be convertible into Conversion Shares in accordance with Sections 2.10 and 2.11 of the Purchase Agreement. The form of the Holder Conversion Notice and Company Conversion Notice are attached hereto as Exhibit A and Exhibit B respectively.
6. Optional Redemption. The Notes shall be redeemable at the Company’s option in accordance Section 2.15 of the Purchase Agreement. No sinking fund is provided for the Notes. The form of Optional Redemption Notice is attached hereto as Exhibit C.
7. Prepayment Premium. Upon a Prepayment Trigger, the Company shall immediately pay to the Holder an amount equal to 200% of this Note, and this Note shall be cancelled.
8. Amendments and Waivers; Resolutions of Dispute; Notice. This Note may be amended and the observance of any term of this Note may be waived pursuant to Section 14.8 of the Purchase Agreement.
9. Successors and Assigns. This Note applies to, inures to the benefit of, and binds the successors and assigns of the parties hereto; provided, however, that the Company may not assign its obligations under this Note without the written consent of the Holder.
10. Officers and Directors not Liable. In no event shall any officer or director of the Company be liable for any amounts due and payable pursuant to this Note.
11. Governing Law. This Note and any controversy arising out of or relating to this Note shall be governed by, and construed in accordance with, the Uniform Commercial Code of the State of Delaware as to matters within the scope thereof, and as to all other matters (including contract law, tort law and matters of fraud) shall be governed by, and construed in accordance with, the laws of the State of New York (without giving effect to any conflicts or choice of laws provisions thereof that would cause the application of the domestic substantive laws of any other jurisdiction).
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IN WITNESS WHEREOF, Company has caused this Note to be duly executed as of date first set forth above.
COMPANY
GELESIS HOLDINGS, INC.
By: /s/ Yishai Zohar
Name: Yishai Zohar
Title: Chief Executive Officer
CO-ISSUER
GELESIS, INC.
By: /s/ Yishai Zohar
Name: Yishai Zohar
Title: Chief Executive Officer
GUARANTOR
GELESIS 2012, INC.
By: /s/ Yishai Zohar
Name: Yishai Zohar
Title: Chief Executive Officer
GUARANTOR
GELESIS, LLC
By: /s/ Yishai Zohar
Name: Yishai Zohar
Title: Chief Executive Officer
[Signature Page to Convertible Promissory Note]
ACKNOWLEDGED, ACCEPTED
AND AGREED:
HOLDER:
PURETECH HEALTH LLC
By:/s/ Bharatt Chowrira
Name: Bharatt Chowrira
Title: Chief Executive Officer
[Signature Page to Convertible Promissory Note]
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|US-DOCS\144908342.3||
ANNEX A TO PROMISSORY NOTE
SECURITY AGREEMENT
(see attached)
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A-
EXHIBIT A TO PROMISSORY NOTE
HOLDER CONVERSION NOTICE
Gelesis Holdings, Inc.
Gelesis, Inc.
Secured Senior Convertible Promissory Note
[_____], 20[__]
Gelesis Holdings, Inc.
Gelesis, Inc.
501 Boylston Street, Suite 6102
Boston, MA 02116
Attention: Yishai Zohar, Chief Executive Officer
The above-captioned Holder hereby gives notice to Gelesis Holdings, Inc., a Delaware corporation (the “Company”), and Gelesis, Inc., a Delaware corporation (the “Co-Issuer”), pursuant to that certain Secured Senior Convertible Promissory Note made by the Company and the Co-Issuer in favor of Holder on September [ ], 2023 (the “Note”), that Holder elects to convert the portion of its Note balance set forth below into fully paid and non-assessable shares of Common Stock of Company as of the Conversion Date specified below. Said conversion shall be based on the Conversion Price set forth below. In the event of a conflict between this Holder Conversion Notice and the Note, the Note shall govern, or, in the alternative, at the election of Holder in its sole discretion, Holder may provide a new form of Holder Conversion Notice to conform to the Note. Capitalized terms used in this notice without definition shall have the meanings given to them in the Note.
A. Conversion Date:
B. Holder Conversion #:
C. Conversion Amount:
D. Conversion Price:
E. Conversion Shares: ___________________________ (per $1,000 principal amount of Notes; fractional shares will be paid in cash.
F. Remaining Outstanding Balance of Note (after this Conversion):
Please transfer the Conversion Shares electronically (via DWAC) to the account set forth on the Holder’s signature page to the Purchase Agreement:
To the extent the Conversion Shares are not able to be delivered to Holder electronically via the DWAC system, deliver all such certificated shares to Holder via reputable overnight courier after receipt of this Holder Conversion Notice (by facsimile transmission or otherwise) shall be made to the mailing address set forth on the Holder’s signature page to the Purchase Agreement.
3
A-
Sincerely,
Holder: [Insert Name of Holder]
By:
Name:
Title:
4
A-
EXHIBIT B TO PROMISSORY NOTE
COMPANY CONVERSION NOTICE
Gelesis Holdings, Inc.
Gelesis, Inc.
Secured Senior Convertible Promissory Note
[_____], 20[__]
Gelesis Holdings, Inc. (the “Company”) and Gelesis, Inc. (the “Co-Issuer”) hereby give notice to you pursuant to that certain Secured Senior Convertible Promissory Note made by the Company and the Co-Issuer in favor of you, as a Holder, on September [ ], 2023 (the “Note”), that all outstanding Notes are called for conversion into fully paid and non-assessable shares of Common Stock of Company as of the Company Conversion Date specified below. Said conversion shall be based on the Conversion Price set forth below. In the event of a conflict between this Company Conversion Notice and the Note, the Note shall govern. The Company and the Co-Issuer hereby confirms that the Notes are eligible for Company Conversion because each of the Company Conversion Conditions has occurred. Capitalized terms used in this notice without definition shall have the meanings given to them in the Note.
A. Conversion Date:
B. Holder Conversion #:
C. Conversion Amount:
D. Conversion Price:
E. Conversion Shares: ___________________________ (per $1,000 principal amount of Notes; fractional shares will be paid in cash.
Conversion Shares will be delivered to you electronically (via DWAC) to the account set forth on your signature page to the Purchase Agreement:
To the extent the Conversion Shares are not able to be delivered to you electronically via the DWAC system, we will deliver certificated shares to you via reputable overnight courier to the mailing address set forth on your signature page to the Purchase Agreement.
Sincerely,
Gelesis Holdings, Inc.
By:
Name:
Title:
B-1
Gelesis, Inc.
By:
Name:
Title:
2
B-
B-0
EXHIBIT C TO PROMISSORY NOTE
OPTIONAL REDEMPTION NOTICE
Gelesis Holdings, Inc.
Gelesis, Inc.
Secured Senior Convertible Promissory Note
[_____], 20[__]
Gelesis Holdings, Inc. (the “Company”) and Gelesis, Inc. (the “Co-Issuer”) hereby give notice to you pursuant to that certain Secured Senior Convertible Promissory Note made by the Company and the Co-Issuer in favor of you, as a Holder, on September [ ], 2023 (the “Note”), that all your outstanding Notes are called for redemption on the Redemption Date specified below. Said redemption shall be based on the Redemption Price set forth below. In the event of a conflict between this Holder Conversion Notice and the Note, the Note shall govern. The Company and the Co-Issuer hereby confirms that the Notes are eligible for Company Conversion because each of the Company Conversion Conditions has occurred. Capitalized terms used in this notice without definition shall have the meanings given to them in the Note.
A. Redemption Date:
B. Holder Redemption #:
C. Principal Amount Redeemed of Note:
D. Redemption Price:
E. Remaining Outstanding Balance of Note (after this Redemption):
The Redemption Price payable to you will be delivered to you via wire transfer of immediately available funds via the wire instructions you provided in your signature page to the Purchase Agreement:
Sincerely,
Gelesis Holdings, Inc.
By:
Name:
Title:
Gelesis, Inc.
1
C-
By:
Name:
Title:
2
C-