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): May 7, 2025
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) | ||||||||||||
| (Address of principal executive offices) | (Zip Code) | |||||||
(847 ) 324-2400
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |||||
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |||||
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |||||
| Pre-commencements 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:
| Title of each class | Trading Symbols | Name of each exchange on which registered | ||||||||||||
| 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). | |||||
| ☐ | 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.
Series A Convertible Senior Preferred Stock Purchase Agreement
On May 7, 2025 (the “Closing Date”), LanzaTech Global, Inc. (the “Company”) and LanzaTech Global SPV, LLC, an entity controlled by a large existing investor (the “Purchaser”), entered into a Series A Convertible Senior Preferred Stock Purchase Agreement (the “Purchase Agreement”) pursuant to which the Company agreed to issue and sell 20,000,000 shares of its preferred stock designated as “Series A Convertible Senior Preferred Stock”, par value of $0.0001 per share (“Preferred Stock”), to the Purchaser for an aggregate purchase price of $40,000,000 (the “Preferred Stock Issuance”), subject to certain closing conditions described therein. The Preferred Stock Issuance was consummated on the Closing Date. In connection with the Preferred Stock Issuance, the Company’s $40.2 million aggregate principal amount of outstanding Convertible Notes due 2029 (the “Convertible Notes”), plus accrued and unpaid interest thereon, was converted into 34,054,337 shares of common stock, par value $0.0001 per share (“Common Stock”), of the Company pursuant to the mandatory conversion provision of the Convertible Notes.
Pursuant to the Purchase Agreement, the Company also agreed to issue and sell to the Purchaser, no later than May 31, 2025, warrants (the “Warrants”) to purchase an aggregate of 780,000,000 shares (“Warrant Shares”) of Common Stock, of the Company, at an exercise price equal to $0.0000001 per Warrant Share (subject to adjustments in certain events, including the Reverse Stock Split (as defined below) and to be no less than par value of the Common Stock) and the other terms to be set forth in a warrant agreement (a form of which is attached as an exhibit to the Purchase Agreement) (the “Warrant Agreement”). Subject to the conditions set forth in the Warrant Agreement, the Warrants will not be exercisable unless and until, among other things, certain requisite stockholder approvals are obtained and the Company consummates either a Subsequent Financing (as defined below) or, with the Purchaser’s consent, a financing that does not constitute a Subsequent Financing (an “Other Financing”) (collectively, the “Conditions to Exercise”); provided, however, that if the Conditions to Exercise are satisfied, each Warrant will be deemed automatically exercised on a cashless, net-exercise basis at such time (the time immediately following such automatic exercise, the “Expiration Time”). The Warrant Agreement will terminate at the earlier of (i) the Expiration Time and (ii) May 7, 2026.
The Purchase Agreement also provides that, no later than 60 days (or 90 days if the staff of the Securities and Exchange Commission (“SEC”) conducts a review of the applicable preliminary proxy statement) following the Closing Date (the “Approval Deadline”), the Company will be required to convene a meeting of its stockholders to obtain stockholder approvals (collectively, the “Requisite Stockholder Approvals”) with respect to: (i) the issuance of shares of Common Stock issuable upon conversion of the Preferred Stock, the exercise of the Warrants, and in connection with the Subsequent Financing (collectively, the “Issuable Common Shares”) and to effect any “change of control” in connection with the foregoing, in accordance with the rules of The Nasdaq Stock Market LLC (“Nasdaq”); (ii) an amendment the Company’s certificate of incorporation to (a) effect a reverse stock split of the Common Stock (the “Reverse Stock Split”) at a ratio mutually acceptable to the Company and the holders of a majority of the outstanding Preferred Stock (the “Majority Holders”), (b) authorize that number of shares of Common Stock that, taking into account the Reverse Stock Split, is sufficient to authorize and issue Issuable Common Shares (the “Authorized Capitalization Amendment”), (c) set the par value of the Common Stock to an amount equal to the exercise price of the Warrants, and (d) provide that the Company’s stockholders may take action by written consent; and (iii) the issuance of Common Stock in the Subsequent Financing at a price per share of $0.05 (subject to adjustment in certain events, including the Reverse Stock Split). The Purchaser has also agreed in the Purchase Agreement to vote all shares of Common Stock held by it prior to the Closing Date in favor of the Requisite Stockholder Approvals or, if there are insufficient votes in favor of granting the Requisite Stockholder Approvals, in favor of the adjournment of such meeting of the stockholders of the Company to a later date.
Subject only to obtaining the Requisite Stockholder Approvals, the Company also agreed to use its reasonable best efforts to consummate a bona fide financing pursuant to which the Company sells Common Stock to one or more accredited investors reasonably satisfactory to the Majority Holders, at a price per share of $0.05 (subject to adjustment in certain events, including the Reverse Stock Split), payable in cash, with an aggregate original issue price of not less than $35,000,000 and not more than $60,000,000, on terms and conditions reasonably satisfactory to the Majority Holders (the “Subsequent Financing”). The Purchase Agreement provides that the Subsequent Financing must be consummated, if at all, no later than 10 business days following receipt of the Requisite Stockholder Approvals.
Terms of the Preferred Stock
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The Preferred Stock will rank senior to the Common Stock in priority of payment in all respects, including with respect to payment of dividends, distribution of assets, distributions in connection with any Liquidation Event (as defined in the Certificate of Designation governing the terms of the Preferred Stock (the “Certificate of Designation”), and including certain bankruptcy and insolvency related events) or Deemed Liquidation Event (as defined in the Certificate of Designation and including a change of control transaction and the sale of all or substantially all assets of the Company and its subsidiaries), and all other redemption rights. The Preferred Stock has an initial original issue price of $2.00 per share (“Initial Liquidation Value”). Dividends on the Preferred Stock will accumulate daily at a rate of 8% per annum, on the basis of actual days elapsed in a year of 360 days. Dividends will accrue quarterly in arrears and, once accrued, shall not be paid in cash but shall be added to the Liquidation Value of such shares.
Each share of Preferred Stock shall be convertible, at the option of the holder thereof (with respect to its shares) or at the option of the Majority Holders (on behalf of all holders), into one fully-paid and non-assessable share of Common Stock (subject to adjustment in certain events, including the Reverse Stock Split) without the payment of additional consideration by the holder. Prior to receipt of the Requisite Stockholder Approvals, the aggregate number of shares of Common Stock issuable upon conversion of the Preferred Stock shall be limited as described in the Certificate of Designation.
Upon the occurrence of certain “Mandatory Redemption Events” (as defined and further described in the Certificate of Designation and including, among other things, a change of control, a Liquidation Event, a Deemed Liquidation Event, failure to approve the Authorized Capitalization Amendment and certain covenant breaches), the Company is required to make an irrevocable and unconditional offer to holders of the Preferred Stock to redeem all of the then-outstanding shares of Preferred Stock (“Mandatory Redemption”). The redemption price for each share of Preferred Stock redeemed in a Mandatory Redemption is equal to an amount per share of 1.5x its Liquidation Value as of the relevant date of determination. Upon the occurrence of certain Liquidation Events, all outstanding Preferred Stock will be deemed automatically surrendered to the Company, redeemed and extinguished in exchange for a promissory note (a form of which is attached as an exhibit to the Purchase Agreement).
The Preferred Stock is not redeemable at the election of the Company. From and after the date on which both (i) certain conditions with respect to an Other Financing have been satisfied and (ii) the Warrant Shares have been issued, none of the shares of Preferred Stock will be redeemable at the election of the holders thereof.
Subject to the limitations set forth in the Certificate of Designations (including as it relates to the limitation of voting power prior to the Requisite Stockholder Approvals), each holder of Preferred Stock is entitled to cast three votes per each share of Common Stock into which the Preferred Stock are convertible. In addition, for so long as the Preferred Stock remains outstanding, the holders of the Preferred Stock are entitled to elect, voting together as a separate class and on an as-converted to Common Stock basis, one director on the Company’s board of directors (“Board”) and to fill any vacancies with respect to such director.
The Certificate of Designation provides for certain “most favored nation” treatment to holders of the Preferred Stock, including that the Majority Holders may request that Company amend and restate the Certificate of Designation or any other organizational document to provide that the designations, preferences and privileges in respect of the Preferred Stock are no less favorable than the terms of any other financing (other than the Subsequent Financing).
The Certificate of Designation also provides that, without the consent of the Majority Holders and subject to certain exceptions described therein, the Company may not (i) consummate any financing, except for the Subsequent Financing; (ii) amend, alter or repeal its certificate of incorporation or its bylaws in a manner that adversely affects the Preferred Stock; (iii) create, authorize or issue new equity interests; (iv) increase or decrease the authorized number of shares of Common Stock (other than the Requisite Stockholder Approval) or Preferred Stock; (v) purchase or redeem or pay or declare any dividend on any shares of the Company’s capital stock; (vi) create, or hold capital stock in, non-wholly owned subsidiaries; (vii) change the number of votes entitled to be cast by directors; (viii) incur, or cause or permit any subsidiary to incur, indebtedness or liens; (ix) change in any material respect the compensation or benefits of any executive officer; (x) enter into certain related party transactions; (xi) sell, lease, transfer, exclusively license or dispose of certain material assets; (xii) consummate certain investments outside the ordinary course of business and (xiii) materially change the nature of the Company or its subsidiaries’ businesses.
Additional Agreements
On the Closing Date and in connection with the execution of the Purchase Agreement, the Company and the Purchaser entered into the Investors’ Rights Agreement (the “Investors Rights Agreement”) and the Registration Rights Agreement (the “Registration Rights Agreement”). The Investors Rights Agreement sets forth certain rights and obligations of the Purchaser, including the right to elect one director of the Company, the Purchaser’s obligation to vote the Common Stock underlying its Preferred Shares in support of certain matters set forth therein, certain information rights, and certain restrictions on transfer of the Preferred Shares. The Registration Rights Agreement grants the Purchaser customary registration rights with respect to the
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Preferred Shares and Warrant Shares and requires the Company to register for resale under the Securities Act of 1933, as amended (the “Securities Act”), such shares within the deadlines set forth in the Registration Rights Agreement.
The foregoing summaries of the Certificate of Designation, the Purchase Agreement, the Investors Rights Agreement and the Registration Rights Agreement (collectively, the “Transaction Documents”) do not purport to be complete and are qualified in their entirety by the full text of such Transaction Documents, copies of which are being filed as Exhibits 3.3, 10.1, 10.2 and 10.3, respectively, to this Current Report on Form 8-K, and are incorporated by reference herein. The Transaction Documents are not intended to be a source of factual, business or operational information about the Company or its subsidiaries. The representations, warranties and covenants contained in the Transaction Documents were made only for purposes of such agreements and as of specific dates, were solely for the benefit of the parties to such agreements, and may be subject to limitations agreed upon by the parties, including being qualified by disclosures for the purpose of allocating contractual risk between the parties instead of establishing matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors or security holders. Accordingly, investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties.
Item 3.02. Unregistered Sales of Equity Securities.
The information in Item 1.01 is incorporated by reference into this Item 3.02.
As described in Item 1.01, the Company issued the Preferred Shares to the Purchaser on the Closing Date and agreed to issue and sell the Warrants to the Purchaser in accordance with the terms of the Purchase Agreement and the Warrant Agreement. The offer and sale of the Preferred Shares and the Warrants (including the Warrant Shares) are being made in reliance an exemption from registration under the Securities Act, pursuant to Section 4(a)(2) thereof. The issuance of the shares of Common Stock to the holders of the Convertible Note was made pursuant to the exemption from the registration requirements of the Securities Act, pursuant to Section 3(a)(9) thereof.
Item 3.03. Material Modification to Rights of Security Holders.
The information in Item 1.01 regarding the voting rights of the Preferred Stock is incorporated by reference into this Item 3.03.
Item 8.01. Other Events.
Alongside the Preferred Stock Issuance and related transactions, the Company is continuing to implement strategic measures to scale its global business with greater cost efficiency to support its transition from a research and development-centric company to a commercially focused enterprise. In connection therewith, Company will notify certain of its employees out of its Skokie, Illinois location of an anticipated workforce reduction and provide related governmental notices in order to comply with the Worker Adjustment and Retraining Notification Act and similar state law. As of the date hereof, the Company expects that these actions will take effect on or within 14 days after June 1, 2025.
Forward-Looking Statements
This Current Report on Form 8-K includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, Section 21E of the Securities Exchange Act of 1934, as amended, and the Private Securities Litigation Reform Act of 1995, as amended. Forward-looking statements are inherently subject to risks, uncertainties and assumptions, many of which are outside the Company’s control, that could cause actual results or outcomes to differ materially from those discussed in the forward-looking statements. Generally, statements that are not historical facts, including those concerning possible or assumed future actions, business strategies, events or results of operations, are forward-looking statements. These statements may be preceded by, followed by or include the words “believes,” “estimates,” “expects,” “projects,” “forecasts,” “may,” “will,” “should,” “seeks,” “plans,” “scheduled,” “anticipates,” “intends” or similar expressions. Important factors that could cause the Company’s actual results and financial condition to differ materially from those indicated in the forward-looking statements include the risk factors and other information contained in the Company’s Annual Report on Form 10-K for the year ended December 31, 2024, as well as other existing and future filings with the Securities and Exchange Commission.
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Any forward-looking statement herein is based only on information currently available to the Company and speaks only as of the date on which it is made. The Company undertakes no obligations to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
Exhibit Number | Description | ||||
3.3 | |||||
10.1 | |||||
10.2 | |||||
10.3 | |||||
104 | Cover Page Interactive Data File (formatted as Inline XBRL) | ||||
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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 hereunto duly authorized.
Dated: May 9, 2025
| LANZATECH GLOBAL, INC. | |||||||||||
| By: | /s/ Joseph Blasko | ||||||||||
| Name: | Joseph Blasko | ||||||||||
| Title: | General Counsel and Corporate Secretary | ||||||||||
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Exhibit 3.3 1 CERTIFICATE OF DESIGNATION OF SERIES A CONVERTIBLE SENIOR PREFERRED STOCK OF LANZATECH GLOBAL, INC. FILED IN THE OFFICE OF THE SECRETARY OF STATE OF DELAWARE ON MAY 7, 2025 Pursuant to Section 151 of the General Corporation Law of the State of Delaware Pursuant to Section 151 of the General Corporation Law of the State of Delaware (the “DGCL”), LanzaTech Global, Inc., a corporation duly organized and validly existing under the DGCL (the “Issuer” or the “Company”), in accordance with the provisions of Section 103 thereof, does hereby submit the following: WHEREAS, the Second Amended and Restated Certificate of Incorporation of the Issuer (as amended, restated, supplemented or otherwise modified from time to time, the “Certificate of Incorporation”) authorizes the issuance of preferred stock, par value $0.0001 per share, of the Issuer in one or more series; and expressly authorizes the Board of Directors of the Issuer, to provide out of the unissued shares of the Preferred Stock for one or more series of Preferred Stock and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative, participating, optional, special and other rights, if any, of each such series and any qualifications, limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such series and included in a certificate of designation filed pursuant to the DGCL; and WHEREAS, on May 7, 2025, the Board of Directors approved and adopted the following resolution (this “Certificate of Designation” or this “Certificate”) for purposes of issuing shares of Preferred Stock, with a par value of $0.0001 per share, designated as a series known as Series A Convertible Senior Preferred Stock, with each such share having the designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions, as set forth in this Certificate of Designation. NOW THEREFORE, BE IT RESOLVED, that, pursuant to authority conferred upon the Board of Directors by the Certificate of Incorporation, the Board of Directors hereby provides out of the unissued shares of the Preferred Stock a series of Preferred Stock designated as Series A Convertible Senior Preferred Stock and authorizes for issuance 20,000,000 shares of the Series A Preferred Stock, and hereby fixes the designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions of the Series A Preferred Stock, as follows: 1. Designation. A total of 20,000,000 shares of Preferred Stock, with a par value of $0.0001 per share, shall be designated as a series known as Series A Convertible Senior Preferred Stock (the “Series A Preferred Stock”), with each such share having an initial original issue price (“Original Issue Price”) of $2.00 per share, which Series A Preferred Stock will have the respective designations, powers, preferences
2 and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions set forth in this Certificate of Designation. 2. Ranking; Liquidation, Dissolution or Winding Up; Certain Mergers, Consolidations and Asset Sales. (a) Ranking Generally. The Series A Preferred Stock shall rank senior to the Junior Stock in priority of payment in all respects, including with respect to (i) payment of dividends, (ii) distribution of assets, (iii) distributions in connection with any Liquidation Event or Deemed Liquidation Event, and (iv) all other redemption rights. (b) Preferential Payments to Holders of Preferred Stock. In the event of, as applicable, (i) any Liquidation Event, the Holders shall be entitled to be paid out of the assets of the Company available for distribution to its stockholders, which may include any distribution made pursuant to a plan under chapter 11 of the Bankruptcy Code (or its equivalent), and (ii) any Deemed Liquidation Event, the Holders shall be entitled to be paid out of the consideration payable to stockholders in such Deemed Liquidation Event or out of the Available Proceeds, in each case, on a pari passu basis and before any payment shall be made to the holders of Junior Stock by reason of their ownership thereof, an amount per share of Series A Preferred Stock equal to the greater of (A) the Liquidation Value as of such date of determination, (B) such amount per share as would have been payable had all shares of such Series A Preferred Stock been converted into Common Stock pursuant to Section 5 immediately prior to such Liquidation Event or Deemed Liquidation Event, and, solely with respect to a Liquidation Event, (C) the Redemption Price, as applicable (the amount payable pursuant to this sentence is hereinafter referred to as the “Payment Amount”). If upon any such Liquidation Event or Deemed Liquidation Event, the assets of the Company available for distribution to its stockholders shall be insufficient to pay the Holders the full Payment Amount to which they shall be entitled under this Section 2(b), the Holders shall share ratably in any distribution of the assets available for distribution, on a pari passu basis and in proportion to the respective amounts which would otherwise be payable in respect of the shares of Series A Preferred Stock held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full. (c) Effecting a Deemed Liquidation Event. The Company shall not have the power to effect a Deemed Liquidation Event, and shall not effect a Deemed Liquidation Event, unless the definitive agreement or plan with respect to such transaction or the terms of such transaction (any such agreement, plan or terms, the “Transaction Document”) provides that the consideration payable to the stockholders of the Company in such Deemed Liquidation Event shall be allocated to the holders of capital stock of the Company in accordance with this Section 2. (d) Amount Deemed Paid or Distributed. The amount deemed paid or distributed to the holders of capital stock of the Company upon any merger, consolidation, sale, transfer, exclusive license, other disposition or redemption shall be the cash or the value of the property, rights or securities to be paid or distributed to such holders pursuant to the Deemed Liquidation Event or the Liquidation Event, as applicable. The value of such property, rights or securities shall be determined in good faith by the Board of Directors, including the approval of the Series A Director (if then-serving). (e) Allocation of Escrow and Contingent Consideration. In the event of a Deemed Liquidation Event or a Liquidation Event, as applicable, if any portion of the consideration payable to the stockholders of the Company is payable only upon satisfaction of contingencies (the “Additional Consideration”), the Transaction Document shall provide that: (i) the portion of such consideration that is not Additional Consideration (such portion, the “Initial Consideration”) shall be allocated among the holders of capital stock of the Company in accordance with Sections 2(b) and 2(c) as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation Event or
3 Liquidation Event; and (ii) any Additional Consideration that becomes payable to the stockholders of the Company upon satisfaction of such contingencies shall be allocated among the holders of capital stock of the Company in accordance with Sections 2(b) and 2(c) after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the purposes of this Section 2(e), consideration placed into escrow or retained as a holdback to be available for satisfaction of indemnification or similar obligations in connection with such Deemed Liquidation Event or Liquidation Event shall be deemed to be Additional Consideration. 3. Voting. (a) Generally. Except as otherwise required by law and subject to the last sentence of this Section 3(a), on any matter presented to the stockholders of the Company for their action or consideration at any meeting of the stockholders of the Company (or by written consent of stockholders in lieu of a meeting, if so permitted under the Certificate of Incorporation and the Company’s Bylaws), each Holder of outstanding shares of Series A Preferred Stock shall be entitled to cast three votes for each share of Common Stock into which the shares of Series A Preferred Stock held by such Holder are convertible (as provided in Section 5) as of the record date for determining stockholders entitled to vote on such matter. Except as provided by law or by the other provisions of this Certificate of Designation or the Certificate of Incorporation and subject to the last sentence of this Section 3(a), Holders of Series A Preferred Stock shall vote together with the holders of Common Stock as a single class and on an as-converted to Common Stock basis. Notwithstanding anything to the contrary in this Section 3(a), prior to receipt of the Requisite Stockholder Approvals, the voting power of the Series A Preferred Stock shall not exceed, in the aggregate, the Share Conversion Cap or the Charter Cap. (b) Election of the Series A Director. At all times when at any shares of Series A Preferred Stock remain outstanding, the holders of record of the shares of the Series A Preferred Stock, exclusively and voting together as a separate class on an as-converted to Common Stock basis, shall be entitled to elect one director of the Company (the “Series A Director”) and to fill any vacancies created by the resignation, removal or death of the Series A Director (and any replacement thereof). For the avoidance of doubt, the Series A Director shall not be included in any of the classes created pursuant to Article V of the Certificate of Incorporation. The Series A Director shall have the right, but not the obligation, to serve on (i) all Subsidiary Boards and (ii) all committees and sub-committees of the Board of Directors or any Subsidiary Board, if any, when any such committees or sub-committees are established by the Board of Directors or the Subsidiary Boards, as applicable. The Series A Director may be removed without cause by, and only by, the affirmative vote of the Majority Holders, exclusively and voting together as a separate class on an as-converted to Common Stock basis. 4. Dividends. (a) Generally. All Dividends on shares of Series A Preferred Stock are prior to and in preference over any dividend on any Junior Stock and shall be declared and fully paid before any dividends are declared and paid, or any other distributions are made, on any Junior Stock. (b) Dividend Calculation. From and after the Initial Issue Date, preferential cumulative dividends (“Dividends”) shall accrue on each share of Series A Preferred Stock outstanding on a daily basis in arrears at the Dividend Rate. Dividends with respect to each Dividend Period shall be the sum of the dividends calculated on a daily basis during such period. The daily dividend shall be calculated as the product of (i) the Liquidation Value of each share of the Series A Preferred Stock outstanding as of the Dividend Accrual Date for such Dividend Period, and (ii) 8% (the “Dividend Rate”) for each day elapsed during such Dividend Period divided by 360. Dividends will accrue quarterly in arrears on each Dividend
4 Accrual Date and, once accrued, shall not be paid in cash but shall be added to the Liquidation Value of such share of Series A Preferred Stock as of the applicable Dividend Accrual Date. (c) Dividends or Distributions on Common Stock. Holders of Series A Preferred Stock shall fully participate, on an as-converted basis, in any dividends declared and paid or distributions on Common Stock as if the shares of Series A Preferred Stock were converted into shares of Common Stock (as provided in Section 5) as of the record date for such dividend or distribution. 5. Conversion. (a) Conversion Right; Conversion Ratio. Subject to applicable law, each share of Series A Preferred Stock shall be convertible, at the option of the Holder thereof (with respect to the shares of Series A Preferred Stock then held by the Holder) or at the option of the Majority Holders on behalf of all Holders (with respect to all shares of Series A Preferred Stock then outstanding), at any time, and without the payment of additional consideration by the Holder thereof, into one fully paid and non-assessable share of Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock and/or the Common Stock, including the Reverse Stock Split). Notwithstanding anything to the contrary in this Certificate of Designation, prior to the receipt of the Requisite Stockholder Approvals, the aggregate number of shares of Common Stock issuable upon conversion of the Series A Preferred Stock shall be subject to, and shall not exceed, the Share Conversion Cap or the Charter Cap. (b) Mechanics of Conversion. (i) Notice of Conversion. In order for a Holder or the Majority Holders (on behalf of all Holders), as applicable, to voluntarily convert shares of Series A Preferred Stock into shares of Common Stock, (A) such Holder or the Majority Holders, as applicable, shall provide written notice to the Company’s transfer agent at the office of the transfer agent for the Series A Preferred Stock (or at the principal office of the Company if the Company serves as its own transfer agent) that (x) such Holder elects to convert all or any number of such Holder’s shares of Series A Preferred Stock or (y) the Majority Holders elect to convert all, but not less than all, of the then- outstanding shares of Series A Preferred Stock, as applicable, and, if applicable, any event on which such conversion is contingent and (B) if any converting Holder’s shares are certificated, such Holder shall surrender the certificate or certificates for such shares of Series A Preferred Stock (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Company to indemnify the Company against any claim that may be made against the Company on account of the alleged loss, theft or destruction of such certificate), at the office of the transfer agent for the Series A Preferred Stock (or at the principal office of the Company if the Company serves as its own transfer agent). Such notice shall state such Holder’s name and the names of the nominees in which such Holder wishes the shares of Common Stock to be issued. If required by the Company, any certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Company, duly executed by the registered Holder or his, her or its attorney duly authorized in writing. The close of business, Eastern Time, on the date of receipt by the transfer agent (or by the Company if the Company serves as its own transfer agent) of such notice and, if applicable, certificates (or lost certificate affidavit and agreement) shall be the time of conversion (the “Conversion Time”), and the shares of Common Stock issuable upon conversion of the specified shares shall be deemed to be outstanding of record as of such date. The Company shall, as soon as practicable after the Conversion Time, issue and deliver to the converting Holder or Holders, or to their nominees, a certificate or certificates for the number of full shares of Common Stock issuable upon such conversion in accordance with the provisions
5 hereof and a certificate for the number (if any) of the shares of Series A Preferred Stock represented by the surrendered certificate that were not converted into Common Stock or, if such shares are uncertificated, register such shares in book-entry form. Delivery of the Common Stock upon conversion pursuant to Section 5(a) shall be deemed to fully satisfy and discharge the Company’s obligation to pay any accrued but unpaid Dividends on such converted shares of Series A Preferred Stock as of the Conversion Time, whether or not declared, together with any other dividends declared but unpaid thereon. (ii) Reservation of Shares. The Company shall at all times following receipt of the Requisite Stockholder Approvals and so long as any shares of Series A Preferred Stock remain outstanding, reserve and keep available out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the Series A Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Series A Preferred Stock. If at any time following receipt of the Requisite Stockholder Approvals the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Series A Preferred Stock, the Company shall take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to the Certificate of Incorporation. (iii) Effect of Conversion. All shares of Series A Preferred Stock which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease and terminate at the Conversion Time, except the right of the Holders thereof to receive shares of Common Stock in exchange therefor. (iv) Taxes. The Company shall pay any and all issue and other similar taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of Series A Preferred Stock pursuant to this Section 5. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of shares of Common Stock in a name other than that in which the shares of Series A Preferred Stock so converted were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance has paid to the Company the amount of any such tax or has established, to the satisfaction of the Company, that such tax has been paid. 6. Mandatory Redemption. (a) Redemption Offer. Subject to applicable law, upon (i) any Change of Control, (ii) any Liquidation Event, (iii) (A) the Company or any Material Subsidiary consenting to the institution of any Liquidation Event or (B) the Company or any Material Subsidiary obtaining approval from the Board of Directors or a Subsidiary Board, as applicable, to institute or consent to the institution of any Liquidation Event, (iv) direction from the Board of Directors, any Subsidiary Board or any Company representative acting with valid authority to file a Voluntary Petition for Non-Individuals Filing for Bankruptcy to commence a case under the Bankruptcy Code (each of the events in the foregoing clauses (i)-(iv), an “Automatic Redemption Event” and each of the events in the foregoing clauses (ii)-(iv) an “Automatic Exchange Event”), (v) any Deemed Liquidation, (vi) any Insufficient Capitalization Event, (vii) any Uncured Company Breach, or (viii) any failure to obtain the Specified Consent on or prior to May 15, 2025 (each of the events in the foregoing clauses (i)-(viii), a “Mandatory Redemption Event”), the Company shall make an irrevocable and unconditional offer (a “Redemption Offer”) to all Holders, prior to or upon the occurrence of such Mandatory Redemption Event, as applicable, to redeem all (or part, if applicable, in
6 the case of a Deemed Liquidation Event) of the then-outstanding shares of Series A Preferred Stock (such redemption, a “Mandatory Redemption”) on the applicable date determined in accordance with Section 6(b) (the “Mandatory Redemption Date”), in cash or for such other consideration as set forth in this Section 6(b), at a price per share of Series A Preferred Stock equal to the then applicable Redemption Price with respect to each such share of Series A Preferred Stock. Except as otherwise provided in Section 6(b), such Redemption Offer may be accepted by the Majority Holders (in their sole and absolute discretion), on behalf of all Holders, by delivery of written notice to the Company (an “Exercise Notice”); provided, however, that in the case of a Change of Control, at the election of the Majority Holders (in their sole and absolute discretion), exercisable by delivery of an Exercise Notice to the Company, in lieu of receiving the Redemption Price in respect of the shares of Series A Preferred Stock, the Holders shall be entitled to receive the applicable portion of the consideration payable to all stockholders of the Company upon such Change of Control, determined in accordance with Section 2; provided, further, in connection with any Deemed Liquidation Event consummated by the Company with the prior affirmative vote or written consent of the Majority Holders, to the extent required by Section 8, the Company shall redeem the maximum aggregate number of shares of Series A Preferred Stock, on a pari passu basis, that can be redeemed with the Deemed Liquidation Event Proceeds, and all other Series A Preferred Stock shall remain outstanding in accordance with the terms and conditions hereof (including with respect to redemption rights). If, on the Mandatory Redemption Date, the Company is prohibited by law from redeeming all shares of Series A Preferred Stock held by all Holders, then the Company shall redeem such Series A Preferred Stock to the fullest extent not so prohibited, on a pari passu basis. (b) Redemption Offer Mechanics. (i) With respect to any Automatic Redemption Event or Deemed Liquidation, the corresponding Mandatory Redemption shall, to the fullest extent permitted by law, be consummated concurrently with the occurrence of such Automatic Redemption Event or Deemed Liquidation, as applicable, (unless otherwise agreed by the Company and the Majority Holders (in their sole and absolute discretion)), and without the delivery of an Exercise Notice or any other action by the Majority Holders (other than in the event of a Change of Control, if applicable) and without the need for any action by the Company. (ii) With respect to an Automatic Exchange Event, all outstanding shares of Series A Preferred Stock shall, to the fullest extent permitted by law, be deemed automatically surrendered to the Company, redeemed and extinguished in exchange for, in a tax-efficient manner reasonably acceptable to the Majority Holders, one or more Promissory Notes, without the delivery of an Exercise Notice or any other action by the Holders and any lack of action or action to the contrary shall not affect the effectiveness of the exchange as to such Series A Preferred Stock into the Promissory Note(s). Upon the Automatic Exchange Event, such shares of Series A Preferred Stock will be deemed to have been redeemed, whether or not the certificates for such shares of Series A Preferred Stock have been surrendered for redemption and canceled, and Dividends with respect to such redeemed shares of Series A Preferred Stock shall cease to accumulate and all designations, rights, preferences, powers, qualifications, restrictions and limitations of such redeemed shares of Series A Preferred Stock shall forthwith terminate. (iii) With respect to any Insufficient Capitalization Event, upon delivery of an Exercise Notice by the Majority Holders to the Company, the corresponding Mandatory Redemption shall, to the fullest extent permitted by law, be consummated concurrently with the occurrence of such Insufficient Capitalization Event (unless otherwise agreed by the Company and the Majority Holders (in their sole and absolute discretion)).
7 (iv) With respect to any Uncured Company Breach, upon delivery of an Exercise Notice by the Majority Holders to the Company, the corresponding Mandatory Redemption shall, to the fullest extent permitted by law, be consummated no later than five Business Days following the occurrence of such Uncured Company Breach (unless otherwise agreed by the Company and the Majority Holders (in their sole and absolute discretion)). (v) If the Company is prohibited by law from redeeming all shares of Series A Preferred Stock held by all Holders upon a Mandatory Redemption, then the Company shall redeem the maximum aggregate number of shares of Series A Preferred Stock permitted by law, on a pari passu basis. Any shares of Series A Preferred Stock that are not redeemed pursuant to the immediately preceding sentence shall remain outstanding and entitled to all of the designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions of the Series A Preferred Stock set forth in this Certificate of Designation, including the right to continue to accumulate and receive Dividends thereon as set forth in Section 4 and, under such circumstances, the redemption requirements provided hereby shall be continuous, so that at any time thereafter when the Company is not prohibited by law from redeeming such shares of Series A Preferred Stock, the Company shall immediately redeem such shares of Series A Preferred Stock at a price per share of Series A Preferred Stock equal to the Redemption Price as of the Mandatory Redemption Date in accordance with this Section 6 (or, in the case of a Change of Control, as otherwise elected), together with payment of an amount equal to the additional accumulated and unpaid Dividends following the Mandatory Redemption Date, whether or not declared, together with any other dividends declared but unpaid thereon. (vi) At least seven days prior to the date on which the Company commences a Redemption Offer (or as promptly as practicable if the Board of Directors is not aware of such impending Mandatory Redemption Event as of such date), the Company shall send a notice (the “Mandatory Redemption Notice”) to each Holder, which shall state: (A) that a Redemption Offer is being made (or is reasonably contemplated to be made) and that shares of Series A Preferred Stock will be subject to redemption pursuant to this Section 6; (B) (1) the Redemption Price, (2) the bank or trust company with which the aggregate Redemption Price shall be deposited on or prior to the Mandatory Redemption Date and (3) the Mandatory Redemption Date (or, to the extent not ascertainable at the time of such notice, a good faith estimate of the Mandatory Redemption Date); and (C) a reasonably detailed description of the Mandatory Redemption Event, including the terms and conditions thereof. (vii) On or before any Mandatory Redemption Date, except with respect to Automatic Exchange Events, the Company shall deposit the amount of the applicable aggregate Redemption Price with a bank, trust company or exchange agent having an office in New York City irrevocably in trust for the benefit of such Holders. On the Mandatory Redemption Date, except with respect to Automatic Exchange Events, the Company shall, to the fullest extent permitted by law, immediately cause to be paid in cash the applicable Redemption Price for such shares of Series A Preferred Stock to such Holders. Upon such payment in full, such shares of Series A Preferred Stock will be deemed to have been redeemed, whether or not the certificates for such shares of Series A Preferred Stock have been surrendered for redemption and canceled, and Dividends with respect to such redeemed shares of Series A Preferred Stock shall cease to
8 accumulate and all designations, rights, preferences, powers, qualifications, restrictions and limitations of such redeemed shares of Series A Preferred Stock shall forthwith terminate. (viii) In case fewer than all shares of Series A Preferred Stock represented by any certificate are redeemed in accordance with this Section 6, new certificates shall be issued representing the unredeemed shares of Series A Preferred Stock without cost to the Holder thereof. (ix) The Company shall comply, to the extent applicable, with the requirements of Section 14 of the Exchange Act and any other securities laws (or rules of any exchange on which any Series A Preferred Stock are then listed) in connection with a redemption under this Section 6. To the extent there is any conflict between the notice or other timing requirements of this Section 6 and the applicable requirements of Section 14 of the Exchange Act, Section 14 of the Exchange Act shall govern. (c) Company Efforts. The Company shall take such actions as are necessary to give effect to the provisions of this Section 6, including (i) in the case of a Deemed Liquidation Event, irrevocably and unconditionally offering each Holder the right to require the Company to redeem Series A Preferred Stock held by such Holder with an aggregate Redemption Price not to exceed the Deemed Liquidation Event Proceeds, in connection with and as a condition to such Deemed Liquidation Event, for a price per share of Series A Preferred Stock, payable in cash, equal to the Redemption Price (or the right to receive the applicable portion of the consideration payable to all stockholders of the Company pursuant to Section 2), and (ii) in the event the Company is prohibited by law from redeeming or is otherwise unable to redeem any shares of Series A Preferred Stock in connection with any Mandatory Redemption Event on the Mandatory Redemption Date, taking any action necessary or appropriate to remove promptly any impediments to its ability to redeem such shares of Series A Preferred Stock required to be so redeemed, including, to the extent not prohibited by law, (A) reducing the stated capital of the Company or revaluing the assets of the Company to their fair market values under Section 154 of the DGCL if such revaluation would create surplus sufficient to make all or any portion of such Mandatory Redemption Event payment, and (B) borrowing the cash necessary to make such Mandatory Redemption Event payment. In the event of any Deemed Liquidation Event in which the Company is not the continuing or surviving corporation or entity, and the Series A Preferred Stock will remain outstanding at the continuing or surviving corporation or entity, proper provision shall be made so that such continuing or surviving corporation or entity shall agree to carry out and observe the obligations of the Company under this Certificate of Designation. (d) No Call Right. Notwithstanding anything to the contrary in this Certificate of Designation, none of the Series A Preferred Stock shall be redeemable at the election of the Company. (e) No Put Right. From and after the date, if any, on which both (i) the Other Financing CPs have been satisfied and (ii) the Warrant Shares (as defined in the Warrant Agreement) have been issued, none of the Series A Preferred Stock shall be redeemable at the election of the holders thereof. 7. MFN Terms. If, at any time while any shares of Series A Preferred Stock are outstanding, the Company shall consummate any financing (including any equity securities, debt securities, indebtedness for borrowed money, digital currency, or otherwise), other than the Subsequent Financing, that contain any economic rights, preferences or privileges or consent rights that are more favorable in any respect to the holder(s) thereof as compared to the terms of the Series A Preferred Stock (such more favorable terms, the “MFN Terms”), then (a) the Company shall provide prior written notice thereof to the Holders, together with a description of such financing instrument and the MFN Terms, and (b) upon written request of the Majority Holders, which request must be delivered to the Company within five days of such notice from the Company, the Company shall seek to amend and restate this Certificate of Designation, the Certificate of Incorporation and/or the other organizational documents of the Company to provide for such
9 designations, powers, preferences and privileges in respect of the Series A Preferred Stock that are no less favorable than the MFN Terms. 8. Negative Covenants. (a) For so long as any shares of Series A Preferred Stock are outstanding, without the prior affirmative vote or written consent of the Majority Holders (which may be given, withheld, conditioned or delayed in the sole and absolute discretion of the Majority Holders), the Company shall not (either directly or indirectly, including by merger, consolidation, operation of law or otherwise): (i) consummate any financing (including any Other Financing), except for the Subsequent Financing; (ii) amend, alter or repeal any provision of the Certificate of Incorporation or the Bylaws of the Company in a manner that adversely affects the rights, powers, preferences or privileges of the Series A Preferred Stock; (iii) create, authorize or issue any new Equity Interests of the Company, or cause or permit any of its subsidiaries to issue any new Equity Interests, in each case, other than the Warrants, the Warrant Shares, the issuance of Common Stock upon conversion of the Series A Preferred Stock, and any Equity Interests issued pursuant to the Company’s employee benefit plans as in effect prior to the Initial Issue Date; (iv) increase or decrease the authorized number of shares of Common Stock (other than pursuant to the Requisite Stockholder Approval), Preferred Stock, or any series thereof; (v) purchase or redeem (or permit any subsidiary to purchase or redeem) or pay or declare any dividend or make any distribution on, any shares of capital stock of the Company other than (i) as expressly authorized herein and (ii) any repurchases of equity securities issued pursuant to the Company’s employee benefit plans as in effect prior to the Initial Issue Date or repurchases in connection with the termination of an employee of the Company, in each case in the ordinary course of business; (vi) create, or hold capital stock in, any subsidiary that is not wholly owned (either directly or through one or more other subsidiaries) by the Company (or substantially wholly owned other than de minimis holdings of a second holder required by non-U.S. law), or permit any subsidiary to create, or issue or obligate itself to issue, any shares of any class or series of capital stock, or sell, transfer or otherwise dispose of any capital stock of any direct or indirect subsidiary of the Company, or permit any direct or indirect subsidiary to sell, lease, transfer, exclusively license or otherwise dispose (in a single transaction or series of related transactions) of all or substantially all of the assets of such subsidiary, in each case other than to the extent any such transaction constitutes a Deemed Liquidation (disregarding for these purposes the proviso contained in such definition) or a Change of Control; (vii) change the number of votes entitled to be cast, on any matter, by any director or directors on (A) the Board of Directors, (B) the Subsidiary Boards or (C) any committee or sub-committee of the Board of Directors or any Subsidiary Board as may be established from time to time; (viii) incur, or cause or permit any subsidiary of the Company to incur, indebtedness or liens in order to secure any such indebtedness, in each case, except for obligations
10 outstanding as of the Initial Issue Date or obligations the proceeds of which are used solely to redeem all then-outstanding shares of Series A Preferred Stock pursuant to Section 6; (ix) change in any material respect the compensation or benefits of any executive officer of the Company, other than (A) changes pursuant to compensatory arrangements in effect prior to the Initial Issue Date or (B) changes approved by the Board, including the Series A Director (if then-serving); (x) enter into any transaction with any director, officer, employee or stockholder of the Company or any of its subsidiaries, or any of their respective Affiliates or relatives, other than (A) any exercise of rights under this Certificate of Designation or the Investors’ Rights Agreement, (B) the Warrants and the issuance of the Warrant Shares, (C) for payment of reasonable and customary compensation and benefits to employees in the normal course of business, (D) reimbursement to employees and directors for reasonable out-of-pocket expenses, and (E) as set forth in the Company’s reports, registration statements or other disclosures filed or furnished to the SEC after January 1, 2024, in each case, that were publicly available on the SEC’s Electronic Data Gathering, Analysis and Retrieval System prior to the date of this Certificate of Designation; (xi) sell, lease, transfer, exclusively license or otherwise dispose of any material assets of the Company or any of its subsidiaries, taken as a whole (in a single transaction or series of related transactions), other than (i) transactions (including, for the avoidance of doubt, any Deemed Liquidation Event), the proceeds of which are distributed in accordance with Section 2, (ii) the LanzaX proposed transaction and the LanzaTech Nutritional Protein transaction, in each case as publicly announced prior to the Initial Issue Date, (iii) transactions effected between the Company and one of its wholly-owned subsidiaries or between wholly-owned subsidiaries of the Company, (iv) non-exclusive licenses of intellectual property in the ordinary course of business, and (v) any such transactions approved by the Board of Directors, including the Series A Director (if then-serving); (xii) consummate any Investment outside the ordinary course of business; (xiii) change in any material respect the nature of the Company’s or its subsidiaries’ businesses as of the Initial Issue Date, unless approved by the Board of Directors, including the Series A Director (if then-serving); or (xiv) cause or permit any of the Company’s direct or indirect subsidiaries to take any of the foregoing actions, mutatis mutandis. (b) Actions Taken without Approval. Any of the actions or omissions of the Company prohibited by this Section 8 (if taken without the prior written consent of the Majority Holders approving such action or omission) shall be ultra vires, null and void ab initio and of no force or effect. The Company shall not, and shall cause its subsidiaries not to (either directly or indirectly, including by merger, consolidation, operation of law or otherwise), by amendment, modification, repeal, restatement, supplementation, termination or waiver of, or consent to any departure by the Company or any of its subsidiaries from, any provision of this Certificate of Designation or any other Related Agreement or through any Mandatory Redemption Event, any disposition or any other reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, agreement or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this Certificate of Designation or any other Related Agreement.
11 9. Amendments and Waivers. So long as any shares of Series A Preferred Stock remain outstanding, and unless a greater percentage is required by law, the Company shall not, without the affirmative vote or written consent of the Majority Holders, voting separately as one class, amend, alter or change the rights, preferences or privileges of the shares of Series A Preferred Stock, or waive the compliance of any of the covenants included in this Certificate of Designation or the Investors’ Rights Agreement; provided, however, that the Company shall not cause or permit any of the following without the consent of each Holder that is disproportionately and adversely affected thereby: (a) reduce the Dividend Rate or alter the timing or method of payment of any Dividends pursuant to Section 4; (b) reduce the Liquidation Value; or (c) alter any of the redemption provisions set forth in Section 6, other than with respect to notice periods and other immaterial provisions; provided that any modification or waiver to the definition of “Liquidation Event” shall require the affirmative vote or written consent of the Majority Holders. 10. Cancellation. No shares of Series A Preferred Stock acquired by the Company by reason of redemption, purchase or otherwise shall be reissued, and the Company shall take all necessary action to cause such shares of Series A Preferred Stock immediately to be retired and eliminated from the shares of Series A Preferred Stock which the Company shall be authorized to issue. 11. Rights and Remedies of Holders. Except as expressly set forth herein, all remedies available under this Certificate of Designation, at law, in equity or otherwise, will be deemed cumulative and not alternative or exclusive of other remedies. The exercise by any Holder of a particular remedy will not preclude the exercise of any other remedy. 12. Definitions. As used in this Certificate of Designation, the following terms shall have the meanings specified below: “Additional Consideration” shall have the meaning assigned to such term in Section 2(e). “Affiliate” means, as to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such first Person. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise; provided, that, the Company and its subsidiaries shall not be deemed an Affiliate of any Purchaser, and no Purchaser shall be deemed an Affiliate of the Company or any of its subsidiaries. “Automatic Exchange Event” shall have the meaning assigned to such term in Section 6(a). “Automatic Redemption Event” shall have the meaning assigned to such term in Section 6(a). “Available Proceeds” means the Deemed Liquidation Event Proceeds, together with any other assets of the Company available for distribution to its stockholders, all to the extent permitted by provisions of the DGCL governing distributions to stockholders. “Bankruptcy Code” means title 11 of the United States Code, as now and hereafter in effect, or any successor statute. “Board of Directors” means, as to the Company, the board of directors or other governing body of the Company (including any committee thereof delegated authority to consider strategic
12 alternatives, including any Liquidation Event, whose resolutions or approval is not subject to approval of such board or governing body), and the term “directors” means members of the Board of Directors. “Business Day” means each day that is not a Legal Holiday. “Certificate” shall have the meaning assigned to such term in the recitals hereof. “Certificate of Designation” shall have the meaning assigned to such term in the recitals hereof. “Certificate of Incorporation” shall have the meaning assigned to such term in the recitals hereof. “Change of Control” means any transaction or series of related transactions, other than (a) the issuance of the Series A Preferred Stock and the exercise of the Warrants and (b) the Subsequent Financing, pursuant to or as a result of which a single party (or group of parties) that does not hold a majority of the Company’s outstanding voting power as of the Initial Issue Date acquires Equity Interests representing a majority of the Company’s outstanding voting power. “Charter Cap” means, as of any time prior to the receipt of Requisite Stockholder Approval, 600,000,000 shares of Common Stock. “Common Stock” means any shares of common stock, with a par value of $0.0001 per share, of the Company. “Company” shall have the meaning assigned to such term in the recitals hereof. “Conversion Time” shall have the meaning assigned to such term in Section 5(b)(i). “Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally. “Deemed Liquidation” means (a) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Company or any of its subsidiaries of all or substantially all the assets of the Company and its subsidiaries taken as a whole, or (b) the sale, lease, transfer, exclusive license or other disposition (whether by merger, consolidation, statutory conversion, domestication, continuance or otherwise, and whether in a single transaction or a series of related transactions) of one or more Material Subsidiary to a Person that is not a direct or indirect wholly- owned subsidiary of the Company; provided, however, consummation of the LanzaX proposed transaction and/or the LanzaTech Nutritional Protein, in each case as publicly announced prior to the Initial Issue Date, shall not constitute a Deemed Liquidation. “Deemed Liquidation Event” means the occurrence of a Change of Control or a Deemed Liquidation. “Deemed Liquidation Event Proceeds” means the consideration received by the Company or its stockholders pursuant to any applicable Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed, any other expenses reasonably related to such
13 Deemed Liquidation Event or any other expenses incident to the dissolution of the Company as provided herein, in each case as determined in good faith by the Board of Directors). “DGCL” shall have the meaning assigned to such term in the recitals hereof. “Dividend Accrual Date” means the last day of each fiscal quarter of the Company following the Initial Issue Date (or, if such date is not a Business Day, the immediately succeeding Business Day). “Dividend Period” means the period commencing on and including a Dividend Accrual Date that ends on, but does not include, the next Dividend Accrual Date; provided that the initial Dividend Period shall commence on and include the Initial Issue Date and end on, but not include, the first Dividend Accrual Date. “Dividend Rate” shall have the meaning assigned to such term in Section 4(b). “Dividends” shall have the meaning assigned to such term in Section 4(b). “Equity Interests” means capital stock of the Company and all warrants, options or other rights to acquire such capital stock. “Exchange Act” means the Securities Exchange Act of 1934, as amended. “Exercise Notice” shall have the meaning assigned to such term in Section 6(a). “fair market value” means with respect to any investment, asset, property or liability, the value of the consideration obtainable in a sale of such investment, asset, property or liability at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, investment, property or liability as determined in good faith by the Board of Directors. “FASB” means the Financial Accounting Standards Board. “GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, as in effect from time to time. “Holder” means, as of the relevant date, any Person that is the holder of record of at least one share of Series A Preferred Stock, as of such date. “Initial Consideration” shall have the meaning assigned to such term in Section 2(e). “Initial Issue Date” means May 7, 2025. “Insufficient Capitalization Event” means the occurrence of either of the following events: (a) the Stockholder Meeting is not held prior to the Stockholder Approval Deadline; or (b) if, at any time after the Stockholder Meeting, there is not a sufficient number of shares of Common Stock duly authorized for the exercise of the Warrants and the consummation of the Subsequent Financing.
14 “Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person of or in the capital stock, indebtedness or other equity or debt interest of another Person, whether by means of (a) the purchase or other acquisition of capital stock of another Person, (b) a loan, advance or capital contribution to, guaranty or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. “Investors’ Rights Agreement” means the Investors’ Rights Agreement, dated as of the Initial Issue Date (as amended, restated, supplemented or otherwise modified from time to time), by and among the Company and the Holders party thereto. “Issuer” shall have the meaning assigned to such term in the recitals hereof. “Junior Stock” means all Equity Interests, other than the Series A Preferred Stock, outstanding at any time or from time to time. “Legal Holiday” means a Saturday, a Sunday or a day on which commercial banking institutions are not required or authorized to be open in the State of New York. “Liquidation Event” means: (a) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Company or any Material Subsidiary, or of all or substantially all of the property or assets of the Company or any Material Subsidiary, under any Debtor Relief Law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Material Subsidiary or for all or substantially all of the property or assets of the Company or any Material Subsidiary or (iii) the winding-up or liquidation of the Company or any Material Subsidiary, and in the case of any proceeding described in this clause (a), such proceeding or petition shall continue in effect and undismissed or unstayed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered; (b) the Company or any Material Subsidiary (i) voluntarily commencing any proceeding or filing any petition seeking relief under any Debtor Relief Law, (ii) consenting to the institution of, or failing to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in clause (a) above, (iii) applying for or consenting to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Material Subsidiary or for all or substantially all of the property or assets of the Company or any Material Subsidiary, or (iv) making a general assignment for the benefit of creditors, and in the case of any proceeding described in this clause (b), such proceeding or petition shall continue in effect and undismissed or unstayed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered; or (c) any other voluntary or involuntary reorganization, restructuring, recapitalization, liquidation, dissolution or winding up of the Company or a Material Subsidiary, regardless of whether such transaction(s) is effectuated in an insolvency proceeding, including a case under chapter 11 of the Bankruptcy Code. “Liquidation Value” means, as of any date of determination and with respect to each share of Series A Preferred Stock, the sum of (a) $2.00, plus (b) any accumulated and unpaid Dividends on such share added to the Liquidation Value as provided in Section 4(b), plus (c) any accumulated and unpaid Dividends on such share from the last Dividend Accrual Date up to, and including, such date (to the extent not part of the Liquidation Value of such share as of such date). “Majority Holders” means, as of any date of determination, the Holders holding a majority of the then outstanding shares of Series A Preferred Stock.
15 “Mandatory Redemption” shall have the meaning assigned to such term in Section 6(a). “Mandatory Redemption Date” shall have the meaning assigned to such term in Section 6(a). “Mandatory Redemption Event” shall have the meaning assigned to such term in Section 6(a). “Mandatory Redemption Notice” shall have the meaning assigned to such term in Section 6(b)(vi). “Material Subsidiary” means any direct or indirect subsidiary of the Company that holds assets that have an aggregate fair market value of more than $1,000,000. “MFN Terms” shall have the meaning assigned to such term in Section 7. “Nasdaq Stockholder Approval” means the receipt by the Company of the requisite approval from its stockholders in accordance with Nasdaq Stock Market Rule 5635: (a) to issue more than 19.9% of its outstanding shares of Common Stock, as outstanding before such issuance, and at an issue price below the “minimum price” in connection with settlement of conversions of the Series A Preferred Stock, the exercise of the Warrants and the issuance of the Warrant Shares and the issuance of shares of Common Stock pursuant to the Subsequent Financing; and (b) to effect any “change of control” under Nasdaq Stock Market Rule 5635 in connection with settlement of conversions of the Series A Preferred Stock, the exercise of the Warrants and the issuance of the Warrant Shares, and the issuance of shares of Common Stock pursuant to the Subsequent Financing. “Original Issue Price” shall have the meaning assigned to such term in Section 1. “Other Financing” means a financing, other than a Subsequent Financing; provided, however, for the avoidance of doubt, the Company shall not consummate any Other Financing unless the Other Financing CPs have been satisfied. “Other Financing CPs” means, collectively, that the Company has obtained both (a) the prior affirmative vote or written consent of the Majority Holders (which may be given, withheld, conditioned or delayed in the sole and absolute discretion of the Majority Holders), as required by Section 8(a)(i), and (b) any requisite approval of its stockholders of an amendment to the Certificate of Incorporation to (i) increase the authorized number of shares of Common Stock sufficient to (A) consummate such Other Financing and (B) issue the Warrant Shares, and (ii) set the par value of the Common Stock to an amount equal to the Exercise Price (as defined in the Warrant Agreement. “Payment Amount” shall have the meaning assigned to such term in Section 2(b). “Person” means any individual, corporation, limited liability company, partnership (including limited partnership), joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity. “Preferred Stock” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution or winding up, including, in the case of the Company, the Series A Preferred Stock.
16 “Promissory Note” or “Promissory Notes” shall have the meaning assigned to such terms in the Purchase Agreement. “Purchase Agreement” means the Series A Convertible Senior Preferred Stock Purchase Agreement, dated as of the Initial Issue Date (as amended, restated, supplemented or otherwise modified from time to time), by and among the Purchasers and the Company. “Purchaser” and “Purchasers” shall have the meanings assigned to such terms in the Purchase Agreement. “Redemption Offer” shall have the meaning assigned to such term in Section 6(a). “Redemption Price” means, with respect to each share of Series A Preferred Stock outstanding as of any applicable date of determination, an amount per share of Series A Preferred Stock equal to 1.5x the Liquidation Value as of such date of determination. “Related Agreements” means this Certificate of Designation, the Warrant Agreement, Warrants, the Investors’ Rights Agreement, and the Purchase Agreement. “Requisite Stockholder Approval” means, collectively, (a) the Nasdaq Stockholder Approval, (b) approval by the requisite Company stockholders of an amendment to the Certificate of Incorporation (as in effect as of the Initial Issue Date after filing the Certificate of Designation) to (i) effect a reverse stock split of the Common Stock at a ratio mutually acceptable to the Company and the Majority Holders (the “Reverse Stock Split”), (ii) authorize that number of shares of Common Stock that, taking into account the Reverse Stock Split, is sufficient to consummate (A) the transactions contemplated by the Purchase Agreement, (B) the exercise of the Warrants, and (C) the consummation of the Subsequent Financing, (iii) set the par value of the Common Stock to an amount equal to the Exercise Price (as defined in the Warrant Agreement), and (iv) provide that the Company’s stockholders may take action by written consent, and (c) approval by the requisite Company stockholders of the issuance of Common Stock in the Subsequent Financing at a price per share of $0.05 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar transaction, including the Reverse Stock Split). “SEC” means the U.S. Securities and Exchange Commission. “Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder. “Series A Preferred Stock” shall have the meaning assigned to such term in Section 1(a). “Share Conversion Cap” means, as of any time prior to the receipt of Nasdaq Stockholder Approval, 39,360,036 shares of Common Stock (as such amount may be proportionately adjusted for any recapitalization, reorganization, reclassification, consolidation, subdivision, split-up, exchange of capital stock or similar event). After the receipt of the Nasdaq Stockholder Approval, the Share Conversion Cap shall no longer be applicable. “Specified Consent” shall have the meaning assigned to such term in the Purchase Agreement. “Stockholder Approval Deadline” means 60 days (or 90 days if the staff of the SEC conducts a review of the applicable preliminary proxy statement) following the Initial Issue Date.
17 “Stockholder Meeting” means a meeting of stockholders of the Company called for the purpose of obtaining the Requisite Stockholder Approvals. “Subsequent Financing” means a bona fide financing, consummated, if at all, no later than 10 Business Days following receipt of the Requisite Stockholder Approvals, pursuant to which the Company sells Common Stock to one or more “accredited investors” (as defined under Rule 501(a) of Regulation D promulgated under the Securities Act) reasonably satisfactory to the Majority Holders, at a price per share of $0.05 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar transaction, including the Reverse Stock Split), payable in cash, with an aggregate original issue price of not less than $35,000,000 and not more than $60,000,000. “Subsidiary Board” means, as to any subsidiary of Company, the board of directors, board of managers or other governing body of the subsidiary of the Company (including any committee thereof delegated authority to consider strategic alternatives, including any Liquidation Event, whose resolutions or approval is not subject to approval of such board or governing body), or if such subsidiary of the Company is owned or managed by a single entity, the board of directors, board of managers or other governing body (including any committee thereof delegated authority to consider strategic alternatives, including any Liquidation Event, whose resolutions or approval is not subject to approval of such board or governing body) of such entity. “Transaction Document” shall have the meaning assigned to such term in Section 2(c). “U.S.” means the United States of America. “Uncured Company Breach” means a material breach by the Company of any of the terms or conditions of this Certificate of Designation or the Investors’ Rights Agreement (which such breach, if capable of being cured, is not cured within 10 Business Days following the first occurrence thereof). “Warrant” or “Warrants” shall have the meaning assigned to such terms in the Purchase Agreement. “Warrant Agreement” shall have the meaning assigned to such term in the Purchase Agreement. 13. Interpretation. (a) Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. (b) The headings are for convenience only and shall not be given effect in interpreting this Certificate of Designation. References herein to any Section or Article shall be to a Section or Article hereof unless otherwise specifically provided. (c) References herein to any law shall mean such law, including all rules and regulations promulgated under or implementing such law, as amended from time to time and any successor law unless otherwise specifically provided. Except as otherwise stated in this Certificate of Designation, references in this Certificate of Designation to any contract(s) or written agreement(s) shall mean such contract or written agreement as in effect on the Initial Issue Date, regardless of any subsequent replacement, refunding, refinancing, extension, renewal, restatement, amendment, supplement or modification thereof or thereto and regardless of whether the Company is, remains, was, or has ever been, a party thereto.
18 (d) The use of the term “pari passu” with respect to the Preferred Stock, shall mean pari passu by reference to the Liquidation Value of such Preferred Stock at the relevant time. (e) The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Certificate of Designation, refer to this Certificate of Designation as a whole and not to any particular provision of this Certificate of Designation. (f) The use of the masculine, feminine or neuter gender or the singular or plural form of words shall not limit any provisions of this Certificate of Designation. (g) The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non- limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. (h) The word “will” shall be construed to have the same meaning as the word “shall”. With respect to the determination of any period of time, “from” shall mean “from and including”. The word “or” shall not be exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. (i) The terms “lease” and “license” shall include “sub-lease” and “sub-license”, as applicable. (j) All references to “$”, currency, monetary values and dollars set forth herein shall mean U.S. dollars. (k) When the terms of this Certificate of Designation refer to a specific agreement or other document or a decision by any Person that determines the meaning or operation of a provision hereof, the secretary of the Company shall maintain a copy of such agreement, document or decision at the principal executive offices of the Company and a copy thereof shall be provided free of charge to any Holder who makes a request therefor. (l) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the Holders that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Initial Issue Date in GAAP or in the application thereof on the operation of such provision, regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. (m) Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB Accounting Standards Codification 805, 810 or 825 (or any other part of FASB Accounting Standards Codification having a similar result or effect), to value any indebtedness at “fair value”. [Remainder of page intentionally left blank]
[Signature Page to Certificate of Designation] IN WITNESS WHEREOF, the Company has caused this Certificate of Designation to be signed by a duly authorized officer this 7th day of May, 2025. LANZATECH GLOBAL, INC. By: _/s/ Jennifer Holmgren_________________ Name: Jennifer Holmgren Title: Chief Executive Officer
Exhibit 10.1 SERIES A CONVERTIBLE SENIOR PREFERRED STOCK PURCHASE AGREEMENT BETWEEN LANZATECH GLOBAL, INC. AND THE PURCHASERS SIGNATORY HERETO Dated as of May 7, 2025
i TABLE OF CONTENTS Page ARTICLE I SUBSCRIPTION AND ISSUE OF SECURITIES ................................................................... 1 SECTION 1.1 Subscription and Issue of Securities. ................................................................ 1 SECTION 1.2 Closing .............................................................................................................. 1 SECTION 1.3 Closing and Post-Closing Deliverables. ........................................................... 2 SECTION 1.4 Use of Proceeds ................................................................................................ 2 ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY ................................... 3 SECTION 2.1 Existence, Qualification and Power; Compliance with Laws ........................... 3 SECTION 2.2 Authorization; No Contravention ..................................................................... 3 SECTION 2.3 Governmental Authorization ............................................................................ 3 SECTION 2.4 Binding Effect................................................................................................... 3 SECTION 2.5 Capitalization. ................................................................................................... 3 SECTION 2.6 Offering of Securities ....................................................................................... 4 SECTION 2.7 No Registration ................................................................................................. 4 SECTION 2.8 Financial Condition; No Material Adverse Effect ............................................ 4 SECTION 2.9 Litigation and Environmental Matters. ............................................................. 4 SECTION 2.10 Compliance with Laws ..................................................................................... 5 SECTION 2.11 Investment Company Status ............................................................................. 5 SECTION 2.12 Taxes ................................................................................................................. 5 SECTION 2.13 ERISA. .............................................................................................................. 5 SECTION 2.14 Solvency ........................................................................................................... 5 SECTION 2.15 Labor Disputes .................................................................................................. 6 SECTION 2.16 Sanctions. .......................................................................................................... 6 SECTION 2.17 No Other Representations or Warranties .......................................................... 6 SECTION 2.18 Disclosure ......................................................................................................... 7 ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS ............................ 7 SECTION 3.1 Existence, Qualification and Power .................................................................. 7 SECTION 3.2 Accredited Investor ........................................................................................... 7 SECTION 3.3 Power; Authorization ........................................................................................ 7 SECTION 3.4 Investment Matters. .......................................................................................... 7 SECTION 3.5 Consents and Approvals ................................................................................... 8 SECTION 3.6 No Conflict ....................................................................................................... 8 SECTION 3.7 Compliance with Laws ..................................................................................... 8
ii SECTION 3.8 Investment Experience; No Reliance; Economic Risk ..................................... 9 SECTION 3.9 Informed Investment Decision ......................................................................... 9 SECTION 3.10 Assumption of Risk .......................................................................................... 9 ARTICLE IV ADDITIONAL COVENANTS ........................................................................................... 10 SECTION 4.1 Issuance of Warrants; Requisite Stockholder Approvals; Subsequent Financing; Promissory Note. .......................................................................... 10 SECTION 4.2 Expenses ......................................................................................................... 10 SECTION 4.3 Further Assurances ......................................................................................... 10 SECTION 4.4 Compliance with Laws ................................................................................... 10 SECTION 4.5 Securities Act .................................................................................................. 11 SECTION 4.6 Indemnification and Insurance. ...................................................................... 11 SECTION 4.7 Cooperation .................................................................................................... 12 ARTICLE V MISCELLANEOUS.............................................................................................................. 12 SECTION 5.1 Survival ........................................................................................................... 12 SECTION 5.2 Entire Agreement; Parties in Interest .............................................................. 12 SECTION 5.3 No Recourse ................................................................................................... 12 SECTION 5.4 Governing Law and Jurisdiction ..................................................................... 13 SECTION 5.5 Waiver of Jury Trial ....................................................................................... 13 SECTION 5.6 Remedies. ....................................................................................................... 13 SECTION 5.7 Notice. ............................................................................................................ 14 SECTION 5.8 Amendments; Waivers ................................................................................... 14 SECTION 5.9 Counterparts.................................................................................................... 14 SECTION 5.10 Assignment ..................................................................................................... 14 SECTION 5.11 Severability ..................................................................................................... 15 SECTION 5.12 Certain Company Acknowledgements ........................................................... 15 SECTION 5.13 PATRIOT Act................................................................................................. 15 SECTION 5.14 Rights of Third Parties .................................................................................... 15 SECTION 5.15 Tax Treatment................................................................................................. 15 ARTICLE VI DEFINITIONS ..................................................................................................................... 16 SECTION 6.1 Certain Definitions. ........................................................................................ 16 SECTION 6.2 Construction. .................................................................................................. 22 LIST OF EXHIBITS EXHIBIT A SCHEDULE OF PURCHASERS EXHIBIT B-1 SIMPSON THACHER & BARTLETT LLP FORM OF OPINION
iii EXHIBIT B-2 MORRIS, NICHOLS, ARSHT & TUNNELL LLP FORM OF OPINION EXHIBIT C FORM OF SOLVENCY CERTIFICATE EXHIBIT D FORM OF WRITTEN CONSENT* EXHIBIT E POST-CLOSING COMPANY BUDGET* EXHIBIT F FORM OF WARRANT AGREEMENT EXHIBIT G SCHEDULE OF WARRANTS EXHIBIT H FORM OF PROMISSORY NOTE * These Exhibits have been omitted in accordance with Regulation S-K Item 601(b)(2) because they are both not material and are the type that the Company treats as private and confidential. The Company agrees to furnish supplementally a copy of this Exhibit to the Securities and Exchange Commission upon its request.
1 SERIES A CONVERTIBLE SENIOR PREFERRED STOCK PURCHASE AGREEMENT This SERIES A CONVERTIBLE SENIOR PREFERRED STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of May 7, 2025 (the “Closing Date”), is made by and between LanzaTech Global, Inc., a Delaware corporation (the “Company”), and each of the parties listed on Exhibit A as “Purchaser” (each, a “Purchaser” and, collectively, the “Purchasers” and, together with the Company, the “Parties”). Capitalized terms used in this Agreement and not otherwise defined shall have the meanings specified in Section 6.1. PRELIMINARY STATEMENTS A. The Company desires to issue to the Purchasers an aggregate of 20,000,000 authorized but unissued shares of preferred stock designated as “Series A Convertible Senior Preferred Stock”, par value of $0.0001 per share (the “Series A Preferred Shares”), on the terms and subject to the conditions set forth in this Agreement. B. Each Purchaser desires to subscribe for the Series A Preferred Shares on the terms and subject to the conditions set forth in this Agreement. C. This Agreement is being entered into, and the issue of the Series A Preferred Shares is being concurrently consummated on, the Closing Date. The Parties agree as follows: ARTICLE I SUBSCRIPTION AND ISSUE OF SECURITIES SECTION 1.1 Subscription and Issue of Securities. (a) Subscription and Issue. Subject to all of the terms and conditions of this Agreement, and in reliance on the representations, warranties, covenants and other agreements set forth herein, at the Closing (as defined below), (i) the Company shall issue to each Purchaser the respective number of Series A Preferred Shares set forth opposite such Purchaser’s name on Exhibit A in the column labeled “Purchased Shares” (collectively, the “Purchased Shares”), in each case for $2.00 per Series A Preferred Share, resulting in an aggregate purchase price for the Series A Preferred Shares issued pursuant to this Agreement of $40,000,000 (the “Aggregate Purchase Price”), and (ii) each Purchaser shall subscribe for and purchase such number of Series A Preferred Shares and pay the portion of the Aggregate Purchase Price set forth opposite such Purchaser’s name on Exhibit A in the column labeled “Purchase Price”, by wire transfer in immediately available funds. (b) Series A Preferred Shares. (i) The Series A Preferred Shares will (A) be issued at the Closing to each Purchaser fully paid, non-assessable and free and clear of any Encumbrances (other than any restrictions set forth in the governing documents or Encumbrances created by applicable securities laws) and otherwise in accordance with the terms of this Agreement, (B) be registered to the Purchaser in the Company’s share records, and (C) have the designations, rights, preferences, powers, restrictions and limitations set forth in the Charter and the Certificate of Designation, and (ii) the holders of the Series A Preferred Shares will have the rights set forth in the Investors’ Rights Agreement. SECTION 1.2 Closing. The consummation of the sale and purchase of the Series A Preferred Shares in accordance with the terms of this Agreement (the “Closing”) will take place remotely via the exchange of signatures, concurrently with the execution of this Agreement on the Closing Date.
2 SECTION 1.3 Closing and Post-Closing Deliverables. (a) At Closing, the Company shall deliver to each Purchaser: (i) evidence, reasonably satisfactory to such Purchaser, of the conversion of the entire Outstanding Amount (as defined in the Legacy Convertible Note) being automatically converted into Common Stock (as defined below) pursuant to Section 4(a) of the Legacy Convertible Note, effective as of the Closing; (ii) the Investors’ Rights Agreement, duly executed by the Company; (iii) a certificate, dated as of the Closing Date, certifying (i) the Bylaws of the Company as in effect on the Closing Date and (ii) resolutions of the Board of Directors of the Company approving this Agreement, the Warrant Agreement (as defined below), and each other Related Agreement, and the transactions contemplated hereby and thereby (including, without implied limitation, (A) the issuance of the Series A Preferred Shares on the Closing Date, (B) the issuance of the Warrants no later than May 31, 2025, and (C) the exercise of the Warrants, conditioned, solely with respect to this clause (C), only on the occurrence of the Exercise Time (as defined in the Warrant Agreement)), duly executed by the Secretary of the Company; (iv) an opinion from Simpson Thacher & Bartlett LLP, counsel to the Company, dated as of the Closing Date, in substantially the form attached hereto as Exhibit B-1 and an opinion from Morris, Nichols, Arsht & Tunnell LLP, Delaware counsel to the Company, dated as of the Closing Date, in substantially the form attached hereto as Exhibit B-2; (v) a solvency certificate, dated as of the Closing Date, in substantially the form attached hereto as Exhibit C, duly executed by an authorized officer of the Company; and (vi) a certificate representing the Series A Preferred Shares issued to such Purchaser pursuant to this Agreement. (b) At Closing, each Purchaser shall deliver to the Company or its designee, as applicable: (i) the portion of the Aggregate Purchase Price set forth opposite such Purchaser’s name on Exhibit A in the column labeled “Purchase Price”; (ii) the Investors’ Rights Agreement, duly executed by such Purchaser; and (iii) a properly completed and duly executed Internal Revenue Service Form W-9 of such Purchaser. (c) No later than May 15, 2025, the Company shall deliver to the Purchaser evidence, reasonably satisfactory to the Purchaser, of the written consent of BGTF LT Aggregator LP, in the form attached as Exhibit D (the “Specified Consent”). SECTION 1.4 Use of Proceeds. The Company covenants and agrees that it shall use the proceeds derived from the sale of the Series A Preferred Shares only for (a) working capital and general corporate purposes consistent with the budget attached as Exhibit E and (b) payment of (i) the reasonable and documented out-of-pocket costs and expenses of the Purchasers, pursuant to and in accordance with Section 4.2, and (ii) the reasonable and documented out-of-pocket costs and expenses of the Company in connection with the preparation, negotiation, execution and delivery of this Agreement, the Related Agreements and
3 the documents and instruments referred to herein and therein and the consummation of the transactions contemplated hereby and thereby. ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY Except as disclosed in any form, document or report publicly filed with or furnished to the SEC by the Company on or after January 1, 2022 and not less than two Business Days prior to the date hereof (excluding any disclosures contained under the heading “Risk Factors” or any disclosure included in any “forward-looking statements” disclaimer or any other general statement regarding risks or uncertainties that are similarly cautionary, predictive or forward-looking in nature), the Company represents and warrants to each Purchaser, as of the Closing Date, that: SECTION 2.1 Existence, Qualification and Power; Compliance with Laws. The Company and each of its Subsidiaries: (a) is a Person duly organized or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation; (b) has all corporate power and authority to (i) own its assets and carry on its business as currently conducted and (ii) execute, deliver and perform its obligations under this Agreement and each Related Agreement to which it is a party; (c) is duly qualified and in good standing under the laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification; (d) is in compliance with all Applicable Laws, writs, injunctions and orders; and (e) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted; except in each case referred to in clause (c), (d) or (e), to the extent that failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. SECTION 2.2 Authorization; No Contravention. The execution, delivery and performance by the Company of this Agreement and each Related Agreement to which it is a party, and the issuance and sale of the Series A Preferred Shares pursuant to this Agreement, has been duly authorized by all necessary corporate or other organizational action on the part of the Company. None of the execution, delivery or performance by the Company of each such agreement to which the Company is a party, nor the consummation of the Transactions, will contravene the terms of any of its Organizational Documents. SECTION 2.3 Governmental Authorization. No material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority is required in connection with the execution, delivery or performance by, or enforcement against, the Company of this Agreement or any Related Agreement to which it is a party, except: (a) such as have been obtained or made and are in full force and effect; (b) consents, approvals, registrations, filings, permits or actions the failure to make or obtain would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; and (c) solely with respect to the issuance of the Warrant Shares (as defined below), the filing of a Certificate of Amendment with the office of the Secretary of State of the State of Delaware. SECTION 2.4 Binding Effect. This Agreement and each other Related Agreement to which it is a party has been duly executed and delivered by the Company. This Agreement and each other Related Agreement to which it is a party constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by law and by general principles of equity and principles of good faith and fair dealing. SECTION 2.5 Capitalization. (a) The Company has filed the Certificate of Designation with the Secretary of State of the State of Delaware concurrently with the Closing. Immediately prior to the consummation of the
4 Transactions, the authorized capital stock of the Company consisted of (i) 600,000,000 shares of common stock, with a par value of $0.0001 per share (“Common Stock”), and (ii) 20,000,000 shares of preferred stock, with a par value of $0.0001 per share, none of which are issued and outstanding. (b) The Series A Preferred Shares, when issued and delivered and paid for in compliance with the provisions of this Agreement, and the Warrant Shares, when issued and delivered and paid for in compliance with the provisions of the Warrant Agreement and the Warrants, as applicable, shall be duly authorized, validly issued, fully paid and non-assessable and free of restrictions on transfer except for restrictions on transfer arising under (i) applicable securities Laws, (ii) the Company’s Organizational Documents, (iii) the Related Agreements and (iv) Encumbrances and other restrictions created by or imposed by any applicable Purchaser. (c) As of the Closing and the issuance of the Purchased Shares, the Purchased Shares shall, with respect to dividend rights and rights upon the Company’s or any of its Subsidiaries’ reorganization, restructuring, recapitalization, liquidation, dissolution or winding up, or sale of all or substantially all of the assets or equity securities of the Company or any of its Subsidiaries (in each case, regardless of whether such transaction(s) is effectuated in an insolvency proceeding, including a case under chapter 11 of title 11 of the United States Code or its equivalent), rank senior to all other capital stock of the Company, including any other class or series of its capital stock. SECTION 2.6 Offering of Securities. Neither the Company nor any Person acting on its behalf has taken any action (including any offering of any securities of the Company under circumstances which would require the integration of such offering with the offering of the Series A Preferred Shares or the Warrants to be issued pursuant to this Agreement under the Securities Act) which would reasonably be expected to subject the offering, issuance or sale of the Series A Preferred Shares or the Warrants to the Purchasers pursuant to this Agreement to the registration requirements of the Securities Act. SECTION 2.7 No Registration. The offer, issuance, sale and delivery of the Series A Preferred Shares pursuant to this Agreement, and the offer, issuance, sale and delivery of the Warrants, and upon exercise of the Warrants pursuant to the terms and conditions of the Warrants and the Warrant Agreement, as applicable, the issuance, sale and delivery of the Warrant Shares, as applicable, are, assuming the accuracy of the representations and warranties set forth in Article III, in compliance with, and exempt from the registration requirements of, the Securities Act and all other applicable securities Laws. SECTION 2.8 Financial Condition; No Material Adverse Effect. The consolidated financial statements (including all related notes and schedules) of the Company included or incorporated by reference in the Company’s registration statements, prospectuses, proxy statements, schedules, forms, documents and reports (including exhibits) required to be filed or furnished (as applicable) by it under the Securities Act or the Exchange Act, as the case may be, from January 1, 2022 through the date hereof, present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and its Subsidiaries on a consolidated basis as of such dates and for such periods in accordance with GAAP, (a) except as otherwise expressly noted therein, and (b) subject, in the case of quarterly financial statements, to the absence of footnotes and normal year-end adjustments. Since December 31, 2024, there have been no events, developments or circumstances that have had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. SECTION 2.9 Litigation and Environmental Matters. (a) There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Company, threatened in writing against or affecting
5 the Company or any of its Subsidiaries which would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. (b) Except for any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is subject to or has received notice of any Environmental Claim or Environmental Liability or knows of any basis for any Environmental Liability or Environmental Claim of the Company or any of its Subsidiaries, and (ii) since January 1, 2022, neither the Company nor any of its Subsidiaries has failed to comply with any Environmental Law or to obtain, maintain or comply with any Governmental Authorization required under any Environmental Law to operate their respective businesses. (c) Neither the Company nor any of its Subsidiaries has treated, stored, transported or Released any Hazardous Materials on, at, under or from any real estate or facility currently or formerly owned, leased or operated by the Company or any of its Subsidiaries in a manner so as to give rise to any Environmental Liability that would reasonably be expected to have a Material Adverse Effect. SECTION 2.10 Compliance with Laws. The Company and each of its Subsidiaries is in compliance with all Applicable Laws that are applicable to it or its property, except, in each case where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. SECTION 2.11 Investment Company Status. The Company is not an “investment company” as defined in, or as required to be registered under, the Investment Company Act of 1940. SECTION 2.12 Taxes. The Company and each of its Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it that are due and payable (including in its capacity as a withholding agent), except (a) Taxes (or any requirement to file Tax returns with respect thereto) that are being contested in good faith by appropriate proceedings and for which the Company or such Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP, or (b) to the extent that the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. SECTION 2.13 ERISA. (a) Each Plan is in compliance in form and operation with its terms and with ERISA and the Code and all other Applicable Laws, except where any failure to comply would not reasonably be expected to result in a Material Adverse Effect. (b) In the five-year period ending on the date of this Agreement, no ERISA Event has occurred and is continuing or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would reasonably be expected to result in a Material Adverse Effect. SECTION 2.14 Solvency. As of the Closing Date, after giving effect to the Transactions and the incurrence of the obligations being incurred in connection with this Agreement and the Transactions on the Closing Date, the sum of the debt (including contingent liabilities) of the Company and its Subsidiaries, taken as a whole, does not exceed the fair value of the assets of the Company and its Subsidiaries, taken as a whole. For purposes of this Section 2.14, (a) it is assumed that the obligations under the Transactions will come due at their respective maturities and (b) the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
6 SECTION 2.15 Labor Disputes. Except as individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, (a) there are no strikes, lockouts or slowdowns against the Company or any of its Subsidiaries pending or, to the knowledge of the Company or any of its Subsidiaries, threatened, and (b) the hours worked by and payments made to employees of the Company and its Subsidiaries have not been in violation of the Fair Labor Standards Act or any other Applicable Laws dealing with such matters. SECTION 2.16 Sanctions. (a) (i) Neither the Company nor any of its Subsidiaries or any of the respective directors or officers or, to the knowledge of the Company, agents (solely to the extent acting in its capacity as an agent for the Company or any of its Subsidiaries) or employees of the Company or its Subsidiaries is the subject or target of any U.S. economic or financial sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department or the U.S. State Department (collectively, “Sanctions”); and (ii) the Company has not used and will not use, directly or, to its knowledge, indirectly, any part of the proceeds of the sale of the Series A Preferred Shares, the Warrants or the Warrant Shares or otherwise made or will make available such proceeds to any Person to finance the activities of any Person that is the subject or target of any Sanctions. (b) To the extent applicable, the Company and its Subsidiaries are in compliance, in all material respects, with the USA PATRIOT Act. (c) (i) For the past three years, neither the Company nor any of its Subsidiaries or any of the respective directors or officers or, to the knowledge of the Company, agents (solely to the extent acting in its capacity as an agent for the Company or any of its Subsidiaries) or employees of the Company or any of its Subsidiaries, has taken any action, directly or indirectly, that would result in a material violation by any such Person of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), including making any offer, payment, promise to pay or authorization or approval of the payment of any money, or other property, gift, promise to give or authorization of the giving of anything of value, directly or indirectly, to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in each case in contravention of the FCPA and any other Applicable Laws relating to the corruption or bribery; and (ii) the Company has not used and will not use, directly or, to its knowledge, indirectly, any part of the proceeds of the sale of the Series A Preferred Shares, the Warrants or the Warrant Shares or otherwise made or will make available such proceeds to any governmental official or employee, political party, official of a political party, candidate for public office or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage in violation of the FCPA. SECTION 2.17 No Other Representations or Warranties. Except for the express written representations and warranties made by the Company in this Article II and in any instrument or document delivered pursuant to this Agreement, neither the Company nor any other Person makes or has made any express or implied representation or warranty regarding the Company or any of its Affiliates or any of its or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects or its or their respective Representatives in connection with this Agreement or the transactions contemplated by this Agreement, and the Company expressly disclaims any other representations or warranties and none of the Purchasers or any of their respective Affiliates or its or their respective Representatives has relied on and none are relying on any representations or warranties regarding the Company or any of its Affiliates or any of its or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects or its or their respective Representatives in connection with this Agreement or the transactions contemplated by this Agreement, other than the express written representations and warranties expressly set forth in this Article II and in any instrument or document delivered pursuant to this Agreement.
7 SECTION 2.18 Disclosure. None of the information disclosed in any form, document or report publicly filed with or furnished to the SEC by the Company on or after January 1, 2022 and prior to the Closing Date contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS Each Purchaser represents and warrants to the Company, solely with respect to such Purchaser and not with respect to any other Purchaser, as of the Closing Date, that: SECTION 3.1 Existence, Qualification and Power. Such Purchaser: (a) is duly organized or incorporated and validly existing and in good standing under the laws of the jurisdiction of its organization or incorporation, except where the failure to be so duly organized or incorporated or validly existing would not reasonably be expected to result in a material adverse effect on the Purchaser’s ability to perform its obligations hereunder and under the Related Agreements to which it is a party; and (b) has all corporate or other organizational power and authority to execute, deliver and perform its obligations under this Agreement and any other agreement to which it is a party. All material consents, approvals, authorizations and orders required on the part of such Purchaser for the execution and delivery by such Purchaser of this Agreement, the consummation of this Agreement by Purchaser, and the transactions contemplated herein and therein to which the Purchaser is a party have been obtained and are in full force and effect. SECTION 3.2 Accredited Investor. Such Purchaser is an “accredited investor” as defined under Rule 501(a) of Regulation D promulgated under the Securities Act or a “qualified institutional buyer” as defined under Rule 144A promulgated under the Securities Act (“Rule 144A”). SECTION 3.3 Power; Authorization. Such Purchaser has the power, capacity and authority, and the legal right, to make, deliver and perform this Agreement and the Related Agreements to which it is a party. This Agreement constitutes, and each Related Agreement to which such Purchaser is a party upon execution will constitute, a legal, valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). SECTION 3.4 Investment Matters. (a) Such Purchaser is, and was at the time such Purchaser was offered the Series A Preferred Shares and the Warrants (including the Warrant Shares underlying the Warrants), (i) a “qualified institutional buyer” (as such term is defined in Rule 144A), (ii) an institutional accredited investor (as such term is defined in Rule 501(a)(1), (2), (3), (7) or (8) of Regulation D), or (iii) a non-U.S. Person (as such term is defined in Regulation S) and will not acquire the Series A Preferred Shares or the Warrants (including the Warrant Shares underlying the Warrants) for the account or benefit of any U.S. Person. (b) Such Purchaser is acquiring the Series A Preferred Shares for its own account, for investment purposes only and not with a view to any distribution thereof that would not otherwise comply with the Securities Act. (c) Such Purchaser understands that (i) the Series A Preferred Shares have not been registered under the Securities Act and the Series A Preferred Shares are being issued by the Company in transactions exempt from the registration requirements of the Securities Act, and (ii) all or any part of the Series A
8 Preferred Shares may not be offered or sold except pursuant to effective registration statements under the Securities Act or pursuant to applicable exemptions from registration under the Securities Act and in compliance with applicable state Laws. (d) Such Purchaser understands that the exemption from registration afforded by Rule 144 promulgated under the Securities Act (“Rule 144”) (the provisions of which are known to the Purchaser) depends on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts. (e) Such Purchaser did not employ any broker or finder in connection with the transactions contemplated in this Agreement and no fees or commissions are payable to the Purchaser, except as otherwise expressly provided for in this Agreement or in any Related Agreement. (f) No portion of the funds or assets that will be used by such Purchaser to pay such Purchaser’s portion of the Aggregate Purchase Price or to acquire or hold the Series A Preferred Shares, constitute or will constitute the assets of any (i) employee benefit plan subject to Title I of ERISA, (ii) plan described in and subject to Section 4975 of the Code (each such employee benefit plan and plan described in clauses (i) and (ii) referred to herein as an “ERISA Plan”), (iii) plan, account or other arrangement subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to the fiduciary responsibility or prohibited transaction provisions of Title I of ERISA or Section 4975 of the Code that could cause the underlying assets of the Company to be treated as assets of such plan, account or arrangement (a “Similar Law Plan”) or (iv) entity whose underlying assets are deemed to include “plan assets” of any such ERISA Plan or Similar Law Plan pursuant to Section 3(42) of ERISA and any regulations that may be promulgated thereunder or otherwise. (g) Such Purchaser (i) is, and for so long as it holds any Series A Preferred Shares, will be, a “venture capital operating company” or wholly owned by a “venture capital operating company” or (ii) does not have, and for so long as it holds any Series A Preferred Shares, will not have, “significant equity participation” by benefit plan investors. The term “venture capital operating company” has the meaning assigned to such term in the Department of Labor Regulation Section 2510.3-101. SECTION 3.5 Consents and Approvals. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Authority or third party is necessary or required by or with respect to such Purchaser for the execution of this Agreement by such Purchaser and the Related Agreements to which it is a party or the consummation by such Purchaser of the Transactions. SECTION 3.6 No Conflict. None of the execution, delivery or performance by such Purchaser of this Agreement nor the consummation by such Purchaser of the Transactions will conflict with, violate or constitute a breach of or a default under (i) such Purchaser’s or any of its Subsidiaries’ Organizational Documents, (ii) any Related Agreements to which such Purchaser or any of its Subsidiaries is a party or by which it or any of its Subsidiaries are bound or (iii) any Applicable Law binding upon such Purchaser or any of its subsidiaries, except in the case of clauses (ii) and (iii) as would not, individually or in the aggregate, reasonably be expected to enjoin, prevent or delay the consummation by such Purchaser of the Transactions. SECTION 3.7 Compliance with Laws. Such Purchaser is in compliance with all Applicable Laws, writs, injunctions and orders, except to the extent that failure to do so would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Purchaser’s ability to perform its obligation hereunder and under the Related Agreements to which it is a party.
9 SECTION 3.8 Investment Experience; No Reliance; Economic Risk. Such Purchaser has substantial investment experience so that such Purchaser has the capacity to protect its own interests and is fully capable of evaluating the merits and risks of its purchase of the applicable Purchased Shares hereunder. Such Purchaser acknowledges that it has made its own decision to purchase the applicable Purchased Shares hereunder without reliance on any representation or warranty of the Company or any third party (other than with respect to the representations and warranties expressly set forth in Article II). Such Purchaser further acknowledges that neither the Company nor any other party has any responsibility with respect to any statements, representations or warranties that have been made or may be made in connection with the transactions contemplated by this Agreement regarding the Company, or the value of the Purchased Shares and that neither the Company nor any other party has made any representation, warranty or covenant, express or implied, to such Purchaser in connection with the Transactions (other than with respect to the representations and warranties expressly set forth in Article II). Specifically, the Company has not made any representation, warranty or covenant, express or implied, with respect to the Company’s business, financial condition, prospects, or value, or the value of the Purchased Shares. Such Purchaser represents that it has had a full, fair and complete opportunity to value the Purchased Shares. Such Purchaser acknowledges that there is no established trading market for the Purchased Shares and that the Aggregate Purchase Price may not be indicative of the actual fair market value of the Purchased Shares. Such Purchaser further acknowledges that the value of the Purchased Shares may increase or decrease substantially over time. In full understanding of the possibility that, at the present time or in the future, the Purchased Shares could be worth substantially more or less than the Aggregate Purchase Price, such Purchaser has voluntarily entered into this Agreement and determined to purchase the applicable Purchased Shares hereunder. SECTION 3.9 Informed Investment Decision. Such Purchaser has had access to all information regarding the Company and its present and prospective business, assets, liabilities and financial condition that such Purchaser considers important in making the decision to acquire the applicable portion of the Purchased Shares. Such Purchaser acknowledges that the Company may be in possession of material, non-public information not known to such Purchaser (the “Purchaser Excluded Information”). The Purchaser Excluded Information, if publicly disclosed, could foreseeably affect the value of the Purchased Shares, including Purchaser Excluded Information that may be indicative that the value of such securities is substantially greater or lower than the purchase price being paid for such securities by the Purchasers as set forth herein. Notwithstanding the Company’s possession of the Purchaser Excluded Information which is not being disclosed to such Purchaser, such Purchaser wishes to enter into this Agreement at this time for its own business purposes. Such Purchaser understands the disadvantage to which such Purchaser may be subject on account of the disparity of the access to, and possession of, the information between the Company and such Purchaser. Such Purchaser has conducted an independent evaluation of the Company’s securities to determine whether to engage in the transactions contemplated by this Agreement and, notwithstanding the absence of access by such Purchaser to the Purchaser Excluded Information, such Purchaser is desirous of consummating such transactions. Such Purchaser acknowledges that certain matters comprising the Purchaser Excluded Information may or may not materialize and such Purchaser agrees that the Company shall not be obligated to disclose any Purchaser Excluded Information or have any liability to the Purchaser with respect to any such non-disclosure. Such Purchaser understands and agrees that the Company makes no representation or warranty whatsoever with respect to the business, condition (financial or otherwise), properties, prospects, creditworthiness, status or affairs of the Company or with respect to the value of the Purchased Shares, in each case other than as expressly set forth in Article II. SECTION 3.10 Assumption of Risk. Such Purchaser is entering into this Agreement freely and understands and expressly accepts and assumes the economic and market risk associated with purchasing the applicable Purchased Shares for the applicable portion of the Aggregate Purchase Price.
10 ARTICLE IV ADDITIONAL COVENANTS SECTION 4.1 Issuance of Warrants; Requisite Stockholder Approvals; Subsequent Financing; Promissory Note. (a) No later than May 31, 2025, the Company shall deliver to each Purchaser, the applicable Warrants (as defined in the Warrant Agreement, in the form attached hereto as Exhibit F (the “Warrant Agreement”)), representing the right to purchase, on the terms and subject to the conditions set forth in the applicable Warrant, the applicable number of shares of Common Stock (collectively, the “Warrant Shares”), as set forth opposite such Purchaser’s name on Exhibit G, at an exercise price equal to $0.0000001 per Warrant Share, to be issued (i) via book-entry registration on the books and records of the Company and Continental Stock Transfer & Trust Company, a New York corporation, or another warrant agent reasonably acceptable to the Majority Holders (the “Warrant Agent”), and evidenced by Warrant Statements (as defined in the Warrant Agreement), in customary form and substance, and/or (ii) if requested by any applicable Purchaser, in its capacity as a Warrantholder (as defined in the Warrant Agreement), in the form of one or more global certificates. (b) No later than 60 days (or 90 days if the staff of the SEC conducts a review of the applicable preliminary proxy statement) following the Closing Date, the Company shall convene a meeting of its stockholders (the “Stockholder Meeting”) in order to obtain the Requisite Stockholder Approvals. (c) Subject only to obtaining the Requisite Stockholder Approvals, the Company shall use its reasonable best efforts to consummate the Subsequent Financing, on terms and conditions reasonably satisfactory to the Majority Holders. (d) Upon the occurrence of an Automatic Exchange Event (as defined in the Certificate of Designation), all outstanding Series A Preferred Shares shall, to the fullest extent permitted by law, be deemed automatically surrendered to the Company, redeemed and extinguished in exchange for one or more promissory notes, in the form attached hereto as Exhibit H (the “Promissory Note”), in each case in accordance with the provisions of the Certificate of Designation. SECTION 4.2 Expenses. The Company hereby agrees to pay all reasonable and documented out- of-pocket costs and expenses (including reasonable and documented legal costs and expenses) of each Purchaser in connection with the preparation, negotiation, execution and delivery of this Agreement, the Related Agreements and the documents and instruments referred to herein and therein and the consummation of the transactions contemplated hereby and thereby; provided, however, in no event shall the Company be required to reimburse the Purchasers for such costs and expenses in an amount that exceeds, in the aggregate for all Purchasers, $1,000,000. SECTION 4.3 Further Assurances. The Parties shall, and shall cause their respective Affiliates to, use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all thing necessary, proper or advisable under any Applicable Laws or otherwise to consummate and make effective the Transactions as promptly as practicable, including executing and delivering such documents and other papers and take such further actions as may be reasonably required or desirable to carry out the provisions hereof and the Transactions. SECTION 4.4 Compliance with Laws. The Parties agree to conduct their business in compliance in all material respects with all Anti-Corruption Laws, Anti-Terrorism and Anti-Money Laundering Laws, and Global Trade Control Laws, and not to take any action that would cause a Party to be in violation of
11 any Anti-Corruption Laws, Anti-Terrorism and Anti-Money Laundering Laws, or Global Trade Control Laws. SECTION 4.5 Securities Act. For so long as any of the Series A Preferred Shares remain outstanding and constitute “restricted securities” within the meaning of the Securities Act, the Company will make available at the Company’s expense, upon request, to any holder of Series A Preferred Shares, and any prospective purchasers thereof, the information specified in Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act. SECTION 4.6 Indemnification and Insurance. (a) For six years from and after the Closing, the Company shall indemnify and hold harmless all Persons who, as of the Closing, are past or present directors or officers of the Company or any of its Subsidiaries or who served or are serving as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (each of the foregoing corporations, partnerships, joint ventures, trusts, pensions or other employee benefit plans or enterprises, an “Other Entity”) at the request or for the benefit of the Company or any of its Subsidiaries (collectively, together with such Persons’ heirs, executors and administrators, the “Covered Persons”) to the same extent such Covered Persons are indemnified as of or prior to the Closing by the Company or a Subsidiary of the Company or an Other Entity (as applicable) pursuant to any Organizational Documents or indemnification agreements with such Covered Persons, if any, in existence on the date of this Agreement (collectively, the “Existing Indemnification Arrangements”) arising out of acts or omissions in their capacity as directors, officers or other agents of the Company or any of its Subsidiaries or Other Entities (as applicable) occurring at or prior to the Closing. (b) For not less than six years from and after the Closing, the Company shall ensure that the Organizational Documents of the Company shall contain provisions no less favorable with respect to exculpation, indemnification of and advancement of expenses to Covered Persons for periods at or prior to the Closing than existed in the Organizational Documents as of immediately prior to the Closing Date. To the extent permitted by Applicable Laws, indemnification agreements, if any, in existence on the date of this Agreement with any directors, officers and employees shall continue in full force and effect in accordance with their terms following the Closing. (c) For six years from and after the Closing, the Company shall maintain in effect policies of directors’ and officers’ liability insurance and fiduciary liability insurance that collectively provide coverage for matters arising on or before the Closing (the “D&O Insurance”) on terms (including with respect to coverage, conditions, retentions, limits and amounts) that are not less favorable than the existing policies of the Company and the Company Subsidiaries, from an insurance carrier with the same or better credit rating as the Company’s existing carrier; provided, however, that, after the Closing, the Company shall not be required to pay annual premiums for the D&O Insurance in excess of 300% of the last annual premium paid by the Company prior to the date hereof, but in such case shall purchase as much coverage as reasonably practicable for such amount. In lieu of the foregoing, the Company may purchase, promptly after Closing, at prevailing market rates (and in no event at a cost greater than 300% of the last annual premium paid by the Company prior to the date hereof in respect of D&O Insurance), a six-year prepaid “tail” policy on terms and conditions providing no less favorable benefits as the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries with respect to matters arising on or before the Closing, covering without limitation the transactions contemplated hereby and full prior acts coverage for all acts or omissions taking place before the tail becomes effective.
12 (d) This Section 4.6 is intended to be for the benefit of, and shall be enforceable by, each of the Covered Persons, who shall be deemed express third-party beneficiaries of this Section 4.6. The rights to indemnification, advancement, insurance coverage and the other rights provided for herein shall not be deemed exclusive of any other rights to which any Covered Person is entitled, whether pursuant to Law, contract or otherwise. (e) If the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provisions shall be made so that the successors and assigns of the Company or any of their respective successors or assigns shall assume all of the obligations Company set forth in this Section 4.6. SECTION 4.7 Cooperation. At any meeting of stockholders of the Company called with respect to the Requisite Stockholder Approval, or at any adjournment thereof, the Purchaser shall vote, or cause to be voted, all shares of Common Stock held by such Purchaser prior to the Closing Date in favor of the Requisite Stockholder Approval, or, if there are insufficient votes in favor of granting the Requisite Stockholder Approval, in favor of the adjournment of such meeting of the stockholders of the Company to a later date. ARTICLE V MISCELLANEOUS SECTION 5.1 Survival. All (a) representations and warranties made by the Company and each Purchaser contained in this Agreement, or made by or on behalf of them, respectively, pursuant to this Agreement shall survive until the 12-month anniversary of the Closing Date, and (b) all covenants of the Company and each Purchaser in this Agreement shall survive the execution and delivery of this Agreement in accordance with their respective terms. SECTION 5.2 Entire Agreement; Parties in Interest. This Agreement (including the exhibits hereto), the Charter, the Investors’ Rights Agreement, and the Certificate of Designation constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof. This Agreement will be binding upon and inure solely to the benefit of each Party and their respective successors, legal representatives and permitted assigns, and nothing in this Agreement, express or implied, is intended to or will confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement except for the provisions of Section 5.3 which will be enforceable by the beneficiaries contemplated thereby. SECTION 5.3 No Recourse. Notwithstanding anything to the contrary in this Agreement, this Agreement may only be enforced by a Party against, and any Proceedings that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement, may only be made by such Party against, another Party, and no current, former or future Affiliates of a Party, or any of the foregoing Persons’ respective Representatives (collectively, the “Related Parties”), will have any Liability for any Liabilities of such Party for any claim (whether in tort, contract or otherwise) based on, in respect of, or by reason of, the purchase of the Series A Preferred Shares hereunder or the Transactions or in respect of any oral representations made or alleged to be made in connection herewith or therewith. In no event will a Party or any of its Affiliates, and each Party agrees not to and to cause its Affiliates not to, seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover losses or other damages in connection therewith from, any Related Party.
13 SECTION 5.4 Governing Law and Jurisdiction. This Agreement and any dispute or claim arising out of, or in connection with, it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Delaware. Each of the Parties hereto hereby irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction, any other state or federal court located in the State of Delaware, over any suit, action or other proceeding brought by any party arising out of or relating to this Agreement, and each of the Parties hereto hereby irrevocably agrees that all claims or disputes with respect to any such suit, action or other proceeding shall be heard and determined in such courts. Each party hereby consents to service of process in any such proceeding in any manner permitted by the Laws of Delaware, and further consents to service of process by nationally recognized overnight courier service guaranteeing overnight delivery, or by registered or certified mail, return receipt requested, at its address specified pursuant to Section 5.7. Notwithstanding the foregoing in this Section 5.4, a Party hereto may commence any action, claim, cause of action or suit in a court other than the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts. SECTION 5.5 Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN RESPECT OF ANY ISSUE, ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT, ITS NEGOTIATION OR TERMS, OR THE TRANSACTIONS, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT THIS SECTION 5.5 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH SUCH OTHER PARTIES ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT AND ANY OTHER AGREEMENTS RELATING HERETO OR CONTEMPLATED HEREBY. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 5.5 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY. SECTION 5.6 Remedies. (a) Except as otherwise provided herein, all remedies available under this Agreement, at law or otherwise, will be deemed cumulative and not alternative or exclusive of other remedies. The exercise by any Party of a particular remedy will not preclude the exercise of any other remedy. (b) Each Party hereby acknowledges and agrees that the other Parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms, and that remedies at law would not be adequate to compensate such other Parties not in default or in breach. Accordingly, each Party agrees that the other Parties will be entitled to an injunction or injunctions to prevent breaches or threatened breaches of the provisions of this Agreement and to enforce specifically the terms and provisions of this Agreement in addition to any other remedy to which they may be entitled, at law or in equity. The Parties waive any defense that a remedy at law is adequate and any requirement to prove special damages, post bond or provide similar security in connection with actions instituted for injunctive relief or specific performance of this Agreement.
14 SECTION 5.7 Notice. (a) Except as otherwise provided in this Agreement, any notice or other communication required or permitted to be delivered to any Party under this Agreement will be in writing and delivered by (i) email or (ii) registered mail via a national courier service to the following email address or physical address, as applicable: If to the Company: LanzaTech Global, Inc. 8045 Lamon Avenue, Suite 400 Skokie, IL 60077 Attn: Joseph C. Blasko Email: [REDACTED] with a copy (not constituting notice) to: Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, NY 10017 Attn: Marisa Stavenas; Nicholas Baker Email: [REDACTED]; [REDACTED] If to any Purchaser, to such Purchaser at the address set forth on the signature page hereto under such Purchaser’s name. (b) Notice or other communication pursuant to Section 5.7(a) will be deemed given or received when delivered, except that any notice or communication received by email transmission on a non-Business Day or on any Business Day after 5:00 p.m. addressee’s local time or overnight delivery on a non-Business Day will be deemed to have been given and received at 9:00 a.m. addressee’s local time on the next Business Day. Any Party may specify a different address, by written notice to the other Parties. The change of address will be effective upon the other Parties’ receipt of the notice of the change of address. SECTION 5.8 Amendments; Waivers. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by (a) the Majority Holders and (b) the Company, or in the case of a waiver, by the Party against whom the waiver is to be effective. No knowledge, investigation or inquiry, or failure or delay by the Company or the Purchaser in exercising any right hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise of any other right hereunder. No waiver of any right or remedy hereunder will be deemed to be a continuing waiver in the future or a waiver of any rights or remedies arising thereafter. SECTION 5.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which constitutes an original, and all of which taken together constitute one instrument. A signature delivered by facsimile or other electronic transmission (including e-mail) will be considered an original signature. Any Person may rely on a copy of this Agreement. SECTION 5.10 Assignment. This Agreement will be binding upon and will inure to the benefit of the Parties and their respective permitted assigns and successors. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by any of the Parties without the prior written
15 consent of the other Parties. Any assignment or transfer in violation of this Section 5.10 shall be null and void. SECTION 5.11 Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void, invalid or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the Parties. The Parties agree to replace such illegal, void, invalid or unenforceable provision of this Agreement with a legal, valid and enforceable provision that achieves, to the extent possible, the economic, business and other purposes of such illegal, void, invalid or unenforceable provision. SECTION 5.12 Certain Company Acknowledgements. The Company acknowledges on its behalf and on behalf of its Subsidiaries that the Purchasers and their respective Affiliates may be involved in a broad range of transactions and may have economic interests that conflict with those of the Company and its Subsidiaries. Each Purchaser is and will act under this Agreement as an independent contractor. Nothing in this Agreement or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty of such Purchaser to the Company, any of its Subsidiaries or any Affiliate or equity holder thereof. The transactions contemplated by this Agreement are arm’s-length commercial transactions between the Purchasers, on the one hand, and the Company on the other hand. In connection with the Transactions and with the process leading to the Transactions, each Purchaser is acting solely as a principal and not as agent or fiduciary of the Company or any of its Subsidiaries or member of management, equity holders or creditors thereof or any other Person. The Purchasers have not assumed an advisory or fiduciary responsibility or any other obligation in favor of the Company or any of its Subsidiaries with respect to the Transactions or the process leading thereto (irrespective of whether any Purchaser or any of its Affiliates has advised or is currently advising the Company or any of its Affiliates or equity holders on other matters), except for the obligations expressly set forth in this Agreement or applicable Related Agreement. The Company has consulted its own legal, tax, accounting, regulatory and financial advisors to the extent it has deemed appropriate. The Company is responsible for making its own independent judgment with respect to the Transactions and the process leading thereto. SECTION 5.13 PATRIOT Act. The Purchasers hereby notify the Company that, pursuant to the requirements of the PATRIOT Act, the Purchasers may be required to obtain, verify and record information that identifies the Company, including its name, address and other information that will allow the Purchasers to identify the Company in accordance with the PATRIOT Act. SECTION 5.14 Rights of Third Parties. Except with respect to Section 4.6 or otherwise as expressly stated in this Agreement, no Person that is not a party to this Agreement shall be deemed to be a third-party beneficiary hereunder or entitled to any rights hereunder. Notwithstanding the foregoing, each Covered Person shall be an express third-party beneficiary of and shall be entitled to rely upon Section 4.6, this Section 5.14 and Section 5.8 (in the case of Section 5.8, with respect to any amendment to or waiver of Section 4.6 or this Section 5.14). SECTION 5.15 Tax Treatment. The Company and each Purchaser acknowledge and agree that for U.S. federal income tax purposes the Series A Preferred Shares (based on the terms and conditions as set forth in the Certificate of Designation) shall be treated as equity (and not debt) for U.S. federal income tax purposes that is neither (a) “preferred stock” within the meaning of Section 305 of the Code and any applicable Treasury regulations promulgated thereunder, nor (b) “Section 306 stock” within the meaning of Section 306 of the Code and any applicable Treasury regulations promulgated thereunder (the “Tax Treatment”). The Company will report and file all tax returns (and determine all applicable Taxes) consistently with, and taken no positions or actions inconsistent with, the Tax Treatment (including by way of withholding) unless otherwise required by (i) a change in Law or official interpretation thereof after the
16 Closing or (ii) a final determination of a Governmental Authority within the meaning of Section 1313(a) of the Code, in each case, that is binding on the Company. The Company and each Purchaser further acknowledge and agree that it is their intention for U.S. federal income tax purposes that Purchasers shall not be required to include in income as a dividend for any amounts in respect of the Series A Preferred Shares under Section 305(c) of the Code on account of the accrual of dividends thereon. ARTICLE VI DEFINITIONS SECTION 6.1 Certain Definitions. (a) The following words and phrases have the meanings specified in this Section 6.1: “Affiliate” means, as to any Person, any other Person which, directly or indirectly, controls, or is controlled by, or is under common control with, such Person. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise; provided, that, the Company and its Subsidiaries shall not be deemed an Affiliate of any Purchaser, and no Purchaser shall be deemed an Affiliate of the Company or any of its Subsidiaries. “Anti-Corruption Laws” means any applicable laws, regulations or conventions in any part of the world related to combating bribery and corruption, including the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions and the UN Convention Against Corruption; and in the United States, the FCPA. “Anti-Terrorism and Anti-Money Laundering Laws” means any applicable laws, regulations or conventions in any part of the world related to terrorism or money laundering, including, the European Union Money Laundering Directives; in the United States, the Executive Order and statutes authorizing the establishment of trade and economic sanctions programs enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the Bank Secrecy Act of 1970 and the PATRIOT Act. “Applicable Laws” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. “Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president, vice president (or the equivalent thereof), chief financial officer or treasurer of such Person. “Business Day” means any day that is not a Saturday or Sunday or other day on which the commercial banks in New York City are authorized or required by law to remain closed. “Certificate of Amendment” means a certificate of amendment to the Charter effecting the Reverse Stock Split, the Increased Capital Stock Authorization, the Par Value Adjustment Authorization and the Written Consent Authorization, in each case as defined in the definition of “Requisite Stockholder Approvals”.
17 “Certificate of Designation” means that certain Certificate of Designation of Series A Convertible Senior Preferred Stock of the Company, dated as of May 7, 2025. “Charter” means the Second Amended and Restated Certificate of Incorporation of AMCI Acquisition Corp. II, filed on February 8, 2023, as amended from time to time in accordance with its terms and the terms of this Agreement and which includes, for the avoidance of doubt, (a) that certain Certificate of Amendment of Second Amended and Restated Certificate of Incorporation of LanzaTech Global, Inc., filed on October 3, 2024, and (b) the Certificate of Designation. “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time. “Encumbrance” means all security interests, mortgages, charges, options, equities, claims, or other third party rights (including rights of pre-emption) of any nature whatsoever. “Environment” means ambient air, indoor air, surface water, groundwater, drinking water, land surface and subsurface strata & natural resources such as wetlands, flora and fauna. “Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (b) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (c) in connection with any actual or alleged damage, injury, threat or harm to the Environment. “Environmental Laws” means any and all current or future applicable foreign or domestic, federal or state (or any subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations, or any other applicable requirements of Governmental Authorities and the common law relating to (a) environmental matters, including those relating to any Hazardous Materials Activity; or (b) the generation, use, storage, transportation or disposal of or exposure to Hazardous Materials, in any manner applicable to the Company or any of its Subsidiaries. “Environmental Liability” means any Liability, contingent or otherwise (including any Liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time. “ERISA Affiliate” means any trade or business (whether or not incorporated) that is under common control with the Company or any of its Subsidiaries and is treated as a single employer within the meaning of Section 414 of the Code or Section 4001 of ERISA. “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Company or any Subsidiary or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations at any facility of the Company or any Subsidiary or any ERISA Affiliate as described in Section 4062(e) of ERISA, in each case, resulting in liability pursuant to
18 Section 4063 of ERISA; (c) a complete or partial withdrawal by the Company or any Subsidiary or any ERISA Affiliate from a Multiemployer Plan resulting in the imposition of Withdrawal Liability on the Company or any Subsidiary or any ERISA Affiliate, notification of the Company or any Subsidiary or any ERISA Affiliate concerning the imposition of Withdrawal Liability or notification that a Multiemployer Plan is “insolvent” within the meaning of Section 4245 of ERISA; (d) the filing of a notice of intent to terminate a Pension Plan under Section 4041(c) of ERISA, the treatment of a Pension Plan amendment as a termination under Section 4041(c) of ERISA, the commencement of proceedings by the PBGC to terminate a Pension Plan or the receipt by the Company or any Subsidiary or any ERISA Affiliate of notice of the treatment of a Multiemployer Plan amendment as a termination under Section 4041A of ERISA or of notice of the commencement of proceedings by the PBGC to terminate a Multiemployer Plan; (e) the occurrence of an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any Subsidiary or any ERISA Affiliate, with respect to the termination of any Pension Plan; or (g) the conditions for imposition of a Encumbrance under Section 303(k) of ERISA have been met with respect to any Pension Plan. “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder. “GAAP” means generally accepted accounting principles in the United States, applied on a consistent basis throughout the periods indicated. “Global Trade Control Laws” means any laws, regulations or conventions in any part of the world related to import transactions, export transactions, or economic sanctions, including the U.S. Export Administration Regulations; the U.S. International Traffic in Arms Regulations; the economic sanctions rules and regulations implemented under statutory authority or the U.S. President’s Executive Orders and administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or U.S. Department of State; European Union Council Regulations on export controls, including Nos. 428/2009, 267/2012; other E.U. Council sanctions regulations, as implemented in E.U. Member States; United Nations sanctions policies; economic sanctions administered by Her Majesty’s Treasury of the United Kingdom; and all relevant regulations made under any of the foregoing. “Governmental Authority” means the government of the U.S., any other nation or any political subdivision thereof, whether state, provincial, county, local, or otherwise, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government in any jurisdiction. “Governmental Authorization” means any permit, license, authorization, approval, plan, directive, consent order or consent decree of or from any Governmental Authority. “Hazardous Materials” means any chemical, material, substance or waste, or any constituent thereof, which is prohibited, limited or regulated under any Environmental Law or by any Governmental Authority or which poses a hazard to the Environment or to human health and safety, including without limitation, petroleum and petroleum by-products, asbestos and asbestos-containing materials, polychlorinated biphenyls, medical waste and pharmaceutical waste. “Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Material, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation,
19 processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Material, and any corrective action or response action with respect to any of the foregoing. “Investors’ Rights Agreement” means the Investors’ Rights Agreement, dated as of the Closing Date, between the Company and the Company stockholders named therein, as amended from time to time in accordance with the terms thereof. “Law” means any applicable U.S. or foreign, federal, state, provincial, municipal or local law (including common law), statute, ordinance, rule, regulation, code, policy, directive, standard, license, treaty, judgment, order, injunction, decree or agency requirement of or undertaking to or agreement with any governmental entity. “Legacy Convertible Note” means that certain Convertible Promissory Note, dated August 6, 2024, between the Company (as “the Company”) and Carbon Direct Fund II Blocker I LLC (as “the Holder”), as in effect as of immediately prior to the Closing. “Liability” means any indebtedness, loss, damage, claim, fines, penalties, liability or obligation (whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, determined or determinable, disputed or undisputed, liquidated or unliquidated, or due or to become due, and whether in contract, tort, strict liability or otherwise), and including all costs and expenses relating thereto (including all fees, disbursements and expenses of legal counsel, experts, engineers and consultants and costs of investigation). “Majority Holders” means, as of any date of determination, the holder(s) of a majority of the Series A Preferred Shares then outstanding. “Material Adverse Effect” means any change, effect, event, occurrence, development, state of facts or circumstance (each, an “Effect”) that, individually or in the aggregate with all other Effects, has or would reasonably be expected to have a material adverse effect on the business, assets, properties, liabilities, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole; provided, however, that none of the following (by itself or when aggregated) will be deemed to constitute a Material Adverse Effect or will be taken into account when determining whether a Material Adverse Effect has occurred or may, would or could occur: (i) changes or developments in domestic, foreign or global markets, including (A) changes or developments in or affecting the regional, domestic or any foreign securities, equity, credit or financial markets, (B) changes or developments in or affecting regional, domestic or any foreign interest or exchange rates and (C) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any domestic or foreign securities exchange or over-the-counter market, (ii) changes or developments in domestic, foreign or global economic conditions generally, (iii) changes in GAAP or other accounting standards or any official interpretation or enforcement thereof after the Closing Date, (iv) changes in legislative conditions or Law or any changes or developments in the official interpretation or enforcement thereof by Governmental Authorities after the Closing Date (including tariff policies), (v) changes in regional, domestic, foreign or global political or geopolitical conditions (including the outbreak or escalation of war or hostilities, military actions, acts of terrorism (including cyber-terrorism) or national emergencies), including any worsening of such conditions threatened or existing on the Closing Date, (vi) changes or developments in the business conditions generally affecting the principal industry sector in which the Company or any of its Subsidiaries operate or where their products or services are sold, or (vii) weather conditions or other acts of God (including storms, earthquakes, tornados, floods or other natural disasters) or any outbreak of illness, pandemic or other public health event (except, in any such case, to the extent (but only to the extent) that the related impact has had or would reasonably be expected to have a disproportionate adverse effect on the Company and its
20 Subsidiaries, taken as a whole, relative to companies operating in the principal industry sector in which the Company and its Subsidiaries conduct business). “Multiemployer Plan” means any employee benefit plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA, that is subject to the provisions of Title IV of ERISA, and in respect of which the Company or any of its Subsidiaries, or any of their respective ERISA Affiliates, makes or is obligated to make contributions or with respect to which any of them has any ongoing obligation or liability, contingent or otherwise. “Nasdaq Stockholder Approval” means the receipt by the Company of the requisite approval from its stockholders in accordance with Nasdaq Stock Market Rule 5635: (a) to issue more than 19.9% of its outstanding shares of Common Stock, as outstanding before such issuance, and at an issue price below the “minimum price” in connection with settlement of conversions of the Purchased Shares, the exercise of the Warrants and the issuance of the Warrant Shares and the issuance of shares of Common Stock pursuant to the Subsequent Financing; and (b) to effect any “change of control” under Nasdaq Stock Market Rule 5635 in connection with settlement of conversions of the Purchased Shares, the exercise of the Warrants and the issuance of the Warrant Shares and the issuance of shares of Common Stock pursuant to the Subsequent Financing. “Organizational Documents” means the articles or certificate of incorporation or formation, certificate of limited partnership, joint venture or partnership agreement, operating or limited liability company agreement, by-laws or other constitutional, governing or organizational document of any Person other than an individual, each as from time to time amended or modified. “PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)). “PBGC” means the U.S. Pension Benefit Guaranty Corporation. “Pension Plan” means any employee pension benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that is subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, which the Company or any of its Subsidiaries, or any of their respective ERISA Affiliates, maintains or contributes to or has an obligation to contribute to, or otherwise has any liability, contingent or otherwise. “Person” means an individual, a corporation, a partnership, a limited liability company, an exempted company, an association, a trust or any other entity, group (as such term is used in Section 13 of the Exchange Act) or organization, including a governmental entity, and any successors and permitted assigns of such Person. “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) maintained by the Company and/or Subsidiary or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any of its ERISA Affiliates, other than any Multiemployer Plan. “Proceeding” means any claim, action, arbitration, mediation, audit, hearing, investigation, proceeding, litigation or suit (whether civil, criminal, administrative, investigative or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority or arbitrator or mediator.
21 “Related Agreement(s)” means the Investors’ Rights Agreement, the Warrant Agreement and the Charter. “Release” (and, with correlative meaning, “Released”) means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the Environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater. “Reportable Event” means, with respect to any Pension Plan or Multiemployer Plan, any of the events described in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30-day notice period is waived under PBGC Reg. Section 4043. “Representatives” means, with respect to any Person, such Person’s directors, partners, officers, employees and agents and the attorneys, accountants, experts and advisors of such Person and such Person’s Affiliates. “Requisite Stockholder Approvals” means, collectively, (a) the Nasdaq Stockholder Approval, (b) approval by the requisite Company stockholders of an amendment to the Charter (as in effect as of the Closing Date after filing the Certificate of Designation) to (i) effect a reverse stock split of the Common Stock at a ratio mutually acceptable to the Company and the Majority Holders (the “Reverse Stock Split”), (ii) authorize that number of shares of Common Stock that, taking into account the Reverse Stock Split, is sufficient to consummate (A) the transactions contemplated hereby, (B) the exercise of the Warrants, and (C) the consummation of the Subsequent Financing (the “Increased Capital Stock Authorization”), (iii) set the par value of the Common Stock to an amount equal to the Exercise Price (as defined in the Warrant Agreement) (the “Par Value Adjustment Authorization”), and (iv) provide that the Company’s stockholders may take action by written consent (the “Written Consent Authorization”), and (c) approval by the requisite Company stockholders of the issuance of Common Stock in the Subsequent Financing at a price per share of $0.05 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar transaction, including the Reverse Stock Split). “SEC” means the U.S. Securities and Exchange Commission. “Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder. “Subsequent Financing” means a bona fide financing, consummated, if at all, no later than 10 Business Days following receipt of the Requisite Stockholder Approvals, pursuant to which the Company sells Common Stock to one or more “accredited investors” (as defined under Rule 501(a) of Regulation D promulgated under the Securities Act) reasonably satisfactory to the Majority Holders, at a price per share of $0.05 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar transaction, including the Reverse Stock Split), payable in cash, with an aggregate original issue price of not less than $35,000,000 and not more than $60,000,000. “Subsidiary” means, with respect to any Person, (a) a corporation or body corporate of which more than 50% of the combined voting power of the outstanding voting shares is owned, directly or indirectly, by such Person or by one of more other Subsidiaries of such Person or by such Person and one or more other Subsidiaries thereof, (b) a partnership of which such Person, or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, is the general partner and has the power to direct the policies, management and affairs of such partnership, (c) a limited liability company of which such Person, or one or more other Subsidiaries of such Person or such Person
22 and one or more other Subsidiaries thereof, directly or indirectly, is the managing member and has the power to direct the policies, management and affairs of such company, or (d) any other Person (other than a corporation, partnership or limited liability company) in which such Person, or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, has a majority ownership and power to direct the policies, management and affairs thereof. “Taxes” (and, with correlative meaning, “Tax”) means all present and future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Transactions” means the transactions contemplated by this Agreement and the Related Agreements. “U.S.” means the United States of America. “Withdrawal Liability” means the liability to any Multiemployer Plan as the result of a “complete” or “partial” withdrawal by the Company or any Subsidiary or any ERISA Affiliate from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA. SECTION 6.2 Construction. The Parties intend that each representation, warranty, covenant and agreement contained in this Agreement will have independent significance. The headings are for convenience only and will not be given effect in interpreting this Agreement. References to sections, articles or exhibits are to the sections, articles and exhibits contained in, referred to by or attached to this Agreement, unless otherwise specified. The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement. The words “include,” “includes” and “including” in this Agreement mean “include/includes/including without limitation.” All references to $, currency, monetary values and dollars set forth herein means U.S. dollars. The use of the masculine, feminine or neuter gender or the singular or plural form of words will not limit any provisions of this Agreement. References to a Person also include its permitted assigns and successors. A statement that an item is listed, disclosed or described means that it is correctly listed, disclosed or described, and a statement that a copy of an item has been delivered means a correct and accurate copy of such item has been delivered. Any reference to a statute refers to the statute, any amendments or successor legislation and all rules and regulations promulgated under or implementing the statute, as in effect at the relevant time. The word “extent” in the phrase “to the extent” will mean the degree to which a subject or other thing extends, and such phrase will not mean simply “if.” All references to the knowledge of the Company or any Subsidiary of the Company or facts known by any such Person shall mean actual knowledge of any Authorized Officer of such Person. Whenever this Agreement refers to a number of days, such number will refer to calendar days unless Business Days are specified. Whenever any action must be taken hereunder on or by a day that is not a Business Day, then such action may be validly taken on or by the next day that is a Business Day. Any reference herein to any Law, contract, agreement or other instrument, including the governing documents of any Person will be construed as referring to such Law, contract, agreement or instrument as amended or modified or, in the case of a Law, codified or reenacted, in each case, in whole or in part, and as in effect from time to time. The Parties acknowledge and agree that (a) each Party and its counsel has reviewed, or has had the opportunity to review, the terms and provisions of this Agreement, (b) any rule of construction to the effect that any ambiguities are resolved against the drafting Party will not be used to interpret this Agreement and (c) the provisions of this Agreement will not be construed in favor of or against any Party, regardless of which Party was generally responsible for the preparation of this Agreement and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of
23 such previous drafts of this Agreement or any of the other Related Agreements or the fact that any clauses have been added, deleted or otherwise modified from any prior drafts of this Agreement or any other Related Agreement. [Remainder of page intentionally left blank]
[SIGNATURE PAGE TO SERIES A CONVERTIBLE SENIOR PREFERRED STOCK PURCHASE AGREEMENT] IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the date first above written. COMPANY: LANZATECH GLOBAL, INC. By: /s/ Jennifer Holmgren Name: Jennifer Holmgren Title: Chief Executive Officer
[SIGNATURE PAGE TO SERIES A CONVERTIBLE SENIOR PREFERRED STOCK PURCHASE AGREEMENT] PURCHASER: LANZATECH GLOBAL SPV, LLC By: /s/ Michael F. Solomon Name: Michael F. Solomon Title: Managing Director Notice Address: 970 W. Broadway, Suite E #464 Jackson, WY 83001 Attn: Michael F. Solomon Email: [REDACTED] With a copy (not constituting notice) to: Weil, Gotshal & Manges LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065-1134 Attn: Matt Stewart Email: [REDACTED]
EXHIBIT A SCHEDULE OF PURCHASERS Purchaser Purchased Shares Purchase Price LanzaTech Global SPV, LLC 20,000,000 $40,000,000 Totals 20,000,000 $40,000,000
EXHIBIT B-1 SIMPSON THACHER & BARTLETT LLP FORM OF OPINION See attached.
May 7, 2025 LanzaTech Global SPV, LLC 970 W. Broadway, Suite E #464 Jackson, WY 83001 Ladies and Gentlemen: We have acted as counsel to LanzaTech Global, Inc., a Delaware corporation (the “Company”), in connection with the purchase by you of an aggregate of 20,000,000 shares (the “Preferred Shares”) of the Company’s preferred stock designated as “Series A Convertible Senior Preferred Stock”, $0.0001 par value per share (the “Preferred Stock”), from the Company pursuant to the Series A Convertible Senior Preferred Stock Purchase Agreement, dated May 7, 2025 (the “Purchase Agreement”), between the Company and you, as the purchaser (the “Purchaser”). We have examined, and have relied as to matters of fact upon, the documents delivered to you at the closing, back-up certificates and upon originals, or duplicates or certified or conformed copies, of such records, agreements, documents and other instruments and such certificates or comparable documents of public officials and of officers and representatives of the Company and have made such other investigations, as we have deemed relevant and necessary in connection with the opinion hereinafter set forth. In rendering the opinion set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.
LanzaTech Global SPV, LLC -2- May 7, 2025 Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that the Company is not, as of the date hereof, required to register as an “investment company” under the Investment Company Act of 1940, as amended. We do not express any opinion herein concerning any law other than the federal law of the United States. This opinion letter is rendered to you in connection with the above-described transaction. This opinion letter may not be relied upon by you for any other purpose, or relied upon by, or furnished to, any other person, firm or corporation without our prior written consent. Very truly yours, SIMPSON THACHER & BARTLETT LLP
EXHIBIT B-2 MORRIS, NICHOLS, ARSHT & TUNNELL LLP FORM OF OPINION See attached.
M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P 1201 NORTH MARKET STREET P.O. BOX 1347 WILMINGTON, DELAWARE 19899-1347 (302) 658-9200 (302) 658-3989 FAX May 7, 2025 LanzaTech Global SPV, LLC 970 W. Broadway, Suite E #464 Jackson, WY 83001 Re: LanzaTech Global, Inc. Ladies and Gentlemen: We have acted as special Delaware counsel to LanzaTech Global, Inc., a Delaware corporation (the “Issuer”), in connection with certain matters of Delaware law relating to (i) the Series A Convertible Senior Preferred Stock Purchase Agreement dated as of May 7, 2025 (the “SPA”) between the Issuer and the Purchasers (as defined in the SPA), (ii) the Investors’ Rights Agreement dated as of May 7, 2025 (the “IRA”) between the Issuer and the Investors (as defined in the IRA), (iii) the Registration Rights Agreement dated as of May 7, 2025 (the “RRA”) between the Issuer and the Purchasers (as defined in the RRA), and (iv) a draft of the Warrant Agreement to be entered into by the Issuer and the Warrant Agent (as defined therein) (the “Warrant Agreement” and together with the SPA, the IRA and the RRA, the “Opinion Documents” and each, individually, a “Opinion Document”). Except where otherwise indicated, capitalized terms used and not otherwise defined herein have the meanings given them in the Warrant Agreement. In rendering this opinion, we have examined and relied upon copies of the following documents in the forms provided to us: the Opinion Documents; the Second Amended and Restated Certificate of Incorporation of the Issuer (under its previous name of AMCI Acquisition Corp. II) as filed in the Office of the Secretary of State of the State of Delaware (the “State Office”) on February 8, 2023, as amended by the Certificate of Amendment thereto filed in the State Office on October 3, 2024 (as so amended, the “Issuer Certificate”); the Bylaws of the Issuer (the “Issuer Bylaws” and together with the Issuer Certificate, the “Issuer Governing Documents”); certain resolutions set forth in the Unanimous Written Consent of the Strategic Committee (the “Strategic Committee”) of the Board of Directors of the Issuer (the “Board of Directors”) and of the Board of Directors adopted May 7, 2025 (collectively, the “Resolutions”); the Certificate of Designation of Series A Convertible Senior Preferred Stock of the Issuer filed in the State Office on May 7, 2025 (the “Certificate of Designation” and together with the Opinion Documents, the “Documents”); and a certification of good standing of the Issuer obtained as of a
LanzaTech Global SPV, LLC May 7, 2025 Page 2 recent date from the State Office. In our examination of the documents, we have assumed 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 copies or final drafts of documents to be executed, the due completion of each such document prior to execution and the legal capacity of natural persons to complete the execution of documents. We have further assumed for the purposes of this opinion: (i) except to the extent addressed by our opinion in paragraph 1 below, the due formation or organization, valid existence and good standing of each entity that is a signatory to any of the documents reviewed by us under the laws of the jurisdiction of its respective formation or organization; (ii) except to the extent addressed by our opinion in paragraph 2 below, the due adoption, authorization, execution and delivery by each of the parties thereto of the above-referenced documents; (iii) that the application of Delaware law to the Opinion Documents would not be contrary to a fundamental policy of a jurisdiction (other than the State of Delaware) which (a) would be the jurisdiction of applicable law in the absence of an effective choice of law and (b) has a materially greater interest than Delaware in the determination of a particular issue; (iv) except to the extent addressed by our opinion in paragraphs 4 and 5 below, that the Opinion Documents constitute legal, valid and binding agreements of the parties thereto and are enforceable against the parties thereto in accordance with their terms; (v) that the Resolutions have been duly adopted; (vi) that the Documents as approved by the Board of Directors were in substantially final form; (vii) that an officer of the Issuer has executed each of the Opinion Documents other than the Warrant Agreement, and will execute the Warrant Agreement on or prior to May 30, 2025, and has voluntarily and unconditionally transferred possession of an executed counterpart of each Opinion Document other than the Warrant Agreement, and will so transfer an executed counterpart of the Warrant Agreement on or prior to May 30, 2025, in each case to the other parties thereto with the intent of bringing each such Opinion Document into effect; (viii) that the parties to the Opinion Documents are sophisticated parties and have consulted with legal counsel in connection with the transactions contemplated thereby and have voluntarily executed the same on an informed basis and in the absence of fraud and duress; (ix) that the transactions contemplated by the Opinion Documents do not and will not constitute a “business combination” (as defined in Section 203 of the Delaware General Corporation Law (the “DGCL”)) with an “interested stockholder” (as defined in Section 203 of the DGCL) of the Issuer; (x) that the Issuer is not engaged in any operations or business prohibited under the DGCL, including conferring academic degrees or banking; (xi) that, as contractually agreed in the Warrant Agreement, prior to the issuance of any Warrant Shares, the Conditions to Exercise (including the occurrence of the Amendment Effective Time) will be satisfied; (xii) that the number of shares of Common Stock of the Issuer (the “Common Stock”) authorized and unissued as of the time of the exercise of any Warrants pursuant to the terms of the Warrant Agreement and as of the time of conversion of any shares of Series A Preferred Stock (as defined in the Certificate of Designation) pursuant to the Certificate of Designation, that have not been previously subscribed for, reserved or otherwise committed to be issued, will be sufficient to permit the issuance of the maximum number of Warrant Shares to be issued upon exercise of such Warrants and the maximum number of shares of Common Stock to be issued upon the conversion of the shares of Series A Preferred Stock (as defined in the Certificate of Designation); (xiii) that the Issuer shall give a notice in the manner required by Sections 151(f) and 202 of the DGCL in connection with the issuance of the Series A Preferred Stock pursuant to the SPA, and that at the time of the issuance of the Warrant Shares pursuant to the Warrant Agreement and shares of Common Stock upon conversion of the
LanzaTech Global SPV, LLC May 7, 2025 Page 3 Series A Preferred Stock, a stock certificate in proper form will be duly executed in the manner required by Section 158 of the DGCL and will be issued to represent such Warrant Shares or shares of Common Stock, as applicable; and (xiv) that the documents reviewed by us are in full force and effect, express the entire understanding of the parties thereto with respect to the subject matter thereof and have not been supplemented, amended or otherwise modified, except as herein referenced. We note that we have been retained to act as special Delaware counsel in connection with this opinion. We are not regular counsel to the Issuer, and we are not generally informed as to its business affairs. We have not reviewed any documents other than those identified herein in connection with this opinion, and we have assumed that there are no documents, facts or circumstances contrary to or inconsistent with the opinions expressed herein. No opinion is expressed herein with respect to the requirements of, or compliance with, federal or state securities or blue sky laws, including the Delaware Securities Act, 6 Del. C. § 7301 et seq., which applies to the sale of securities in the State of Delaware. To the extent our opinions in paragraphs 6 and 7 below relate to violations of laws or required consents, approvals, waivers, licenses, authorizations or filings with any governmental authority of the State of Delaware, our opinions relate only to laws of the State of Delaware and required consents, approvals, waivers, licenses, authorizations or filings with any corporate governmental authority of the State of Delaware that are of general application and that, in our experience, are likely to have application to the transactions herein referenced (and not to laws or required consents, approvals, waivers, licenses, authorizations or filings that might be implicated by reason of the specific business activities of the Issuer). As to any facts material to our opinion, other than those assumed, we have relied, without independent investigation, on the above-referenced documents and on the accuracy, as of the date hereof, of the matters therein contained. Based on and subject to the foregoing and to the exceptions and qualifications set forth below, and limited in all respects to matters of Delaware law, it is our opinion that: The Issuer is a corporation, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. The Issuer has all requisite corporate power and authority to execute and deliver the Opinion Documents to which it is a party and to perform its obligations thereunder. The execution, delivery and performance by the Issuer of the Opinion Documents have been duly authorized by all necessary corporate action on the part of the Issuer. Each of the SPA, the IRA and the RRA has been duly executed and delivered by the Issuer, insofar as such execution and delivery are governed by Delaware corporate law. The Series A Preferred Stock has been duly authorized by the Issuer and, when delivered and paid for by the Purchasers (as defined in the SPA) in accordance with the SPA, will be validly issued, fully paid and non-assessable. The SPA constitutes the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms.
LanzaTech Global SPV, LLC May 7, 2025 Page 4 The Warrant Agreement, when duly executed and delivered by the Issuer, will constitute a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and the Warrant Shares issuable thereunder will, upon due exercise of the Warrants in accordance with the terms of the Warrant Agreement, be validly issued, fully paid and nonassessable. The execution and delivery of the SPA and the Warrant Agreement by the Issuer and the performance by the Issuer of its obligations thereunder in accordance with the terms of the SPA or the Warrant Agreement, as applicable, will not (a) conflict with or violate any of the terms or provisions of the Issuer Governing Documents or the Certificate of Designation or (b) violate any Delaware corporate law (other than state securities or blue sky laws, as to which we express no opinion). No consent, approval, waiver, license or authorization or other action by or filing with any Delaware corporate governmental authority is required in connection with the execution and delivery by the Issuer of the Opinion Documents to which the Issuer is a party or the performance by the Issuer of its obligations thereunder other than the Certificate of Amendment (as defined in the SPA). The opinions expressed above are subject to and limited by: (i) bankruptcy, insolvency, reorganization, receivership, fraudulent conveyance, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time in effect; (ii) application of equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); (iii) considerations of public policy; (iv) the implied covenant of good faith and fair dealing; and (v) principles of course of dealing or course of performance and standards of good faith, fair dealing, materiality and reasonableness that may be applied by a court to the exercise of rights and remedies and the availability of the remedies of injunctive or other equitable relief. We express no opinion with respect to: (a) any provision of any document referred to or incorporated by reference in the Documents, including any exhibit, annex or schedule thereto; (b) whether or how the invalidity or unenforceability of any provision of the Documents would affect the validity or enforceability of the Documents or any provision thereof; (c) any waiver, release or consent except to the extent such waiver, release or consent has been made knowingly and voluntarily and otherwise in accordance with applicable law; (d) any provision that requires a waiver to be in writing; (e) any obligation to pay or reimburse attorneys’ fees, costs and expenses to the extent such payment or reimbursement is in excess of that permitted by law; (f) any provision of the Documents requiring a distribution on, or a redemption of, the Series A Preferred Stock, in any such case to the extent that it is not subject to funds being legally available; (g) any negative covenant in the Documents that purports to apply to indemnification and advancement of expenses to officers and directors of the Issuer; (h) any agreement to agree contained in the Documents; (i) the enforceability of any provision of the Documents against or with respect to any person or entity that is not a party thereto; (j) any provision of the Documents that requires the Issuer to cause the Board of Directors or any stockholders of the Issuer to act or to refrain from acting; (k) the Convertible Promissory Note, dated August 6, 2024, between the Issuer and Carbon Direct Fund
LanzaTech Global SPV, LLC May 7, 2025 Page 5 II Blocker I LLC; and (l) Section 2(c) of the Certificate of Designation to the extent it purports to limit the corporate power of the Issuer. The opinions herein expressed are intended solely for the benefit of the addressee hereof in connection with the matters contemplated hereby and may not be disclosed to, or relied upon by, any other person or entity or for any other purpose without our prior written consent. This opinion speaks only as of the date hereof and is based on our understandings and assumptions as to present facts and our review of the above-referenced documents and the application of the Delaware law as the same exist on the date hereof, and we undertake no duty to update or supplement this opinion after the date hereof for the benefit of any person or entity with respect to any facts or circumstances that may hereafter come to our attention or any changes in facts or law that may hereafter occur or take effect. Very truly yours, MORRIS, NICHOLS, ARSHT & TUNNELL LLP
EXHIBIT C FORM OF SOLVENCY CERTIFICATE See attached.
SOLVENCY CERTIFICATE May 7, 2025 This Solvency Certificate (this “Certificate”) is being executed and delivered pursuant to Section 1.3(a)(v) of that certain Series A Convertible Senior Preferred Stock Purchase Agreement, dated as of May 7, 2025, by and among LanzaTech Global, Inc. (the “Issuer”), and each of the parties listed on Exhibit A thereto as “Purchaser” (the “Purchase Agreement”; the terms defined therein being used herein as therein defined). I, Justin Pugh, the Interim Chief Financial Officer of the Issuer, in such capacity and not in an individual capacity, hereby certify as follows: 1. I am generally familiar with the businesses and assets of the Issuer and its Subsidiaries, taken as a whole, and am duly authorized to execute this Certificate on behalf of the Issuer pursuant to the Purchase Agreement. For purposes of this Certificate, I, or officers of the Issuer under my direction and supervision, have performed the following procedures: (a) I have reviewed the financial statements referred to in Section 2.8 of the Purchase Agreement and such other financial and other information that I have deemed appropriate and (b) I have knowledge of and have reviewed to my satisfaction the Purchase Agreement; and 2. As of the date hereof and after giving effect to the Transactions and the incurrence of the obligations being incurred in connection with this Agreement and the Transactions on the Closing Date: the sum of the debt (including contingent liabilities) of the Company and its Subsidiaries, taken as a whole, does not exceed the fair value of the assets of the Company and its Subsidiaries, taken as a whole. For the purposes hereof, (i) it is assumed that the obligations under the Transactions will come due at their respective maturities and (ii) the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. [Remainder of page intentionally left blank]
[SIGNATURE PAGE TO SOLVENCY CERTIFICATE – SERIES A PREFERRED] IN WITNESS WHEREOF, I have executed this Solvency Certificate on the date first written above. By: _______________________________ Name: Justin Pugh Title: Interim Chief Financial Officer
EXHIBIT D FORM OF WRITTEN CONSENT* * This Exhibit has been omitted in accordance with Regulation S-K Item 601(b)(2) because it is both not material and is the type that the Company treats as private and confidential. The Company agrees to furnish supplementally a copy of this Exhibit to the Securities and Exchange Commission upon its request.
EXHIBIT E POST-CLOSING COMPANY BUDGET* * This Exhibit has been omitted in accordance with Regulation S-K Item 601(b)(2) because it is both not material and is the type that the Company treats as private and confidential. The Company agrees to furnish supplementally a copy of this Exhibit to the Securities and Exchange Commission upon its request.
EXHIBIT F FORM OF WARRANT AGREEMENT See attached.
Final Form WARRANT AGREEMENT BETWEEN LANZATECH GLOBAL, INC. AND [CONTINENTAL STOCK TRANSFER & TRUST COMPANY], AS WARRANT AGENT [May 30], 2025
i Table of Contents Page SECTION 1. Appointment of Warrant Agent .............................................................................. 3 SECTION 2. Issuances; Exercise Price ........................................................................................ 3 SECTION 3. Form of Warrants .................................................................................................... 4 SECTION 4. Execution of Global Warrant Certificates ............................................................... 4 SECTION 5. Registration and Countersignature .......................................................................... 4 SECTION 6. Registration of Transfers and Exchanges................................................................ 5 SECTION 7. Duration and Exercise of Warrants ......................................................................... 9 SECTION 8. Cancellation of Warrants ...................................................................................... 10 SECTION 9. Mutilated or Missing Global Warrant Certificates ............................................... 11 SECTION 10. Reservation of Warrant Shares ........................................................................... 11 SECTION 11. [Reserved] ........................................................................................................... 11 SECTION 12. Adjustments and Other Rights of Warrants ........................................................ 11 SECTION 13. No Fractional Shares ........................................................................................... 13 SECTION 14. Redemption ......................................................................................................... 13 SECTION 15. Notices to Warrantholders .................................................................................. 13 SECTION 16. Merger, Consolidation or Change of Name of Warrant Agent ........................... 14 SECTION 17. Warrant Agent ..................................................................................................... 14 SECTION 18. Change of Warrant Agent ................................................................................... 18 SECTION 19. Warrantholder Not Deemed a Stockholder ......................................................... 19 SECTION 20. Notices to Company and Warrant Agent ............................................................ 19 SECTION 21. Withholding and Reporting Requirements ......................................................... 20 SECTION 22. [Reserved] ........................................................................................................... 20 SECTION 23. Supplements and Amendments ........................................................................... 20 SECTION 24. [Reserved] ........................................................................................................... 20 SECTION 25. Successors ........................................................................................................... 20 SECTION 26. Termination ......................................................................................................... 20 SECTION 27. Governing Law Venue and Jurisdiction; Waiver of Trial By Jury ..................... 20 SECTION 28. Benefits of this Agreement ................................................................................. 21 SECTION 29. Counterparts ........................................................................................................ 21 SECTION 30. Headings.............................................................................................................. 21 SECTION 31. Severability ......................................................................................................... 21
ii SECTION 32. Registration Rights .............................................................................................. 21 SECTION 33. Meaning of Terms Used in Agreement ............................................................... 21 Exhibit A Form of Global Warrant Certificate Exhibit B Form of Assignment
5/5/25 12:50 PM WARRANT AGREEMENT This WARRANT AGREEMENT (this “Agreement”), dated as of [May 30], 2025, is made by and between LANZATECH GLOBAL, INC., a Delaware corporation (the “Company”), and [Continental Stock Transfer & Trust Company], a New York corporation, as Warrant Agent (the “Warrant Agent”) (each a “Party” and collectively, the “Parties”). PRELIMINARY STATEMENTS WHEREAS, on the date hereof, the Company entered into that certain Series A Convertible Senior Preferred Stock Purchase Agreement, dated as of May 7, 2025 (as amended, restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”), by and among the Company and purchasers party thereto from time to time (collectively the “Purchasers”) pursuant to which, inter alios, the Purchasers agreed to purchase warrants (the “Warrants”) entitling the holders thereof to purchase, in the aggregate, 780,000,000 shares of common stock, $0.0001 par value per share, of the Company (such shares, including at the par value that will be reflected in the Certificate of Amendment, the “Common Stock”) at an exercise price equal to $0.0000001 per share (as adjusted in accordance with this Agreement, the “Exercise Price”), which, subject to the satisfaction of the Conditions to Exercise, shall be automatically exercised at the Exercise Time, on the terms and subject to the conditions set forth in this Agreement; WHEREAS, the Warrant Agent, at the request of the Company, has agreed to act as the agent of the Company in connection with the issuance, registration, transfer, exchange and exercise of the Warrants; and WHEREAS, the issuance of the Warrants pursuant to the Purchase Agreement and this Agreement is in reliance on the exemption from registration under the Securities Act (as defined herein) provided by Section 4(a)(2) of the Securities Act. NOW, THEREFORE, in consideration of the premises and mutual agreements herein set forth, the parties hereto agree as follows: SECTION 1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions hereinafter set forth in this Agreement (and no implied terms); and the Warrant Agent hereby accepts such appointment, on the terms and subject to the conditions hereinafter set forth.Issuances; Exercise Price. On the terms and subject to the conditions of this Agreement, the Company will issue the Warrants in the amounts and to the recipients specified in Exhibit G to the Purchase Agreement. On such date, the Warrants shall be issued by book-entry registration on the books of the Warrant Agent (“Book-Entry Warrants”) and shall be evidenced by statements issued by the Warrant Agent from time to time to the registered holder of Book-Entry Warrants reflecting such book-entry position (the “Warrant Statement”). Each Warrant evidenced thereby entitles the holder, upon proper exercise and payment of the applicable Exercise Price (including by Cashless Exercise), to receive from the Company, as adjusted as provided herein, one fully-paid, non-assessable share of Common Stock. The shares of Common Stock deliverable upon exercise of the Warrants in accordance with this Agreement are referred to herein as the “Warrant
4 Shares.”Form of Warrants. Subject to Section 6, the Warrants shall be issued (a) via book-entry registration on the books and records of the Warrant Agent and evidenced by Warrant Statements, in customary form and substance, and/or (b) if requested by any Warrantholder, in the form of one or more global certificates (the “Global Warrant Certificates”), the forms of election to exercise and of assignment to be printed on the reverse thereof, in substantially the form set forth in Exhibit A attached hereto. The Global Warrant Certificates may bear such appropriate insertions, omissions, legends, substitutions and other variations as are required or permitted by this Agreement, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rules made pursuant thereto or with any rules of any securities exchange or as may, consistently herewith, be determined by, in the case of Global Warrant Certificates, the Appropriate Officers (as defined herein) executing such Global Warrant Certificates, as evidenced by their execution of the Global Warrant Certificates.If requested by any Warrantholder, Global Warrant Certificates shall be deposited with, or with the Warrant Agent as custodian for, The Depository Trust Company (the “Depository”) and registered in the name of Cede & Co., or such other entity designated by the Depository, as the Depository’s nominee. Each Global Warrant Certificate shall represent such number of the outstanding Warrants as specified therein, and each shall provide that it shall represent the aggregate amount of outstanding Warrants from time to time endorsed thereon and that the aggregate amount of outstanding Warrants represented thereby may from time to time be reduced or increased, as appropriate, in accordance with the terms of this Agreement. SECTION 4. Execution of Global Warrant Certificates. Global Warrant Certificates shall be signed on behalf of the Company by its Chief Executive Officer, its Chief Financial Officer, its President, its General Counsel, a Vice President, its Secretary, an Assistant Secretary or any other authorized person appointed by the Board of Directors from time to time (each, an “Appropriate Officer”). Each such signature upon the Global Warrant Certificates may be in the form of a facsimile or electronic signature of any such Appropriate Officer and may be imprinted or otherwise reproduced on the Global Warrant Certificates and for that purpose the Company may adopt and use the facsimile or electronic signature of any Appropriate Officer. If any Appropriate Officer who shall have signed any of the Global Warrant Certificates shall cease to be an Appropriate Officer before the Global Warrant Certificates so signed shall have been countersigned by the Warrant Agent or disposed of by the Company, such Global Warrant Certificates nevertheless may be countersigned and delivered or disposed of as though such Appropriate Officer had not ceased to be an Appropriate Officer of the Company, and any Global Warrant Certificate may be signed on behalf of the Company by any Person who, at the actual date of the execution of such Global Warrant Certificate, shall be an Appropriate Officer, although at the date of the execution of this Agreement such Person was not an Appropriate Officer. Global Warrant Certificates shall be dated the date of countersignature by the Warrant Agent and shall represent one or more whole Warrants. SECTION 5. Registration and Countersignature. Upon written order of the Company, the Warrant Agent shall (a) register in the Warrant Register (as defined below) the Book-Entry Warrants as well as any Global Warrant Certificates and exchanges and transfers of outstanding Warrants in accordance with the procedures set forth in this Agreement, and (b) upon receipt of the Global Warrant Certificates duly executed on behalf of the Company, countersign by either
5 manual or facsimile signature one or more Global Warrant Certificates evidencing Warrants and shall deliver such Global Warrant Certificates to or upon the written order of the Company. Such written order of the Company shall specifically state the number of Warrants that are to be issued as Book-Entry Warrants and the number of Warrants that are to be issued as a Global Warrant Certificate. A Global Warrant Certificate shall be, and shall remain, subject to the provisions of this Agreement until such time as all of the Warrants evidenced thereby shall have been duly exercised or shall have expired or been canceled in accordance with the terms hereof. Each Person in whose name any Warrant is registered (each such registered holder, a “Warrantholder”) shall be bound by all of the terms and provisions of this Agreement (a copy of which is available on request to the Secretary of the Company) as fully and effectively as if such Warrantholder had signed the same.No Global Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Global Warrant Certificate has been countersigned by the manual or facsimile signature of the Warrant Agent. Such signature by the Warrant Agent upon any Global Warrant Certificate executed by the Company shall be conclusive evidence that such Global Warrant Certificate so countersigned has been duly issued hereunder. The Warrant Agent shall keep, at an office designated for such purpose, books (the “Warrant Register”) in which, subject to such reasonable regulations as it may prescribe, it shall register the Book-Entry Warrants as well as any Global Warrant Certificates and exchanges and transfers of outstanding Warrants in accordance with the procedures set forth in Section 6, all in form reasonably satisfactory to the Company and the Warrant Agent. No service charge shall be made for any exchange or registration of transfer of the Warrants, but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed on the Warrantholder in connection with any such exchange or registration of transfer. The Warrant Agent shall have no obligation to effect an exchange or register a transfer unless and until any payments required by the immediately preceding sentence have been made. Prior to due presentment for registration of transfer or exchange of any Warrant in accordance with the procedures set forth in this Agreement, the Warrant Agent and the Company may deem and treat the Warrantholder as the absolute owner of such Warrant (notwithstanding any notation of ownership or other writing made in a Global Warrant Certificate by anyone), for the purpose of any exercise thereof, any distribution to the Warrantholder thereof and for all other purposes, and neither the Warrant Agent nor the Company shall be affected by notice to the contrary. SECTION 6. Registration of Transfers and Exchanges.Transfer and Exchange of Global Warrant Certificates or Beneficial Interests Therein. The transfer and exchange of Global Warrant Certificates or beneficial interests therein shall be effected through the Depository, in accordance with this Agreement and the procedures of the Depository therefor. (b) Exchange of a Beneficial Interest in a Global Warrant Certificate for a Book-Entry Warrant. (i) Any Person having a beneficial interest in a Global Warrant Certificate may, upon request, exchange such beneficial interest for a Book-Entry Warrant. Upon receipt by the
6 Warrant Agent from the Depository or its nominee of written instructions or such other form of instructions as is customary for the Depository on behalf of any Person having a beneficial interest in a Global Warrant Certificate, the Warrant Agent shall cause, in accordance with the standing instructions and procedures existing between the Depository and Warrant Agent, the number of Warrants represented by the Global Warrant Certificate to be reduced by the number of Warrants to be represented by the Book-Entry Warrants to be issued in exchange for the beneficial interest of such Person in the Global Warrant Certificate and, following such reduction, the Warrant Agent shall register in the name of the Warrantholder a Book-Entry Warrant and deliver to said Warrantholder a Warrant Statement. (ii) Book-Entry Warrants issued in exchange for a beneficial interest in a Global Warrant Certificate pursuant to this Section 6(b) shall be registered in such names as the Depository, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Warrant Agent. The Warrant Agent shall deliver such Warrant Statements to the Persons in whose names such Warrants are so registered. (c) Transfer and Exchange of Book-Entry Warrants. Book-Entry Warrants surrendered for exchange or for registration of transfer pursuant to clause (i) of this Section 6(c) or Section 6(i)(v), shall be cancelled by the Warrant Agent. Such cancelled Book-Entry Warrants shall then be disposed of by or at the direction of the Company in accordance with applicable law. When Book-Entry Warrants are presented to or deposited with the Warrant Agent with a written request: (i) to register the transfer of the Book-Entry Warrants; or (ii) to exchange such Book-Entry Warrants for an equal number of Book-Entry Warrants of other authorized denominations; then, in each case, the Warrant Agent shall register the transfer or make the exchange as requested if its requirements for such transactions are met; provided, however, that the Warrant Agent has received a written instruction of transfer in a form satisfactory to the Warrant Agent, duly executed by the Warrantholder thereof or by his attorney, duly authorized in writing. (d) Restrictions on Exchange or Transfer of a Book-Entry Warrant for a Beneficial Interest in a Global Warrant Certificate. A Book-Entry Warrant may not be exchanged for a beneficial interest in a Global Warrant Certificate except upon satisfaction of the requirements set forth below. Upon receipt by the Warrant Agent of appropriate instruments of transfer with respect to a Book-Entry Warrant, in a form satisfactory to the Warrant Agent, together with written instructions directing the Warrant Agent to make, or to direct the Depository to make, an endorsement on the Global Warrant Certificate to reflect an increase in the number of Warrants represented by the Global Warrant Certificate equal to the number of Warrants represented by such Book-Entry Warrant (such instruments of transfer and instructions to be duly executed by the holder thereof or the duly appointed legal representative thereof or by his attorney, duly authorized in writing, such signatures to be guaranteed by an eligible guarantor institution to the extent required by the Warrant Agent or the Depository), then the Warrant Agent shall cancel such Book- Entry Warrant on the Warrant Register and cause, or direct the Depository to cause, in accordance
7 with the standing instructions and procedures existing between the Depository and the Warrant Agent, the number of Warrants represented by the Global Warrant Certificate to be increased accordingly. If no Global Warrant Certificates are then outstanding, the Company shall issue and the Warrant Agent shall countersign a new Global Warrant Certificate representing the appropriate number of Warrants. (e) Restrictions on Exchange or Transfer of Global Warrant Certificates. Notwithstanding any other provisions of this Agreement (other than the provisions set forth in Section 6(f)), unless and until it is exchanged in whole for a Book-Entry Warrant, a Global Warrant Certificate may not be transferred as a whole except by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository. (f) Book-Entry Warrants. If at any time, the Depository for the Global Warrant Certificates notifies the Company that the Depository is unwilling or unable to continue as Depository for the Global Warrant Certificates and a successor Depository for the Global Warrant Certificates is not appointed by the Company within 90 days after delivery of such notice, then the Warrant Agent, upon written instructions signed by an Appropriate Officer of the Company and all other necessary information, shall register Book-Entry Warrants, in an aggregate number equal to the number of Warrants represented by the Global Warrant Certificates, in exchange for such Global Warrant Certificates, in such names and in such amounts as directed by the Depository or, in the absence of instructions from the Depository, the Company. (g) Restrictions on Transfers of Warrants. No Warrants shall be sold, exchanged or otherwise transferred in violation of the Securities Act or applicable state securities laws. Each Warrantholder, by its acceptance of any Warrant under this Agreement, acknowledges and agrees that the Warrants (including any Warrant Shares issued upon exercise thereof) were issued pursuant to an exemption from the registration requirement of Section 5 of the Securities Act provided by Section 4(a)(2) of the Securities Act and such Warrantholder may not be able to sell or transfer any Warrant Shares in the absence of an effective registration statement under the Securities Act or an exemption from registration thereunder. The Warrants will not be subject to any restrictions on transfer other than those under applicable securities laws. (h) Cancellation of Global Warrant Certificate. At such time as all beneficial interests in Global Warrant Certificates have either been exchanged for Book-Entry Warrants, redeemed, repurchased or cancelled, all Global Warrant Certificates shall be returned to, or retained and cancelled by, the Warrant Agent, upon written instructions from the Company satisfactory to the Warrant Agent. (i) Obligations with Respect to Transfers and Exchanges of Warrants. (i) To permit registrations of transfers and exchanges, the Company shall execute Global Warrant Certificates, if applicable, and the Warrant Agent is hereby authorized, in accordance with the provisions of Section 5 and this Section 6, to countersign such Global Warrant Certificates, if applicable, or register Book-Entry Warrants, if applicable, as required pursuant to the provisions of this Section 6 and for the purpose of any distribution of new Global Warrant
8 Certificates contemplated by Section 9 or additional Global Warrant Certificates contemplated by Section 12. (ii) All Book-Entry Warrants and Global Warrant Certificates issued upon any registration of transfer or exchange of Book-Entry Warrants or Global Warrant Certificates shall be the valid obligations of the Company, entitled to the same benefits under this Agreement as the Book-Entry Warrants or Global Warrant Certificates surrendered upon such registration of transfer or exchange. (iii) No service charge shall be made to a Warrantholder for any registration, transfer or exchange but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed on the Warrantholder in connection with any such exchange or registration of transfer. Neither the Company nor the Warrant Agent shall be required to pay any tax or taxes which may be payable in respect of any transfer involved in the issuance of Warrants or any certificates for Warrant Shares in a name other than that of the Warrantholder of the surrendered Warrants, and the Company shall not be required to issue or deliver such Warrants or the certificates representing the Warrant Shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. The Warrant Agent shall have no duty to deliver such Warrants or the certificates representing such Warrant Shares unless and until it is satisfied that all such taxes and charges have been paid. (iv) So long as the Depository, or its nominee, is the registered owner of a Global Warrant Certificate, the Depository or such nominee, as the case may be, will be considered the sole owner or Warrantholder of the Warrants represented by such Global Warrant Certificate for all purposes under this Agreement. Except as provided in Sections 6(b) and (f) upon the exchange of a beneficial interest in a Global Warrant Certificate for Book-Entry Warrants, owners of beneficial interests in a Global Warrant Certificate will not be entitled to have any Warrants registered in their names, and will under no circumstances be entitled to receive physical delivery of any such Warrants and will not be considered the owners or Warrantholders thereof under the Warrants or this Agreement. Neither the Company nor the Warrant Agent, in its capacity as registrar for such Warrants, will have any responsibility or liability for any aspect of the records relating to beneficial interests in a Global Warrant Certificate or for maintaining, supervising or reviewing any records relating to such beneficial interests. 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 Depository or impair the operations of customary practices of the Depository governing the exercise of the rights of a holder of a beneficial interest in a Global Warrant Certificate. (v) Subject to Sections 6(b), (c) and (d), and this Section 6(i), the Warrant Agent shall, upon receipt of all information required to be delivered hereunder and any evidence of authority that may be reasonably required by the Warrant Agent, from time to time register the transfer of any outstanding Warrants in the Warrant Register, upon surrender of Global Warrant Certificates, if applicable, representing such Warrants at the Warrant Agent Office (as defined below), duly endorsed, and accompanied by a completed form of assignment substantially in the form of Exhibit B attached hereto (or with respect to a Book-Entry Warrant, only such completed form of assignment substantially in the form of Exhibit B attached hereto), duly signed by the
9 Warrantholder thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, such signature to be guaranteed by a participant in the Securities Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program. Upon any such registration of transfer, a new Global Warrant Certificate or a Warrant Statement, as the case may be, shall be issued to the transferee. SECTION 7. Duration and Exercise of Warrants.The Warrants shall not be exercisable unless and until (i) in the case of a Subsequent Financing, the Requisite Stockholder Approval is obtained or, in the case of any Other Financing, all approvals by the requisite stockholders of the Company for such Other Financing are obtained; (ii) the filing of the Certificate of Amendment (or such other certificate of amendment effecting any changes to the Charter required in connection with any Other Financing) with the Office of the Secretary of State of the State of Delaware becomes effective (the “Amendment Effective Time”); and (iii) the Company consummates a Subsequent Financing or Other Financing, as applicable (collectively, the “Conditions to Exercise”); provided, however, that if the Conditions to Exercise are satisfied prior to the termination of this Agreement pursuant to Section 26, (A) each Warrant shall be deemed automatically exercised at the Exercise Time in accordance with Section 7(b) and (B) the Company shall deliver the Warrant Shares to the Warrantholders in accordance with Section 7(f). The Company shall promptly provide the Warrant Agent written notice of the occurrence of the Exercise Time. For the avoidance of doubt, all Warrants shall be deemed automatically exercised at the Exercise Time and shall become void and of no value, and may not be exercised, after the Expiration Time. (b) Upon the automatic exercise of the Warrants pursuant to Section 7(a), in lieu of paying the aggregate Exercise Price, each Warrantholder shall be deemed for all purposes hereunder to have authorized the Company to withhold from issuance a number of Warrant Shares issuable upon exercise of all Warrants being deemed automatically exercised by such Warrantholder at such time which, when multiplied by the Current Market Price of the Warrant Shares, is equal to the aggregate Exercise Price, and such withheld Warrant Shares shall no longer be issuable under such Warrants (a “Cashless Exercise”). (c) The formula for determining the number of Warrant Shares to be issued in a Cashless Exercise is as follows: X= (A-B) x C A Where: X = the number of Warrant Shares issuable upon exercise pursuant to subsection (b). A = the Current Market Price of a Warrant Share on the Business Day immediately preceding the date upon which the Exercise Time occurs. B = the Exercise Price.
10 C = the number of Warrant Shares as to which a Warrant is then being exercised including the withheld Warrant Shares. If the foregoing calculation results in a negative number, then no Warrant Shares shall be issuable via a Cashless Exercise. The number of Warrant Shares to be issued upon such automatic exercise will be determined by the Company (with written notice thereof to the Warrant Agent) using the formula set forth in this Section 7(c). The Warrant Agent shall have no duty or obligation to investigate or confirm whether the Company’s determination of the number of Warrant Shares to be issued on such exercise, pursuant to this Section 7(c), is accurate or correct. (d) The number of Warrant Shares to be issued upon such automatic exercise will be determined by the Company (with written notice thereof to the Warrant Agent) using the formula set forth in Section 7(c). The Warrant Agent shall have no duty or obligation to investigate or confirm whether the Company’s determination of the number of Warrant Shares to be issued on such exercise, pursuant to Section 7(c), is accurate or correct. (e) Any exercise of a Warrant pursuant to the terms of this Agreement shall be automatic, irrevocable and shall be deemed to constitute a binding agreement between the Warrantholder and the Company, enforceable in accordance with its terms. (f) As soon as practicable after the automatic exercise of any Warrant as set forth in Section 7(a), the Company shall issue, or otherwise deliver, or cause to be issued or delivered, in authorized denominations to or upon the order of the Warrantholder of the Warrants, either: (i) if such Warrantholder holds the Warrants being exercised through the Depository’s book-entry transfer facilities, by same-day or next-day credit to the Depository for the account of such Warrantholder or for the account of a participant in the Depository the number of Warrant Shares to which such Warrantholder is entitled, in each case registered in such name and delivered to such account as directed by such Warrantholder or by the direct participant in the Depository through which such Warrantholder is acting, or (ii) if such Warrantholder holds the Warrants being exercised in the form of Book-Entry Warrants, a book-entry interest in the Warrant Shares registered on the books of the Company’s transfer agent or, at the Company’s option, by delivery to the address designated by such Warrantholder of a physical certificate representing the number of Warrant Shares to which such Warrantholder is entitled, in fully registered form, registered in such name or names as may be directed by such Warrantholder. Such Warrant Shares shall be deemed to have been issued and any Person so designated to be named therein shall be deemed to have become a stockholder as of the Exercise Time. SECTION 8. Cancellation of Warrants. Upon the Expiration Time, or if the Company shall purchase or otherwise acquire Warrants, the Global Warrant Certificates and the Book- Entry Warrants representing such Warrants shall thereupon be delivered to the Warrant Agent, if applicable, and be cancelled by it and retired. The Warrant Agent shall cancel all Global Warrant Certificates surrendered for exchange, substitution, transfer or exercise in whole or in part. Such
11 cancelled Global Warrant Certificates shall thereafter be disposed of in a manner satisfactory to the Company provided in writing to the Warrant Agent. Mutilated or Missing Global Warrant Certificates. If any of the Global Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company shall issue, and the Warrant Agent shall countersign by either manual, electronic or facsimile signature and deliver, in exchange and substitution for and upon cancellation of the mutilated Global Warrant Certificate, or in lieu of and substitution for the Global Warrant Certificate lost, stolen or destroyed, a new Global Warrant Certificate of like tenor and representing an equivalent number of Warrants, but only (a) upon receipt of evidence reasonably satisfactory to the Company and the Warrant Agent of the loss, theft or destruction of such Global Warrant Certificate; (b) upon receipt of an open penalty surety bond holding the Warrant Agent and the Company harmless, if requested by either the Company or the Warrant Agent, also satisfactory to them; and (c) absent notice to the Warrant Agent that such certificates have been acquired by a bona fide purchaser. Applicants for such substitute Global Warrant Certificates shall also comply with such other reasonable regulations and pay such other reasonable charges as the Company or the Warrant Agent may prescribe and as required by Section 8-405 of the Uniform Commercial Code as in effect in the State of New York.Reservation of Warrant Shares. Subject to the Amendment Effective Time, for the purpose of enabling the Company to satisfy any obligation to issue Warrant Shares upon exercise of Warrants, the Company will, at all times from the Amendment Effective Time through the Expiration Time, reserve and keep available, free from preemptive rights and out of its aggregate authorized but unissued or treasury shares of Common Stock, shares of Common Stock equal to the number of Warrant Shares deliverable upon the exercise of all outstanding Warrants, and the transfer agent for the Company’s Common Stock (such agent, in such capacity, as may from time to time be appointed by the Company, the “Transfer Agent”) is hereby irrevocably authorized and directed from and after the Amendment Effective Time to reserve such number of authorized and unissued or treasury shares of Common Stock as shall be required for such purpose. The Company will keep a copy of this Agreement on file with such Transfer Agent and with every transfer agent for any Warrant Shares issuable upon the exercise of Warrants pursuant to Section 7. Subject to the occurrence of the Amendment Effective Time, the Warrant Agent is hereby irrevocably authorized to requisition from time to time from such Transfer Agent stock certificates issuable upon exercise of outstanding Warrants, and the Company will supply such Transfer Agent with duly executed stock certificates for such purpose.Subject to the occurrence of the Amendment Effective Time, the Company covenants that all Warrant Shares issued upon exercise of the Warrants will, upon issuance in accordance with the terms of this Agreement, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens, charges and security interests created by or imposed upon the Company with respect to the issuance and holding thereof. SECTION 11. [Reserved]. Adjustments and Other Rights of Warrants.The applicable Exercise Price of the Warrants, the number of Warrant Shares issuable upon the exercise of each Warrant, and the number of Warrants outstanding are subject to adjustment from time to time upon the occurrence of the following: (a) The issuance of Common Stock as a dividend or distribution to all holders of Common Stock, or a subdivision or combination of Common Stock, in which event the Exercise Price shall be adjusted based on the following formula:
12 EP1 = EP0 x OS0 OS1 where: EP0 = the Exercise Price in effect immediately prior to the Close of Business on the Record Date for such dividend or distribution, or immediately prior to the Open of Business on the effective date for such subdivision or combination, as the case may be; EP1 = the Exercise Price in effect immediately after the Close of Business on the Record Date for such dividend or distribution, or immediately after the Open of Business on the effective date for such subdivision or combination, as the case may be; OS0 = the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Record Date for such dividend, distribution, subdivision or combination, or immediately prior to the Open of Business on the effective date for such subdivision or combination, as the case may be; and OS1 = the number of shares of Common Stock that would be outstanding immediately after, and solely as a result of, such dividend, distribution, subdivision or combination. Such adjustment shall become effective immediately after the Close of Business on the Record Date for such dividend or distribution, or immediately after the Open of Business on the effective date for such subdivision or combination, as the case may be. If any dividend or distribution or subdivision or combination of the type described in this Section 12(a) is declared or announced but not so paid or made, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if the distribution or subdivision or combination had not been declared or announced, as the case may be. (b) Concurrently with any adjustment to the Exercise Price under this Section 12, the number of Warrant Shares for which each Warrant is exercisable will be adjusted such that the number of Warrant Shares for each such Warrant in effect immediately following the effectiveness of such adjustment will be equal to the number of Warrant Shares for each such Warrant in effect immediately prior to such adjustment, multiplied by a fraction, (i) the numerator of which is the Exercise Price in effect immediately prior to such adjustment and (ii) the denominator of which is the Exercise Price in effect immediately following such adjustment. (c) No adjustment to the Exercise Price or number of Warrant Shares for each Warrant shall be required hereunder unless such adjustment together with other adjustments carried forward as provided below, would result in an increase or decrease of at least 1% of the applicable Exercise Price or Warrant Shares. No adjustment need be made for a change in the par value of the shares of Common Stock (including pursuant to the Certificate of Amendment) or any other Common Stock Equivalents. All calculations under this Section 12 shall be made to the nearest one-one thousandth (1/1,000th) of one cent ($0.00001) or to the nearest one-one thousandth (1/1,000th) of a share, as the case may be. In no event will the Company adjust the Exercise Price to the extent that the adjustment would reduce the Exercise Price below the par
13 value per share of Common Stock (assuming the occurrence of the Amendment Effective Time). In such case, the number of Warrant Shares shall be adjusted as if the Exercise Price had been adjusted as otherwise set forth in this Section 12(c) and each Warrant Share shall be exercisable for the par value per Warrant Share (assuming the occurrence of the Amendment Effective Time). SECTION 13. No Fractional Shares. The Company shall not be required to issue Warrants to purchase fractions of Warrant Shares, or to issue fractions of Warrant Shares upon exercise of the Warrants, or to distribute certificates which evidence fractional Warrant Shares and no Cash shall be distributed in lieu of such fractional shares or rights. If more than one Warrant shall be deemed exercised by the same Warrantholder, the number of full Warrant Shares which shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of Warrant Shares purchasable on exercise of such Warrants. If any fraction of a share would, except for the provisions of this Section 13, be issuable on the exercise of any Warrants (or specified portion thereof), as applicable, such share shall be rounded to the next higher whole number.Redemption. The Warrants shall not be redeemable by the Company or any other Person.Notices to Warrantholders. Upon any adjustment of the number of Warrant Shares purchasable upon exercise of each Warrant, the Company, within 10 Business Days thereafter, shall (a) cause to be filed with the Warrant Agent a certificate signed by an Appropriate Officer of the Company setting forth the event giving rise to such adjustment and any new or amended exercise terms, including such Exercise Price and either the number of Warrant Shares purchasable upon exercise of each Warrant or the additional number of Warrants to be issued for each previously outstanding Warrant, as the case may be, after such adjustment and setting forth the method of calculation, which certificate shall be conclusive evidence of the correctness of the matters set forth therein, and (b) direct the Warrant Agent to give written notice thereof to each of the Warrantholders at such Warrantholder’s address appearing on the Warrant Register. Where appropriate, such notice may be given in advance and included as a part of the notice required to be mailed under the other provisions of this Section 15. The Warrant Agent shall be fully protected in relying on any such certificate and in making any adjustment described therein and shall have no duty with respect to, and shall not be deemed to have knowledge of, any adjustment unless and until it shall have received such a certificate, in each case, absent gross negligence, bad faith or willful misconduct (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction).If (i) the Company proposes to take any action that would require an adjustment pursuant to Section 12 or (ii) there shall be a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation, merger or sale of all or substantially all of its property, assets and business as an entirety), then the Company shall cause written notice of such event to be filed with the Warrant Agent and shall cause written notice of such event to be given to each of the Warrantholders at such Warrantholder’s address appearing on the Warrant Register, such giving of notice to be completed at least 10 Business Days prior to the effective date of such action (or the applicable Record Date for such action if earlier). Such notice shall specify the proposed effective date of such action and, if applicable, the Record Date and the material terms of such action. The failure to give the notice required by this Section 15 or any defect therein shall not affect the legality or validity of any action, distribution, right, warrant, dissolution, liquidation or winding up or the vote upon or any other action taken in connection therewith.
14 SECTION 16. Merger, Consolidation or Change of Name of Warrant Agent. Any Person into which the Warrant Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Warrant Agent is a party, or any Person succeeding to the shareholder services business of the Warrant Agent or any successor Warrant Agent, shall be the successor to the Warrant Agent hereunder without the execution or filing of any document or any further act on the part of any of the parties hereto, if such Person would be eligible for appointment as a successor Warrant Agent under the provisions of Section 18. If any of the Global Warrant Certificates have been countersigned but not delivered at the time such successor to the Warrant Agent succeeds under this Agreement, any such successor to the Warrant Agent may adopt the countersignature of the original Warrant Agent; and if at that time any of the Global Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Global Warrant Certificates either in the name of the predecessor Warrant Agent or in the name of the successor Warrant Agent; and in all such cases such Global Warrant Certificates shall have the full force provided in the Global Warrant Certificates and in this Agreement.If at any time the name of the Warrant Agent is changed and at such time any of the Global Warrant Certificates have been countersigned but not delivered, the Warrant Agent whose name has changed may adopt the countersignature under its prior name; and if at that time any of the Global Warrant Certificates have not been countersigned, the Warrant Agent may countersign such Global Warrant Certificates either in its prior name or in its changed name; and in all such cases such Global Warrant Certificates shall have the full force provided in the Global Warrant Certificates and in this Agreement. SECTION 17. Warrant Agent. The Warrant Agent undertakes only the duties and obligations expressly imposed by this Agreement and the Global Warrant Certificates, in each case upon the following terms and conditions, by all of which the Company and the Warrantholders, by their acceptance thereof, shall be bound:The statements contained herein and in the Global Warrant Certificates shall be taken as statements of the Company, and the Warrant Agent assumes no responsibility for the accuracy of any of the same except to the extent that such statements describe the Warrant Agent or action taken or to be taken by the Warrant Agent. Except as expressly provided herein, the Warrant Agent assumes no responsibility with respect to the execution, delivery or distribution of the Global Warrant Certificates. (b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the covenants contained in this Agreement or in the Global Warrant Certificates to be complied with by the Company, nor shall it at any time be under any duty or responsibility to any Warrantholder to make or cause to be made any adjustment in the Exercise Price or in the number of Warrants Shares any Warrant is exercisable for (except as instructed in writing by the Company), or to determine whether any facts exist that may require any such adjustments, or with respect to the nature or extent of or method employed in making any such adjustments when made. (c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company or an employee of the Warrant Agent), and the advice or opinion of such counsel will be full and complete authorization and protection to the Warrant Agent as to any action taken, suffered or omitted by it in accordance with such advice or opinion, absent gross negligence, bad faith or willful misconduct in the selection and continued retention of such counsel
15 and the reliance on such counsel’s advice or opinion (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction). (d) Absent gross negligence, bad faith or willful misconduct (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction), the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrantholder for any action taken in reliance on any written notice, resolution, waiver, consent, order, certificate or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent shall not take any instructions or directions except those given in accordance with this Agreement. (e) The Company agrees to pay to the Warrant Agent reasonable compensation for all services rendered by the Warrant Agent under this Agreement in accordance with a fee schedule to be mutually agreed upon, to reimburse the Warrant Agent upon demand for all reasonable and documented out-of-pocket expenses, including counsel fees and other disbursements, incurred by the Warrant Agent in the preparation, administration, delivery, execution and amendment of this Agreement and the performance of its duties under this Agreement and to indemnify the Warrant Agent and save it harmless against any and all losses, liabilities and expenses, including judgments, damages, fines, penalties, claims, demands and costs (including reasonable out-of-pocket counsel fees and expenses), for anything done or omitted by the Warrant Agent arising out of or in connection with this Agreement except as a result of its gross negligence, bad faith or willful misconduct (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction). The costs and expenses incurred by the Warrant Agent in enforcing the right to indemnification shall be paid by the Company except to the extent that the Warrant Agent is not entitled to indemnification due to its gross negligence, bad faith or willful misconduct (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction). Notwithstanding the foregoing, the Company shall not be responsible for any settlement made without its written consent; provided that nothing in this sentence shall limit the Company’s obligations contained in this paragraph other than pursuant to such a settlement. (f) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense or liability. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrants or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery or judgment shall be for the ratable benefit of the Warrantholders, as their respective rights or interests may appear. (g) The Warrant Agent, and any member, stockholder, affiliate, director, officer or employee thereof, may buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which the Company is interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it was not the Warrant Agent under this Agreement, or a member, stockholder director, officer or employee of the Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
16 (h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement except in connection with its own gross negligence, bad faith or willful misconduct (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction). Notwithstanding anything in this Agreement to the contrary, in no event will the Warrant Agent be liable for special, indirect, incidental, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Warrant Agent has been advised of the possibility of such loss or damage. (i) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement. (j) The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due and validly authorized execution hereof by the Warrant Agent) or in respect of the validity or execution of any Global Warrant Certificate (except its due and validly authorized countersignature thereof), nor shall the Warrant Agent by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of the Warrant Shares to be issued pursuant to this Agreement or any Warrant or as to whether the Warrant Shares will when issued be validly issued, fully paid and nonassessable or as to the Exercise Price or the number of Warrant Shares a Warrant is exercisable for. (k) Whenever in the performance of its duties under this Agreement the Warrant Agent deems it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, the Warrant Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from an Appropriate Officer of the Company and to apply to such Appropriate Officer for advice or instructions in connection with its duties, and such instructions shall be full authorization and protection to the Warrant Agent and, absent gross negligence, bad faith or willful misconduct (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction), the Warrant Agent shall not be liable for any action taken, suffered to be taken, or omitted to be taken by it in accordance with instructions of any such Appropriate Officer or in reliance upon any statement signed by any one of such Appropriate Officers of the Company with respect to any fact or matter (unless other evidence in respect thereof is herein specifically prescribed) which may be deemed to be conclusively proved and established by such signed statement. The Warrant Agent shall not be held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. (l) Notwithstanding anything contained herein to the contrary, the Warrant Agent’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Warrant Agent as fees and charges, but not
17 including reimbursable expenses, during the 12-month period immediately preceding the event for which recovery from Warrant Agent is being sought. (m) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if it believes that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it. (n) If the Warrant Agent shall receive any notice or demand (other than notice of or demand for exercise of Warrants) addressed to the Company by any Warrantholder pursuant to the provisions of the Warrants, the Warrant Agent shall promptly forward such notice or demand to the Company. (o) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or other experts, and the Warrant Agent will not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company or the Warrantholders resulting from any such act, default, neglect or misconduct, absent gross negligence, bad faith or willful misconduct in the selection and continued employment thereof (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction). (p) The Warrant Agent will not be under any duty or responsibility to ensure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of the Warrants. (q) The Warrant Agent shall have no duties, responsibilities or obligations as the Warrant Agent except those which are expressly set forth herein, and in any modification or amendment hereof to which the Warrant Agent has consented in writing, and no duties, responsibilities or obligations shall be implied or inferred. Without limiting the foregoing, unless otherwise expressly provided in this Agreement, the Warrant Agent shall not be subject to, nor be required to comply with, or determine if any Person has complied with, the Warrants or any other agreement between or among the parties hereto, even though reference thereto may be made in this Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Agreement. (r) The Warrant Agent shall not incur any liability for not performing any act, duty, obligation or responsibility by reason of any occurrence beyond the control of the Warrant Agent (including without limitation any act or provision of any present or future law or regulation or governmental authority, any act of God, war, civil disorder or failure of any means of communication, terrorist acts, pandemics, epidemics, 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). (s) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, or is for any reason unsure as to what action
18 to take hereunder, the Warrant Agent shall notify the Company in writing as soon as practicable, and upon delivery of such notice may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company or any Warrantholder or other Person for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the satisfaction of Warrant Agent. (t) 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 Warrantholder 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 government authorities (e.g., in divorce and criminal actions). (u) The provisions of this Section 17 shall survive the termination of this Agreement, the exercise or expiration of the Warrants and the resignation or removal of the Warrant Agent. (v) No provision of this Agreement shall be construed to relieve the Warrant Agent from liability for fraud, or its own gross negligence, bad faith or its willful misconduct (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction). SECTION 18. Change of Warrant Agent. If the Warrant Agent resigns (such resignation to become effective not earlier than 30 days after the giving of written notice thereof to the Company) or shall be adjudged bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver of all or any substantial part of its property or affairs or shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay or meet its debts generally as they become due, or if an order of any court shall be entered approving any petition filed by or against the Warrant Agent under the provisions of bankruptcy laws or any similar legislation, or if a receiver, trustee or other similar official of it or of all or any substantial part of its property shall be appointed, or if any public officer shall take charge or control of it or of its property or affairs, for the purpose of rehabilitation, conservation, protection, relief, winding up or liquidation, or becomes incapable of acting as Warrant Agent or if the Board of Directors by resolution removes the Warrant Agent (such removal to become effective not earlier than 30 days after the filing of a certified copy of such resolution with the Warrant Agent and the giving of written notice of such removal to the Warrantholders), the Company shall appoint a successor to the Warrant Agent. If the Company fails to make such appointment within a period of 30 days after such removal or after it has been so notified in writing of such resignation or incapacity by the Warrant Agent, then any Warrantholder may apply to any court of competent jurisdiction for the appointment of a successor to the Warrant Agent. Pending appointment of a successor to the Warrant Agent, either by the Company or by such a court, the duties of the Warrant Agent shall be carried out by the Company. Any successor Warrant Agent, whether appointed by the Company or by such a court, shall be an entity, in good standing, incorporated under the laws of any state or of the United States of America. As soon as practicable after appointment of the successor Warrant Agent, the Company shall cause written notice of the change in the Warrant
19 Agent to be given to each of the Warrantholders at such Warrantholder’s address appearing on the Warrant Register. After appointment, the successor Warrant Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Warrant Agent without further act or deed. The former Warrant Agent shall deliver and transfer to the successor Warrant Agent any property at the time held by it hereunder and execute and deliver, at the expense of the Company, any further assurance, conveyance, act or deed necessary for the purpose. Failure to give any notice provided for in this Section 18 or any defect therein, shall not affect the legality or validity of the removal of the Warrant Agent or the appointment of a successor Warrant Agent, as the case may be.Warrantholder Not Deemed a Stockholder. Nothing contained in this Agreement or in any of the Warrants shall be construed as conferring upon the Warrantholders thereof the right to vote or to receive dividends or to participate in any transaction that would give rise to an adjustment under Section 12 or to consent or to receive notice as stockholders in respect of the meetings of stockholders or for the election of directors of the Company or any other matter, or any rights whatsoever as stockholders of the Company.Notices to Company and Warrant Agent. Any notice or demand authorized or permitted by this Agreement to be given or made by the Warrant Agent or by any Warrantholder to or on the Company to be effective shall be in writing (including by facsimile or email, as applicable), and shall be deemed to have been duly given or made when delivered by hand, or when sent if delivered to a recognized courier or deposited in the mail, first class and postage prepaid or, in the case of email, when received, addressed as follows (until another address or email address is filed in writing by the Company with the Warrant Agent):LanzaTech Global, Inc. 8045 Lamon Avenue, Suite 400 Skokie, Illinois 60077 Attention: Joseph C. Blasko Email: [REDACTED] with a copy to: Simpson Thacher & Bartlett LLP 725 Lexington Avenue New York, New York 10017 Attention: Marisa Stavenas, Esq., Lia Toback, Esq. Email: [REDACTED], [REDACTED] Any notice or demand pursuant to this Agreement to be given by the Company or by any Warrantholder to the Warrant Agent shall be sufficiently given if sent in the same manner as notices or demands are to be given or made to or on the Company (as set forth above) to the Warrant Agent at the office maintained by the Warrant Agent (the “Warrant Agent Office”) as follows (until another address is filed in writing by the Warrant Agent with the Company, which other address shall become the address of the Warrant Agent Office for the purposes of this Agreement): [Continental Stock Transfer & Trust Company 1 State Street, 30th Floor New York, NY 10004 Attention: Compliance Department]
20 SECTION 21. Withholding and Reporting Requirements. The Company shall comply with all applicable tax withholding and reporting requirements imposed by any governmental and regulatory authority.[Reserved].Supplements and Amendments. This Agreement constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and may not be amended, except in a writing signed by both of them. The Company and the Warrant Agent may from time to time amend, modify or supplement this Agreement or the Warrants with (and only with) the prior written consent of Warrantholders holding, assuming exercise in full of the Warrants then outstanding, at least a majority of the Warrant Shares then issuable upon exercise of the Warrants then outstanding, pursuant to a written amendment or supplement executed by the Company and the Warrant Agent; provided, however, that any amendment or supplement to this Agreement that would reasonably be expected to materially and adversely affect any right of a Warrantholder relative to the other Warrantholders shall require the written consent of such holder. In addition, the consent of each Warrantholder affected shall be required for any amendment pursuant to which the Exercise Price would be increased or the number of Warrant Shares issuable upon exercise of Warrants would be decreased (other than pursuant to adjustments provided in this Agreement). Notwithstanding anything to the contrary herein, upon the delivery of a certificate from an Appropriate Officer of the Company which states that the proposed supplement or amendment is in compliance with the terms of this Section 23 and provided that such supplement or amendment does not adversely affect the Warrant Agent’s rights, duties, liabilities, immunities or obligations hereunder, the Warrant Agent shall execute such supplement or amendment. Any amendment, modification or waiver effected pursuant to and in accordance with the provisions of this Section 23 will be binding upon all Warrantholders and upon each future Warrantholder, the Company and the Warrant Agent. In the event of any amendment, modification, supplement or waiver, the Company will give prompt notice thereof to all Warrantholders and, if appropriate, notation thereof will be made on all Global Warrant Certificates thereafter surrendered for registration of transfer or exchange.[Reserved].Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns hereunder.Termination. This Agreement shall terminate at the earlier of (i) the Expiration Time and (ii) May 7, 2026. Termination of this Agreement shall not relieve the Company or the Warrant Agent of any of their obligations arising prior to the date of such termination or in connection with the settlement of any Warrant exercised prior to the Expiration Time. The provisions of Section 17, this Section 26, Section 27 and Section 28 shall survive such termination and the resignation or removal of the Warrant Agent.Governing Law Venue and Jurisdiction; Waiver of Trial By Jury. This Agreement and each Warrant issued hereunder shall be governed by, and construed in accordance with, the laws of the State of Delaware. Each party hereto consents and submits to the jurisdiction of the courts of the State of Delaware and any federal courts located in such state in connection with any action or proceeding brought against it that arises out of or in connection with, that is based upon, or that relates to this Agreement or the transactions contemplated hereby. In connection with any such action or proceeding in any such court, each party hereto hereby waives personal service of any summons, complaint or other process and hereby agrees that service thereof may be made in accordance with the procedures for giving notice set forth in Section 20 hereof. Each party hereto hereby waives any objection to jurisdiction or venue in any such court in any such action or proceeding and agrees not to assert any defense based on lack of jurisdiction or venue in any such court in any such action or
21 proceeding. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any action, proceeding or counterclaim as between the parties directly or indirectly arising out of, under or in connection with this Agreement or the transactions contemplated hereby or disputes relating hereto. Each of the parties hereto (i) certifies that no representative, agent or attorney of any other party hereto has represented, expressly or otherwise that such other party hereto would not, in the event of litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties hereto have been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 27.Benefits of this Agreement. Nothing in this Agreement shall be construed to give to any Person other than the Company, the Warrant Agent and the Warrantholders any legal or equitable right, remedy or claim under this Agreement, and this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent and the Warrantholders.Counterparts. This Agreement may be executed in any number of counterparts and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. This Agreement may be delivered via facsimile, electronic mail (including pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 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.Headings. The headings of sections of this Agreement have been inserted for convenience of reference only, are not to be considered a part hereof and in no way modify or restrict any of the terms or provisions hereof.Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law in any jurisdiction, such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of any other provision of this Agreement in such jurisdiction or affect the validity, legality or enforceability of any provision in any other jurisdiction, and the invalid, illegal or unenforceable provision shall be interpreted and applied so as to produce as near as may be the economic result intended by the parties hereto. Upon determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible; 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.Registration Rights. In addition to the rights provided to Warrantholders under this Agreement, Warrantholders shall have all the rights set forth in the Registration Rights Agreement.Meaning of Terms Used in Agreement.The language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any party. Any references to any federal, state, local or foreign statute or law shall also refer to all rules and regulations promulgated thereunder, unless the context otherwise requires. Unless the context otherwise requires: (i) a term has the meaning assigned to it by this Agreement; (ii) forms of the word “include” mean that the inclusion is not limited to the items listed; (iii) “or” is disjunctive but not exclusive; (iv) words in the singular include the plural, and in the plural include the singular; (v) provisions apply to successive events and transactions; and (vi) “hereof”,
22 “hereunder”, “herein” and “hereto” refer to the entire Agreement and not any section or subsection. The following terms used in this Agreement shall have the meanings set forth below: “$” shall mean the currency of the United States. “Affiliate” means, with respect to any Person, any other person that, directly or indirectly, Controls or is Controlled by or is under common Control with such Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made. “Affiliated” shall have a correlative meaning. “Board of Directors” means, as to the Company, the board of directors of the Company (including any committee thereof delegated authority to consider strategic alternatives, including any Liquidation Event (as defined in the Certificate of Designation), whose resolutions or approval is not subject to approval of such board or governing body), and the term “directors” means members of the Board of Directors. “Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law or other governmental action to be closed in New York, New York. “Cash” means such coin or currency of the United States as at any time of payment is legal tender for the payment of public and private debts. “Certificate of Amendment” has the meaning set forth in the Purchase Agreement. “Certificate of Designation” means that certain Certificate of Designation of Series A Convertible Senior Preferred Stock of the Company, dated as of May 7, 2025 (as it may be amended from time to time). “Charter” has the meaning given to such term in the Purchase Agreement. “Close of Business” means 5:00 p.m., New York City time. “Common Stock Equivalent” means any warrant, right or option to acquire any shares of Common Stock or any security convertible into or exchangeable for shares of Common Stock. “Control” means, with respect to any Person, (i) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or agency or otherwise, or (ii) the ownership of at least 50% of the equity securities in such Person. “Controlled” shall have a correlative meaning. “Current Market Price” means, in connection with a dividend, issuance or distribution, the volume weighted average price per share of Common Stock for the 20 Trading Days ending on, but excluding, the earlier of the date in question and the Trading Day immediately preceding the Ex-Date for such dividend, issuance or distribution for the regular trading session (including
23 any extensions thereof, without regard to pre-open or after hours trading outside of such regular trading session) as reported by the principal U.S. national or regional securities exchange or quotation system on which the Common Stock or such other security is then listed or quoted, whichever is applicable, as published by Bloomberg at 4:15 p.m., New York City time (or 15 minutes following the end of any extension of the regular trading session), on such Trading Day, or if such volume weighted average price is unavailable or in manifest error as reasonably determined in good faith by the Board of Directors, the market value of one share of Common Stock during such 20 Trading Day period determined using a volume weighted average price method by an independent nationally recognized investment bank or other qualified financial institution selected by the Board of Directors and reasonably acceptable to the Warrant Agent. If the Common Stock is not traded on any U.S. national or regional securities exchange or quotation system, the Current Market Price shall be the price per share of Common Stock that the Company could obtain from a willing buyer for shares of Common Stock sold by the Company from authorized but unissued shares of Common Stock, as such price shall be reasonably determined in good faith by the Board of Directors. “Expiration Time” means the time immediately following the Exercise Time. “Ex-Date” means, when used with respect to any issuance of or distribution in respect of the Common Stock or any other securities, the first date on which the Common Stock or such other securities trade without the right to receive such issuance or distribution. “Exercise Time” means one minute after the Conditions to Exercise are all satisfied. “Issue Date” means [May 30], 2025. “Open of Business” means 9:00 a.m., New York City time. “Other Financing” has the meaning given to such term in the Certificate of Designation. “Person” means any individual, corporation, limited partnership, general partnership, limited liability partnership, limited liability company, joint stock company, joint venture, corporation, unincorporated organization, association, company, trust, group or other legal entity, or any governmental or political subdivision or any agency, department or instrumentality thereof. “Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any Cash, securities or other property or in which 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 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). “Registration Rights Agreement” means that certain Registration Rights Agreement dated as of May 7, 2025 by and among the Company and the Purchasers (as amended from time to time).
24 “Requisite Stockholder Approval” has the meaning given to such term in the Certificate of Designation. “Subsequent Financing” has the meaning given to such term in the Certificate of Designation. “Trading Day” means a day on which the NASDAQ Global Market is open for business. [Signature Page Follows]
[SIGNATURE PAGE TO WARRANT AGREEMENT] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as [May 30], 2025. LANZATECH GLOBAL, INC. By: Name: Title: [CONTINENTAL STOCK TRANSFER & TRUST COMPANY] as Warrant Agent By: Name: Title:
EXHIBIT A FORM OF GLOBAL WARRANT CERTIFICATE THIS SECURITY HAS BEEN ACQUIRED FOR INVESTMENT AND WITHOUT A VIEW TO DISTRIBUTION AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”), OR UNDER STATE SECURITIES LAWS. NO OFFER, TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION THEREIN MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS; PROVIDED THAT, IN THE CASE OF CLAUSE (B), LANZATECH GLOBAL, INC. (THE “COMPANY”) RECEIVES AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS. This Global Warrant Certificate is held by The Depository Trust Company (the “Depositary”) or its nominee in custody for the benefit of the beneficial owners hereof, and is not transferable to any Person under any circumstances except that (i) this Global Warrant Certificate may be exchanged in whole but not in part pursuant to Section 6(a) of the Warrant Agreement, (ii) this Global Warrant Certificate may be delivered to the Warrant Agent for cancellation pursuant to Section 6(h) of the Warrant Agreement, and (iii) this Global Warrant Certificate may be transferred to a successor Depositary with the prior written consent of the Company. Unless this Global Warrant Certificate is presented by an authorized representative of the Depositary to the Company or the Warrant Agent for registration of transfer, exchange or payment and any certificate issued is registered in the name of Cede & Co. or such other entity as is requested by an authorized representative of the Depositary (and any payment hereon is made to Cede & Co. or to such other entity as is requested by an authorized representative of the Depositary), any transfer, pledge or other use hereof for value or otherwise by or to any Person is wrongful because the registered owner hereof, Cede & Co., has an interest herein. Transfers of this Global Warrant Certificate shall be limited to transfers in whole, but not in part, to nominees of the Depositary or to a successor thereof or such successor’s nominee, and transfers of portions of this Global Warrant Certificate shall be limited to transfers made in accordance with the restrictions set forth in Section 6 of the Warrant Agreement. No registration or transfer of the securities issuable pursuant to the Warrant will be recorded on the books of the Company until such provisions have been complied with. [Balance of page intentionally left blank]
2 CUSIP No._________ No.______________ WARRANT TO PURCHASE ________ SHARES OF COMMON STOCK LANZATECH GLOBAL, INC. GLOBAL WARRANT TO PURCHASE COMMON STOCK FORM OF FACE OF WARRANT CERTIFICATE This Warrant Certificate (“Warrant Certificate”) certifies that [●] or its registered assigns is the registered holder (the “Warrantholder”) of a Warrant (the “Warrant”) of LANZATECH GLOBAL, INC., a Delaware corporation (the “Company”), to purchase the number of shares (the “Warrant Shares”) of common stock, par value $0.0001 per share (such shares, including at the par value that will be reflected in the Certificate of Amendment, the “Common Stock”) of the Company set forth above. The Warrants shall not be exercisable unless and until each of (a) in the case of the Subsequent Financing, the Requisite Stockholder Approval is obtained or, in the case of any Other Financing, all approvals by the requisite stockholders of the Company for such Other Financing are obtained; (b) the Amendment Effective Time occurs; and (c) the Company consummates the Subsequent Financing or Other Financing, as applicable (collectively, the “Conditions to Exercise”); provided, however, that if the Conditions to Exercise are satisfied, each Warrant shall be deemed automatically exercised at the Exercise Time. This warrant entitles the holder to purchase from the Company the number of fully paid and non-assessable Warrant Shares set forth above at the exercise price (the “Exercise Price”) multiplied by the number of Warrant Shares set forth above (the “Exercise Amount”). Upon the automatic exercise of the Warrants pursuant to the provisions of the Warrant Agreement, each Warrantholder will be deemed to have authorized the Company to withhold from issuance a number of Warrant Shares issuable upon exercise of the Warrant which when multiplied by the Current Market Price of the Common Stock is equal to the aggregate Exercise Price, and such withheld Warrant Shares shall no longer be issuable under the Warrant, in accordance with the Warrant Agreement. The initial Exercise Price shall be $0.0000001. The Exercise Price and the number of Warrant Shares purchasable upon exercise of this Warrant are subject to adjustment upon the occurrence of certain events as set forth in the Warrant Agreement. No Warrant may be exercised after the Expiration Time. After the Expiration Time, the Warrants will become wholly void and of no value. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS WARRANT CERTIFICATE SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE. This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent. IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be executed by its duly authorized officer.
[SIGNATURE PAGE TO WARRANT CERTIFICATE] Dated:___________ LANZATECH GLOBAL, INC. By: Name: Title: [CONTINENTAL STOCK TRANSFER & TRUST COMPANY] as Warrant Agent By: Name: Title:
EXHIBIT A FORM OF REVERSE OF GLOBAL WARRANT CERTIFICATE LANZATECH GLOBAL, INC. The Warrant evidenced by this Warrant Certificate is a part of a duly authorized issue of Warrants to purchase a maximum of 780,000,000 shares of Common Stock issued pursuant to that certain Warrant Agreement, dated as of the Issue Date (the “Warrant Agreement”), duly executed and delivered by the COMPANY and [CONTINENTAL STOCK TRANSFER & TRUST COMPANY], a New York corporation, as Warrant Agent (the “Warrant Agent”). The Warrant Agreement hereby is incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the Warrantholders. A copy of the Warrant Agreement may be inspected at the Warrant Agent office and is available upon written request addressed to the Company. All capitalized terms used in this Warrant Certificate but not defined that are defined in the Warrant Agreement shall have the meanings assigned to them therein. Upon the automatic exercise of the Warrants pursuant to Section 7(a) of the Warrant Agreement, each Warrantholder will be deemed to have authorized the Company to withhold from issuance a number of Warrant Shares issuable upon exercise of all Warrants being deemed automatically exercised by such Warrantholder at such time which, when multiplied by the Current Market Price of the Warrant Shares, is equal to the aggregate Exercise Price, and such withheld Warrant Shares shall no longer be issuable under such Warrants. After the Expiration Time, unexercised Warrants shall become wholly void and of no value. The Company shall not be required to issue fractions of Warrant Shares or any certificates that evidence fractional Warrant Shares. Warrant Certificates, when surrendered by book-entry delivery through the facilities of the Depositary may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing a Warrant to purchase in the aggregate a like number of Warrant Shares. No Warrants may be sold, exchanged or otherwise transferred in violation of the Warrant Agreement. The securities represented by this instrument (including any securities issued upon exercise hereof) have not been registered under the securities act of 1933, as amended (the “Securities Act”) or the securities laws of any state and were issued pursuant to an exemption from the registration requirement of Section 4(a)(2) of the Securities Act, such holder may not be able to sell or transfer any securities represented by this instrument (including any securities issued upon exercise hereof) in the absence of an effective registration statement relating thereto under the Securities Act and in accordance with applicable state securities laws or pursuant to an exemption from registration under such act or such laws.
2 The Company and Warrant Agent may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone) for the purpose of any exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. [Balance of page intentionally remains blank]
EXHIBIT B FORM OF ASSIGNMENT (TO BE EXECUTED BY THE REGISTERED WARRANTHOLDER IF SUCH WARRANTHOLDER DESIRES TO TRANSFER A WARRANT) FOR VALUE RECEIVED, the undersigned registered holder hereby sells, assigns and transfers unto __________________________ Name of Assignee __________________________ Address of Assignee _________ Warrants to purchase shares of Common Stock held by the undersigned, together with all right, title and interest therein, and does irrevocably constitute and appoint ___________ attorney, to transfer such Warrants on the books of the Warrant Agent, with full power of substitution. Dated Signature Social Security or Other Taxpayer Identification Number of Assignee SIGNATURE GUARANTEED BY: Signatures must be guaranteed by a participant in the Securities Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program.
EXHIBIT G SCHEDULE OF WARRANTS Purchaser Warrant Shares LanzaTech Global SPV, LLC 780,000,000 (*) Total 780,000,000 (*) (*) Subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar transaction, including the Reverse Stock Split.
EXHIBIT H FORM OF PROMISSORY NOTE See attached.
Execution Version THIS NOTE (AS DEFINED BELOW) AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. LANZATECH GLOBAL, INC. PROMISSORY NOTE May 7, 2025 No. A-1 FOR VALUE RECEIVED, LanzaTech Global, Inc., a Delaware corporation (the “Borrower”), hereby unconditionally promises to pay to the order of LanzaTech Global SPV, LLC (the “Holder”), in lawful money of the United States, an aggregate principal amount equal to the Redemption Price under the Certificate of Designation (as defined below) as of the Effective Date (as defined below), assuming all shares of Series A Preferred Stock (as defined in the Certificate of Designation) are outstanding on the date hereof (or, if less, such amount as may be the unpaid aggregate principal amount hereunder), together with interest and other amounts as provided herein, without right of offset and otherwise in accordance with the terms and provisions hereof. Capitalized terms used but not defined herein shall have the meanings assigned thereto in that certain Certificate of Designation, filed by the Borrower with the Secretary of State of the State of Delaware on May 7, 2025 (the “Certificate of Designation”). 1. Issuance and Effectiveness. This Promissory Note (as amended, restated, supplemented or otherwise modified from time to time, this “Promissory Note”) is one of the Promissory Notes contemplated by the Certificate of Designation and is delivered by the Borrower to the Holder in connection with the occurrence of an Automatic Exchange Event, in exchange for the automatic surrender to and redemption by the Borrower of the Series A Preferred Stock held by the Holder immediately prior to such Automatic Exchange Event. This Promissory Note shall be deemed issued and become effective automatically when an Automatic Exchange Event has occurred (but not prior to such occurrence) (the “Effective Date”), and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 2. PIK Interest. Interest on this Promissory Note shall be payable in kind by capitalizing and adding the amount of any such interest payment to the outstanding principal balance of this Promissory Note (“PIK Interest”). The PIK Interest shall begin to accrue on the date of issuance of this Note at a rate equal to 8% per annum (the “Initial Rate”). PIK Interest shall be computed on the basis of a 360-day year and shall accrue on the actual number of days elapsed for any whole or partial period for which interest is being calculated. PIK Interest shall be payable: (a) on the last business day of each month (the “Interest Payment Date”); provided that if any Interest Payment Date would end on a day other than a business day, such Interest Payment Date shall be extended to the next succeeding business day unless such next succeeding business day would fall in the next calendar month, in which case such interest period shall end on the next preceding business day; and (b) on the Maturity Date.
2 3. Prepayment. This Promissory Note may be prepaid at any time without premium or penalty and any such prepayment shall reduce the outstanding balance of the Promissory Note. 4. Maturity Date. The entire outstanding balance of the Promissory Note, together with any accrued interest thereon, shall be due and payable to the Holder on the date that is one year from the date of issuance of this Note (the “Maturity Date”); provided that, the Holder may demand repayment of the Promissory Note at any time prior to the Maturity Date, at which time the outstanding balance due under the Promissory Note and any accrued interest thereon shall become immediately due and payable hereunder. 5. Guaranty. (j) The Borrower, along with each entity listed on the signature pages hereto as a guarantor (each a “Guarantor” and, collectively, the “Guarantors”), jointly and severally, hereby absolutely, irrevocably and unconditionally guarantees to the Holder, the payment of the Promissory Note when due (whether at a stated maturity or earlier by reason of acceleration or otherwise) and performance of the obligations hereunder. (k) This Guaranty is an absolute, irrevocable, unconditional and continuing guaranty of payment and performance of the Promissory Note, and none of the obligations of the Borrower or any Guarantor hereunder shall be released, in whole or in part, by any action or occurrence that might, but for this provision of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, other than irrevocable payment and performance in full of the Promissory Note. No notice of the Promissory Note to which this Guaranty may apply, or of any renewal or extension thereof, need be given to any Guarantor and none of the foregoing acts shall release any Guarantor from liability hereunder. Each Guarantor hereby expressly waives: (i) demand of payment, presentment, protest, notice of dishonor, nonpayment or nonperformance on any and all forms of the Promissory Note; (ii) notice of acceptance of this Guaranty and notice of any liability to which it may apply; (iii) all other notices and demands of any kind and description relating to the Promissory Note now or hereafter provided for by any agreement, statute, law, rule or regulation; and (iv) any and all defenses of the Borrower pertaining to the Promissory Note except for the defense of discharge by payment. No Guarantor shall be exonerated with respect to such Guarantor’s liabilities under this Guaranty by any act or occurrence except irrevocable payment and performance of the obligations hereunder, it being the purpose and intent of this Guaranty that the Promissory Note constitutes the direct and primary obligations of each Guarantor and that the covenants, agreements and all obligations of each Guarantor hereunder be absolute, unconditional and irrevocable. Each Guarantor shall be and shall remain liable for any deficiency remaining after foreclosure of any mortgage, deed of trust or security agreement securing all or any part of the Promissory Note, whether or not the liability of the Borrower or any other Person for such deficiency is discharged pursuant to statute, judicial decision or otherwise. The acceptance of this Guaranty by the Holder is not intended, and does not, release any liability previously existing of any guarantor or surety of any indebtedness of the Borrower to the Holder. 6. Default and Remedies. (a) The Borrower shall be in default under this Promissory Note upon the occurrence of any of the following (each an “Event of Default” and collectively, the “Events of Default”): (i) the Borrower fails to pay all or any amounts due under this Promissory Note and any accrued interest thereon immediately when the same becomes due and payable hereunder;
3 (ii) the Borrower materially breaches any of its other obligations under this Promissory Note (which such breach, if capable of being cured, is not cured within 10 business days following the first occurrence thereof); (iii) any representation, warranty or covenant made by the Borrower in connection with this Promissory Note shall be (or was when made) false, incomplete or misleading in any material respect (or in any respect if qualified as to materiality); (iv) the Borrower becomes insolvent or ceases to do business as a going concern; (v) a receiver is appointed for all or a material part of the property of the Borrower or the Borrower makes any assignment for the benefit of its creditors; (vi) the Borrower files a petition under any bankruptcy, insolvency or similar law or an involuntary petition is filed against the Borrower under any bankruptcy, insolvency or similar laws; (vii) there is any dissolution or termination of existence of the Borrower; (viii) a default shall occur or exist under any agreements of the Borrower with any third party or parties which consists of the failure to pay any indebtedness for borrowed money in excess of $10,000,000 at the stated maturity thereof or which results in such third party or parties exercising their right to accelerate the maturity of such indebtedness for borrowed money in excess of $10,000,000 of the Borrower; (ix) a final judgment or order for the payment of money in excess of $10,000,000 (exclusive of amounts covered by insurance) shall be rendered against the Borrower and the same shall remain undischarged for a period of 30 days during which execution shall not be effectively stayed, or any judgment, writ, assessment, warrant of attachment or execution or similar process shall be issued or levied against a substantial part of the property of the Borrower or any of its subsidiaries and such judgment, writ or similar process shall not be released, stayed, vacated or otherwise dismissed within 30 days after issue or levy; or (x) the Borrower (A) sells or leases all or substantially all of its assets or (B) there is a merger, consolidation or other transaction constituting a Change in Control . (l) Upon the occurrence and during the continuance of any Event of Default: (i) the outstanding amounts due under the Promissory Note, together with any accrued interest thereon, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; (ii) the Holder shall be entitled to collect from the Borrower all costs, charges, and expenses, including actual, reasonable and documented legal fees and disbursements, incurred by the Holder by reason of any Event of Default under the terms of this Promissory Note; and (iii) the Holder may proceed by appropriate court action, either by law or in equity, to enforce the performance by the Borrower of the covenants hereunder or to recover damages for breach hereof.
4 (m) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity or under any applicable statute. The Borrower waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Unless the Borrower is the prevailing party in litigation between the Borrower and the Holder, the Borrower shall pay the Holder’s actual and reasonable attorney’s fees incurred in connection with the enforcement, assertion, defense or preservation of the Holder’s rights and remedies under this Promissory Note, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be deemed to be a waiver of any other or subsequent default. 7. Covenants of the Borrower. Sections 7 and 8 of the Certificate of Designation shall be incorporated herein by reference, mutatis mutandis. 8. Waiver. No failure or delay by the Borrower or the Holder in exercising any right or power hereunder shall operate as a waiver thereof except as provided herein, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Borrower and the Holder hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. 9. Termination. Upon payment in full of the outstanding balance of the Promissory Note, any accrued interest thereon and other amounts payable under this Promissory Note, this Promissory Note shall terminate. 10. Amendment. This Promissory Note may be changed, modified or amended, by an agreement in writing signed by the Borrower and the Holder. 11. Governing Law; Jurisdiction. (a) THIS PROMISSORY NOTE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS PROMISSORY NOTE, WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. (b) EACH PARTY HERETO IRREVOCABLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS PROMISSORY NOTE AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURT. EACH PARTY HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE LAW. (c) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND
5 EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS PROMISSORY NOTE IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION 12. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT. 12. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS PROMISSORY NOTE OR THE OTHER DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS PROMISSORY NOTE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. 13. Severability. To the extent that any provision of this Promissory Note is held to be invalid, illegal or unenforceable in any jurisdiction, then, solely with respect to such jurisdiction, such provision shall be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof in such jurisdiction; and the invalidity, illegality or unenforceability of a particular provision in any particular jurisdiction shall not invalidate such provision in any other jurisdiction. 14. Successors and Assigns. Neither this Promissory Note nor any right or obligation hereunder shall be assigned, delegated or otherwise transferred (whether voluntarily, by operation of law, by merger, or otherwise) (x) by the Borrower, without the prior written consent of the Holder, or (y) by the Holder, without the prior written consent of the Borrower, except as to this clause (y), the Holder may assign, delegate or otherwise transfer this Promissory Note and the rights and obligations hereunder to (1) other Holders and their Affiliates or (2) other Persons reasonably acceptable to the Borrower. This Promissory Note shall be binding upon and shall inure to the benefit of the parties hereto and their respective representatives, heirs, administrators, successors and permitted assigns, as applicable. 15. No Third Party Beneficiaries. It is understood and agreed by the parties hereto that this Promissory Note and the covenants made herein are made expressly and solely for the benefit of the parties hereto, and that no other Person shall be entitled or be deemed to be entitled to any benefits or rights hereunder, nor be authorized or entitled to enforce any rights, claims or remedies hereunder or by reason hereof. 16. Counterparts; Integration. This Promissory Note may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Promissory Note constitutes the entire agreement among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page to this Promissory Note by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart of this Promissory Note. It is understood and agreed that, subject to any requirement of law, the words “execution”, “signed”, “signature”, “delivery”
6 and words of like import in or relating to this Promissory Note shall be deemed to include any electronic signature, delivery or the keeping of any record in electronic form, each of which shall have the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state laws based on the Uniform Electronic Transactions Act. [The remainder of this page is intentionally left blank.]
[Signature Page to Promissory Note] IN WITNESS WHEREOF, the parties hereto have executed this Promissory Note as of the date first above written. HOLDER LanzaTech Global SPV, LLC By: ___________________________________ Name: Michael F. Solomon Title: Managing Director
[Signature Page to Promissory Note] BORROWER: LANZATECH GLOBAL, INC. By: ___________________________________ Name: Jennifer Holmgren Title: Chief Executive Officer GUARANTORS: LANZATECH NZ, INC. By: ___________________________________ Name: Jennifer Holmgren Title: Chief Executive Officer LANZATECH, INC. By: ___________________________________ Name: Jennifer Holmgren Title: Chief Executive Officer
Exhibit 10.2 INVESTORS’ RIGHTS AGREEMENT AMONG LANZATECH GLOBAL, INC. AND THE HOLDERS PARTY HERETO FROM TIME TO TIME Dated as of May 7, 2025
i TABLE OF CONTENTS Page ARTICLE I BOARD OF DIRECTORS; VOTING AGREEMENT ...............................................1 SECTION 1.1 Election of the Series A Director .....................................................1 SECTION 1.2 Vacancies and Removal ...................................................................1 SECTION 1.3 Voting Agreement ............................................................................1 ARTICLE II RESTRICTIONS ON TRANSFER OF SERIES A PREFERRED STOCK .............2 SECTION 2.1 Transfers Generally ..........................................................................2 SECTION 2.2 Permitted Transfers. .........................................................................2 SECTION 2.3 Right of First Refusal. ......................................................................3 ARTICLE III CERTAIN COVENANTS ........................................................................................3 SECTION 3.1 Information Rights ...........................................................................3 SECTION 3.2 Confidentiality .................................................................................4 SECTION 3.3 Withholding Taxes. ..........................................................................4 ARTICLE IV MISCELLANEOUS .................................................................................................4 SECTION 4.1 Entire Agreement; Parties in Interest ...............................................4 SECTION 4.2 No Recourse .....................................................................................4 SECTION 4.3 Governing Law ................................................................................5 SECTION 4.4 Jurisdiction. ......................................................................................5 SECTION 4.5 Waiver of Jury Trial .........................................................................5 SECTION 4.6 Specific Performance; Remedies .....................................................5 SECTION 4.7 Notice. ..............................................................................................6 SECTION 4.8 Amendments; Waivers .....................................................................6 SECTION 4.9 Counterparts .....................................................................................6 SECTION 4.10 Assignment ......................................................................................7 SECTION 4.11 Severability ......................................................................................7 SECTION 4.12 Termination. .....................................................................................7 ARTICLE V DEFINITIONS ...........................................................................................................7 SECTION 5.1 Certain Definitions. ..........................................................................7 SECTION 5.2 Construction. ....................................................................................9
ii LIST OF EXHIBITS EXHIBIT A SCHEDULE OF INVESTORS EXHIBIT B PREFERRED HOLDER JOINDER LIST OF ANNEXES ANNEX I RESTRICTIVE LEGEND TO THE PREFERRED STOCK CERTIFICATES
1 INVESTORS’ RIGHTS AGREEMENT This INVESTORS’ RIGHTS AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of May 7, 2025, is made by and among LanzaTech Global, Inc., a Delaware corporation (the “Company”), and each of the Parties listed on Exhibit A hereto from time to time as an “Investor” (each, an “Investor” and, collectively, the “Investors” and, together with the Company, the “Parties”). Capitalized terms used in this Agreement and not otherwise defined shall have the meanings specified in Section 7.1. PRELIMINARY STATEMENTS A. Concurrently with the execution and delivery hereof, the Company shall issue and sell to the Investors, and the Investors shall purchase from the Company, an aggregate of 20,000,000 shares of Preferred Stock designated as “Series A Convertible Senior Preferred Shares” (the “Series A Preferred Stock”) on the terms and subject to the conditions set forth in the Purchase Agreement. B. The Company has filed with the Secretary of State of the State of Delaware the Certificate of Designation, which sets forth certain designations, rights, preferences, powers, restrictions and limitations of the Series A Preferred Stock. C. The Parties each desire to enter into this Agreement to establish certain additional rights, preferences, powers, qualifications, restrictions and limitations of the Series A Preferred Stock. NOW, THEREFORE, in consideration of the foregoing premises and the respective representations, warranties, covenants and agreements contained herein and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereby agree as follows: ARTICLE I BOARD OF DIRECTORS; VOTING AGREEMENT SECTION 1.1 Election of the Series A Director. For so long as any Series A Preferred Stock remains outstanding, the Investors, exclusively and voting together as a separate class on an as-converted to Common Stock basis, shall be entitled to elect one director of the Company (the “Series A Director”). For the avoidance of doubt, the Series A Director shall not be included in any of the classes created pursuant to Article V of the Certificate of Incorporation. Notwithstanding anything to the contrary in this Agreement or in the Certificate of Designation, the Investors shall not elect any individual to serve as the Series A Director unless such individual satisfies the Nasdaq rules and Securities Laws applicable to service as a director of a publicly-listed company. For the avoidance of doubt, the provisions of this Section 1.1 are in furtherance of, and not in addition to, the rights set forth in Section 3(b) of the Certificate of Designation. SECTION 1.2 Vacancies and Removal. The Investors, exclusively and voting together as a separate class on an as-converted to Common Stock basis, shall be entitled to fill any vacancies created by the resignation, removal or death of the Series A Director (and any replacement thereof). SECTION 1.3 Voting Agreement. Each Investor hereby agrees to vote, or cause to be voted, all shares of Series A Preferred Stock owned beneficially or of record by such Investor, or over which such Investor maintains voting control, directly or indirectly, in such manner as may be necessary or advisable in support of, or to implement, maintain, or protect the various matters set forth in, and the intent of, this Article I, whether at an annual or special meeting of stockholders of the Company or pursuant to any written consent of the stockholders of the Company.
2 ARTICLE II RESTRICTIONS ON TRANSFER OF SERIES A PREFERRED STOCK SECTION 2.1 Transfers Generally. Any Proposed Holder Transfer not made in compliance with the requirements of this Agreement shall be null and void ab initio, shall not be recorded on the books of the Company or its transfer agent and shall not be recognized by the Company. Each Party acknowledges and agrees that any breach of this Agreement would result in substantial harm to the other parties hereto for which monetary damages alone could not adequately compensate. Therefore, the Parties unconditionally and irrevocably agree that any non-breaching Party shall be entitled to seek protective orders, injunctive relief and other remedies available at law or in equity (including, without limitation, seeking specific performance or the rescission of purchases, sales and other transfers of Transfer Stock not made in strict compliance with this Agreement). SECTION 2.2 Permitted Transfers. (a) Each Holder may Transfer any Preferred Stock (a “Permitted Transfer”) to (i) other Holders and their respective Affiliates (including, for the avoidance of doubt, their limited partners and accounts or funds managed or advised by the holders of their respective Affiliates) and (ii) other Persons reasonably acceptable to the Company; provided, that, in the case of the foregoing clauses (i) and (ii), each such Prospective Transferee shall provide to the Company a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 or appropriate IRS Forms W-8 claiming complete exemption from dividend withholding tax before such Transfer shall be effective; provided, further, that no Transfer shall be made in violation of the Securities Act or any applicable state securities Laws or that results (or could reasonably be expected to result) in the Company being required to register the Preferred Stock pursuant to applicable securities Laws. In connection with any Permitted Transfer, such Prospective Transferee shall execute and deliver to the Company a preferred holder joinder, in the form of Exhibit B attached hereto, at the time of or prior to any Transfer (unless such Prospective Transferee is a Holder before giving effect to such Transfer). (b) The Company shall keep at its principal office a register for the registration of the Preferred Stock. Upon the surrender of any certificate representing any Preferred Stock at the Company’s principal office, the Company shall, upon the request of the Holder of such certificate, promptly (but in any event within three Business Days after such request) prepare, execute and deliver (at the Company’s expense) new certificates in exchange therefor representing Preferred Stock represented by the surrendered certificate. Subject to compliance with this Article II, such certificate shall be registered in the name requested by the Holder of the surrendered certificate. The issuance of such new certificates shall be made without charge to the Holders, and the Company shall pay for any cost incurred by the Company in connection with such issuance, including any documentary, stamp and similar issuance or transfer tax in respect of the preparation, execution and delivery of such new certificates pursuant to this Section 2.2(b). All transfers and exchanges of Preferred Stock shall be made promptly by direct registration on the books and records of the Company and the Company shall take all such other actions as may be required to reflect and facilitate all transfers and exchanges not prohibited by this Article II. (c) Upon receipt of evidence reasonably satisfactory to the Company (it being understood that an affidavit of the applicable Holder shall constitute such evidence) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing Preferred Stock, and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to the Company, or, in the case of any such mutilation upon surrender of such certificate, the Company shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the Preferred Stock represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.
3 (d) Unless otherwise agreed to by the Company and the applicable Holder, each certificate representing Series A Preferred Stock shall bear a restrictive legend in substantially the form attached hereto as Annex I and shall be subject to the restrictions set forth therein. In addition, such certificate may have notations, additional legends or endorsements required by law, exchange rules or agreements to which the Company and any Holder (in its capacity as a Holder) is subject, if any. SECTION 2.3 Right of First Refusal. (a) Subject to the terms of Section 2.2, each Holder hereby unconditionally and irrevocably grants to the Significant Holders a Right of First Refusal to purchase all or any portion of Transfer Stock that such Holder may propose to transfer in a Proposed Holder Transfer, at the same price and on the same terms and conditions as those offered to the Prospective Transferee. (b) Each Holder proposing to make a Proposed Holder Transfer must deliver a Proposed Transfer Notice to each Significant Holder not later than 45 days prior to the consummation of such Proposed Holder Transfer. Such Proposed Transfer Notice shall contain the material terms and conditions (including price and form of consideration) of the Proposed Holder Transfer, the identity of the Prospective Transferee and the intended date of the Proposed Holder Transfer. To exercise its Right of First Refusal under this Article II, the Exercising Significant Holder must deliver a Significant Holder Notice to the selling Holder and the other Significant Holders within 15 days after delivery of the Proposed Transfer Notice specifying the number of shares of Transfer Stock to be purchased by such Exercising Significant Holder. (c) If any Holder becomes obligated to sell any Transfer Stock to any Significant Holder under this Agreement and fails to deliver such Transfer Stock in accordance with the terms of this Agreement, the Significant Holder may, at its option, in addition to all other remedies it may have, send to such Holder the purchase price for such Transfer Stock as is herein specified and transfer to the name of the Significant Holder (or request that the Company effect such transfer in the name of a Significant Holder) on the Company’s books any certificates, instruments, or book entry representing the Transfer Stock to be sold. ARTICLE III CERTAIN COVENANTS SECTION 3.1 Information Rights. Without the prior affirmative vote or written consent of the Majority Holders approving such action or omission, the Company shall, so long as any Series A Preferred Stock remains outstanding, furnish to the Investors: (a) within 120 days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by an independent certified public accountant of recognized national standing; provided, however, the obligations under this Section 3.1(a) may be satisfied with respect to any financial statements of the Company by furnishing the Company’s Form 10-K for such fiscal year filed with the SEC or any securities exchange within the time period specified in this clause (a); and (b) within 75 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (x) be subject to normal year-end audit adjustments; and (y) not contain all notes thereto that may be required in accordance with GAAP); provided, however, the obligations under this clause (b) may be satisfied with respect to any financial statements of the Company by furnishing the
4 Company’s Form 10-Q for such fiscal quarter filed with the SEC or any securities exchange within the time period specified in this clause (b). SECTION 3.2 Confidentiality. The Holders shall treat confidentially, and shall cause their Affiliates and Representatives to treat confidentially all information received pursuant to Section 3.1 that is not publicly available at the time of receipt until such time that such information becomes publicly available other than by reason of improper disclosure by the Holders or any of their respective Affiliates or Representatives. SECTION 3.3 Withholding Taxes. (a) Each Holder of Series A Preferred Stock acknowledges and agrees that it is, and it and any permitted transferee shall be, for so long as it is a Holder of Series A Preferred Stock, a (i) “United States person” as defined in section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”) or (ii) “foreign government” within the meaning of section 892 of the Code that is eligible and claiming the benefits of the exemption from taxation under section 892 of the Code and, in each case, shall provide a properly completed and executed IRS Form W-9 or appropriate Form(s) W-8 claiming complete exemption from dividend withholding. (b) Each applicable Holder of shares of Preferred Stock shall indemnify the Company for any withholding taxes (and any interest or penalties imposed thereon) imposed on the Company with respect to amounts payable with respect to such Holder’s Preferred Stock. To the extent that any Holder may be required to indemnify the Company hereunder, such Holder and the Company may jointly control the related withholding tax audit or other proceeding and neither Party shall settle such claim without the consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed. ARTICLE IV MISCELLANEOUS SECTION 4.1 Entire Agreement; Parties in Interest. This Agreement (including the annexes and exhibits hereto) and the other Transaction Documents constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof. This Agreement shall be binding upon and inure solely to the benefit of each Party and their respective successors, legal representatives and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement, except for the provisions of this Section 4.1 and Section 4.2, which shall be enforceable by the beneficiaries contemplated thereby. SECTION 4.2 No Recourse. Notwithstanding anything to the contrary in this Agreement, no Party shall assert any claim against any Person that is not party to this Agreement, including any Representatives, Affiliates or direct or indirect equityholders of any Party (or any Affiliate of any of the foregoing) (each a “Nonparty Affiliate” and, collectively, the “Nonparty Affiliates”) with respect to matters arising under or relating to this Agreement or the Transactions (as defined in the Purchase Agreement) or hold or attempt to hold any Nonparty Affiliate liable for any actual or alleged inaccuracies, misstatements or omissions with respect to information furnished by a party or such Persons concerning such party or the business of the Company and its subsidiaries, this Agreement or the Transactions, to the maximum extent permitted by Law; provided, that, the foregoing shall not apply to the Related Parties of the Company party to any other Transaction Document with respect to their representations, warranties, covenants and agreements thereunder.
5 SECTION 4.3 Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware. SECTION 4.4 Jurisdiction. Except as otherwise expressly provided in this Agreement, each of the Parties hereto hereby irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction, any other state or federal court located in the State of Delaware, over any suit, action or other proceeding brought by any party arising out of or relating to this Agreement, and each of the Parties hereto hereby irrevocably agrees that all claims or disputes with respect to any such suit, action or other proceeding shall be heard and determined in such courts. Each party hereby consents to service of process in any such proceeding in any manner permitted by the Laws of Delaware, and further consents to service of process by nationally recognized overnight courier service guaranteeing overnight delivery, or by registered or certified mail, return receipt requested, at its address specified pursuant to Section 4.7. Notwithstanding the foregoing in this Section 4.4, a Party hereto may commence any action, claim, cause of action or suit in a court other than the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts. SECTION 4.5 Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN RESPECT OF ANY ISSUE, ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT, ITS NEGOTIATION OR TERMS, OR THE TRANSACTIONS, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT THIS SECTION 4.5 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH SUCH OTHER PARTIES ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT AND ANY OTHER AGREEMENTS RELATING HERETO OR CONTEMPLATED HEREBY. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 4.5 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY. SECTION 4.6 Specific Performance; Remedies. The parties hereby expressly recognize and acknowledge that immediate, extensive and irreparable damage would result, no adequate remedy at law would exist, and damages would be difficult to determine in the event that any provision of this Agreement is not performed in accordance with its specific terms or otherwise breached. Therefore, in addition to, and not in limitation of, any other remedy available to any party hereto, a party under this Agreement will be entitled to specific performance of the terms hereof and immediate injunctive relief, without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required. Such remedies, and any and all other remedies provided for in this Agreement, will, however, be cumulative in nature and not exclusive and will be in addition to any other remedies whatsoever which any party may otherwise have. Each of the parties hereto hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the parties. Each of the parties hereto hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. Each party hereto hereby further agrees that in the event of any action by any other party for specific performance or injunctive relief, it will not assert that a remedy at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such
6 breach or violation should not be available on the grounds that money damages are adequate or any other grounds. SECTION 4.7 Notice. (a) Any notices or other communications required or permitted hereunder will be deemed to have been properly given and delivered if in writing by such party or its legal representative and delivered personally or sent by email or nationally recognized overnight courier service guaranteeing overnight delivery, addressed as follows: If to the Company: LanzaTech Global, Inc. 8045 Lamon Avenue, Suite 400 Skokie, IL 60077 Attn: Joseph C. Blasko Email: [REDACTED] with a copy (not constituting notice) to: Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, NY 10017 Attn: Marisa Stavenas; Nicholas Baker Email: [REDACTED]; [REDACTED] If to any Investor, to such Investor at the address set forth on the signature page hereto under such Investor’s name. (b) Notice or other communication pursuant to Section 4.7(a) will be deemed given or received when delivered, except that any notice or communication received by email transmission on a non-Business Day or on any Business Day after 5:00 p.m. addressee’s local time or overnight delivery on a non-Business Day will be deemed to have been given and received at 9:00 a.m. addressee’s local time on the next Business Day. Any Party may specify a different address, by written notice to the other Parties. The change of address will be effective upon the other Parties’ receipt of the notice of the change of address. SECTION 4.8 Amendments; Waivers. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Majority Holders and the Company, or in the case of a waiver, by the Party against whom the waiver is to be effective. No knowledge, investigation or inquiry, or failure or delay by the Company or any Investor in exercising any right hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise of any other right hereunder. No waiver of any right or remedy hereunder will be deemed to be a continuing waiver in the future or a waiver of any rights or remedies arising thereafter. SECTION 4.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which constitutes an original, and all of which taken together constitute one instrument. A signature delivered by facsimile or other electronic transmission (including e-mail) will be considered an original signature. Any Person may rely on a copy of this Agreement.
7 SECTION 4.10 Assignment. This Agreement will be binding upon and will inure to the benefit of the Parties and their respective permitted assigns and successors. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by any of the Parties without the prior written consent of the other Parties. Any assignment or transfer in violation of this Section 4.10 shall be null and void. SECTION 4.11 Severability. In the event that any provision of this Agreement, or the application thereof becomes or is declared by a court of competent jurisdiction to be illegal, void, invalid or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the Parties. The Parties further agree to replace such illegal, void, invalid or unenforceable provision of this Agreement with a legal, valid and enforceable provision that achieves, to the extent possible, the economic, business and other purposes of such illegal, void, invalid or unenforceable provision. SECTION 4.12 Termination. This Agreement shall terminate and be of no further force and effect upon redemption or conversion of all the Preferred Stock in full in accordance with the Certificate of Designation, as applicable; provided, that, Section 3.2 and this Article IV shall survive the termination of this Agreement. ARTICLE V DEFINITIONS SECTION 5.1 Certain Definitions. (a) The following words and phrases have the meanings specified in this Section 5.1(a): “Affiliate” means, as to any Person, any other Person which, directly or indirectly, controls, or is controlled by, or is under common control with, such Person. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise; provided, that, the Company and its Subsidiaries shall not be deemed an Affiliate of any Investor, and no Investor shall be deemed an Affiliate of the Company or any of its Subsidiaries. “Board of Directors” means the board of directors or other governing body of the Company. “Business Day” means any day that is not a Saturday or Sunday or other day on which the commercial banks in New York City are authorized or required by law to remain closed. “Certificate of Designation” means that certain Certificate of Designation of Series A Convertible Senior Preferred Stock of the Company, dated as of May 7, 2025 (as may be amended from time to time in accordance with its terms). “Charter” means the Second Amended and Restated Certificate of Incorporation of AMCI Acquisition Corp. II, filed on February 8, 2023, as amended from time to time in accordance with its terms and the terms of this Agreement and which includes, for the avoidance of doubt, (a) that certain Certificate of Amendment of Second Amended and Restated Certificate of Incorporation of LanzaTech Global, Inc., filed on October 3, 2024, and (b) the Certificate of Designation. “Common Stock” means shares of common stock of the Company, par value $0.0001 per share.
8 “Equity Interests” means capital stock and all warrants, options or other rights to acquire capital stock, but excluding any debt security that is convertible into, or exchangeable for, capital stock. “Exercising Significant Holder” means any Major Holder electing to exercise the Right of First Refusal. “GAAP” means generally accepted accounting principles in the United States, applied on a consistent basis throughout the periods indicated. “Governing Documents” means, with respect to the Company, the Charter, Certificate of Designation, any other certificate of designation, and the Company’s bylaws. “Holder” means each holder of Series A Preferred Stock of the Company. For the avoidance of doubt, to the extent any Person holds both (i) Series A Preferred Stock and (ii) any other Equity Interests of the Company, such Person shall be deemed to be a Holder with respect to such Person’s Series A Preferred Stock only. “Law” means any applicable U.S. or foreign, federal, state, provincial, municipal or local law (including common law), statute, ordinance, rule, regulation, code, policy, directive, standard, license, treaty, judgment, order, injunction, decree or agency requirement of or undertaking to or agreement with any governmental entity. “Majority Holders” means, for so long as any Series A Preferred Stock remains outstanding, and as of any applicable date of determination, the Holder(s) holding a majority of the then-outstanding shares of Series A Preferred Stock. “Necessary Action” means, with respect to a specified result, all actions, to the fullest extent permitted by applicable law and, in the case of any action by the Company that requires a vote or other action on the part of the Board of Directors, to the extent the Board of Directors determines in good faith that such action is consistent with the fiduciary duties of the Board of Directors, necessary to cause such result, including, without limitation: (a) voting or providing a written consent or proxy with respect to the Common Stock or Preferred Stock; (b) causing the adoption of amendments to the Governing Documents; (c) executing agreements and instruments; and (d) making, or causing to be made, with governmental, administrative or regulatory authorities, all filings, registrations or similar actions that are required to achieve such result. “Person” means any individual, corporation, limited liability company, partnership (including limited partnership), joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity. “Preferred Stock” means, to the extent issued and outstanding, the Series A Preferred Stock. “Proposed Holder Transfer” means any assignment, sale, offer to sell, pledge, mortgage, hypothecation, encumbrance, disposition of or any other like transfer or encumbering of any Transfer Stock (or any interest therein), including by operation of law, proposed by any of the Holders. “Proposed Transfer Notice” means written notice from a Holder setting forth the terms and conditions of a Proposed Holder Transfer. “Prospective Transferee” means any person to whom a Holder proposes to make a Proposed Holder Transfer.
9 “Purchase Agreement” means that certain Series A Convertible Senior Preferred Stock Purchase Agreement, dated as of the date hereof, by and among the Company and the “Purchasers” signatory thereto. “Related Parties” means, with respect to any specified Person, such Person’s controlled or controlling Affiliates and the respective directors, trustees, officers, employees, agents and advisors of such Person and such Person’s controlled or controlling Affiliates. “Representatives” means, with respect to any specified Person, such Person’s directors, partners, officers, employees and agents and the attorneys, accountants, experts and advisors of such Person and such Person’s Affiliates. “Right of First Refusal” means the right, but not the obligation, of the Major Holders, to purchase some or all of the Transfer Stock with respect to a Proposed Holder Transfer, on the terms and conditions specified in the Proposed Transfer Notice. “SEC” means the U.S. Securities and Exchange Commission. “Securities Act” means the Securities Act of 1933, as amended. “Significant Holder” means any Holder that, individually or together with such Holder’s Affiliates, holds, in the aggregate, at least 25% of the then-outstanding Series A Preferred Stock. “Significant Holder Notice” means written notice from a Significant Holder notifying the selling Holder(s) that such Significant Holder intends to exercise its Right of First Refusal as to some or all of the Transfer Stock with respect to any Proposed Holder Transfer. “Transaction Document” means, collectively, this Agreement, the Purchase Agreement, the Certificate of Designation and the Warrants. “Transfer” means any assignment, sale, offer to sell, pledge, mortgage, hypothecation, encumbrance, disposition of or any other like transfer or encumbering of any Transfer Stock (or any direct interest therein); provided, however, and for the avoidance of doubt, any assignment, sale, offer to sell, pledge, mortgage, hypothecation, encumbrance, disposition of or any other like transfer or encumbering of any direct or indirect equity interest in any Significant Holder shall not constitute a “Transfer”, so long as the equity holder(s) of such Significant Holder as of the date first set forth above continue to “control” such Significant Holder, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise. “Transfer Stock” means shares of Preferred Stock owned by a Holder or issued to a Holder after the date hereof (including without limitation, in connection with any stock split, stock dividend, recapitalization, reorganization or the like). “Warrants” shall have the meaning assigned to such term in the Purchase Agreement. SECTION 5.2 Construction. (a) The Parties intend that each representation, warranty, covenant and agreement contained in this Agreement shall have independent significance. The headings are for convenience only and shall not be given effect in interpreting this Agreement. References to sections, articles, schedules or exhibits are to the sections, articles, schedules and exhibits contained in, referred to by or attached to this Agreement,
10 unless otherwise specified. The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement. The words “include,” “includes” and “including” in this Agreement mean “include / includes / including without limitation.” All references to “$”, currency, monetary values and dollars set forth herein shall mean U.S. dollars. The use of the masculine, feminine or neuter gender or the singular or plural form of words shall not limit any provisions of this Agreement. References to a Person also include its permitted assigns and successors. Any reference to a statute refers to the statute, any amendments or successor legislation and all rules and regulations promulgated under or implementing the statute, as in effect at the relevant time. The word “will” shall be construed to have the same meaning as the word “shall”. With respect to the determination of any period of time, “from” shall mean “from and including”. The word “or” shall not be exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” All references to the knowledge of the Company or any of its Affiliates or facts known by any such Person shall mean actual knowledge of any authorized officer of such Person. Whenever any action must be taken hereunder on or by a day that is not a Business Day, then such action may be validly taken on or by the next day that is a Business Day. Any reference herein to any law shall be construed as referring to such law as codified or reenacted in whole or in part, and as in effect from time to time. The Parties acknowledge and agree that (a) each Party and its counsel has reviewed, or has had the opportunity to review, the terms and provisions of this Agreement, (b) any rule of construction to the effect that any ambiguities are resolved against the drafting Party shall not be used to interpret this Agreement and (c) the provisions of this Agreement shall not be construed in favor of or against any Party, regardless of which Party was generally responsible for the preparation of this Agreement and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of such previous drafts of this Agreement or any other Transaction Document or the fact that any clauses have been added, deleted or otherwise modified from any prior drafts of this Agreement or any other Transaction Document. (b) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided, that, if the Company notifies the Investors that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Initial Issue Date (as defined in the Certificate of Designation) in GAAP or in the application thereof on the operation of such provision, regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. [Remainder of page intentionally left blank]
[SIGNATURE PAGE TO THE INVESTORS RIGHTS AGREEMENT] IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the date first above written. COMPANY: LANZATECH GLOBAL, INC. By: /s/ Jennifer Holmsgren Name: Jennifer Holmgren Title: Chief Executive Officer
[SIGNATURE PAGE TO THE INVESTORS RIGHTS AGREEMENT] INVESTOR: LANZATECH GLOBAL SPV, LLC By: /s/ Michael F. Solomon Name: Michael F. Solomon Title: Managing Director Notice Address: 970 W. Broadway, Suite E #464 Jackson, WY 83001 Attn: Michael F. Solomon Email: [REDACTED] With a copy (not constituting notice) to: Weil, Gotshal & Manges LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065-1134 Attn: Matt Stewart Email: [REDACTED]
EXHIBIT A SCHEDULE OF INVESTORS Name LanzaTech Global SPV, LLC
EXHIBIT B PREFERRED HOLDER JOINDER JOINDER TO INVESTORS’ RIGHTS AGREEMENT This JOINDER (this “Joinder”) to the Investors’ Rights Agreement, dated as of May 7, 2025 (as amended, restated, supplemented or otherwise modified from time to time, the “Agreement”), by and among LanzaTech Global, Inc., a Delaware corporation, and each of the Parties listed on Exhibit A thereto as an “Investor”, is made as of [●] by [●], a [●] (the “Joining Holder”). Capitalized terms used herein but not otherwise defined have the meanings set forth in the Agreement. Pursuant to Section 2.2(a) of the Agreement, the shares of Series A Preferred Stock are transferable to the Joining Holder if, and only if, the Joining Holder executes and delivers this Joinder in accordance with the terms of the Agreement. The Joining Holder agrees as follows. 1. The Joining Holder acknowledges that the Joining Holder is acquiring the shares of Series A Preferred Stock subject to the terms and conditions of the Agreement and that all the shares of Series A Preferred Stock acquired by the Joining Holder shall be bound by and subject to the terms of the Agreement. 2. Upon execution of this Joinder, the Joining Holder will become a party to the Agreement and will be fully bound by, and subject to, all of the terms and conditions of the Agreement as if the undersigned were an original signatory to the Agreement as a Holder. 3. This Joinder shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware. 4. Any notice required to be provided by the Agreement shall be given to the Joining Holder at the address listed on the Joining Holders’ signature page hereto. 5. A signature delivered by facsimile or other electronic transmission (including e-mail) will be considered an original signature. Any Person may rely on a copy of this Joinder. [Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Joining Holder has caused this Joinder to be duly executed and delivered as of the date first written above. [●] By: Name: Title: Address:
ANNEX I RESTRICTIVE LEGEND TO THE SERIES A PREFERRED STOCK CERTIFICATE THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE DESIGNATIONS, RIGHTS, PREFERENCES, POWERS, RESTRICTIONS AND LIMITATIONS SET FORTH IN THE CERTIFICATE OF DESIGNATION OF SERIES A NON-CONVERTIBLE PREFERRED STOCK FOR LANZATECH GLOBAL, INC. (THE “COMPANY”) FILED WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE PURSUANT TO SECTION 151 OF THE DELAWARE GENERAL CORPORATION LAW (THE “SERIES A COD”) AND THE DESIGNATIONS, RIGHTS, PREFERENCES, POWERS, RESTRICTIONS AND LIMITATIONS SET FORTH IN THE INVESTORS’ RIGHTS AGREEMENT BY AND AMONG THE COMPANY AND CERTAIN HOLDERS OF THE COMPANY’S SECURITIES PARTY THERETO (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “INVESTORS’ RIGHTS AGREEMENT”). NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THE SERIES A COD AND THE INVESTORS’ RIGHTS AGREEMENT. A COPY OF THE SERIES A COD AND THE INVESTORS’ RIGHTS AGREEMENT SHALL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO ANY HOLDER UPON REQUEST.
Exhibit 10.3 REGISTRATION RIGHTS AGREEMENT This REGISTRATION RIGHTS AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) is dated as of May 7, 2025, by and among LanzaTech Global, Inc., a Delaware corporation (the “Company”), and the purchasers signatory hereto (each, including its successors and assigns, a “Purchaser” and, collectively, the “Purchasers”). This Agreement is made pursuant to the Series A Convertible Senior Preferred Stock Purchase Agreement, dated as of the date hereof, among the Company and the Purchasers (as amended, restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”). NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and each of the Purchasers agree as follows: 1. Definitions. Capitalized terms used and not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given such terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings: “Advice” has the meaning set forth in Section 6(c). “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 of the Securities Act of 1933, as amended. “Agreement” has the meaning set forth in the Preamble. “Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close. “Commission” means the U.S. Securities and Exchange Commission. “Common Stock” means the Company’s common stock, par value $0.0001 per share, and stock of any other class of securities into which such securities may hereafter be reclassified or changed. “Company” has the meaning set forth in the Preamble. “Conversion Shares” means the shares of Common Stock which may be issued upon conversion of the Preferred Shares issued to the Purchasers pursuant to the Purchase Agreement. “Effective Date” means the date that the Registration Statement filed pursuant to Section 2(a) is first declared effective by the Commission. “Effectiveness Deadline” means, with respect to the Initial Registration Statement or the New Registration Statement, the 90th calendar day following the final Closing Date under the Purchase Agreement (or, in the event the Commission reviews and has written comments to the Initial Registration Statement or the New Registration Statement, the 120th calendar day following such Closing Date); provided, however, that: (i) if the Company is notified by the Commission that the Initial Registration Statement or the New Registration Statement will not be reviewed or is no longer subject to further review
2 and comments, the Effectiveness Deadline as to such Registration Statement shall be the fifth Trading Day following the date on which the Company is so notified if such date precedes the dates otherwise required above; and (ii) if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business. “Effectiveness Period” has the meaning set forth in Section 2(b). “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. “Filing Deadline” means, with respect to the Initial Registration Statement required to be filed pursuant to Section 2(a), the 30th calendar day following the final Closing Date under the Purchase Agreement; provided, however, that if the Filing Deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the Filing Deadline shall be extended to the next Business Day on which the Commission is open for business. “FINRA” has the meaning set forth in Section 3(i). “Holder” or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities. “Indemnified Party” has the meaning set forth in Section 5(c). “Indemnifying Party” has the meaning set forth in Section 5(c). “Initial Registration Statement” has the meaning set forth in Section 2(a). “Losses” has the meaning set forth in Section 5(a). “New Registration Statement” has the meaning set forth in Section 2(a). “Preferred Shares” means shares of convertible preferred stock, par value $0.0001 per share, of the Company designated as “Series A Preferred Stock” and issued pursuant to the Purchase Agreement. “Person” means an individual or a corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind. “Principal Market” means the Trading Market on which the Common Stock are primarily listed on and quoted for trading, which, as of the date hereof, shall be the Nasdaq Capital Market. “Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened. “Prospectus” means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430B promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by a Registration Statement, and all other amendments
3 and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus. “Purchase Agreement” has the meaning set forth in the Recitals. “Purchaser” or “Purchasers” has the meaning set forth in the Preamble. “Registrable Securities” means (i) all Conversion Shares issuable pursuant to the terms of the Preferred Shares then issued and outstanding, calculated without limitation on the beneficial ownership of shares of Common Stock contained in Certificate of Designation or the Purchase Agreement, (ii) all Warrant Shares issuable pursuant to the terms of the Warrant Agreement then issued and outstanding, and (ii) any securities issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing; provided that the Holder has completed and delivered to the Company a Selling Stockholder Questionnaire; provided, further, that, with respect to a particular Holder, such Holder’s Registrable Securities shall cease to be Registrable Securities upon the earlier to occur of the following: (A) a sale pursuant to a Registration Statement or Rule 144 under the Securities Act (in which case, only such security sold by the Holder shall cease to be a Registrable Security); and (B) such Registrable Securities become eligible for resale by the Holder under Rule 144 without the requirement for the Company to be in compliance with the current public information required thereunder and without volume or manner-of-sale restrictions, pursuant to a written opinion letter of counsel for the Company to such effect, addressed, delivered and reasonably acceptable to the Transfer Agent. “Registration Statements” means any one or more registration statements of the Company filed under the Securities Act that cover the resale of any of the Registrable Securities pursuant to the provisions of this Agreement (including without limitation the Initial Registration Statement, any New Registration Statement and any Remainder Registration Statements), amendments and supplements to such Registration Statements, including post-effective amendments, all exhibits and all material incorporated by reference or deemed to be incorporated by reference in such Registration Statements. “Remainder Registration Statement” has the meaning set forth in Section 2(a). “Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. “Rule 172” means Rule 172 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. “Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. “Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule. “Rule 461” means Rule 461 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
4 “SEC Guidance” means (i) any publicly available written or oral guidance, comments, requirements or requests of the Commission staff; provided, that any such oral guidance, comments, requirements or requests are reduced to writing by the Commission and (ii) the Securities Act. “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. “Selling Stockholder Questionnaire” means a questionnaire in the form attached as Annex B hereto, or such other form of questionnaire or information provided to the Company in connection with the preparation of a Registration Statement hereunder. “Trading Day” means a day on which the Principal Market is open for business. “Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange (or any successors to any of the foregoing). “Warrants” means the Warrants issued to the Purchasers as contemplated by the Purchase Agreement and Warrant Agreement. “Warrant Agreement” means that certain Warrant Agreement, to be entered into by the Company and Continental Stock Transfer & Trust Company, as warrant agent, contemplated by the Purchase Agreement. “Warrant Shares” means any shares of Common Stock issued upon automatic exercise of the Warrants to be issued to the Purchasers pursuant to the Purchase Agreement and the Warrant Agreement. 2. Shelf Registration. (a) On or prior to the Filing Deadline, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not then registered on an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Holders may reasonably specify (the “Initial Registration Statement”). The Initial Registration Statement shall be on Form S-3 subject to the provisions of Section 2(c) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” section substantially in the form attached hereto as Annex A (which may be modified to respond to comments, if any, provided by the Commission). Notwithstanding the registration obligations set forth in this Section 2, in the event the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each of the Holders thereof and use its reasonable best efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (ii) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its reasonable best efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, the Securities Act Rules Compliance and
5 Disclosure Interpretations Question 612.09. Notwithstanding any other provision of this Agreement, if the Commission or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater number of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will first be reduced by Registrable Securities represented by Conversion Shares and Warrant Shares applied to the Holders on a pro rata basis based on the total number of Conversion Shares and Warrant Shares held by such Holders, subject to a determination by the Commission that certain Holders must be reduced first based on the number of shares of Common Stock held by such Holders. In the event of a cutback hereunder, the Company shall give the Holder at least one Trading Day prior notice along with the calculations as to such Holder’s allotment. In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, in accordance with the foregoing, the Company will use its reasonable best efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such Holder’s prior written consent. (b) The Company shall use its reasonable best efforts to cause each Registration Statement to be declared effective by the Commission as soon as practicable and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act), and shall use its reasonable best efforts to keep each Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, and (ii) the date that all Registrable Securities covered by such Registration Statement may be sold by non-affiliates without volume or manner-of-sale restrictions pursuant to Rule 144, without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 (the “Effectiveness Period”). The Company shall request effectiveness of a Registration Statement as of 4:00 P.M. New York City time on a Trading Day. The Company shall promptly notify the Holders via e-mail of the effectiveness of a Registration Statement or any post-effective amendment thereto on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which date of confirmation shall initially be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 A.M. New York City time on the first Trading Day after the Effective Date, file a final Prospectus with the Commission, as required by Rule 424(b) and shall provide the Purchasers with copies of the final Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. The Company shall promptly inform each Holder in writing if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof, the Holder is required to deliver a Prospectus in connection with any disposition of Registrable Securities. (c) Each Holder of Registrable Securities to be sold agrees to furnish to the Company a completed Selling Stockholder Questionnaire not more than five Trading Days following the date of this Agreement. At least 10 Trading Days prior to the first anticipated filing date of a Registration Statement for any registration under this Agreement, the Company will notify each Holder of the information the Company requires from that Holder for inclusion in the Registration Statement other than the information contained in the Selling Stockholder Questionnaire, if any, which shall be completed and delivered to the Company promptly upon request and, in any event, within three Trading Days prior to the applicable anticipated filing date. Each Holder further agrees that it shall not be entitled to be named as a selling
6 securityholder in the Registration Statement or use the Prospectus for offers and resales of Registrable Securities at any time, unless such Holder has provided such information to the Company and responded to any reasonable requests for further information as described in the previous sentence. Each Holder acknowledges and agrees that the information in the Selling Stockholder Questionnaire or request for further information as described in this Section 2(c) will be used by the Company in the preparation of the Registration Statement and hereby consents to the inclusion of such information in the Registration Statement (subject to such Holder’s right to timely review the Registration Statement as set forth herein). (d) If Form S-3 is not available for the registration of the resale of Registrable Securities, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 promptly after such form is available; provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission. (e) (i) If a Registration Statement covering the Registrable Securities is not filed with the Commission on or prior to the Filing Deadline (a “Registration Failure”), then, in addition to any other rights the Purchasers may have hereunder or under applicable law, the Company will make pro rata payments to each Purchaser of then outstanding Registrable Securities, as liquidated damages and not as a penalty (the “Registration Liquidated Damages”), in an amount equal to 1% of the aggregate amount invested by such Purchaser for the Registrable Securities then held by such Purchaser for the initial day of a Registration Failure and for each 30-day period (or pro rata portion thereof with respect to a final period, if any) thereafter until the Registration Failure is cured. The Registration Liquidated Damages shall be paid monthly within 10 Business Days of the date of such Registration Failure and the end of each subsequent 30-day period (or portion thereof with respect to a final period, if any) thereafter until the Registration Failure is cured. Such payments shall be made in cash to each Purchaser then holding Registrable Securities. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the applicable payment date until such amount is paid in full. (ii) If (A) a Registration Statement covering the Registrable Securities is not declared effective by the Commission by the Effectiveness Deadline or (B) after a Registration Statement has been declared effective by the Commission or otherwise becomes effective, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order or the Company’s failure to update such Registration Statement) (each of (A) and (B), a “Maintenance Failure”), then the Company will make pro rata payments to each Purchaser then holding Registrable Securities, as liquidated damages and not as a penalty (the “Effectiveness Liquidated Damages” and together with the Registration Liquidated Damages, the “Liquidated Damages”), in an amount equal to 1% of the aggregate amount invested by such Purchaser for the Registrable Securities then held by such Purchaser for the initial day of a Maintenance Failure and for each 30-day period (pro rata for any portion thereof) thereafter until the Maintenance Failure is cured. The Effectiveness Liquidated Damages shall be paid monthly within 10 Business Days of the end of the date of such Maintenance Failure and each subsequent 30-day period (pro rata for any portion thereof). Such payments shall be made to each Purchaser then holding Registrable Securities in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the applicable payment date until such amount is paid in full. (iii) Notwithstanding the foregoing, (A) no Liquidated Damages shall be payable with respect to any period after the expiration of the Effectiveness Period (it being understood that this sentence shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period), (B) in no event shall the aggregate amount of Liquidated Damages payable to a Purchaser exceed, in the aggregate, 5% of the aggregate purchase price paid by such Purchaser pursuant to
7 the Purchase Agreement, (C) no Liquidated Damages shall accrue or be payable with respect to any reduction in the number of Registrable Securities to be included in a Registration Statement due to the application of Rule 415 as set forth in Section 2(a) and (D) no Liquidated Damages shall accrue or be payable with respect to any Allowed Suspension or a suspension as described in the last sentence of Section 3(h). 3. Registration Procedures In connection with the Company’s registration obligations hereunder, the Company shall: (a) Not less than five Trading Days prior to the filing of each Registration Statement and not less than two Trading Days prior to the filing of any related Prospectus or any amendment or supplement thereto (except for Annual Reports on Form 10-K, and Quarterly Reports on Form 10-Q and Current Reports on Form 8-K and any similar or successor reports), (i) furnish to each Holder copies of such Registration Statement, Prospectus or amendment or supplement thereto, as proposed to be filed, which documents will be subject to the review of such Holder (it being acknowledged and agreed that if a Holder does not object to or comment on the aforementioned documents within such five Trading Day or two Trading Day period, as the case may be, then the Holder shall be deemed to have consented to and approved the use of such documents) and (ii) to the extent that a Holder is identified in the Registration Statement as an “underwriter” (as defined in the Securities Act), use reasonable best efforts to cause its officers and directors, counsel and independent registered public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to each Holder, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file any Registration Statement or amendment or supplement thereto in a form to which a Holder reasonably objects in good faith; provided that, such Holder notifies the Company of such objection in writing within the five Trading Day or two Trading Day periods described above, as applicable. (b) (i) Prepare and file with the Commission such amendments (including post- effective amendments) and supplements, to each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Securities for its Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond as promptly as reasonably practicable to any comments received from the Commission with respect to each Registration Statement or any amendment thereto); and (iv) comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration Statement until such time as all of such Registrable Securities shall have been disposed of (subject to the terms of this Agreement) in accordance with the intended methods of disposition by the Holders thereof as set forth in such Registration Statement as so amended or in such Prospectus as so supplemented; provided, however, that each Purchaser shall be responsible for the delivery of the Prospectus to the Persons to whom such Purchaser sells any of the Registrable Securities (including in accordance with Rule 172 under the Securities Act) to the extent required under the Securities Act, and each Purchaser agrees to dispose of Registrable Securities in compliance with the “Plan of Distribution” described in the Registration Statement and otherwise in compliance with applicable federal and state securities laws. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(b)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Exchange Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements
8 with the Commission on the same day on which the Exchange Act report which created the requirement for the Company to amend or supplement such Registration Statement was filed. (c) Notify the Holders of Registrable Securities to be sold (which notice shall, if given pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made; provided that the Company shall omit any material, non-public information relating to the Company and/or any of its subsidiaries) as promptly as reasonably practicable (and, in the case of (i)(A) below, not less than one Trading Day prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day: (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to a Registration Statement is proposed to be filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on any Registration Statement; and (C) with respect to each Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information that pertains to the Holders as “Selling Stockholders” or the “Plan of Distribution”; (iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; (v) of the occurrence of any event or passage of time that makes the financial statements included or incorporated by reference in a Registration Statement ineligible for inclusion or incorporation by reference therein or any statement made in such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, form of prospectus or supplement thereto, in light of the circumstances under which they were made), not misleading; and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that, upon the advice of legal counsel, the Company’s board of directors reasonably believes may be material and that, in the reasonable determination of the Company’s board of directors, makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus; provided that, any and all such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, that notwithstanding each Holder’s agreement to keep such information confidential, each such Holder makes no acknowledgement that any such information is material, non-public information. (d) Use reasonable best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as soon as practicable. (e) If requested by a Holder, furnish to such Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that the Company shall have no obligation to provide any document pursuant to this clause that is available on the Commission’s EDGAR system.
9 (f) Prior to any resale of Registrable Securities by a Holder, use its reasonable best efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the registration or qualification) of the resale of such Registrable Securities (or, in the case of qualification, of such Registrable Securities for the resale) by the Holder under the securities or blue sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (g) Cooperate with such Holder to facilitate the timely preparation and delivery of certificates or book entry statements, as applicable, representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statement, which certificates or statements shall be free, to the extent permitted by the Purchase Agreement and under law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders may reasonably request. (h) Following the occurrence of any event contemplated by Section 3(c), as promptly as reasonably practicable (taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event), prepare a supplement or amendment, including a post-effective amendment, to the affected Registration Statements or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, no Registration Statement nor any Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, form of prospectus or supplement thereto, in light of the circumstances under which they were made), not misleading. If the Company notifies the Holders in accordance with clauses (iii) through (vi) of Section 3(c) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the availability of a Registration Statement and Prospectus in accordance with the time periods set forth in Section 6(c), which may be extended only in accordance with Section 6(e). For the avoidance of doubt, the Company’s rights under this Section 3(h) shall include suspensions of availability arising from the filing of a post-effective amendment to a Registration Statement to update the Prospectus therein to include the information contained in the Company’s Annual Report on Form 10-K, which suspensions may extend for the amount of time reasonably required to respond to any comments of the staff of the Commission on such amendment. (i) The Company may require each selling Holder to furnish to the Company a certified statement as to (i) the number of shares of Common Stock beneficially owned by such Holder and any Affiliate thereof, (ii) any Financial Industry Regulatory Authority (“FINRA”) affiliations, (iii) any natural persons who have the power to vote or dispose of the Common Stock, and (iv) any other information as may be requested by the Commission, FINRA or any state securities commission. (j) The Company shall cooperate with any registered broker through which a Holder proposes to resell its Registrable Securities in effecting a filing with FINRA pursuant to FINRA Rule 5110 as requested by any such Holder and the Company shall pay the filing fee required for the first such filing within two Business Days of the request therefor.
10 (k) If at any time the Commission takes the position that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act or requires any Holder to be named as an “underwriter,” the Company shall use reasonable best efforts to persuade the Commission that the offering contemplated by such Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that none of the Holders is an “underwriter”. 4. Registration Expenses. All fees and expenses incident to the Company’s performance of or compliance with its obligations under this Agreement (excluding any underwriting discounts and selling commissions and all legal fees and expenses of legal counsel for any Holder, except as set forth herein) shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses of the Company’s counsel and independent registered public accountants (A) with respect to filings required to be made with any Trading Market on which the Common Stock are then listed for trading, (B) with respect to compliance with applicable state securities or blue sky laws (including, without limitation, fees and disbursements of counsel for the Company in connection with blue sky qualifications or exemptions of the Registrable Securities and determination of the eligibility of the Registrable Securities for investment under the laws of such jurisdictions as requested by the Holders), and (C) if not previously paid by the Company in connection with Section 3(j) above, with respect to any filing that may be required to be made by any broker through which a Holder intends to make sales of Registrable Securities with FINRA pursuant to the FINRA Rule 5110, so long as the broker is receiving no more than a customary brokerage commission in connection with such sale), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities and of printing prospectuses if the printing of prospectuses is reasonably requested by the Holders of a majority of the Registrable Securities included in the Registration Statement), (iii) messenger, telephone and delivery expenses, (iv) fees, expenses and disbursements of counsel for the Company, (v) fees, expenses and disbursements of one counsel for the Holders of Registrable Securities to be included in each relevant registration, selected by the Holders of a majority of the Registrable Securities to be included in such registration, (vi) Securities Act liability insurance, if the Company so desires such insurance, and (vii) fees and expenses of all other Persons retained by the Company in connection with the registrations and consummation of the transactions contemplated by this Agreement. In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder. In no event shall the Company be responsible for any underwriting, broker or similar fees or commissions of any Holder or, except to the extent provided for in the Transaction Documents, any legal fees or other costs of the Holders (except as set forth herein). 5. Indemnification. (a) Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify, defend and hold harmless each Holder and each of their respective officers, directors, agents, partners, members, managers, stockholders, Affiliates, investment advisers and employees of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, partners, members, managers, stockholders, agents, investment advisers and employees of each such controlling Person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable costs of preparation and investigation and reasonable attorneys’ fees), expenses and disbursements (collectively, “Losses”), as incurred, that arise
11 out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, or (ii) any violation or alleged violation by the Company or its agents of the Securities Act, the Exchange Act or any state securities law or any rule or regulation thereunder, in connection with the performance of its obligations under this Agreement or any action or inaction required of the Company in connection with any registration, except to the extent, but only to the extent, that (A) such untrue statements, alleged untrue statements, omissions or alleged omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and approved in writing by such Holder expressly for use in the Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto (it being understood that each Holder has approved Annex A hereto for this purpose), (B) in the case of an occurrence of an event of the type specified in Section 3(c)(iii)-(vi), related to the use by a Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by such Holder of the Advice contemplated and defined in Section 6(c) below, to the extent that following the receipt of the Advice the misstatement or omission giving rise to such Loss would have been corrected, or (C) to the extent that any such Losses arise out of the Purchaser’s (or any other indemnified Person’s) failure to send or give a copy of the Prospectus or supplement (as then amended or supplemented), if required, pursuant to Rule 172 under the Securities Act (or any successor rule) to the Persons asserting an untrue statement or alleged untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such Person if such statement or omission was corrected in such Prospectus or supplement. The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding arising from or in connection with the transactions contemplated by this Agreement of which the Company is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an Indemnified Party (as defined in Section 5(c)) and shall survive the transfer of the Registrable Securities by the Holders. (b) Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising out of or are based solely upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading (i) to the extent that such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein or (ii) to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and approved in writing by such Holder expressly for use in a Registration Statement (it being understood that the Holder has approved Annex A hereto for this purpose), such Prospectus or such form of Prospectus or in any amendment or supplement thereto, or (iii) in the case of an occurrence of an event of the type specified in Section 3(c)(iii)-(vi), to the extent related to the use by such Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by such Holder of the Advice contemplated in Section 6(c). In no event shall the liability of any selling Holder hereunder be greater in
12 amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation. (c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all reasonable fees, expenses and disbursements incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have materially and adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees, expenses and disbursements of such counsel shall be at the expense of such Indemnified Party or Indemnified Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees, expenses and amounts; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest exists if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party); provided, that the Indemnifying Party shall not be liable for the fees, expenses and disbursements of more than one separate firm of attorneys at any time for all Indemnified Parties. The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld, delayed or conditioned. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding. Subject to the terms of this Agreement, all fees, expenses and disbursements of the Indemnified Party (including reasonable fees, expenses and disbursements to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section 5) shall be paid to the Indemnified Party, as incurred, within 20 Trading Days of written notice thereof to the Indemnifying Party; provided, that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees, expenses and disbursements applicable to such actions for which such Indemnified Party is finally judicially determined to not be entitled to indemnification hereunder. The failure to deliver written notice to the Indemnifying Party within a reasonable time of the commencement of any such action shall not relieve such Indemnifying Party of any liability to the Indemnified Party under this Section 5, except to the extent that the Indemnifying Party is materially and adversely prejudiced in its ability to defend such action. (d) Contribution. If a claim for indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with
13 the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’ or other reasonable fees, expenses or disbursements incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees, expenses or disbursements if the indemnification provided for in this Section 5 was available to such party in accordance with its terms. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 5(d), (A) no Holder shall be required to contribute, in the aggregate with any other amounts payable by it under this Section 5, any amount in excess of the net proceeds actually received by such Holder from the sale of the Registrable Securities giving rise to such contribution obligation, and (B) no contribution will be made under circumstances where the maker of such contribution would not have been required to indemnify the Indemnified Party under the fault standards set forth in this Section 5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution agreements contained in this Section 5 are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties and are not in diminution or limitation of the indemnification provisions under the Purchase Agreement. 6. Miscellaneous. (a) Remedies. In the event of a breach by the Company or by a Holder of any of their obligations under this Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to seek specific performance of its rights under this Agreement, without the requirement of posting a bond. The Company and each Holder agree that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate. (b) Compliance. Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it (unless an exemption therefrom is available) in connection with sales of Registrable Securities pursuant to the Registration Statement and shall sell the Registrable Securities only in accordance with a method of distribution described in the Registration Statement, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. (c) Discontinued Disposition. By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(iii)-(vi), such Holder will forthwith discontinue disposition of such Registrable Securities under a Registration Statement until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company
14 will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. Notwithstanding anything herein to the contrary, no Holder shall be required to discontinue disposition of Registrable Securities under a Registration Statement by virtue of the delivery by the Company of a notice of the occurrence of any event of the kind described in Section 3(c)(vi) on more than two occasions or for more than 90 total days, in each case during any 12-month period, or for more than 45 calendar days during any 90-day period. (d) No Inconsistent Agreements. Neither the Company nor any of its subsidiaries has entered, as of the date hereof, nor shall the Company or any of its subsidiaries, on or after the date hereof, enter into any agreement with respect to its securities, that would have the effect of impairing the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. (e) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, or waived unless the same shall be in writing and signed by the Company and Holders holding no less than a majority of the then outstanding Registrable Securities; provided that (i) any party may give a waiver as to itself and (ii) any proposed amendment that would, by its terms, have a disproportionate and materially adverse effect on any Holder shall require the consent of such Holder(s). Notwithstanding the foregoing, (A) a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders and that does not directly or indirectly affect the rights of other Holders may be given by Holders of all of the Registrable Securities to which such waiver or consent relates, and (B) none of the definitions of Filing Deadline, Effectiveness Deadline or Effectiveness Period, Section 2(e), Section 3(c), Section 5, Section 6(c), or the provisions of this sentence, may be amended, modified, or supplemented except with the consent of each Holder. (f) Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be delivered as set forth in the Purchase Agreement. (g) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties and shall inure to the benefit of each Holder. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. The Company may not assign its rights (except by merger or in connection with another entity acquiring all or substantially all of the Company’s assets) or obligations hereunder without the prior written consent of all the Holders of the then outstanding Registrable Securities. Each Holder may assign its respective rights hereunder in the manner and to the Persons as permitted under the Purchase Agreement or the Preferred Shares; provided in each case that (i) the Holder agrees in writing with the transferee or assignee to assign such rights and related obligations under this Agreement, and for the transferee or assignee to assume such obligations, and a copy of such agreement is furnished to the Company within a reasonable time after such assignment, (ii) the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being transferred or assigned, (iii) at or before the time the Company received the written notice contemplated by clause (ii) of this sentence, the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein, and (iv) the transferee is an “accredited investor,” as that term is defined in Rule 501 of Regulation D. (h) Execution and Counterparts. This Agreement may be executed in two or more counterparts, each of which when so executed shall be deemed to be an original and, all of which taken together shall constitute one and the same Agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not
15 sign the same counterpart. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.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. (i) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined in accordance with the provisions of the Purchase Agreement. (j) Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law. (k) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their good faith reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable. (l) Headings. The headings in this Agreement are for convenience only and shall not limit or otherwise affect the meaning hereof. (m) Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under this Agreement are several and not joint with the obligations of any other Purchaser hereunder, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser hereunder. The decision of each Purchaser to purchase Securities pursuant to the Transaction Documents has been made by such Purchaser independently of any other Purchaser and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company or any Subsidiary which may have been made or given by any other Purchaser or by any agent or employee of any other Purchaser, and no Purchaser and any of its agents or employees shall have any liability to any other Purchaser (or any other Person) relating to or arising from any such information, materials, statement or opinions. Nothing contained herein or in any Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group (including, without limitation, a “group” within the meaning of Section 13(d)(3) of the Exchange Act) with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser acknowledges that no other Purchaser has acted as agent for such Purchaser in connection with making its investment hereunder and that no Purchaser will be acting as agent of such Purchaser in connection with monitoring its investment in the securities or enforcing its rights under the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose. The Company acknowledges that each of the Purchasers has been provided with the same Registration Rights Agreement for the purpose of closing a transaction with multiple Purchasers and not because it was required or requested to do so by any Purchaser. It is expressly understood that each provision contained in this Agreement is between the Company and a
16 Purchaser, solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers. (n) Current Public Information. With a view to making available to the Holders the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the Commission that may at any time permit the Holders to sell shares of Common Stock to the public without registration, for so long as the Registrable Securities remain outstanding, the Company covenants and agrees to use reasonable best efforts to: (i) make and keep adequate current public information available, as those terms are understood and defined in Rule 144, until such date on which the Holders no longer hold any Registrable Securities; and (ii) file with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[Signature Page – Registration Rights Agreement] IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above. COMPANY: LANZATECH GLOBAL, INC. By: /s/ Jennifer Holmgren Name: Jennifer Holmgren Title: Chief Executive Officer PURCHASER: LANZATECH GLOBAL SPV, LLC By: /s/ Michael F. Solomon Name: Michael F. Solomon Title: Manager
A-1 ANNEX A PLAN OF DISTRIBUTION1 We are registering the shares of common stock of LanzaTech Global, Inc., par value of $0.0001 per share (“Common Stock”), issuable upon conversion of the Preferred Shares to permit the resale of these shares of common stock by the holders from time to time after the date of this prospectus (the “Shares”). We will not receive any of the proceeds from the sale by the selling stockholders of the Shares. We will, or will procure to, bear all fees and expenses incident to our obligation to register the Shares. The selling stockholders may sell all or a portion of the Shares beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the Shares are sold through underwriters or broker-dealers, the selling stockholders will be responsible for underwriting discounts (it being understood that the selling stockholders shall not be deemed to be underwriters solely as a result of their participation in this offering) or commissions or agent’s commissions. The Shares may be sold on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale, in the over-the-counter market or in transactions otherwise than on these exchanges or systems or in the over-the-counter market and in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions. The selling stockholders may use any one or more of the following methods when selling Shares: • ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; • block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; • to or through underwriters or purchases by a broker-dealer as principal and resale by the broker- dealer for its account; • an exchange distribution in accordance with the rules of the applicable exchange; • privately negotiated transactions; • settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part; • broker-dealers may agree with the selling stockholders to sell a specified number of such Shares at a stipulated price per Share; • through the writing or settlement of options or other hedging transactions, whether such options are listed on an options exchange or otherwise; • a combination of any such methods of sale; and • any other method permitted pursuant to applicable law. 1 NTD: Definitions to be conformed to resale S-3.
A-2 The selling stockholders also may resell all or a portion of the Shares in open market transactions in reliance upon Rule 144 under the Securities Act, as amended, or the Securities Act, as permitted by that rule, or Section 4(a)(1) under the Securities Act, if available, rather than under this prospectus, provided that they meet the criteria and conform to the requirements of those provisions. Broker-dealers engaged by the selling stockholders may arrange for other broker-dealers to participate in sales. If the selling stockholders effect such transactions by selling Shares to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the Shares for whom they may act as agent or to whom they may sell as principal. Such commissions will be in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction will not be in excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown in compliance with FINRA IM-2121.01. In connection with sales of the Shares or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the Shares in the course of hedging in positions they assume. The selling stockholders may also sell Shares short and if such short sale takes place after the date that this Registration Statement is declared effective by the Commission, the selling stockholders may deliver Shares covered by this prospectus to close out short positions and to return borrowed Shares in connection with such short sales. The selling stockholders may also loan or pledge Shares to broker-dealers that in turn may sell such Shares, to the extent permitted by applicable law. The selling stockholders may also enter into option or other transactions with broker- dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction). Notwithstanding the foregoing, the selling stockholders have been advised that they may not use Shares the resale of which has been registered on this registration statement to cover short sales of our Common Stock made prior to the date the registration statement, of which this prospectus forms a part, has been declared effective by the SEC. The selling stockholders may, from time to time, pledge or grant a security interest in some or all of the Shares owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the Shares from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the Shares in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus. The selling stockholders and any broker-dealer or agents participating in the distribution of the Shares may be deemed to be “underwriters” within the meaning of Section 2(11) of the Securities Act in connection with such sales. In such event, any commissions paid, or any discounts or concessions allowed to, any such broker-dealer or agent and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Selling Stockholders who are “underwriters” within the meaning of Section 2(11) of the Securities Act will be subject to the applicable prospectus delivery requirements of the Securities Act including Rule 172 thereunder and may be subject to certain statutory liabilities of, including but not limited to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Securities Exchange Act of 1934, as amended, or the Exchange Act.
A-3 Each selling stockholder has informed the Company that it is not a registered broker-dealer and does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the Shares. Upon the Company being notified in writing by a selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of Common Stock through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, a supplement to this prospectus will be filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each such selling stockholder and of the participating broker-dealer(s), (ii) the number of Shares involved, (iii) the price at which such the Shares were sold, (iv) the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, and (vi) other facts material to the transaction. Under the securities laws of some U.S. states, the Shares may be sold in such states only through registered or licensed brokers or dealers. In addition, in some U.S. states, the Shares may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with. There can be no assurance that any selling stockholder will sell any or all of the Shares registered pursuant to the shelf registration statement, of which this prospectus forms a part. Each selling stockholder and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the Shares by the selling stockholder and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the Shares to engage in market-making activities with respect to the Shares. All of the foregoing may affect the marketability of the Shares and the ability of any person or entity to engage in market-making activities with respect to the Shares. We will pay all expenses of the registration of the Shares pursuant to the registration rights agreement, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, that each selling stockholder will pay all underwriting discounts and selling commissions, if any and any related legal expenses incurred by it. We will indemnify the selling stockholders against certain liabilities, including some liabilities under the Securities Act, in accordance with the registration rights agreement, or the selling stockholders will be entitled to contribution. We may be indemnified by the selling stockholders against certain civil liabilities set forth in the registration rights agreement, including liabilities under the Securities Act, that may arise from any written information furnished to us by the selling stockholders specifically for use in this prospectus, in accordance with the related registration rights agreements, or we may be entitled to contribution. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
B-1 ANNEX B SELLING STOCKHOLDER NOTICE AND QUESTIONNAIRE The undersigned holder of Registrable Securities understands that the Company intends to file with the Securities and Exchange Commission a registration statement on Form S-3 (the “Resale Registration Statement”) for the registration and the resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Registrable Securities in accordance with the terms of a Registration Rights Agreement, dated as of May 7, 2025, by and among the Company and the Purchasers signatory thereto (as amended, restated, supplemented or otherwise modified from time to time, the “Agreement”). All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Agreement. In order to sell or otherwise dispose of any Registrable Securities pursuant to the Resale Registration Statement, a holder of Registrable Securities generally will be required to be named as a selling stockholder in the related prospectus or a supplement thereto (as so supplemented, the “Prospectus”), deliver the Prospectus to purchasers of Registrable Securities (including pursuant to Rule 172 under the Securities Act) and be bound by the provisions of the Agreement (including certain indemnification provisions, as described below). Holders must complete and deliver this Notice and Questionnaire in order to be named as selling stockholders in the Prospectus. Holders of Registrable Securities who do not complete, execute and return this Notice and Questionnaire within five Trading Days following the date of the Agreement (a) will not be named as selling stockholders in the Resale Registration Statement or the Prospectus and (b) may not use the Prospectus for resales of Registrable Securities. Certain legal consequences arise from being named as a selling stockholder in the Resale Registration Statement and the Prospectus. Holders of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not named as a selling stockholder in the Resale Registration Statement and the Prospectus. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
B-2 NOTICE The undersigned holder (the “Selling Stockholder”) of Registrable Securities hereby gives notice to the Company of its intention to sell or otherwise dispose of Registrable Securities owned by it and listed below in Item (3), unless otherwise specified in Item (3), pursuant to the Resale Registration Statement. The undersigned, by signing and returning this Notice and Questionnaire, understands and agrees that it will be bound by the terms and conditions of this Notice and Questionnaire and the Agreement. The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate and complete: QUESTIONNAIRE 1. Name. (a) Full Legal Name of Selling Stockholder: (b) Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities Listed in Item 3 below are held: (c) Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote or dispose of the securities covered by the questionnaire): 2. Address for Notices to Selling Stockholder: Telephone: Fax: Contact Person: E-mail address of Contact Person: 3. Beneficial Ownership of Registrable Securities Issuable Pursuant to the Purchase Agreement: (a) Type and Number of Registrable Securities beneficially owned and issued pursuant to the Agreement: (b) Number of Registrable Securities to be registered pursuant to this Notice for resale: 4. Broker-Dealer Status: (a) Are you a broker-dealer? Yes ☐ No ☐ (b) If “yes” to Section 4(a), did you receive your Registrable Securities as compensation for investment banking services to the Company? Yes ☐ No ☐ Note: If no, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement. (c) Are you an affiliate of a broker-dealer?
B-3 Yes ☐ No ☐ Note: If yes, provide a narrative explanation below: (d) If you are an affiliate of a broker-dealer, do you certify that you bought the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities? Yes ☐ No ☐ Note: If no, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement. 5. Beneficial Ownership of Other Securities of the Company Owned by the Selling Stockholder. Except as set forth below in this Item 5, the undersigned is not the beneficial or registered owner of any securities of the Company other than the Registrable Securities listed above in Item 3. Type and amount of other securities beneficially owned: 6. Relationships with the Company: Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years. State any exceptions here: 7. Plan of Distribution: The undersigned has reviewed the form of Plan of Distribution attached as Annex A to the Registration Rights Agreement, and hereby confirms that, except as set forth below, the information contained therein regarding the undersigned and its plan of distribution is correct and complete. State any exceptions here: *********** The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof and prior to the effective date of any applicable Resale Registration Statement. All notices hereunder and pursuant to the Agreement shall be made in writing, by hand delivery, confirmed or facsimile transmission, first-class mail or air courier guaranteeing overnight delivery at the address set forth below. In the absence of any such notification, the Company shall be entitled to continue to rely on the accuracy of the information in this Notice and Questionnaire. By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items (1) through (7) above and the inclusion of such information in the Resale Registration Statement and the Prospectus. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of any such Registration Statement and the Prospectus. By signing below, the undersigned acknowledges that it understands its obligation to comply, and agrees that it will comply, with the provisions of the Exchange Act and the rules and regulations thereunder, particularly Regulation M in connection with any offering of Registrable Securities pursuant to the Resale Registration Statement. The undersigned also acknowledges that it understands that the answers to this Questionnaire are furnished for use in connection with Registration Statements filed pursuant to the Registration Rights Agreement and any amendments or supplements thereto filed with the Commission pursuant to the Securities Act.
B-4 The undersigned hereby acknowledges and is advised of the following Question 239.10 of the Securities Act Rules Compliance and Disclosure Interpretations regarding short selling: “An Issuer filed a Form S-3 registration statement for a secondary offering of common stock which is not yet effective. One of the selling stockholders wanted to do a short sale of common stock “against the box” and cover the short sale with registered shares after the effective date. The issuer was advised that the short sale could not be made before the registration statement become effective, because the shares underlying the short sale are deemed to be sold at the time such sale is made. There would, therefore, be a violation of Section 5 if the shares were effectively sold prior to the effective date.” By returning this Questionnaire, the undersigned will be deemed to be aware of the foregoing interpretation. I confirm that, to the best of my knowledge and belief, the foregoing statements (including without limitation the answers to this Questionnaire) are correct. IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Questionnaire to be executed and delivered either in person or by its duly authorized agent. Dated: ____________________ Beneficial Owner: ________________________________________ By: ___________________________ Name: ___________________________ Title: ___________________________ PLEASE EMAIL A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO: Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, NY 10017 Attention: Marisa Stavenas, Esq.; Lia Toback, Esq. E-mail: [REDACTED]; [REDACTED]