Second Amendment to
Common Stock Purchase Agreement
This Second Amendment to Common Stock Purchase Agreement (the Second Amendment) is made and entered into as of the 26th day of February, 2021 (the Second Amendment Effective Date) by and between RECRO PHARMA, INC., a Pennsylvania corporation (the Company), and ASPIRE CAPITAL FUND, LLC, an Illinois limited liability company (the Buyer).
The Company and the Buyer entered into that certain Common Stock Purchase Agreement (the CSPA) dated as of February 19, 2019 as amended by that certain First Amendment to Common Stock Purchase Agreement (the First Amendment) dated as of August 7, 2020 (the CSPA and the First Amendment collectively referred to as the Agreement). The Company and the Buyer now desire to amend the Agreement, however, only as set forth in this Second Amendment.
NOW THEREFORE, the Company and the Buyer hereby agree as follows:
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The introductory recital of the Agreement is deleted in its entirety and replaced by the following:
Subject to the terms and conditions set forth in this Agreement, the Company wishes to sell to the Buyer, and the Buyer wishes to buy from the Company, up to Forty One Million One Hundred Seventy One Thousand Seven Hundred Thirty Eight Dollars ($41,171,738) of the Companys common stock, par value $0.01 per share (the Common Stock). The shares of Common Stock to be purchased hereunder are referred to herein as the Purchase Shares.
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Section 1(h) of the Agreement is deleted in its entirety and replaced by the following:
Compliance with Principal Market Rules. Notwithstanding anything in this Agreement to the contrary, and in addition to the limitations set forth in Section 1(e), the total number of shares of Common Stock that may be issued under this Agreement on or after the date of the Second Amendment shall be limited to 6,199,299 shares of Common Stock (the Exchange Cap), which equals 19.99% of the Companys outstanding shares of Common Stock as of the date hereof, unless stockholder approval is obtained to issue more than such 19.99%. The Exchange Cap shall be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction. The foregoing limitation shall not apply if stockholder approval has not been obtained and at any time the Exchange Cap is reached and at all times thereafter the average price paid for all shares of Common Stock issued under this Agreement is equal to or greater than $3.43 (the Minimum Price), a price equal to the lower of (1) the Closing Sale Price immediately preceding the execution of this Agreement or (2) the arithmetic average of the five (5) Closing Sale Prices for the Common Stock immediately preceding the execution of this Agreement (in such circumstance, for purposes of the Principal Market, the transaction