EXHIBIT 10.2
Form of WARRANT
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ASSIGNED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SHARES IS EFFECTIVE UNDER THE SECURITIES ACT AND IS QUALIFIED UNDER APPLICABLE STATE AND FOREIGN LAW OR (II) THE TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS UNDER THE SECURITIES ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE AND FOREIGN LAW AND, IF IMPEL PHARMACEUTICALS INC. A DELAWARE CORPORATION (THE “COMPANY”), REASONABLY REQUESTS, AN OPINION REASONABLY SATISFACTORY TO THE COMPANY TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.
Warrant Certificate No. W-[●]
Original Issue Date: [●], 2023
FOR VALUE RECEIVED, Impel Pharmaceuticals Inc., a Delaware corporation (the “Company”), hereby certifies that [purchaser name], a [purchaser jurisdiction] [purchaser entity type] (together with any assignee(s) or transferee(s), “Holder”), is entitled to purchase from the Company [●], duly authorized, validly issued, fully paid and nonassessable shares of Common Stock, at a purchase price per share of $0.01 (the “Exercise Price”), all subject to the terms, conditions and adjustments set forth below in this Warrant. Certain capitalized terms used herein are defined in Section 1.
“Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including, without limitation, any general partner, managing member, officer, director or trustee of such Person, or any venture capital fund, private investment fund or registered investment company now or hereafter existing that is controlled by one or more general partners, managing members or investment advisers of, or shares the same management company or investment adviser with, such Person; provided that neither the Holder nor any of its Affiliates shall be considered Affiliates of the Company for purposes of this definition.
“Aggregate Exercise Price” means an amount equal to the product of (a) the number of Warrant Shares in respect of which this Warrant is then being exercised pursuant to Section 3, multiplied by (b) the Exercise Price.
“Applicable Law” means all applicable provisions of (a) constitutions, treaties, statutes, laws (including the common law), rules, regulations, decrees, ordinances, codes, proclamations, declarations or orders of any Governmental Authority; (b) any consents or approvals of any
Governmental Authority; and (c) any orders, decisions, advisory or interpretative opinions, injunctions, judgments, awards, decrees of, or agreements with, any Governmental Authority.
“Board” means the board of directors of the Company.
“Business Day” means any day other than a Saturday, Sunday or day on which banks in New York City, New York are authorized or required by Applicable Law to close.
“Change of Control” means (a) any direct or indirect acquisition (whether by a purchase, sale, transfer, exchange, issuance, merger, consolidation or other business combination) of shares of capital stock or other securities, in a single transaction or series of related transactions, as a result of which a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, any of its wholly-owned subsidiaries or the Holder or any of its Affiliates, has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of equity securities of the Company which constitute more than fifty percent (50%) of the total direct or indirect voting power of the equity securities of the Company; provided, that no Change of Control shall be deemed to have occurred pursuant to this clause (a) due to the acquisition of shares of Common Stock by the Holder or its Affiliates upon the exercise of any warrants of the Company; provided, further, that no person or group shall be deemed to be the beneficial owner of any securities tendered pursuant to a tender or exchange offer made by or on behalf of such “person” or “group” until such tendered securities are accepted for purchase or exchange under such offer; (b) the direct or indirect sale, lease, exchange, transfer or other disposition, in a single transaction or series of related transactions, of assets or businesses that constitute or represent all or substantially all of the consolidated assets of the Company and its subsidiaries, taken as a whole, to a Person other than the Company, any of its wholly-owned subsidiaries, or the Holder or any of its Affiliates; or (c) the liquidation or dissolution of the Company.
“Common Stock” means the common stock, par value $0.001 per share, of the Company, and any capital stock into which such Common Stock shall have been converted, exchanged or reclassified following the date hereof.
“Company” has the meaning set forth in the preamble.
“Convertible Securities” means any securities (directly or indirectly) convertible into or exchangeable for Common Stock, but excluding Options.
“Credit Agreement” means the Credit Agreement and Guaranty, dated as of March 17, 2022 (including the exhibits and other attachments thereto), as amended by that certain First Amendment, dated as of August 21, 2023, and as further amended by that certain Second Amendment, dated as September 5, 2023, by and among the Company, the Subsidiary Guarantors party thereto, the Lenders party thereto and Oaktree Fund Administration, LLC, as Administrative Agent.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Exercise Agreement” has the meaning set forth in Section 3(a)(i).
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“Exercise Date” means, for any given exercise of this Warrant, the date on which the conditions to such exercise as set forth in Section 3 shall have been satisfied at or prior to 5:00 p.m. Eastern Time, on a Business Day, including, without limitation, the receipt by the Company of the Exercise Agreement, the Warrant and the Aggregate Exercise Price.
“Exercise Period” has the meaning set forth in Section 2.
“Exercise Price” has the meaning set forth in the preamble.
“Fair Market Value” means, as of any particular date: (a) the volume weighted average of the closing sales prices of the Common Stock for such day on all Trading Markets on which the Common Stock may at the time be listed or quoted; (b) if there have been no sales of the Common Stock on any such Trading Market on any such day, the average of the highest bid and lowest asked prices for the Common Stock on all such Trading Markets at the end of such day; (c) if on any such day the Common Stock is not listed or quoted on a Trading Market, the closing sales price of the Common Stock as quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association for such day; or (d) if there have been no sales of the Common Stock on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association on such day, the average of the highest bid and lowest asked prices for the Common Stock quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association at the end of such day; in each case, averaged over twenty (20) consecutive Business Days ending on the Business Day immediately prior to the day as of which “Fair Market Value” is being determined; provided, that if the Common Stock is listed on a Trading Market, the term “Business Day” as used in this sentence means Business Days on which Trading Market is open for trading. If at any time the Common Stock is not listed on any Trading Market or quoted on the OTC Bulletin Board, the Pink OTC Markets or similar quotation system or association, the “Fair Market Value” of the Common Stock shall be the fair market value per share as determined in good faith by the Board.
“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of law), or any arbitrator, court or tribunal of competent jurisdiction.
“Holder” has the meaning set forth in the preamble.
“Material Adverse Effect” means a material adverse effect on (a) the ability of the Company to fulfill its obligations to be performed under this Warrant or (b) the business, operations or financial condition of the Company and its subsidiaries taken as a whole.
“Nasdaq” means The Nasdaq Stock Market LLC.
“Options” means any warrants or other rights or options to subscribe for or purchase Common Stock or Convertible Securities.
“Original Issue Date” means [●], 2023.
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“OTC Bulletin Board” means the Financial Industry Regulatory Authority OTC Bulletin Board electronic inter-dealer quotation system.
“Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.
“Pink OTC Markets” means the OTC Markets Group Inc. electronic inter-dealer quotation system, including OTCQX, OTCQB and OTC Pink.
“Purchase Rights” has the meaning set forth in Section 5.
“Restated Certificate” means the Restated Certificate of Incorporation of the Company, as the same may be amended and in effect from time to time.
“Second Amendment Warrants” has the meaning set forth in the Credit Agreement.
“Securities Act” means the Securities Act of 1933, as amended.
“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, the New York Stock Exchange (or any successors to any of the foregoing).
“Transaction Agreements” means the Credit Agreement and the Second Amendment Warrants.
“Warrant” means this Warrant and all warrants issued upon division or combination of, or in substitution for, this Warrant.
“Warrant Shares” means the shares of Common Stock or other capital stock of the Company then purchasable upon exercise of this Warrant in accordance with the terms of this Warrant.
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In the event of any withholding of Warrant Shares or surrender of other securities pursuant to clause (ii), (iii) or (iv) above where the number of shares whose value is equal to the Aggregate Exercise Price is not a whole number, the number of shares withheld by or surrendered to the Company shall be rounded up to the nearest whole share and the Company shall make a cash payment to the Holder (by delivery of a certified or official bank check or by wire transfer of immediately available funds) based on the incremental fraction of a share being so withheld by or surrendered to the Company in an amount equal to the product of (x) such incremental fraction of a share being so withheld or surrendered multiplied by (y) in the case of Common Stock, the Fair Market Value per Warrant Share as of the Exercise Date, and, in all other cases, the value thereof as of the Exercise Date determined in accordance with clause (iii)(y) above.
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The number of Warrant Shares issuable upon exercise of this Warrant shall be subject to adjustment from time to time as provided in this Section 4 (in each case, after taking into consideration any prior adjustments pursuant to this Section 4).
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then, and in each such case, the Company shall send or cause to be sent to the Holder at least five (5) Business Days prior to the applicable record date or the applicable expected effective date, as the case may be, for the event, a written notice specifying, as the case may be, (A) the record date for such dividend, distribution, meeting or consent or other right or action, and a description of such dividend, distribution or other right or action to be taken at such meeting or by written consent, or (B) the effective date on which such reorganization, reclassification, consolidation, merger, sale or other Change of Control, dissolution, liquidation or winding-up is proposed to take place, and the date, if any is to be fixed, as of which the books of the Company shall close or a record shall be taken with respect to which the holders of record of Common Stock (or such other
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capital stock or securities at the time issuable upon exercise of the Warrant) shall be entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, sale or other Change of Control, dissolution, liquidation or winding-up, and the amount per share and character of such exchange applicable to the Warrant and the Warrant Shares.
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“THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ASSIGNED UNLESS (A) (I) A REGISTRATION STATEMENT COVERING SUCH SHARES IS EFFECTIVE UNDER THE SECURITIES ACT AND IS QUALIFIED UNDER APPLICABLE STATE AND FOREIGN LAW OR (II) THE TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS UNDER THE SECURITIES ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE AND FOREIGN LAW AND, (B) IF IMPEL PHARMACEUTICALS INC., A DELAWARE CORPORATION (THE “COMPANY”), REASONABLY REQUESTS, AN OPINION REASONABLY SATISFACTORY TO THE COMPANY TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.”
provided, that, notwithstanding any other provision hereof, the conditions of clause (B) above shall not apply to any transfer of this Warrant from Holder to any Affiliate, managed fund or account of Oaktree Capital Management, L.P.
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If to the Company: | Impel Pharmaceuticals Inc. 201 Elliott Avenue West, Suite 260 Seattle, WA 98119 Email: aadams@impelpharma.com Attention: Adrian Adams, CEO
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with a copy to: | Fenwick & West LLP Email: acsmith@fenwick.com Attention: Alan Smith
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If to the Holder: | [●] Facsimile: [●] E-mail: [●] Attention: [●]
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with a copy to: | [●] Facsimile: [●] E-mail: [●] Attention: [●]
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has duly executed this Warrant on the Original Issue Date.
| IMPEL PHARMACEUTICALS INC. |
| By: ____________________________ Name: Adrian Adams Title: Chief Executive Officer
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Accepted and agreed, |
[HOLDER]
By:
Its:
By:
Its:
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
Exhibit A
FORM OF EXERCISE AGREEMENT
Impel Pharmaceuticals Inc.
Attention: [President]
The undersigned registered owner of this Warrant hereby irrevocably elects to exercise the right to purchase represented by the attached Warrant (the “Warrant”) for, and to purchase thereunder, shares of Common Stock, par value $0.001 per share (the “Common Stock”), of Impel Pharmaceuticals Inc., a Delaware corporation (the “Company”), as provided for therein, and tenders herewith payment of the exercise price in full in accordance with the terms of the Warrant.
Please issue a certificate or certificates for, or instruct the Company’s transfer agent to register in book entry form, such shares of Common Stock in the following name or names and denominations:
Registered Holder Name | No. of Shares of Common Stock |
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The undersigned hereby represents and warrants that the undersigned is acquiring such shares for its own account for investment purposes only and not for resale or with a view to distribution of such shares or any part thereof and makes each of the other representations contained in Section 11(b) of the Warrant.
If said number of shares of Common Stock shall not be all the shares of Common Stock issuable upon exercise of the attached Warrant, a new Warrant is to be issued in the name of the undersigned for the balance remaining of such shares of Common Stock less any fraction of a share of Common Stock paid in cash.
[HOLDER]
Date: By:
Name:
Title:
Address:
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Exhibit B
FORM OF ASSIGNMENT
ASSIGNMENT FORM
(To be executed by the registered holder hereof)
FOR VALUE RECEIVED, ________________ hereby sells, assigns and transfers unto _______________ the within Warrant and all rights evidenced thereby and does irrevocably constitute and appoint _______________, attorney, to transfer the said Warrant on the books of Impel Pharmaceuticals Inc., a Delaware corporation.
[HOLDER]
Date: By:
Name:
Title:
Address:
FOR USE BY THE ISSUER ONLY:
This Warrant No. W‑___ cancelled (or transferred or exchanged) this ___ day of __________, 20___, shares of Common Stock issued therefor in the name of ___________________, Warrant No. W‑____ issued for _____ shares of Common Stock in the name of_______________________.
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PARTIAL ASSIGNMENT
(To be executed by the registered holder hereof)
FOR VALUE RECEIVED, __________________ hereby sells, assigns and transfers unto _________________ the right to purchase ________ shares of Common Stock issuable upon exercise of the attached Warrant, and does irrevocably constitute and appoint __________________, attorney, to transfer that part of the said Warrant on the books of Impel Pharmaceuticals Inc., a Delaware corporation.
[HOLDER]
Date: By:
Name:
Title:
Address:
FOR USE BY THE ISSUER ONLY:
This Warrant No. W‑___ cancelled (or transferred or exchanged) this ___ day of __________, 20___, shares of Common Stock issued therefor in the name of ___________________, Warrant No. W‑____ issued for _____ shares of Common Stock in the name of _______________________.
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