COMMON STOCK PURCHASE WARRANT INVIVYD, inc.

 

Exhibit 4.3

EXECUTION VERSION

NEITHER THIS WARRANT NOR THE SECURITIES FOR WHICH THIS WARRANT IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OR THE COMPANY HAS RECEIVED DOCUMENTATION REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT.

COMMON STOCK PURCHASE WARRANT

INVIVYD, inc.

First Tranche Shares: 3,591,954

Second Tranche Shares: 1,795,977

Third Tranche Shares: 1,436,781

 

THIS COMMON STOCK PURCHASE WARRANT (this “Warrant”) certifies that, for value received, Population Health Partners, L.P., a Delaware limited partnership (the “Holder”), is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the Applicable Issuance Date (as defined herein) with respect to the Applicable Warrant Shares (as defined below) and on or prior to the earlier of (i) 5:00 p.m. (New York City time) on November 15, 2032 and (ii) the closing of a Fundamental Transaction in accordance with Section 3(d)(ii) (such earlier date, the “Termination Date”), but not thereafter, to subscribe for and purchase from Invivyd, Inc., a Delaware corporation (the “Company”), the Applicable Warrant Shares that become exercisable pursuant to the terms of this Warrant. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(c).

“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or 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 (for purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, means the

 

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possession, direct or indirect, 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 otherwise). For purposes of this Agreement, the Company shall not be deemed to be an Affiliate of Holder and Holder shall not be deemed to be an Affiliate of the Company.

“Applicable Issuance Date” means, as applicable, (i) the First Tranche Issuance Date with respect to the First Tranche Shares, (ii) the Second Tranche Issuance Date with respect to the Second Tranche Shares, and (iii) the Third Tranche Issuance Date with respect to the Third Tranche Shares.

“Applicable Issuance Deadline” means, as applicable, the First Tranche Issuance Deadline, the Second Tranche Issuance Deadline and the Third Tranche Issuance Deadline.

“Applicable Issuance Event” means, as applicable, the First Tranche Issuance Event, the Second Tranche Issuance Event and the Third Tranche Issuance Event.

“Applicable Warrant Shares” means, as applicable, the First Tranche Shares, the Second Tranche Shares and the Third Tranche Shares.

“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 remain closed.

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

“Common Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.

“Common Stock Equivalents” means any securities of the Company or its Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.

“Determination Date” has the meaning set forth in the definition of Market Capitalization.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“First Tranche Issuance Date” means the first date on which the First Tranche Issuance Event occurs so long as the First Tranche Issuance Event occurs on or prior to the First Tranche Issuance Deadline.

“First Tranche Issuance Deadline” means November 15, 2028.

 

 

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“First Tranche Issuance Event” means the Company’s Market Capitalization as of any Determination Date equals or exceeds $758,517,511.00; provided, however, that, without regard to the Company’s Market Capitalization, the First Tranche Issuance Event shall be deemed to occur immediately prior to the consummation of a Fundamental Transaction if such Fundamental Transaction occurs on or prior to the First Tranche Issuance Deadline.

“First Tranche Shares” means 3,591,954 shares of Common Stock, subject to applicable adjustment hereunder.

“Fundamental Transaction” means each of the following events: (a) other than in the case of a redomestication transaction in connection with a change in the corporate domicile of the Company, the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person and the Company shall not be the surviving or continuing Person or the Company shall be the continuing or surviving Person but, in connection with such merger or consolidation, the Common Stock shall be changed into or exchanged for stock or other securities of any other Person or cash or any other property, (b) the Company, directly or indirectly, effects any sale, exclusive lease, exclusive license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (c) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (d) the Company, directly or indirectly, in one or more related transactions effects any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property or (e) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding shares of Common Stock.

“Market Capitalization” means, with respect to a particular Trading Day (the “Determination Date”), the total value of the Company’s outstanding shares of Common Stock on such Determination Date, calculated by multiplying the Company’s VWAP for the ten (10) Trading Days immediately preceding the Determination Date by the Company’s total number of shares of Common Stock outstanding as reflected in (i) the Company’s most recent periodic or annual report filed with the Commission (e.g., Annual Report on Form 10-K or Quarterly Report on Form 10-Q), as the case may be, (ii) a more recent public announcement by the Company or (iii) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding.

“Person” means an individual or 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.

“Second Tranche Issuance Date” means the first date on which the Second Tranche Issuance Event occurs so long as the Second Tranche Issuance Event occurs on or prior to the Second Tranche Issuance Deadline.

 

 

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“Second Tranche Issuance Deadline” means November 15, 2029.

“Second Tranche Issuance Event” means the Company’s Market Capitalization as of any Determination Date equals or exceeds $1,137,776,266.00; provided, however, that, without regard to the Company’s Market Capitalization, the Second Tranche Issuance Event shall be deemed to occur immediately prior to the consummation of a Fundamental Transaction if such Fundamental Transaction occurs on or prior to the Second Tranche Issuance Deadline.

“Second Tranche Shares” means 1,795,977 shares of Common Stock, subject to applicable adjustment hereunder.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.

“Subsidiary” or “Subsidiaries” means any subsidiary of the Company, and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.

“Third Tranche Issuance Date” means the first date on which the Third Tranche Issuance Event occurs so long as the Third Tranche Issuance Event occurs on or prior to the Third Tranche Issuance Deadline.

“Third Tranche Issuance Deadline” means November 15, 2030.

“Third Tranche Issuance Event” means the Company’s Market Capitalization as of any Determination Date equals or exceeds $1,517,035,022.00; provided, however, that, without regard to the Company’s Market Capitalization, the Third Tranche Issuance Event shall be deemed to occur immediately prior to the consummation of a Fundamental Transaction if such Fundamental Transaction occurs on or prior to the Third Tranche Issuance Deadline.

“Third Tranche Shares” means 1,436,781 shares of Common Stock, subject to applicable adjustment hereunder.

“Trading Day” means a day on which the principal Trading Market is open for trading.

“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 the OTC Bulletin Board (or any successors to any of the foregoing).

“Transfer Agent” means American Stock Transfer & Trust Company, LLC., the current transfer agent of the Company, with a mailing address of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,

 

 

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New York 11219, and a facsimile number of ▇▇▇-▇▇▇-▇▇▇▇, and any successor transfer agent of the Company.

“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in the “Pink Sheets” published by OTC Markets Group, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined in good faith by the Board of Directors, whose determination shall be conclusive.

 

 

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(A) = as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) delivered, in complete and executed

 

 

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form, pursuant to Section 2(b) hereof on a day that is not a Trading Day or (2) delivered, in complete and executed form, pursuant to Section 2(b) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the VWAP as of closing of “regular trading hours” on the date of the applicable Notice of Exercise if such Notice of Exercise is, in complete and executed form, delivered to the Company during “regular trading hours” on a Trading Day or within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(b) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is delivered, in complete and executed form, pursuant to Section 2(b) hereof after the close of “regular trading hours” on such Trading Day;

(B) = the Exercise Price per Applicable Warrant Share, as adjusted hereunder; and

(X) = the number of Applicable Warrant Shares, as applicable, that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant and pursuant to the applicable Notice of Exercise if such exercise were by means of a cash exercise rather than a cashless exercise.

If the foregoing calculation results in a negative number, then no Applicable Warrant Shares shall be issued upon a “cashless exercise” pursuant to this Section 2(d).

 

 

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The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares free from preemptive rights to provide for the issuance of the Applicable Warrant Shares upon the exercise of any purchase rights under this Warrant and to take all steps necessary to increase the authorized number of shares of its Common Stock if at any time the authorized number of shares of Common Stock remaining unissued is insufficient to permit the exercise of this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Applicable Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Applicable Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market

 

 

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upon which the Common Stock may be listed. The Company covenants that all Applicable Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Applicable Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).

Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Applicable Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Applicable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be necessary to enable the Company to perform its obligations under this Warrant.

Before taking any action which would result in an adjustment in the number of Applicable Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.

 

 

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If to the Company, to it at:

▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇

Waltham, MA 02451

Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer

Email Address: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

with a copy (which shall not constitute notice) to:

▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇

Waltham, MA 02451

Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Legal Officer

Email Address: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇

or

If to the Holder, to it at:

Population Health Partners, L.P.

▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇

Short Hills, NJ 07078

Attention: ▇▇▇▇▇ ▇▇▇

E-mail Address: ▇▇▇▇▇.▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇

with copies (which shall not constitute notice) to:

 

▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP

▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇

New York, NY 10019-6064

Attention: ▇▇▇▇ ▇▇▇▇▇▇▇

Email Address: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇

 

Such notices shall be effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address specified above prior to 5:30 P.M., New York City time, on a Trading Day (provided, with respect to delivery by e-mail, that such sent e-mail is kept on file (whether electronically or otherwise) by the sending party and the sending party does not receive an automatically generated message from the recipient’s e-mail server that such e-mail could not be delivered to such recipient), (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via e-mail at the e-mail address specified above on a day that is not a Trading Day or later than 5:30 P.M., New York City time, on any Trading Day (provided, with respect to delivery by e-mail, that such sent e-mail is kept on file (whether electronically or otherwise) by the sending party and the sending party does not receive an automatically generated message from the recipient’s e-mail server that such e-mail could not be delivered to such recipient), (iii) the Trading Day following the date of mailing, if sent by nationally recognized overnight courier service specifying next Business Day delivery, or (iv) upon actual receipt by the Person to whom such notice is required to be given, if by hand delivery.

 

 

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(Signature Page Follows)

 

 

 

 

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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.

INVIVYD, INC.

By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇, M.B.A.

Name: ▇▇▇▇▇ ▇▇▇▇▇▇, M.B.A.

Title: Chief Executive Officer

 

 

 

 

[COMPANY SIGNATURE PAGE TO WARRANT]

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▇▇▇▇▇▇▇▇▇▇▇▇, accepted and agreed,

 

POPULATION HEALTH PARTNERS, L.P.

By: /s/ ▇▇▇▇▇ ▇▇▇

Name: ▇▇▇▇▇ ▇▇▇

Title: Managing Member

 

 

[HOLDER SIGNATURE PAGE TO WARRANT]

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EXHIBIT A

NOTICE OF EXERCISE

TO: INVIVYD, INC.

(1) The undersigned hereby elects to purchase _____ [First Tranche Shares [and/or] Second Tranche Shares [and/or] Third Tranche Shares] of the Company pursuant to the terms of the attached Warrant, and tenders herewith payment of the Exercise Price with respect to the Applicable Warrant Shares in full, together with all applicable transfer taxes, if any.

(2) Payment shall take the form of (check applicable box):

☐ by wire transfer or cashier’s check drawn on a United States bank per Section 2(b); or

☐ cashless exercise procedure set forth in Section 2(d).

(3) Please issue said Applicable Warrant Shares in the name of the undersigned or in such other name as is specified below:

The Applicable Warrant Shares shall be delivered:

(i) to the following DWAC Account Number:

 

 

or

 

(ii) in electronic book-entry credit or certificated form in the name and at the address of the following Holder:

 

 

 

(4) Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.

[SIGNATURE OF HOLDER]

 

Name of Investing Entity:

 

 

Signature of Authorized Signatory of Investing

Entity:

Name of Authorized Signatory:

Title of Authorized Signatory:

Date:

Exhibit A to Warrant

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EXHIBIT B

 

ASSIGNMENT FORM

 

(To assign the foregoing Warrant, execute this form and supply required information.

Do not use this form to exercise the Warrant.)

FOR VALUE RECEIVED, [_______] all of [_______] First Tranche Shares [and/or] [_______] Second Tranche Shares [and/or] [_______] Third Tranche Shares of the foregoing Warrant and all rights evidenced thereby are hereby assigned to

Name:
	(Please Print)
Address:
	(Please Print)
Phone Number:
Email Address:
Dated: _______________ __, ______

 

Holder’s Signature:

 

Holder’s Address:

 

NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank or trust company. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant.

 

 

Exhibit B to Warrant

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