EX-10.7 10 d532873dex107.htm EX-10.7 Execution Version FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT AND FIRST AMENDMENT TO WARRANTS
Exhibit 10.7
Execution Version
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT AND
FIRST AMENDMENT TO WARRANTS
This FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT AND FIRST AMENDMENT TO WARRANTS (this “Amendment”), dated as of April 10, 2018 (the “Amendment Effective Date”), is entered into by and among Tricida, Inc. (the “Borrower”), Hercules Capital, Inc. (“Hercules Capital”), a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lender (in such capacity, together with its successors and assigns in such capacity, the “Agent”), and Hercules Technology III, L.P. (“Hercules Technology”), a Delaware limited partnership.
WHEREAS, the Borrower, the Lender and Agent are parties to that certain Loan and Security Agreement dated as of February 28, 2018 (as amended, modified or supplemented from time to time, the “Loan Agreement”);
WHEREAS, the Borrower has requested certain modifications to the Agreements; and
SECTION 1 Definitions; Interpretation.
(a) All capitalized terms used in this Amendment (including in the recitals hereof) and not otherwise defined herein shall have the meanings assigned to them in the Loan Agreement or the Warrants, as applicable.
(b) The rules of interpretation set forth in Section 1.1 of the Loan Agreement shall be applicable to this Amendment and are incorporated herein by this reference.
SECTION 2 Amendments to the Loan Agreement and the Warrants
(a) Amendments to the Loan Agreement
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(i) Section 1 (Definitions and Rules of Construction). The definition of “Warrant” in Section 1 is hereby amended and restated in its entirety as follows:
“‘Warrant’ means any warrant entered into in connection with the Borrower’s draw of each Term Loan Advance in Tranche 1, Tranche 2, Tranche 3, Tranche 4, and/or Tranche 5, respectively, as set forth in either Exhibit I or Exhibit J, as may be amended, restated or modified from time to time.”
(ii) Section 4.2 (All Advances). Section 4.2 of the Loan Agreement is hereby amended and restated in its entirety by adding a new subsection (g) as follows:
“(g) Borrower and the party identified on the signature pages to each form of Warrant, as set forth in Exhibit I or Exhibit J, shall have executed a Warrant in connection with each applicable Term Loan Advance.”
(iii) Table of Addenda, Exhibits and Schedules. In Annex A hereto, insertions of text in the Table of Addenda, Exhibits and Schedules as amended by this Amendment are indicated by bold, double-underlined text.
(iv) Addendum 1 to Loan Agreement, Section (g) (Redemption Provisions). Section (g) of Addendum 1 to Loan Agreement is hereby amended and restated in its entirety as follows:
(v) Exhibit I: Form of Warrant for Hercules Capital, Inc. Exhibit I is hereby added to the Loan Agreement in its entirety as provided in Annex B hereto.
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(vi) Exhibit J: Form of Warrant for Hercules Technology III, L.P. Exhibit J is hereby added to the Loan Agreement in its entirety as provided in Annex C hereto.
(b) Amendments to the Warrants
(i) Section 1 (Grant of the Right to Purchase Common Stock). The definition of “Exercise Price” in Section 1 is hereby amended and restated in its entirety as follows:
“‘Exercise Price’ means the lesser of (a) if the Company achieves the IPO Milestone, the initial price to the public per share of Common Stock specified in the final prospectus filed with the SEC with respect to the Company’s Initial Public Offering, or (b) the Series D Conversion Price. In no event shall the Exercise Price be less than the Floor Price.”
(ii) Section 1 (Grant of the Right to Purchase Common Stock). Section 1 is modified to add the following:
“Floor Price” means $.20/share of Common Stock.
(iii) Section 1 (Grant of the Right to Purchase Common Stock). The definition of “Warrant Coverage” in Section 1 of Warrant One is hereby amended and restated in its entirety as follows:
“‘Warrant Coverage’ means Three Hundred Thousand Dollars ($300,000.00).”
(iv) Section 1 (Grant of the Right to Purchase Common Stock). The definition of “Warrant Coverage” in Section 1 of Warrant Two is hereby amended and restated in its entirety as follows:
“‘Warrant Coverage’ means Two Hundred Thousand Dollars ($200,000.00).”
(v) Section 2 (Term of the Agreement). Section 2 is hereby amended and restated in its entirety as follows:
“Except as otherwise provided for herein, the term of this Agreement and the right to purchase Common Stock as granted herein (the “Warrant”) shall commence on the Effective Date and shall be exercisable for a period ending upon the earliest to occur of (i) February 28, 2025; (ii) three (3) years after the Initial Public Offering; and (iii) immediately prior to the closing of a Merger Event (the “Exercise Period”).”
(c) References within the Loan Agreement and the Warrants. Each reference in the Loan Agreement and the Warrants to “this Agreement” and the words “hereof,” “herein,” “hereunder,” or words of like import, shall mean and be a reference to the Loan Agreement or the Warrants, as applicable, as amended by this Amendment.
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(b) This Amendment. Agent shall have received this Amendment, executed by Agent, the Lender and the Borrower.
(i) The representations and warranties contained in Section 4 shall be true and correct on and as of the Amendment Effective Date as though made on and as of such date; and
(ii) There exist no Events of Default or events that with the passage of time would result in an Event of Default.
(a) Loan Documents Otherwise Not Affected; Reaffirmation. Except as expressly amended pursuant hereto or referenced herein, the Loan Agreement and the other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and confirmed in all respects. The Lender’s and Agent’s execution and delivery of, or acceptance of, this Amendment shall not be deemed to create a course of dealing or otherwise create any express or implied duty by any of them to provide any other or further amendments, consents or waivers in the future. Borrower hereby reaffirms the grant of security under Section 3.1 of the Loan Agreement and hereby reaffirms that such grant of security in the Collateral secures all Secured Obligations under the Loan Agreement and the other Loan Documents.
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(f) Binding Effect. This Amendment binds and is for the benefit of the successors and permitted assigns of each party.
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(g) Governing Law. This Amendment and the other Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding conflict of laws principles that would cause the application of laws of any other jurisdiction.
(k) Loan Documents. This Amendment shall constitute a Loan Document.
[Balance of Page Intentionally Left Blank; Signature Pages Follow]
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BORROWER: | ||
TRICIDA, INC. | ||
Signature: /s/ Xxxxxxxx Xxxxxx | ||
Print Name: Xxxxxxxx Xxxxxx | ||
Title: Chief Financial Officer | ||
AGENT, LENDER and WARRANTHOLDER: | ||
HERCULES CAPITAL, INC. | ||
Signature: /s/ Xxxx Xxxxx | ||
Print Name: Xxxx Xxxxx | ||
Title: Associate General Counsel | ||
LENDER and WARRANTHOLDER: | ||
HERCULES TECHNOLOGY III, L.P., | ||
a Delaware limited partnership | ||
By: Hercules Technology SBIC Management, LLC, its General Partner | ||
By: Hercules Capital, Inc., its Manager | ||
By: | /s/ Xxxx Xxxxx | |
Name: | Xxxx Xxxxx | |
Its: | Associate General Counsel |
[Signature Page to First Amendment to Loan and Security Agreement and First Amendment to Warrants]
ANNEX A
Table of Addenda, Exhibits and Schedules
Addendum 1: | SBA Provisions |
Exhibit A: | Advance Request |
Attachment to Advance Request |
Exhibit B: | Term Note |
Exhibit C: | Name, Locations, and Other Information for Borrower |
Exhibit D: | [Reserved] |
Exhibit E: | Borrower’s Deposit Accounts and Investment Accounts |
Exhibit F: | Compliance Certificate |
Exhibit G: | Joinder Agreement |
Exhibit H: | ACH Debit Authorization Agreement |
Exhibit I: | Form of Warrant for Hercules Capital, Inc. |
Exhibit J: | Form of Warrant for Hercules Technology III, L.P. |
Schedule 1 | Subsidiaries |
Schedule 1.1 | Commitments |
Schedule 1A | Existing Permitted Indebtedness |
Schedule 1B | Existing Permitted Investments |
Schedule 1C | Existing Permitted Liens |
Schedule 5.3 | Consents, Etc. |
Schedule 5.5 | Actions Before Governmental Authorities |
Schedule 5.8 | Tax Matters |
Schedule 5.9 | Intellectual Property Claims |
Schedule 5.10 | Intellectual Property |
Schedule 5.11 | Borrower Products |
Schedule 5.14 | Capitalization |
ANNEX B
EXHIBIT I
FORM OF WARRANT FOR HERCULES CAPITAL, INC.
THIS WARRANT, AND THE SECURITIES ISSUABLE UPON THE EXERCISE OF THIS WARRANT, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL (WHICH MAY BE COMPANY COUNSEL) REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT, OR ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT AGREEMENT
To Purchase Shares of Common Stock of
Tricida, Inc.
Dated as of [ ] (the “Effective Date”)
WHEREAS, Tricida, Inc., a Delaware corporation, has entered into a Loan and Security Agreement, dated as of February 28, 2018 (the “Loan Agreement”), with Hercules Capital, Inc., a Maryland corporation, in its capacity as administrative and collateral agent, Hercules Capital, Inc. (the “Warrantholder”) and the other lender parties thereto;
SECTION 1. GRANT OF THE RIGHT TO PURCHASE COMMON STOCK.
For value received, the Company hereby grants to the Warrantholder, and the Warrantholder is entitled, upon the terms and subject to the conditions hereinafter set forth, to subscribe for and purchase, from the Company, an aggregate number of fully paid and non-assessable shares of Common Stock equal to the quotient derived by dividing (a) the Warrant Coverage (as defined below) by (b) the Exercise Price (as defined below). The Exercise Price of such shares are subject to adjustment as provided in Section 8. As used herein, the following terms shall have the following meanings:
“Act” means the Securities Act of 1933, as amended.
“Charter” means the Company’s Certificate of Incorporation, as may be amended from time to time.
“Common Stock” means the Company’s common stock, $0.001 par value per share.
“Company” means Tricida, Inc., a Delaware corporation.
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“Exercise Price” means the lesser of (a) if the Company achieves the IPO Milestone, the initial price to the public per share of Common Stock specified in the final prospectus filed with the SEC with respect to the Company’s Initial Public Offering, or (b) the Series D Conversion Price. In no event shall the Exercise Price be less than the Floor Price.”
“Floor Price” means $.20/share of Common Stock.
“Initial Public Offering” means the initial underwritten public offering of the Common Stock pursuant to a registration statement under the Act, which registration statement has been declared effective by the Securities and Exchange Commission (“SEC”).
“IPO Milestone” means receipt by the Company, prior to December 15, 2018, of at least One Hundred Million Dollars ($100,000,000.00) in aggregate proceeds (net of underwriting discounts and commissions) from an Initial Public Offering.
“Merger Event” means any sale, lease, exclusive license or other transfer of all or substantially all assets of the Company or any merger or consolidation involving the Company in which the Company is not the surviving entity, or in which the outstanding shares of the Company’s capital stock are otherwise converted into or exchanged for shares of common stock, preferred stock, other securities or property of another entity; other than any such consolidation, merger or reorganization in which the shares of capital stock of the Company immediately prior to such consolidation, merger or reorganization, continue to represent a majority of the voting power of the surviving entity (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or reorganization (provided that, all shares of Common Stock issuable upon exercise of options or warrants outstanding immediately prior to such consolidation or merger or upon conversion of convertible securities outstanding immediately prior to such merger or consolidation shall be deemed to be outstanding immediately prior to such merger or consolidation and, if applicable, converted or exchanged in such merger or consolidation on the same terms as the actual outstanding shares of capital stock are converted or exchanged).
“Preferred Stock” means the Company’s Series D preferred stock, $0.001 par value per share, as presently constituted, and, to the extent provided in Section 8(b), any other stock into or for which such Preferred Stock may be converted or exchanged.
“Purchase Price” means, with respect to any exercise of this Agreement, an amount equal to the Exercise Price as of the relevant time multiplied by the number of shares of Common Stock requested to be exercised under this Agreement pursuant to such exercise.
“Series D Conversion Price” has the meaning set forth in the Charter.
“Warrant Coverage” means [Three Hundred Thousand Dollars ($300,000.00)]1 [1.20% of such amount advanced under Tranche 2, Tranche 3, Tranche 4 or Tranche 5 (as defined and set forth in the Loan Agreement), as applicable to the tranche under which the Agreement was entered into by the parties hereto in connection with the Term Loan Advance (as defined in the Loan Agreement)]2.
SECTION 2. TERM OF THE AGREEMENT.
Except as otherwise provided for herein, the term of this Agreement and the right to purchase Common Stock as granted herein (the “Warrant”) shall commence on the Effective Date and shall be exercisable for a period ending upon the earliest to occur of (i) February 28, 2025; (ii) three (3) years after the Initial Public Offering; and (iii) immediately prior to the closing of a Merger Event (the “Exercise Period”).
1 | Note: Only Tranche 1. |
2 | Note: Warrantholder to complete based off of applicable Tranche. |
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SECTION 3. EXERCISE OF THE PURCHASE RIGHTS.
The Purchase Price may be paid at the Warrantholder’s election either (i) by cash or check, or (ii) by surrender of all or a portion of the Warrant for shares of Common Stock to be exercised under this Agreement and, if applicable, an amended Agreement representing the remaining number of shares purchasable hereunder, as determined below (“Net Issuance”). If the Warrantholder elects the Net Issuance method, the Company will issue shares of Common Stock in accordance with the following formula:
X = Y(A-B)
A
Where: | X = | the number of shares of Common Stock to be issued to the Warrantholder. | ||
Y = | the number of shares of Common Stock requested to be purchased under this Agreement. | |||
A = | the fair market value of one (1) share of Common Stock at the time of issuance of such shares of Common Stock. | |||
B = | the Exercise Price. |
For purposes of the above calculation, current fair market value of Common Stock shall mean with respect to each share of Common Stock:
(i) if the exercise is in connection with an Initial Public Offering, and if the Company’s Registration Statement relating to such Initial Public Offering has been declared effective by the SEC, then the fair market value per share shall be the initial “Price to Public” of the Common Stock specified in the final prospectus with respect to the offering;
(ii) if the exercise is after, and not in connection with an Initial Public Offering, and:
(A) if the Common Stock is traded on a securities exchange, the fair market value shall be deemed to be the average of the closing prices over a five (5) trading day period ending three (3) days before the day the current fair market value of the securities is being determined; or
(B) if the Common Stock is traded over-the-counter, the fair market value shall be deemed to be the average of the closing bid and asked price quoted on the NASDAQ system (or similar system) over the five (5) trading day period ended three (3) days before the day the current fair market value of the securities is being determined;
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(iii) if at any time the Common Stock is not listed on any securities exchange or quoted in the NASDAQ National Market or the over-the-counter market, the current fair market value of Common Stock shall be the highest price per share which the Company could reasonably expect to obtain from a willing buyer (not a current employee or director) for shares of Common Stock sold by the Company, from authorized but unissued shares, as determined in good faith by its Board of Directors (provided that if the Company is then in possession of a recent valuation of the Company’s Common Stock, the Board of Directors may rely on such valuation), unless the Notice of Exercise is delivered in connection with a Merger Event, in which case the fair market value of Common Stock shall be deemed to be the per share value received by the holders of the Company’s Common Stock on a common equivalent basis pursuant to such Merger Event.
Upon partial exercise by either cash or Net Issuance, the Company shall promptly issue an amended Agreement representing the remaining number of shares purchasable hereunder. All other terms and conditions of such amended Agreement shall be identical to those contained herein, including, but not limited to the Effective Date hereof and Exercise Period.
SECTION 4. RESERVATION OF SHARES.
During the term of this Agreement, the Company will at all times have authorized and reserved a sufficient number of shares of its Common Stock to provide for the exercise of the rights to purchase Common Stock as provided for herein.
SECTION 5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Agreement, but in lieu of such fractional shares, the Company shall make a cash payment therefor equal to such fraction multiplied by the then fair market value of one share of Common Stock.
SECTION 6. NO RIGHTS AS STOCKHOLDER.
This Agreement does not entitle the Warrantholder to any voting rights or other rights as a stockholder of the Company prior to the exercise of this Agreement.
SECTION 7. WARRANTHOLDER REGISTRY.
The Company shall maintain a registry showing the name and address of the registered holder of this Agreement. The Warrantholder’s initial address, for purposes of such registry, is set forth below the Warrantholder’s signature on this Agreement. The Warrantholder may change such address by giving written notice of such changed address to the Company.
The Exercise Price and the number of shares of Common Stock purchasable hereunder are subject to adjustment, as follows:
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(i) pay a dividend with respect to the Common Stock payable in Common Stock, then the Exercise Price shall be adjusted, from and after the date of determination of the stockholders entitled to receive such dividend or distribution, to that price determined by multiplying the Exercise Price in effect immediately prior to such date of determination by a fraction (A) the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution, and (B) the denominator of which shall be the total number of shares of Common Stock outstanding immediately after such dividend or distribution; or
(ii) make any other dividend or distribution with respect to Common Stock, except any dividend or distribution specifically provided for in any other clause of this Section 8, then, in each such case, provision shall be made by the Company such that the Warrantholder shall receive upon exercise or conversion of this Warrant a proportionate share of any such dividend or distribution as though it were the holder of the Common Stock as of the record date fixed for the determination of the stockholders of the Company entitled to receive such dividend or distribution.
(e) [Intentionally omitted].
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Each such written notice shall be given in accordance with Section 12(g) below and shall set forth, in reasonable detail, (i) the event requiring the notice, and (ii) if any adjustment is required to be made pursuant to this Section 8, (A) the amount of such adjustment, (B) the method by which such adjustment was calculated, (C) the adjusted Exercise Price (if the Exercise Price has been adjusted), and (D) the number of shares subject to purchase hereunder after giving effect to such adjustment.
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
(a) Reservation of Common Stock. The Common Stock issuable upon exercise of this Agreement has been duly and validly reserved and, when issued in accordance with the provisions of this Agreement, will be validly issued, fully paid and non-assessable, and will be free of any taxes, liens, charges or encumbrances created by the Company; provided, that the Common Stock issuable pursuant to this Agreement may be subject to restrictions on transfer under state and/or federal securities laws. The Company has made available to the Warrantholder true, correct and complete copies of its Charter and current bylaws as of the Effective Date. The issuance of certificates for shares of Common Stock upon exercise of this Agreement shall be made without charge to the Warrantholder for any issuance tax in respect thereof, or other cost incurred by the Company in connection with such exercise and the related issuance of shares of Common Stock; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer and the issuance and delivery of any certificate in a name other than that of the Warrantholder.
(i) The authorized capital of the Company consists of (A) [134,000,000] shares of Common Stock, of which [9,152,544] shares are issued and outstanding; (B) [11,398,694] shares of Series A preferred stock, $0.001 par value per share, of which [11,302,758] shares are issued and outstanding and are convertible into an aggregate of [11,302,758] shares of Common Stock at [$0.886] per share; (C) [32,526,878] shares of
3 | Note: To be updated with each warrant issuance. |
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Series B preferred stock, $0.001 par value per share, of which [32,526,878] shares are issued and outstanding and are convertible into an aggregate of [32,526,878] shares of Common Stock at [$0.93] per share; (D) [35,806,451] shares of Series C preferred stock, $0.001 par value per share, of which [35,806,451] shares are issued and outstanding and are convertible into an aggregate of [35,806,451] shares of Common Stock at [$1.55] per share; and (E) [24,500,000] shares of Series D preferred stock, $0.001 par value per share, of which [24,493,615] shares are issued and outstanding and are convertible into an aggregate of [24,493,615] shares of Common Stock at [$2.35] per share.
(ii) The Company issued a warrant dated August 9, 2013 exercisable for 95,936 shares of Series A preferred stock.
(iii) The Company has reserved [18,040,000] shares of Common Stock for issuance under its stock option plan(s), under which options to purchase [14,115,728] shares of Common Stock are outstanding. Except as noted in clause (i) above, there are no other options, warrants, or other rights presently outstanding to purchase or otherwise acquire any authorized but unissued shares of the Company’s capital stock of the Company.
(iv) No stockholder of the Company has preemptive rights to purchase new issuances of the Company’s capital stock, other than pursuant to the Investor Rights Agreement (as defined below) and the Loan Agreement.
(f) Other Commitments to Register Securities. Except as set forth in this Agreement or the Investor Rights Agreement, the Company is not, pursuant to the terms of any other agreement currently in existence, under any obligation to register under the Act any of its presently outstanding securities or any of its securities which may hereafter be issued.
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SECTION 10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
This Agreement has been entered into by the Company in reliance upon the following representations and covenants of the Warrantholder:
(c) Financial Risk. The Warrantholder has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment, and has the ability to bear the economic risks of its investment.
(f) For purposes of the rights contemplated by Section 9(e) of this Agreement, upon exercise of the Warrant, the Warrantholder hereby agrees to be bound by and subject to the terms and provisions of the Investor Rights Agreement as if the Warrantholder was an “Investor” (as defined in the Investor Rights Agreement) party thereto.
(g) Upon exercise of the Warrant, the Warrantholder hereby agrees to be bound by and subject to the terms and provisions of Section 1.8, Section 2 and Section 3 of the Company’s Amended and Restated Voting Agreement, dated November 7, 2017, as amended from time to time (the “Voting Agreement”), as if the Warrantholder were a “Stockholder” (as defined in the Voting Agreement) party thereto.
Subject to compliance with applicable federal and state securities laws, this Agreement and all rights hereunder are transferable, in whole or in part, without charge to the holder hereof (except for transfer taxes) upon surrender of this Agreement properly endorsed; provided, however, that if there is not then any ongoing Event of Default (as defined in the Loan Agreement), then such transfer shall be subject to the prior written consent of the Company; provided further, that notwithstanding the foregoing, any such transfer to an Affiliate (as defined in the Loan Agreement) of the Warrantholder shall be allowed at any time without the
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prior written consent of the Company. Each taker and holder of this Agreement, by taking or holding the same, consents and agrees that this Agreement, when endorsed in blank, shall be deemed negotiable, and that the holder hereof, when this Agreement shall have been so endorsed and its transfer recorded on the Company’s books, shall be treated by the Company and all other persons dealing with this Agreement as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented by this Agreement. The transfer of this Agreement shall be recorded on the books of the Company upon receipt by the Company of a notice of transfer in the form attached hereto as Exhibit III (the “Transfer Notice”), at its principal offices and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer. Until the Company receives such Transfer Notice, the Company may treat the registered owner hereof as the owner for all purposes. The Warrantholder may not transfer this Warrant to a competitor of the Company, as reasonably determined by the Board of Directors.
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If to the Warrantholder:
HERCULES CAPITAL, INC.
Legal Department
Attention: Chief Legal Officer and Xxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Telephone: 000-000-0000
with a copy to (which shall not constitute notice):
XXXXXX & XXXXXXX LLP
Attention: Xxxx Xxxxxxxx
000 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Telephone: 000-000-0000
If to the Company:
TRICIDA, INC.
Attention: Legal Department
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
with a copy to (which shall not constitute notice):
SIDLEY AUSTIN LLP
Attention: Xxxxxxxx X. Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
or to such other address as each party may designate for itself by like notice.
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(m) Governing Law. This Agreement has been negotiated and delivered to Warrantholder in the State of California, and shall have been accepted by the Warrantholder in the State of California. Delivery of Common Stock to the Warrantholder by the Company under this Agreement is due in the State of California. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding conflict of laws principles that would cause the application of laws of any other jurisdiction.
(n) Consent to Jurisdiction and Venue. All judicial proceedings arising in or under or related to this Agreement may be brought in any state or federal court of competent jurisdiction located in the State of California. By execution and delivery of this Agreement, each party hereto generally and unconditionally: (a) consents to nonexclusive personal jurisdiction in San Mateo County, State of California; (b) waives any objection as to jurisdiction or venue in San Mateo County, State of California; (c) agrees not to assert any defense based on lack of jurisdiction or venue in the aforesaid courts; and (d) irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement or the other Loan Documents. Service of process on any party hereto in any action arising out of or relating to this Agreement shall be effective if given in accordance with the requirements for notice set forth in Section 12(g), and shall be deemed effective and received as set forth in Section 12(g). Nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right of either party to bring proceedings in the courts of any other jurisdiction.
(o) Mutual Waiver of Jury Trial/ Judicial Reference.
(i) Because disputes arising in connection with complex financial transactions are most quickly and economically resolved by an experienced and expert Person and the parties wish applicable state and federal laws to apply (rather than arbitration rules), the parties desire that their disputes be resolved by a judge applying such applicable laws. EACH OF THE COMPANY AND THE WARRANTHOLDER SPECIFICALLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, CROSS-CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR ANY OTHER CLAIM (COLLECTIVELY, “CLAIMS”) ASSERTED BY THE COMPANY AGAINST THE WARRANTHOLDER OR ITS ASSIGNEE OR BY THE WARRANTHOLDER OR ITS ASSIGNEE AGAINST THE COMPANY. This waiver extends to all such Claims, including Claims that involve Persons
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other than Company and Warrantholder; Claims that arise out of or are in any way connected to the relationship between the Company and the Warrantholder; and any Claims for damages, breach of contract, tort, specific performance, or any equitable or legal relief of any kind, arising out of this Agreement.
(ii) If the waiver of jury trial set forth in Section 12(o)(i) above is ineffective or unenforceable, the parties agree that all Claims shall be resolved by reference to a private judge sitting without a jury, pursuant to California Code of Civil Procedure Section 638, before a mutually acceptable referee or, if the parties cannot agree, a referee selected by the Presiding Judge of San Mateo County, California. Such proceeding shall be conducted in San Mateo County, California, with California rules of evidence and discovery applicable to such proceeding.
(iii) In the event Claims are to be resolved by judicial reference, either party may seek from a court of competent jurisdiction identified in Section 12(n), any prejudgment order, writ or other relief and have such prejudgment order, writ or other relief enforced to the fullest extent permitted by law notwithstanding that all Claims are otherwise subject to resolution by judicial reference.
[Remainder of Page Intentionally Left Blank]
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COMPANY: | TRICIDA, INC. | |||||
By: |
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Name: |
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Title: |
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WARRANTHOLDER: | HERCULES CAPITAL, INC. | |||||
By: |
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Name: |
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Title: |
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EXHIBIT I
NOTICE OF EXERCISE
To: Tricida, Inc.
(1) | The undersigned Warrantholder hereby elects to purchase [ ] shares of the Common Stock of Tricida, Inc., pursuant to the terms of the Warrant Agreement dated [ ] (the “Agreement”) between Tricida, Inc. and the Warrantholder, and [CASH PAYMENT: tenders herewith payment of the Purchase Price in full, together with all applicable transfer taxes, if any.] [NET ISSUANCE: elects pursuant to Section 3(a) of the Agreement to effect a Net Issuance.] |
(2) | Please issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned or in such other name as is specified below. |
(Name) | ||||||
(Address) | ||||||
WARRANTHOLDER: | HERCULES CAPITAL, INC. | |||||
By: |
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Name: |
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Title: |
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Date: |
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EXHIBIT II
ACKNOWLEDGMENT OF EXERCISE
The undersigned Tricida, Inc., hereby acknowledges receipt of the “Notice of Exercise” from Hercules Capital, Inc., to purchase [ ] shares of the Common Stock of Tricida, Inc., pursuant to the terms of the Warrant Agreement by and between Tricida, Inc. and Hercules Capital, Inc., dated [ ] (the “Agreement”), and further acknowledges that [ ] shares of Common Stock remain subject to purchase under the terms of the Agreement.
COMPANY: | Tricida, Inc. | |||||
By: |
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Title: |
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Date: |
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EXHIBIT III
TRANSFER NOTICE
(To transfer or assign the foregoing Agreement execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Agreement and all rights evidenced thereby are hereby transferred and assigned to
(Please Print)
whose address is |
Dated: | ||
Holder’s Signature: | ||
Holder’s Address: | ||
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Signature Guaranteed:
NOTE: The signature to this Transfer Notice must correspond with the name as it appears on the face of the Agreement, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Agreement.
ANNEX C
EXHIBIT J
FORM OF WARRANT FOR HERCULES TECHNOLOGY III, L.P.
THIS WARRANT, AND THE SECURITIES ISSUABLE UPON THE EXERCISE OF THIS WARRANT, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL (WHICH MAY BE COMPANY COUNSEL) REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT, OR ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT AGREEMENT
To Purchase Shares of Common Stock of
Tricida, Inc.
Dated as of [ ] (the “Effective Date”)
WHEREAS, Tricida, Inc., a Delaware corporation has entered into a Loan and Security Agreement, dated as of February 28, 2018 (the “Loan Agreement”), with Hercules Capital, Inc., a Maryland corporation, in its capacity as administrative and collateral agent, Hercules Technology III, L.P., a Delaware limited partnership (the “Warrantholder”) and the other lender parties thereto;
SECTION 1. GRANT OF THE RIGHT TO PURCHASE COMMON STOCK.
For value received, the Company hereby grants to the Warrantholder, and the Warrantholder is entitled, upon the terms and subject to the conditions hereinafter set forth, to subscribe for and purchase, from the Company, an aggregate number of fully paid and non-assessable shares of Common Stock equal to the quotient derived by dividing (a) the Warrant Coverage (as defined below) by (b) the Exercise Price (as defined below). The Exercise Price of such shares are subject to adjustment as provided in Section 8. As used herein, the following terms shall have the following meanings:
“Act” means the Securities Act of 1933, as amended.
“Charter” means the Company’s Certificate of Incorporation, as may be amended from time to time.
“Common Stock” means the Company’s common stock, $0.001 par value per share.
“Company” means Tricida, Inc., a Delaware corporation.
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“Exercise Price” means the lesser of (a) if the Company achieves the IPO Milestone, the initial price to the public per share of Common Stock specified in the final prospectus filed with the SEC with respect to the Company’s Initial Public Offering, or (b) the Series D Conversion Price. In no event shall the Exercise Price be less than the Floor Price.”
“Floor Price” means $.20/share of Common Stock.
“Initial Public Offering” means the initial underwritten public offering of the Common Stock pursuant to a registration statement under the Act, which registration statement has been declared effective by the Securities and Exchange Commission (“SEC”).
“IPO Milestone” means receipt by the Company, prior to December 15, 2018, of at least One Hundred Million Dollars ($100,000,000.00) in aggregate proceeds (net of underwriting discounts and commissions) from an Initial Public Offering.
“Merger Event” means any sale, lease, exclusive license or other transfer of all or substantially all assets of the Company or any merger or consolidation involving the Company in which the Company is not the surviving entity, or in which the outstanding shares of the Company’s capital stock are otherwise converted into or exchanged for shares of common stock, preferred stock, other securities or property of another entity; other than any such consolidation, merger or reorganization in which the shares of capital stock of the Company immediately prior to such consolidation, merger or reorganization, continue to represent a majority of the voting power of the surviving entity (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or reorganization (provided that, all shares of Common Stock issuable upon exercise of options or warrants outstanding immediately prior to such consolidation or merger or upon conversion of convertible securities outstanding immediately prior to such merger or consolidation shall be deemed to be outstanding immediately prior to such merger or consolidation and, if applicable, converted or exchanged in such merger or consolidation on the same terms as the actual outstanding shares of capital stock are converted or exchanged).
“Preferred Stock” means the Company’s Series D preferred stock, $0.001 par value per share, as presently constituted, and, to the extent provided in Section 8(b), any other stock into or for which such Preferred Stock may be converted or exchanged.
“Purchase Price” means, with respect to any exercise of this Agreement, an amount equal to the Exercise Price as of the relevant time multiplied by the number of shares of Common Stock requested to be exercised under this Agreement pursuant to such exercise.
“Series D Conversion Price” has the meaning set forth in the Charter.
“Warrant Coverage” means [Two Hundred Thousand Dollars ($200,000.00)]1 [0.80% of such amount advanced under Tranche 2, Tranche 3, Tranche 4 or Tranche 5 (as defined and set forth in the Loan Agreement), as applicable to the tranche under which the Agreement was entered into by the parties hereto in connection with the Term Loan Advance (as defined in the Loan Agreement)]2.
SECTION 2. TERM OF THE AGREEMENT.
Except as otherwise provided for herein, the term of this Agreement and the right to purchase Common Stock as granted herein (the “Warrant”) shall commence on the Effective Date and shall be exercisable for a period ending upon the earliest to occur of (i) February 28, 2025; (ii) three (3) years after the Initial Public Offering; and (iii) immediately prior to the closing of a Merger Event (the “Exercise Period”).
1 | Note: Only Tranche 1. |
2 | Note: Warrantholder to complete based off of applicable Tranche. |
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SECTION 3. EXERCISE OF THE PURCHASE RIGHTS.
The Purchase Price may be paid at the Warrantholder’s election either (i) by cash or check, or (ii) by surrender of all or a portion of the Warrant for shares of Common Stock to be exercised under this Agreement and, if applicable, an amended Agreement representing the remaining number of shares purchasable hereunder, as determined below (“Net Issuance”). If the Warrantholder elects the Net Issuance method, the Company will issue shares of Common Stock in accordance with the following formula:
X = Y(A-B)
A
Where: | X = | the number of shares of Common Stock to be issued to the Warrantholder. | ||||
Y = | the number of shares of Common Stock requested to be purchased under this Agreement. | |||||
A = | the fair market value of one (1) share of Common Stock at the time of issuance of such shares of Common Stock. | |||||
B = | the Exercise Price. |
For purposes of the above calculation, current fair market value of Common Stock shall mean with respect to each share of Common Stock:
(i) if the exercise is in connection with an Initial Public Offering, and if the Company’s Registration Statement relating to such Initial Public Offering has been declared effective by the SEC, then the fair market value per share shall be the initial “Price to Public” of the Common Stock specified in the final prospectus with respect to the offering;
(ii) if the exercise is after, and not in connection with an Initial Public Offering, and:
(A) if the Common Stock is traded on a securities exchange, the fair market value shall be deemed to be the average of the closing prices over a five (5) trading day period ending three (3) days before the day the current fair market value of the securities is being determined; or
(B) if the Common Stock is traded over-the-counter, the fair market value shall be deemed to be the average of the closing bid and asked price quoted on the NASDAQ system (or similar system) over the five (5) trading day period ended three (3) days before the day the current fair market value of the securities is being determined;
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(iii) if at any time the Common Stock is not listed on any securities exchange or quoted in the NASDAQ National Market or the over-the-counter market, the current fair market value of Common Stock shall be the highest price per share which the Company could reasonably expect to obtain from a willing buyer (not a current employee or director) for shares of Common Stock sold by the Company, from authorized but unissued shares, as determined in good faith by its Board of Directors (provided that if the Company is then in possession of a recent valuation of the Company’s Common Stock, the Board of Directors may rely on such valuation), unless the Notice of Exercise is delivered in connection with a Merger Event, in which case the fair market value of Common Stock shall be deemed to be the per share value received by the holders of the Company’s Common Stock on a common equivalent basis pursuant to such Merger Event.
Upon partial exercise by either cash or Net Issuance, the Company shall promptly issue an amended Agreement representing the remaining number of shares purchasable hereunder. All other terms and conditions of such amended Agreement shall be identical to those contained herein, including, but not limited to the Effective Date hereof and Exercise Period.
SECTION 4. RESERVATION OF SHARES.
During the term of this Agreement, the Company will at all times have authorized and reserved a sufficient number of shares of its Common Stock to provide for the exercise of the rights to purchase Common Stock as provided for herein.
SECTION 5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Agreement, but in lieu of such fractional shares, the Company shall make a cash payment therefor equal to such fraction multiplied by the then fair market value of one share of Common Stock.
SECTION 6. NO RIGHTS AS STOCKHOLDER.
This Agreement does not entitle the Warrantholder to any voting rights or other rights as a stockholder of the Company prior to the exercise of this Agreement.
SECTION 7. WARRANTHOLDER REGISTRY.
The Company shall maintain a registry showing the name and address of the registered holder of this Agreement. The Warrantholder’s initial address, for purposes of such registry, is set forth below the Warrantholder’s signature on this Agreement. The Warrantholder may change such address by giving written notice of such changed address to the Company.
The Exercise Price and the number of shares of Common Stock purchasable hereunder are subject to adjustment, as follows:
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(i) pay a dividend with respect to the Common Stock payable in Common Stock, then the Exercise Price shall be adjusted, from and after the date of determination of the stockholders entitled to receive such dividend or distribution, to that price determined by multiplying the Exercise Price in effect immediately prior to such date of determination by a fraction (A) the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution, and (B) the denominator of which shall be the total number of shares of Common Stock outstanding immediately after such dividend or distribution; or
(ii) make any other dividend or distribution with respect to Common Stock, except any dividend or distribution specifically provided for in any other clause of this Section 8, then, in each such case, provision shall be made by the Company such that the Warrantholder shall receive upon exercise or conversion of this Warrant a proportionate share of any such dividend or distribution as though it were the holder of the Common Stock as of the record date fixed for the determination of the stockholders of the Company entitled to receive such dividend or distribution.
(e) [Intentionally omitted].
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Each such written notice shall be given in accordance with Section 12(g) below and shall set forth, in reasonable detail, (i) the event requiring the notice, and (ii) if any adjustment is required to be made pursuant to this Section 8, (A) the amount of such adjustment, (B) the method by which such adjustment was calculated, (C) the adjusted Exercise Price (if the Exercise Price has been adjusted), and (D) the number of shares subject to purchase hereunder after giving effect to such adjustment.
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
(a) Reservation of Common Stock. The Common Stock issuable upon exercise of this Agreement has been duly and validly reserved and, when issued in accordance with the provisions of this Agreement, will be validly issued, fully paid and non-assessable, and will be free of any taxes, liens, charges or encumbrances created by the Company; provided, that the Common Stock issuable pursuant to this Agreement may be subject to restrictions on transfer under state and/or federal securities laws. The Company has made available to the Warrantholder true, correct and complete copies of its Charter and current bylaws as of the Effective Date. The issuance of certificates for shares of Common Stock upon exercise of this Agreement shall be made without charge to the Warrantholder for any issuance tax in respect thereof, or other cost incurred by the Company in connection with such exercise and the related issuance of shares of Common Stock; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer and the issuance and delivery of any certificate in a name other than that of the Warrantholder.
(i) The authorized capital of the Company consists of (A) [134,000,000] shares of Common Stock, of which [9,152,544] shares are issued and outstanding; (B) [11,398,694] shares of Series A preferred stock, $0.001 par value per share, of which [11,302,758] shares are issued and outstanding and are convertible into an aggregate of [11,302,758] shares of Common Stock at [$0.886] per share; (C) [32,526,878] shares of
3 | Note: To be updated with each warrant issuance. |
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Series B preferred stock, $0.001 par value per share, of which [32,526,878] shares are issued and outstanding and are convertible into an aggregate of [32,526,878] shares of Common Stock at [$0.93] per share; (D) [35,806,451] shares of Series C preferred stock, $0.001 par value per share, of which [35,806,451] shares are issued and outstanding and are convertible into an aggregate of [35,806,451] shares of Common Stock at [$1.55] per share; and (E) [24,500,000] shares of Series D preferred stock, $0.001 par value per share, of which [24,493,615] shares are issued and outstanding and are convertible into an aggregate of [24,493,615] shares of Common Stock at [$2.35] per share.
(ii) The Company issued a warrant dated August 9, 2013 exercisable for 95,936 shares of Series A preferred stock.
(iii) The Company has reserved [18,040,000] shares of Common Stock for issuance under its stock option plan(s), under which options to purchase [14,115,728] shares of Common Stock are outstanding. Except as noted in clause (i) above, there are no other options, warrants, or other rights presently outstanding to purchase or otherwise acquire any authorized but unissued shares of the Company’s capital stock of the Company.
(iv) No stockholder of the Company has preemptive rights to purchase new issuances of the Company’s capital stock, other than pursuant to the Investor Rights Agreement (as defined below) and the Loan Agreement.
(f) Other Commitments to Register Securities. Except as set forth in this Agreement or the Investor Rights Agreement, the Company is not, pursuant to the terms of any other agreement currently in existence, under any obligation to register under the Act any of its presently outstanding securities or any of its securities which may hereafter be issued.
(g) Exempt Transaction. Subject to the accuracy of the Warrantholder’s representations in Section 10, the issuance of the Common Stock upon exercise of this Agreement will constitute a transaction exempt from (i) the registration requirements of Section 5 of the Act, in reliance upon Section 4(2) thereof, and (ii) the qualification requirements of the applicable state securities laws.
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SECTION 10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
This Agreement has been entered into by the Company in reliance upon the following representations and covenants of the Warrantholder:
(e) Accredited Investor. The Warrantholder is an “accredited investor” within the meaning of the Securities and Exchange Rule 501 of Regulation D, as presently in effect.
(f) For purposes of the rights contemplated by Section 9(e) of this Agreement, upon exercise of the Warrant, the Warrantholder hereby agrees to be bound by and subject to the terms and provisions of the Investor Rights Agreement as if the Warrantholder was an “Investor” (as defined in the Investor Rights Agreement) party thereto.
(g) Upon exercise of the Warrant, the Warrantholder hereby agrees to be bound by and subject to the terms and provisions of Section 1.8, Section 2 and Section 3 of the Company’s Amended and Restated Voting Agreement, dated November 7, 2017, as amended from time to time (the “Voting Agreement”), as if the Warrantholder were a “Stockholder” (as defined in the Voting Agreement) party thereto.
Subject to compliance with applicable federal and state securities laws, this Agreement and all rights hereunder are transferable, in whole or in part, without charge to the holder hereof (except for transfer taxes) upon surrender of this Agreement properly endorsed; provided, however, that if there is not then any ongoing Event of Default (as defined in the Loan Agreement), then such transfer shall be subject to the prior written consent of the Company; provided further, that notwithstanding the foregoing, any such transfer to an Affiliate (as defined in the Loan Agreement) of the Warrantholder shall be allowed at any time without the
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prior written consent of the Company. Each taker and holder of this Agreement, by taking or holding the same, consents and agrees that this Agreement, when endorsed in blank, shall be deemed negotiable, and that the holder hereof, when this Agreement shall have been so endorsed and its transfer recorded on the Company’s books, shall be treated by the Company and all other persons dealing with this Agreement as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented by this Agreement. The transfer of this Agreement shall be recorded on the books of the Company upon receipt by the Company of a notice of transfer in the form attached hereto as Exhibit III (the “Transfer Notice”), at its principal offices and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer. Until the Company receives such Transfer Notice, the Company may treat the registered owner hereof as the owner for all purposes. The Warrantholder may not transfer this Warrant to a competitor of the Company, as reasonably determined by the Board of Directors.
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If to the Warrantholder:
HERCULES TECHNOLOGY III, L.P.
Legal Department
Attention: Chief Legal Officer and Xxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Telephone: 000-000-0000
with a copy to (which shall not constitute notice):
XXXXXX & XXXXXXX LLP
Attention: Xxxx Xxxxxxxx
000 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Telephone: 000-000-0000
If to the Company:
TRICIDA, INC.
Attention: Legal Department
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
with a copy to (which shall not constitute notice):
SIDLEY AUSTIN LLP
Attention: Xxxxxxxx X. Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
or to such other address as each party may designate for itself by like notice.
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(o) Mutual Waiver of Jury Trial/ Judicial Reference.
(i) Because disputes arising in connection with complex financial transactions are most quickly and economically resolved by an experienced and expert Person and the parties wish applicable state and federal laws to apply (rather than arbitration rules), the parties desire that their disputes be resolved by a judge applying such applicable laws. EACH OF THE COMPANY AND THE WARRANTHOLDER SPECIFICALLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, CROSS-CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR ANY OTHER CLAIM (COLLECTIVELY, “CLAIMS”) ASSERTED BY THE COMPANY AGAINST THE WARRANTHOLDER OR ITS ASSIGNEE OR BY THE WARRANTHOLDER OR ITS ASSIGNEE AGAINST THE COMPANY. This waiver extends to all such Claims, including Claims that involve Persons
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other than Company and Warrantholder; Claims that arise out of or are in any way connected to the relationship between the Company and the Warrantholder; and any Claims for damages, breach of contract, tort, specific performance, or any equitable or legal relief of any kind, arising out of this Agreement.
(ii) If the waiver of jury trial set forth in Section 12(o)(i) above is ineffective or unenforceable, the parties agree that all Claims shall be resolved by reference to a private judge sitting without a jury, pursuant to California Code of Civil Procedure Section 638, before a mutually acceptable referee or, if the parties cannot agree, a referee selected by the Presiding Judge of San Mateo County, California. Such proceeding shall be conducted in San Mateo County, California, with California rules of evidence and discovery applicable to such proceeding.
(iii) In the event Claims are to be resolved by judicial reference, either party may seek from a court of competent jurisdiction identified in Section 12(n), any prejudgment order, writ or other relief and have such prejudgment order, writ or other relief enforced to the fullest extent permitted by law notwithstanding that all Claims are otherwise subject to resolution by judicial reference.
[Remainder of Page Intentionally Left Blank]
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COMPANY: | TRICIDA, INC. | |||||
By: |
| |||||
Name: |
| |||||
Title: |
| |||||
WARRANTHOLDER: | HERCULES TECHNOLOGY III, L.P., | |||||
a Delaware limited partnership | ||||||
By: Hercules Technology SBIC Management, LLC, its General Partner | ||||||
By: Hercules Capital, Inc., its Manager | ||||||
By: |
| |||||
Name: |
| |||||
Title: |
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EXHIBIT I
NOTICE OF EXERCISE
To: Tricida, Inc.
(1) | The undersigned Warrantholder hereby elects to purchase [ ] shares of the Common Stock of Tricida, Inc., pursuant to the terms of the Warrant Agreement dated [ ] (the “Agreement”) between Tricida, Inc. and the Warrantholder, and [CASH PAYMENT: tenders herewith payment of the Purchase Price in full, together with all applicable transfer taxes, if any.] [NET ISSUANCE: elects pursuant to Section 3(a) of the Agreement to effect a Net Issuance.] |
(2) | Please issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned or in such other name as is specified below. |
(Name) | ||||
(Address) | ||||
WARRANTHOLDER: | HERCULES TECHNOLOGY III, L.P., a Delaware limited partnership | |||
By: Hercules Technology SBIC Management, LLC, its General Partner | ||||
By: Hercules Capital, Inc., its Manager | ||||
By: |
| |||
Name: |
| |||
Title: |
| |||
Date: |
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EXHIBIT II
ACKNOWLEDGMENT OF EXERCISE
The undersigned Tricida, Inc., hereby acknowledge receipt of the “Notice of Exercise” from Hercules Technology III, L.P., to purchase [ ] shares of the Common Stock of Tricida, Inc., pursuant to the terms of the Warrant Agreement by and between Tricida, Inc. and Hercules Technology III, L.P., dated [ ] (the “Agreement”), and further acknowledges that [ ] shares of Common Stock remain subject to purchase under the terms of the Agreement.
COMPANY: | Tricida, Inc. | |||||
By: |
| |||||
Title: |
| |||||
Date: |
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EXHIBIT III
TRANSFER NOTICE
(To transfer or assign the foregoing Agreement execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Agreement and all rights evidenced thereby are hereby transferred and assigned to
____________________________________________________________________________________________
(Please Print)
whose address is
|
____________________________________________________________________________
Dated: | ||
Holder’s Signature: | ||
Holder’s Address: | ||
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Signature Guaranteed:
NOTE: The signature to this Transfer Notice must correspond with the name as it appears on the face of the Agreement, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Agreement.