Exhibit 4.8
THIS WARRANT, AND THE SECURITIES ISSUABLE HEREUNDER, HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE "ACT') OR THE APPLICABLE
SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED
UNLESS REGISTERED UNDER THE ACT AND UNDER APPLICABLE STATE SECURITIES LAWS, OR
UNLESS AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, IS
OBTAINED TO THE EFFECT THAT SUCH SALE, TRANSFER, OR ASSIGNMENT IS EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH STATE SECURITIES LAWS.
WARRANT TO PURCHASE 3,452 SHARES OF COMMON STOCK
April 4, 2002
THIS CERTIFIES THAT, for value received, OXFORD FINANCE CORPORATION, ("Holder")
is entitled to subscribe for and purchase Three Thousand Four Hundred Fifty Two
(3,452) shares of the fully paid and nonassessable Common Stock ("the Shares")
of ALTUS BIOLOGICS. INC., a Massachusetts corporation (the "Company"), at the
Warrant Price (as hereinafter defined), subject to the provisions and upon the
terms and conditions hereinafter set forth. As used herein, the term "Common
Stock" shall mean the Company's presently authorized Common Stock, and any stock
into which such Common Stock may hereafter be exchanged.
1. Warrant Price. The Warrant Price shall initially be four and 0.2747100
dollars ($4.27471001) per share, subject to adjustment as provided in Section 7
below.
2. Conditions to Exercise. The purchase right represented by this Warrant may be
exercised at any time, or from time to time, in whole or in part during the term
commencing on the date hereof and ending on the earlier of:
(a) 5:00 P.M. Eastern Standard time on the fifth annual anniversary of
this Warrant Agreement; or
(b) The closing of the initial public offering of the Company's Common
Stock pursuant to a registration statement under the Securities Act of
1933, as amended (the "Initial Public Offering"). The Company shall
provide notice of the Initial Public Offering to the Holder at least
30 days prior to the closing thereof; or
(c) The effective date of the merger of the Company with or into, the
consolidation of the Company with, or the sale by the Company of all
or substantially all of its assets or all or substantially all of its
shares to another corporation or other entity (other than such a
transaction wherein the shareholders of the Company retain or obtain a
majority of the voting capital stock of the surviving, resulting, or
purchasing corporation); provided that the Company shall notify the
registered Holder of this Warrant of the proposed effective date of
the merger, consolidation, or sale at least 30 days prior to the
effectiveness thereof.
In the event that, although the Company shall have given notice of a transaction
pursuant to subparagraph (b) or subparagraph (c) hereof, the transaction does
not close within 120 days of
the day specified by the Company, unless otherwise elected by the Holder any
exercise of the Warrant subsequent to the giving of such notice shall be
rescinded and the Warrant shall again be exercisable until terminated in
accordance with this Paragraph 2.
3. Method of Exercise: Payment: Issuance of Shares: Issuance of New Warrant.
(a) Cash Exercise. Subject to Section 2 hereof, the purchase right
represented by this Warrant may be exercised by the Holder hereof, in
whole or in part, by the surrender of this Warrant (with a duly
executed Notice of Exercise in the form attached hereto) at the
principal office of the Company (as set forth in Section 18 below) and
by payment to the Company, by check, of an amount equal to the then
applicable Warrant Price per share multiplied by the number of shares
then being purchased. In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of stock so
purchased shall be in the name of, and delivered to, the Holder
hereof, or as such Holder may direct (subject to the terms of transfer
contained herein and upon payment by such Holder hereof of any
applicable transfer taxes). Such delivery shall be made within 10 days
after exercise of the Warrant and at the Company's expense and, unless
this Warrant has been fully exercised or expired, a new Warrant having
terms and conditions substantially identical to this Warrant and
representing the portion of the Shares, if any, with respect to which
this Warrant shall not have been exercised, shall also be issued to
the Holder hereof within 10 days after exercise of the Warrant.
(b) Net Issue Exercise. In lieu of exercising this Warrant pursuant to
Section 3(a), Holder may elect to receive shares equal to the value of
this Warrant (or of any portion thereof remaining unexercised) by
surrender of this Warrant at the principal office of the Company
together with notice of such election, in which event the Company
shall issue to Holder the number of shares of the Company's Common
Stock computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock to be issued to
Holder.
Y = the number of shares of Common Stock purchasable under this
Warrant (at the date of such calculation).
A = the Fair Market Value of one share of the Company's Common
Stock (at the date of such calculation).
B = Warrant Price (as adjusted to the date of such calculation).
(c) Fair Market Value. For purposes of this Section 3, Fair Market Value
of one share of the Company's Common Stock shall mean:
(i) In the event of an exercise in connection with an Initial Public
Offering, the per share Fair Market Value for the Common Stock
shall be the
Offering Price at which the underwriters initially sell Common
Stock to the public; or
(ii) The average of the closing bid and asked prices of the Common
Stock quoted in the Over-The-Counter Market Summary, or the
average of, the last reported sale price of the Common Stock or
the closing price quoted on the Nasdaq National Market System
("NMS") or on any exchange on which the Common Stock is listed,
whichever is applicable, as published in The Wall Street Journal
over the ten (10) trading days prior to the date of determination
of fair market value; or
(iii) In the event of an exercise in connection with a merger,
acquisition or other consolidation in which the Company is not
the surviving entity, as described in Section 2(c), the per share
Fair Market Value for the Common Stock shall be the value to be
received per share of Common Stock by all holders of the Common
Stock in such transaction as determined by the Board of
Directors; or
(iv) If the Common Stock is not publicly traded, the per share fair
market value of the Common Stock shall be as determined in good
faith by the Company's Board of Directors unless Holder elects to
have such fair market value determined by an appraiser, which
election must be made by Holder within ten (10) business days of
the date the Company notifies Holder of the fair market value as
determined by its Board of Directors. In the event of such an
appraisal, the cost thereof shall be borne by the Holder unless
such appraisal results in a fair market value in excess of 115%
of that determined by the Company's Board of Directors, in which
event the Company shall bear the cost of such appraisal.
In the event of 3(c)(iii) or 3(c)(iv), above, the Company's Board of
Directors shall prepare a certificate, to be signed by an authorized
Officer of the Company, setting forth in reasonable detail the basis for
and method of determination of the per share Fair Market Value of the
Common Stock. The Board will also certify to the Holder that this per share
Fair Market Value will be applicable to all holders of the Company's Common
Stock. Such certification must be made to Holder at least thirty (30)
business days prior to the proposed effective date of the merger,
consolidation, sale, or other triggering event as defined in 3(c)(iii) and
3(c)(iv).
(d) Automatic Exercise. To the extent this Warrant is not previously
exercised, it shall be automatically exercised in accordance with
Sections 3(b) and 3(c) hereof immediately before: (i) its expiration,
or (ii) the consummation of any consolidation or merger of the
Company, or any sale or transfer of a majority of the Company's assets
or stock pursuant to Section 2(b).
4. Representations and Warranties of Holder and Restrictions on Transfer Imposed
by the Securities Act of 1933.
(a) Representations and Warranties by Holder. The Holder represents and
warrants to the Company with respect to this purchase as follows:
(i) The Holder has substantial experience in evaluating and investing
in private placement transactions of securities of companies
similar to the Company so that the Holder is capable of
evaluating the merits and risks of its investment in the Company
and has the capacity to protect its interests.
(ii) The Holder is acquiring the Warrant and the Shares of Common
Stock issuable upon exercise of the Warrant (collectively the
"Securities") for investment for its own account and not with a
view to, or for resale in connection with, any distribution
thereof. The Holder understands that the Securities have not been
registered under the Securities Act of 1933, as amended (the
"Act") by reason of a specific exemption from the registration
provisions of the Act which depends upon, among other things, the
bona fide nature of the investment intent as expressed herein. In
this connection, the Holder understands that, in the view of the
Securities and Exchange Commission (the "SEC"), the statutory
basis for such exemption may be unavailable if this
representation was predicated solely upon a present intention to
hold the Securities for the minimum capital gains period
specified under tax statutes, for a deferred sale, for or until
an increase or decrease in the market price of the Securities or
for a period of one year or any other fixed period in the future.
(iii) The Holder acknowledges that the Securities must be held
indefinitely unless subsequently registered under the Act or an
exemption from such registration is available. The Holder is
aware of the provisions of Rule 144 promulgated under the Act
("Rule 144") which permits limited resale of securities purchased
in a private placement subject to the satisfaction of certain
conditions, including, in case the securities have been held for
more than one but less than two years, the existence of a public
market for the shares, the availability of certain public
information about the Company, the resale occurring not less than
one years after a party has purchased and paid for the security
to be sold, the sale being through a "broker's transaction" or in
a transaction directly with a "market maker" (as provided by Rule
144(f)) and the number of shares or other securities being sold
during any three-month period not exceeding specified
limitations.
(iv) The Holder further understands that at the time the Holder wishes
to sell the Securities there may be no public market upon which
such a sale may be effected, and that even if such a public
market exists, the Company may not be satisfying the current
public information requirements of Rule 144, and that in such
event, the Holder may be precluded from selling the Securities
under Rule 144 unless a) a one-year minimum holding period has
been satisfied and b) the Holder was not at the time of the sale
nor at
any time during the three-month period prior to such sale an
affiliate of the Company.
(v) The Holder has had an opportunity to discuss the Company's
business, management and financial affairs with its management
and an opportunity to review the Company's facilities. The Holder
understands that such discussions, as well as the written
information issued by the Company, were intended to describe the
aspects of the Company's business and prospects which it believes
to be material but were not necessarily a thorough or exhaustive
description.
(b) Legends. Each certificate representing the Securities shall be
endorsed with the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, (THE "ACT") OR THE APPLICABLE SECURITIES LAWS OF ANY
STATE, AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED UNLESS REGISTERED
UNDER THE ACT AND UNDER APPLICABLE STATE SECURITIES LAWS, OR UNLESS AN
OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, IS
OBTAINED TO THE EFFECT THAT SUCH SALE, TRANSFER, OR ASSIGNMENT IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH STATE
SECURITIES LAWS
The Company need not enter into its stock register a transfer of
Securities. unless the conditions specified in the foregoing legend are
satisfied. The Company may also instruct its transfer agent not to register
the transfer of any of the Shares unless the conditions specified in the
foregoing legend are satisfied.
(c) Removal of Legend and Transfer Restrictions. The legend relating to
the Act endorsed on a certificate pursuant to paragraph 4(b) of this
Warrant and the stop transfer instructions with respect to the
Securities represented by such certificate shall be removed and the
Company shall issue a certificate without such legend to the Holder of
the Securities if, in the opinion of the Company's counsel, the public
sale, transfer or assignment of the Securities may be made without
registration and without compliance with any restriction such as Rule
144.
5. Condition of Transfer or Exercise of Warrant. It shall be a condition to any
transfer or exercise of this Warrant that at the time of such transfer or
exercise, the Holder shall provide the Company with a representation in writing
that the Holder or transferee is acquiring this Warrant and the shares of Common
Stock to be issued upon exercise, for investment purposes only and not with a
view to any sale or distribution, and will provide the Company with a statement
of pertinent facts covering any proposed distribution. As a further condition to
any transfer of this Warrant or any or all of the shares of Common Stock
issuable upon exercise of this Warrant, other than a transfer registered under
the Act, the Company must have received a legal opinion, in form and substance
satisfactory to the Company and its counsel, reciting the pertinent
circumstances surrounding the proposed transfer and stating that such transfer
is exempt from the
registration and prospectus delivery requirements of the Act and applicable
state securities laws. Each certificate evidencing the shares issued upon
exercise of the Warrant or upon any transfer of the shares (other than a
transfer registered under the Act or any subsequent transfer of shares so
registered) shall, at the Company's option, contain a legend in form and
substance satisfactory to the Company and its counsel, restricting the transfer
of the shares to sales or other dispositions exempt from the requirements of the
Act and applicable state securities laws.
As further condition to each transfer, the Holder shall surrender this Warrant
to the Company and the transferee shall receive and accept a Warrant, of like
tenor and date, executed by the Company.
6. Stock Fully Paid: Reservation of Shares. All Shares, which may be issued upon
the exercise of the rights represented by this Warrant, will, upon issuance, be
fully paid and nonassessable, and free from all taxes, liens, and charges with
respect to the issue thereof. During the period within which the rights
represented by this Warrant may be exercised, the Company will at all times have
authorized, and reserved for issuance upon exercise of the purchase rights
evidenced by this Warrant, a sufficient number of shares of its Common Stock to
provide for the exercise of the rights represented by this Warrant.
7. Adjustment for Certain Events. In the event of changes in the outstanding
Common Stock by reason of stock dividends, split-ups, recapitalizations,
reclassifications, mergers, consolidations, combinations or exchanges of shares,
separations, reorganizations, liquidations, or the like, the number and class of
shares available under the Warrant in the aggregate and the Warrant Price shall
be correspondingly adjusted, as appropriate, by the Board of Directors of the
Company. The adjustment shall be such as will give the Holder of this Warrant
upon exercise for the same aggregate Warrant Price the total number, class and
kind of shares as he would have owned had the Warrant been exercised prior to
the event and had he continued to hold such shares until after the event
requiring adjustment.
8. Notice of Adjustments. Whenever any Warrant Price shall be adjusted pursuant
to Section 7 hereof, the Company shall prepare a certificate signed by an
officer of the Company's chief financial officer setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated, and the Warrant Price and number
of shares issuable upon exercise of the Warrant after giving effect to such
adjustment, and shall cause copies of such certificate to be mailed (by
certified or registered mail, return receipt required, postage prepaid) within
thirty (30) days of such adjustment to the Holder of this Warrant as set forth
in Section 18 hereof.
9. Market Stand-Off Agreement. Holder hereby agrees that for a period of up to
180 days following the effective date of the first registration statement of the
Company covering common stock (and/or other securities) to be sold on its behalf
of the Company in an underwritten public offering, it will not, to the extent
requested by the Company and any underwriter, sell or otherwise transfer or
dispose of (other than to donees who agree to be similarly bound) any of the
Shares at any time during such period except common stock included. in such
registration.
10. Transferability of Warrant. This Warrant is transferable on the books of the
Company at its principal office by the registered Holder hereof upon surrender
of this Warrant properly
endorsed, subject to compliance with Section 5 and applicable federal and state
securities laws. The Company shall issue and deliver to the transferee a new
Warrant representing the Warrant so transferred. Upon any partial transfer, the
Company will issue and deliver to Holder a new Warrant with respect to the
Warrant not so transferred. Holder shall not have any right to transfer any
portion of this Warrant to any direct competitor of the Company.
11. No Fractional Shares. No fractional share of Common Stock will be issued in
connection with any exercise hereunder, but in lieu of such fractional share the
Company shall make a cash payment therefor upon the basis of the Warrant Price
then in effect.
12. Charges, Taxes and Expenses. Issuance of certificates for shares of Common
Stock upon the exercise of this Warrant shall be made without charge to the
Holder for any Federal or state documentary stamp tax or other incidental
expense within respect to the issuance of such certificate, which taxes and
expenses shall be paid by the Company, and such certificates shall be issued in
the name of the Holder.
13. No Shareholder Rights Until Exercise. This Warrant does not entitle the
Holder hereof to any voting rights or other rights as a shareholder of the
Company prior to the exercise hereof.
14. Registry of Warrant. The Company shall maintain a registry showing the name
and address of the registered Holder of this Warrant. This Warrant may be
surrendered for exchange or exercise, in accordance with its terms, at such
office or agency of the Company, and the Company and Holder shall be entitled to
rely in all respects, prior to written notice to the contrary, upon such
registry.
15. Loss, Theft. Destruction or Mutilation of Warrant. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft, or
destruction, of indemnity reasonably satisfactory to it, and, if mutilated, upon
surrender and cancellation of this Warrant, the Company will execute and deliver
a new Warrant, having terms and conditions substantially identical to this
Warrant, in lieu hereof
16. Miscellaneous.
(a) Issue Date. The provisions of this Warrant shall be construed and
shall be given effect in all respect as if it had been issued and
delivered by the Company on the date hereof.
(b) Successors. This Warrant shall be binding upon any successors or
assigns of the Company.
(c) Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of Massachusetts.
(d) Headings. The headings used in this Warrant are used for convenience
only and are not to be considered in construing or interpreting this
Warrant.
(e) Saturdays, Sundays, Holidays. If the last or appointed day for the
taking of any action or the expiration of any right required or
granted herein shall be a Saturday or a Sunday or shall be a legal
holiday in the State of Massachusetts, then such action may be taken
or such right may be exercised on the next succeeding day not a legal
holiday.
17. No Impairment. The Company will not, by amendment of its Articles of
Incorporation 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 action as may be necessary or appropriate in order to protect
the rights of the Holder hereof against impairment.
18. Addresses. Any notice required or permitted hereunder shall be in writing
and shall be mailed by overnight courier, registered or certified mail, return
receipt required, and postage pre-paid, or otherwise delivered by hand or by
messenger, addressed as set forth below, or at such other address as the Company
or the Holder hereof shall have furnished to the other party.
If to the Company: Altus Biologics, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxxx, President & CEO
If to the Holder: Oxford Finance Corporation 000 X. Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: J. Xxxxx Xxxxxxxxx, President
N WITNESS WHEREOF, ALTUS BIOLOGICS, INC. has caused this Warrant to be executed
by its officers thereunto duly authorized.
Dated as of April 4 2002.
By: /s Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: President & CEO
