EXHIBIT 4.2
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY
NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
THEREOF UNDER SUCH ACT AND LAWS OR, SUBJECT TO SECTION 5.3 HEREOF, AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE STOCK
Issuer: Momenta Pharmaceuticals, Inc., a Delaware corporation f/k/a Mimeon, Inc.
Number of Shares: 12,500, subject to adjustment
Class of Stock: Series A Double Prime Convertible Preferred Stock, $0.01 par
value per share
Exercise Price: $2.87, subject to adjustment
Issue Date: December 27, 2002
Expiration Date: December 27, 2012
FOR THE AGREED UPON VALUE of $1.00, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
this Warrant is issued to SILICON VALLEY BANK (together with its successors and
permitted assigns, "Holder") by Momenta Pharmaceuticals, Inc., a Delaware
corporation f/k/a Mimeon, Inc. (the "Company").
Subject to the terms and conditions hereinafter set forth, the Holder is
entitled upon surrender of this Warrant and a duly executed Notice of Exercise
in substantially the form attached hereto as APPENDIX 1 (the "Notice of
Exercise"), at the principal office of the Company, 00 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 or such other office as the Company shall notify
the Holder of in writing, to purchase from the Company up to Twelve Thousand
Five Hundred (12,500) fully paid and non-assessable shares (the "Shares") of the
Company's Series A Double Prime Convertible Preferred Stock, $0.01 par value per
share (the "Class"), at a purchase price per Share of Two Dollars Eighty-seven
Cents ($2.87) (the "Exercise Price"). This Warrant maybe exercised in whole or
in part at any time and from time to time until 5:00 PM, Eastern time, on the
Expiration Date set forth above, and shall be void thereafter. Until such time
as this Warrant is exercised in full or expires, the Exercise Price and the
number of Shares are subject to adjustment from time to time as hereinafter
provided.
Notwithstanding the foregoing definition of Class, upon and after the
automatic or voluntary conversion, redemption or retirement of all (but not less
than all) of the outstanding shares of such Class, including without limitation
in connection with the Company's initial registered underwritten public offering
and sale of its securities ("IPO"), then from and after the date upon which all
such outstanding shares have been so converted, redeemed or retired, "Class"
shall mean the Company's common stock, $0.0001 par value per share ("Common
Stock"), and this Warrant shall be exercisable for such number of shares of
Common Stock as shall equal the number of shares of Common Stock into which the
Shares would have been converted pursuant to the Company's Certificate of
Incorporation, as amended, including without limitation the Certificate of
Designation, if any, applicable to the same class or series of
preferred stock as the Shares (the "Certificate") had the Shares been issued and
outstanding immediately prior to such conversion, redemption or retirement, and
the Exercise Price shall be the Common Stock conversion price as determined
pursuant to the Certificate immediately prior to such conversion, redemption or
retirement (all subject to further adjustment as provided herein).
ARTICLE 1. EXERCISE.
1.1 METHOD OF EXERCISE. Holder may exercise this Warrant by
delivering this Warrant together with a duly executed Notice of Exercise to the
principal office of the Company. Unless Holder is exercising the conversion
right set forth in Section 1.2, Holder shall also deliver to the Company a check
for the aggregate Exercise Price for the Shares being purchased.
1.2 CASHLESS EXERCISE CONVERSION RIGHT. In lieu of exercising this
Warrant as specified in Section 1.1, Holder may from time to time convert this
Warrant, in whole or in part, into a whole number of Shares determined as
follows:
X = Y (A-B)/A
where:
X = the number of Shares to be issued to the Holder.
Y = the number of Shares with respect to which this
Warrant is being exercised (which shall include both the
number of Shares issued to Holder and the number of
Shares subject to the portion of the Warrant being
cancelled in payment of the aggregate Exercise Price).
A = the Fair Market Value (as determined pursuant to
Section 1.3 below) of one Share.
B = the Exercise Price then in effect.
1.3 FAIR MARKET VALUE.
1.3.1 If shares of the Class (or shares of the Company's
stock into which shares of the Class are convertible or exchangeable) are traded
on a nationally recognized securities exchange or over the counter market, the
fair market value of a Share shall be the closing price of a share of the Class
(or the closing price of a share of the Company's stock for which shares of the
Class are convertible or exchangeable, multiplied by the number of shares of
such stock into which one share of the Class is convertible or exchangeable)
reported for the business day immediately preceding the date of Holder's Notice
of Exercise to the Company.
1.3.2 If shares of the Class (or shares of the Company's
stock into which shares of the Class are convertible or exchangeable) are not
traded on a nationally recognized securities exchange or over the counter
market, the Board of Directors of the Company shall determine fair market value
in its reasonable good faith judgment.
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1.4 DELIVERY OF CERTIFICATE AND NEW WARRANT. Promptly after Holder
exercises or converts this Warrant, the Company at its sole expense shall
promptly deliver to Holder (i) certificates for the Shares acquired upon such
exercise, and (ii) if this Warrant has not been fully exercised or converted and
has not expired, a new warrant of like tenor representing the Shares for which
this Warrant is still exercisable.
1.5 REPLACEMENT OF WARRANTS. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor representing the Shares for which this Warrant is
still exercisable.
1.6 ASSUMPTION ON SALE, MERGER, OR CONSOLIDATION OF THE COMPANY.
1.6.1. "ACQUISITION". For the purpose of this Warrant,
"Acquisition" means any sale, assignment, transfer or other disposition of all
or substantially all of the assets of the Company, or any acquisition,
reorganization, consolidation, or merger of the Company where the holders of the
Company's outstanding voting equity securities immediately prior to the
transaction beneficially own less than a majority of the outstanding voting
equity securities of the surviving or successor entity immediately following the
transaction.
1.6.2. ASSUMPTION OF WARRANT. Upon the closing of any
Acquisition (other than an Acquisition in which the consideration received by
the Company's stockholders consists solely of cash), and as a condition
precedent thereto, the successor or surviving entity shall assume the
obligations of this Warrant, and this Warrant shall be exercisable for the same
securities and property as would be payable for the Shares issuable upon
exercise of the unexercised portion of this Warrant as if such Shares were
outstanding on the record date for the Acquisition and subsequent closing.
Following any such assumption of this Warrant upon an Acquisition, the number
and class of securities for which this Warrant is exercisable, and the Exercise
Price therefor, shall continue to be subject to adjustment from time to time in
accordance with the provisions hereof.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 STOCK DIVIDENDS, SPLITS, ETC. If the Company declares or pays
a dividend on the outstanding shares of the Class, payable in shares of the
Class, Common Stock or other securities, or subdivides the outstanding shares of
the Class into a greater number of shares of the Class, or subdivides the shares
of the Class in a transaction that increases the amount of Common Stock into
which such shares are convertible, then upon exercise of this Warrant, for each
Share acquired, Holder shall receive, without additional cost to Holder, the
total number and kind of securities to which Holder would have been entitled had
Holder owned the Shares of record as of the date the dividend or subdivision
occurred.
2.2 RECLASSIFICATION, EXCHANGE OR SUBSTITUTION. Upon any
reclassification, exchange, substitution, reorganization or other event that
results in a change of the number and/or class of the securities issuable upon
exercise or conversion of this Warrant, Holder shall
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be entitled to receive, upon exercise or conversion of this Warrant, the number
and kind of securities and property that Holder would have received for the
Shares if this Warrant had been exercised immediately before such
reclassification, exchange, substitution, reorganization or other event. The
Company or its successor shall promptly issue to Holder a new warrant of like
tenor for such new securities or other property representing the shares or other
securities for which this Warrant is still exercisbale. The new warrant shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 2 including, without
limitation, adjustments to the Exercise Price and to the number of securities or
property issuable upon exercise of the new warrant. The provisions of this
Section 2.2 shall similarly apply to successive reclassifications, exchanges,
substitutions, reorganizations or other like events.
2.3 ADJUSTMENTS FOR COMBINATIONS, ETC. If the outstanding shares
of the Class are combined or consolidated, by reclassification or otherwise,
into a lesser number of shares, the Exercise Price shall be proportionately
increased and the number of Shares issuable upon exercise or conversion of this
Warrant shall be proportionately decreased.
2.4 NO IMPAIRMENT. The Company shall not, by amendment of the
Certificate or its by-laws or through a 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 to be observed or performed under this Warrant by the Company, but
shall at all times in good faith assist in carrying out of all the provisions of
this Article 2 and in taking all such action as may be necessary or appropriate
to protect Holder's rights under this Article against impairment.
2.5 ADJUSTMENTS FOR DILUTIVE ISSUANCES. The number of shares of
Common Stock for which the Shares are convertible shall be adjusted from time to
time in accordance with Section 3.3 of Article Fourth of the Certificate as if
the Shares were issued and outstanding on and as of the date of any such
required adjustment after the date hereof.
2.6 FRACTIONAL SHARES. No fractional Shares shall be issuable upon
exercise or conversion of the Warrant and the number of Shares to be issued
shall be rounded down to the nearest whole Share. If a fractional Share interest
arises upon any exercise or conversion of this Warrant, the Company shall
eliminate such fractional Share interest by paying Holder an amount computed by
multiplying such fractional interest by the Fair Market Value (determined in
accordance with Section 1.3 above) of one Share.
2.7 CERTIFICATE AS TO ADJUSTMENTS. Upon each adjustment of the
Exercise Price, number or class of Shares or number of shares of Common Stock or
other securities for which the Shares are convertible or exchangeable, the
Company at its expense shall promptly compute such adjustment, and furnish
Holder with a certificate of its chief financial officer or other executive
officer setting forth such adjustment and the facts upon which such adjustment
is based. The Company shall at any time and from time to time, upon written
request, furnish Holder with a certificate setting forth the Exercise Price,
number and class of Shares and conversion ratio in effect upon the date thereof
and the series of adjustments leading to such Exercise Price, number and class
of Shares and conversion ratio.
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ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 REPRESENTATIONS AND WARRANTIES. The Company hereby represents
and warrants to the Holder as follows:
(a) All Shares which may be issued upon the due exercise of
this Warrant, and all Common Stock or other securities, if any, issuable upon
due conversion of the Shares, shall, assuming payment of the required Exercise
Price, upon issuance, be duly authorized, validly issued, fully paid and
non-assessable, and free of any liens and encumbrances except for restrictions
on transfer provided for herein or under applicable federal and state securities
laws.
(b) The Company covenants that it shall at all times cause
to be reserved and kept available out of its authorized and unissued shares such
number of shares of its Series A Double Prime Convertible Preferred Stock and
shares of its Common Stock and other securities as will be sufficient to permit
the exercise in full of this Warrant and the conversion of the Shares into
shares of Common Stock or such other securities.
(c) On and as of the date hereof, (i) $2.87 is the lowest
price per share for which shares of the Class have been sold or issued by the
Company, and the lowest exercise or conversion price per share for which shares
of the Class may be purchased or acquired upon the exercise or conversion of
outstanding securities exercisable or convertible by their terms for shares of
the Class, and (ii) the Common Stock conversion price in effect for shares of
the Class as determined pursuant to the Certificate is $2.87.
(d) The execution and delivery by the Company of this
Warrant and the performance of all obligations of the Company hereunder,
including the issuance to Holder of the right to acquire the Shares, have been
duly authorized by all necessary corporate action on the part of the Company,
and this Warrant is not inconsistent with the Certificate and/or the Company's
by-laws, does not, to the Company's knowledge, contravene any law or
governmental rule, regulation or order applicable to it, does not and will not
contravene any provision of, or constitute a default under, any material
indenture, mortgage, contract or other instrument to which it is a party or by
which it is bound, and constitutes a legal, valid and binding agreement of the
Company, enforceable in accordance with its terms.
3.2 NOTICE OF CERTAIN EVENTS. If the Company proposes at any time
(a) to declare any dividend or distribution upon the outstanding shares of the
Class, whether in cash, property, stock, or other securities and whether or not
a regular cash dividend; (b) to effect any reclassification or recapitalization
of any of its securities; or (c) to effect an Acquisition or to liquidate,
dissolve or wind up; then, in connection with each such event, the Company shall
give Holder (1) at least 20 days prior written notice of the date on which a
record will be taken for such dividend or distribution (and specifying the date
on which the holders of securities of the Company shall be entitled to receive
such dividend or distribution) or for determining rights to vote, if any, in
respect of the matters referred to in (b) and (c) above; and (2) in the case of
the matters referred to in (b) and (c) above, at least 20 days prior written
notice of the date when the same will take place (and specifying the date on
which the holders of securities of the Company
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will be entitled to exchange their securities of the Company for securities or
other property deliverable upon the occurrence of such event).
3.3 REGISTRATION UNDER SECURITIES ACT OF 1933, AS AMENDED. The
shares of Common Stock issuable upon conversion of the Shares (and the Shares,
at all times when the Class is Common Stock) shall have certain incidental or
"piggyback" registration rights pursuant to, and as set forth in, that certain
Investors' Rights Agreement dated as of April 16, 2002 among the Company and the
other parties named therein. The Company and Holder have executed, as of the
date hereof, a joinder agreement for the purpose of effecting the foregoing
grant of registration rights and the other rights and obligations of the parties
hereto set forth in the sections therein to which Holder is a party by the terms
of such joinder agreement. The Company represents and warrants to Holder that
the Company's foregoing grant of registration rights and its execution, delivery
and performance of the aforementioned amendment or joinder agreement (a) have
been duly authorized by all necessary corporate action of the Company's Board of
Directors and shareholders, (b) will not violate the Certificate or the
Company's by-laws, each as amended, (c) will not violate or cause a breach or
default (or an event which with the passage of time or the giving of notice or
both, would constitute a breach or default) under any material agreement,
instrument, mortgage, deed of trust or other arrangement to which the Company is
a party or by which it or any of its assets is subject or bound, and (d) do not
require the approval, consent or waiver of or by any shareholder, registration
rights holder or other third party which approval, consent or waiver has not
been obtained as of the date of issuance of this Warrant.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE HOLDER. Holder represents and
warrants to the Company as follows:
4.1 PURCHASE FOR OWN ACCOUNT. Subject to Silicon Valley Bank's
right to transfer, as set forth herein, this Warrant and the Shares (and/or the
securities, if any, issued and issuable upon conversion of the Shares) to its
parent corporation Silicon Valley Bancshares and/or any other affiliate of
Silicon Valley Bank, this Warrant and the Shares to be acquired upon exercise
hereof will be acquired for investment for Holder's account, not as nominee or
agent, and not with a view to sale or distribution in violation of applicable
federal and state securities laws, and, except for the transfer from Silicon
Valley Bank to Silicon Valley Bancshares, Holder has no present or contemplated
agreement, undertaking, arrangement, obligation, indebtedness or commitment
providing for the disposition thereof.
4.2 INVESTMENT EXPERIENCE. Holder understands that the purchase of
this Warrant and the Shares covered hereby involves substantial risk. Holder (a)
has experience as an investor in unregistered securities, (b) has sufficient
knowledge and experience in financial and business affairs that it can evaluate
the risks and merits of its investment in this Warrant and the Shares, (c) can
bear the economic risk of such Holder's investment in this Warrant and the
Shares, and (d) has made such inquiry concerning the Company and its business
and personnel as it has deemed appropriate.
4.3 ACCREDITED INVESTOR. Holder is an "accredited investor" as
such term is defined in Regulation D under the Securities Act of 1933, as
amended (the "Securities Act").
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ARTICLE 5. MISCELLANEOUS.
5.1 INTENTIONALLY OMITTED.
5.2 LEGENDS. This Warrant and the Shares (and the securities
issuable, directly or indirectly, upon conversion of the Shares, if any) shall
be imprinted with a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH
ACT AND LAWS OR, SUBJECT TO SECTION 5.3 OF THAT CERTAIN WARRANT TO
PURCHASE STOCK ISSUED BY THE CORPORATION TO SILICON VALLEY BANK DATED AS
OF DECEMBER _, 2002, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
5.3 COMPLIANCE WITH SECURITIES LAWS ON TRANSFER. This Warrant and
the Shares (and the securities, if any, issued and issuable upon conversion of
the Shares) may not be transferred or assigned in whole or in part without
compliance with applicable federal and state securities laws by the transferor
and the transferee (including, without limitation, the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company, as reasonably requested by the Company). The Company shall not require
Holder to provide an opinion of counsel if the transfer is to Silicon Valley
Bancshares or other affiliate of Holder or is a transfer made in accordance with
Rule 144 under the Securities Act.
5.4 TRANSFER PROCEDURE. Following its receipt of this executed
Warrant, Silicon Valley Bank will transfer same in whole or in part to its
parent corporation Silicon Valley Bancshares, and thereafter Holder and/or
Silicon Valley Bancshares may, subject to Section 5.3 above and to the
transferee agreeing in writing to be bound by the terms hereof, transfer all or
part of this Warrant and/or the Shares (or the securities, if any, issued and
issuable upon conversion of the Shares) at any time and from time to time by
giving the Company written notice of the portion of the Warrant and/or Shares
(or the securities, if any, issued and issuable upon conversion of the Shares)
being transferred setting forth the name, address and taxpayer identification
number of the transferee and surrendering this Warrant to the Company for
reissuance to the transferee(s) (and Holder if applicable); PROVIDED, that at
all times prior to the closing of the Company's IPO, Holder shall not, without
the prior written consent of the Company, transfer this Warrant (or any part
hereof), any Shares, or any securities issued or issuable upon conversion of the
Shares, to any person or entity which directly competes with the Company, unless
such transfer is in connection with an Acquisition of the Company by any such
person.
5.5 NOTICES. All notices and other communications from the Company
to the Holder, or vice versa, shall be deemed delivered and effective when given
personally, or mailed by first-class registered or certified mail, postage
prepaid, or sent via reputable overnight courier
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service, fee prepaid, at such address as may have been furnished to the Company
or the Holder, as the case may be, in writing by the Company or such holder from
time to time, but in all cases, unless instructed in writing otherwise, the
Company shall deliver a copy of all notices to Holder to Silicon Valley Bank,
Treasury Department, 0000 Xxxxxx Xxxxx, XX 000, Xxxxx Xxxxx, Xxxxxxxxxx 00000.
5.6 WAIVER. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought.
5.7 ATTORNEYS FEES. In the event of any dispute between the
parties concerning the terms and provisions of this Warrant, the party
prevailing in such dispute shall be entitled to collect from the other party all
costs incurred in such dispute, including reasonable attorneys' fees.
5.8 GOVERNING LAW. This Warrant shall be governed by and construed
in accordance with the laws of The Commonwealth of Massachusetts, without giving
effect to its principles regarding conflicts of law.
5.9 NO RIGHTS AS A SHAREHOLDER. Except as specifically provided in
this Warrant, Holder shall have no rights as a shareholder of the Company in
respect of the Shares issuable hereunder unless and until Holder exercises this
Warrant as to all or any of such Shares.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, the Company has caused this Warrant to Purchase Stock
to be executed as an instrument under seal by its duly authorized representative
as of the date first above written.
ATTEST: "COMPANY"
MOMENTA PHARMACEUTICALS, INC.
f/k/a Mimeon, Inc.
By: /s/ Xxxxxx X. Xxxxxxx, Xx. By: /s/ Xxxxx X. Xxxxxxxxx, Ph.D.
----------------------------------- -------------------------------------
Name: XXXXXX X. XXXXXXX, XX. Name: Xxxxx X. Xxxxxxxxx, Ph.D.
Title: Title: Vice President
Licensing & Business Development
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ACKNOWLEDGMENT AND AGREEMENT
WHEREAS, effective as of December 27, 2002, Silicon Valley Bancshares (the
"Transferee") has received from Silicon Valley Bank (the "Transferor") a warrant
to purchase 12,500 shares of Series A Double Prime Convertible Preferred Stock,
$0.01 par value per share (the "Warrant") of Momenta Pharmaceuticals, Inc., a
Delaware corporation (the "Company"); and
WHEREAS, the Transferor and the Transferee hereby acknowledge that the
Transferor is subject to that certain Amended and Restated Investors' Rights
Agreement, dated May 9, 2003 (as may be amended from time to time, the
"Investors' Rights Agreement"), by and among the Company, the Purchasers (as
defined therein), the Founders (as defined therein) and certain other parties
thereto; and
WHEREAS, the Transferee has been given a copy of the Investors' Rights
Agreement and has been afforded an opportunity to read and to have legal counsel
review the Investors' Rights Agreement, and the undersigned is thoroughly
familiar with its terms; and
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Transferee does hereby acknowledge and agree
that:
(i) the Transferor transferred the Warrant to the Transferee effective
December 27, 2002 (the "Transfer") and the Transferee received such Warrant from
the Transferor;
(ii) the Transfer was effected in accordance with applicable securities
laws.
(iii) the Transferee is the parent corporation of the Transferor;
(iv) the Transferee has been given a copy of the Investors' Rights
Agreement and has been afforded an opportunity to read and to have legal counsel
review the Investors' Rights Agreement, and the Transferee is thoroughly
familiar with its terms;
(v) the Transferee is, and the Warrant is, subject to the terms and
conditions set forth in the Investors' Rights Agreement;
(vi) the Transferee does hereby agree fully to be bound thereby;
(vii) the Transferee is not a competitor of the Company as determined in
good faith by the Board of Directors of the Company; and
(viii) the Transferee's address for notice is:
Silicon Valley Bancshares
One Newton Executive Park, Suite 200
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Dated this 25th day of February, 2004.
SILICON VALLEY BANK SILICON VALLEY BANCSHARES
By: /s/ R. XXXXX XXXXX By: /s/ XXXXXXXX X. XXXXX
----------------------------------- -------------------------------------
Name: R. Xxxxx Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Vice President Title: Treasurer
