EXHIBIT 10.15
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED OR ANY STATE SECURITIES LAWS. NO SALE OR DISPOSITION MAY BE EFFECTED
WITHOUT (i) EFFECTIVE REGISTRATION STATEMENTS RELATED THERETO, (ii) AN OPINION
OF COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATIONS ARE NOT REQUIRED, (iii) RECEIPT OF NO-ACTION LETTERS FROM THE
APPROPRIATE GOVERNMENTAL AUTHORITIES, OR (iv) OTHERWISE COMPLYING WITH THE
PROVISIONS OF SECTION 7 OF THIS WARRANT.
MYOGEN, INC.
WARRANT TO PURCHASE SHARES
OF SERIES PREFERRED STOCK
THIS CERTIFIES THAT, for value received, GATX VENTURES, INC. and its
assignees are entitled to subscribe for and purchase that number of the fully
paid and nonassessable shares of Series Preferred Stock (as adjusted pursuant to
Section 4 hereof, the "Shares") of MYOGEN, INC., a Delaware corporation (the
"Company"), as is determined pursuant to the next paragraph hereof at the price
per share as is determined pursuant to the next paragraph hereof (such price and
such other price as shall result, from time to time, from the adjustments
specified in Section 4 hereof is herein referred to as the "Warrant Price"),
subject to the provisions and upon the terms and conditions hereinafter set
forth. As used herein, (a) the term "Series Preferred" shall mean, (i) if the
Qualified Financing Price (as defined below) is greater than $1.375 per share,
the Company's presently authorized Series D Preferred Stock, and any stock into
or for which such Series D Preferred Stock may hereafter be converted or
exchanged, and after the automatic conversion of the Series D Preferred Stock to
Common Stock shall mean the Company's Common Stock, or (ii) if the Qualified
Financing Price is not greater than $1.375 per share, the Company's convertible
preferred stock sold in the Qualified Financing ("Next Round Preferred Stock"),
and any stock into or for which such Next Round Preferred Stock may hereafter be
converted or exchanged, and after the automatic conversion of the Next Round
Preferred Stock to Common Stock shall mean the Company's Common Stock, (b) the
term "Date of Grant" shall mean December 6, 2002, and (c) the term "Other
Warrants" shall mean any other warrants issued by the Company in connection with
the transaction with respect to which this Warrant was issued, and any warrant
issued upon transfer or partial exercise of or in lieu of this Warrant. The term
"Warrant" as used herein shall be deemed to include Other Warrants unless the
context clearly requires otherwise.
The Warrant Price shall be the lower of (i) $1.375 and (ii)
the lowest effective price per share (on a common stock equivalent basis and
taking into account any securities issued together with the preferred stock) at
which shares of the Company's convertible preferred stock are sold in a
Qualified Financing ("Qualified Financing Price"); provided, however, if a
Qualified Financing has not closed prior to the exercise of this Warrant, then
the Warrant Price shall be $1.375 and the Series Preferred shall mean the
Company's Series D Preferred Stock. A "Qualified Financing" shall mean the sale
of the convertible preferred stock of the Company to purchasers which include
venture capital investors in an aggregate cash amount not less than
$3,000,000. The number of shares for which this Warrant is exercisable shall be
the nearest whole number determined by dividing $270,000 by the Warrant Price
determined pursuant to this paragraph.
1. Term. The purchase right represented by this Warrant is exercisable, in
whole or in part, at any time and from time to time from the Date of Grant
through the later of (i) ten (10) years after the Date of Grant or (ii) five (5)
years after the closing of the Company's initial public offering of its Common
Stock ("IPO") effected pursuant to a Registration Statement on Form S-1 (or its
successor) filed under the Securities Act of 1933, as amended (the "Act").
2. Method of Exercise; Payment; Issuance of New Warrant. Subject to
Section 1 hereof, the purchase right represented by this Warrant may be
exercised by the holder hereof, in whole or in part and from time to time, at
the election of the holder hereof, by (a) the surrender of this Warrant (with
the notice of exercise substantially in the form attached hereto as Exhibit A-1
duly completed and executed) at the principal office of the Company and by the
payment to the Company, by certified or bank check, or by wire transfer to an
account designated by the Company (a "Wire Transfer") of an amount equal to the
then applicable Warrant Price multiplied by the number of Shares then being
purchased; (b) if in connection with a registered public offering of the
Company's securities, subject to Section 7(c) below, the surrender of this
Warrant (with the notice of exercise form attached hereto as Exhibit A-2 duly
completed and executed) at the principal office of the Company together with
notice of arrangements reasonably satisfactory to the Company for payment to the
Company either by certified or bank check or by Wire Transfer from the proceeds
of the sale of shares to be sold by the holder in such public offering of an
amount equal to the then applicable Warrant Price per share multiplied by the
number of Shares then being purchased; or (c) exercise of the "net issuance"
right provided for in Section 10.2 hereof. The person or persons in whose
name(s) any certificate(s) representing shares of Series Preferred shall be
issuable upon exercise of this Warrant shall be deemed to have become the
holder(s) of record of, and shall be treated for all purposes as the record
holder(s) of, the shares represented thereby (and such shares shall be deemed to
have been issued) immediately prior to the close of business on the date or
dates upon which this Warrant is exercised. In the event of any exercise of the
rights represented by this Warrant, certificates for the shares of stock so
purchased shall be delivered to the holder hereof as soon as possible and in any
event within thirty (30) days after such exercise and, unless this Warrant has
been fully exercised or expired, a new Warrant representing the portion of the
Shares, if any, with respect to which this Warrant shall not then have been
exercised shall also be issued to the holder hereof as soon as possible and in
any event within such thirty-day period; provided, however, at such time as the
Company is subject to the reporting requirements of the Securities Exchange Act
of 1934, as amended, if requested by the holder of this Warrant, the Company
shall cause its transfer agent to deliver the certificate representing Shares
issued upon exercise of this Warrant to a broker or other person (as directed by
the holder exercising this Warrant) within the time period required to settle
any trade made by the holder after exercise of this Warrant.
3. Stock Fully Paid; Reservation of Shares. All Shares that may be issued
upon the exercise of the rights represented by this Warrant will, upon issuance
pursuant to the terms and conditions herein, be fully paid and nonassessable,
and free from all preemptive rights and 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,
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and reserved for the purpose of the issue upon exercise of the purchase rights
evidenced by this Warrant, a sufficient number of shares of its Series Preferred
to provide for the exercise of the rights represented by this Warrant and a
sufficient number of shares of its Common Stock to provide for the conversion of
the Series Preferred into Common Stock.
4. Adjustment of Warrant Price and Number of Shares. The number and kind
of securities purchasable upon the exercise of this Warrant and the Warrant
Price shall be subject to adjustment from time to time upon the occurrence of
certain events, as follows:
(a) Reclassification or Merger. In case of any reclassification or
change of securities of the class issuable upon exercise of this Warrant (other
than a change in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination), or in case
of any merger of the Company with or into another corporation or any other
corporate reorganization, in which the stockholders of the Company immediately
prior to such consolidation, merger or reorganization, own less than fifty
percent (50%) of the Company's voting power immediately after such
consolidation, merger or reorganization, or any transaction or series of related
transactions in which in excess of fifty percent (50%) of the Company's voting
power is transferred (other than (A) a Sale of the Company as defined in Section
10.1 or (B) a merger with another corporation in which the Company is the
acquiring and the surviving corporation and which does not result in any
reclassification or change of outstanding securities issuable upon exercise of
this Warrant), or in case of any sale of all or substantially all of the assets
of the Company, the Company, or such successor or purchasing corporation, as the
case may be, shall duly execute and deliver to the holder of this Warrant a new
Warrant (in form and substance satisfactory to the holder of this Warrant), so
that the holder of this Warrant shall have the right to receive upon exercise of
this Warrant, at a total purchase price not to exceed that payable upon the
exercise of the unexercised portion of this Warrant, and in lieu of the shares
of Series Preferred theretofore issuable upon exercise of this Warrant, (i) the
kind and amount of shares of stock, other securities, money and property
receivable upon such reclassification, change, merger or sale by a holder of the
number of shares of Series Preferred then purchasable under this Warrant, or
(ii) in the case of such a merger or sale in which the consideration paid
consists all or in part of assets other than securities of the successor or
purchasing corporation, at the option of the holder of this Warrant, the
securities of the successor or purchasing corporation having a value at the time
of the transaction equivalent to the value of the Series Preferred purchasable
upon exercise of this Warrant at the time of the transaction. Any new Warrant
shall provide for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 4. The provisions of
this Section 4(a) shall similarly apply to successive reclassifications,
changes, mergers and sales.
(b) Subdivision or Combination of Shares. If the Company at any time
while this Warrant remains outstanding and unexpired shall subdivide or combine
its outstanding shares of Series Preferred, the Warrant Price shall be
proportionately decreased and the number of Shares issuable hereunder shall be
proportionately increased in the case of a subdivision and the Warrant Price
shall be proportionately increased and the number of Shares issuable hereunder
shall be proportionately decreased in the case of a combination.
(c) Stock Dividends and Other Distributions. If the Company at any
time while this Warrant is outstanding and unexpired shall (i) pay a dividend
with respect to Series
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Preferred payable in Series Preferred, then the Warrant Price shall be adjusted,
from and after the date of determination of shareholders entitled to receive
such dividend or distribution, to that price determined by multiplying the
Warrant 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
Series Preferred outstanding immediately prior to such dividend or distribution,
and (B) the denominator of which shall be the total number of shares of Series
Preferred outstanding immediately after such dividend or distribution; or (ii)
make any other distribution with respect to Series Preferred (except any
distribution specifically provided for in Sections 4(a) and 4(b)), then, in each
such case, provision shall be made by the Company such that the holder of this
Warrant shall receive upon exercise of this Warrant a proportionate share of any
such dividend or distribution as though it were the holder of the Series
Preferred (or Common Stock issuable upon conversion thereof) as of the record
date fixed for the determination of the shareholders of the Company entitled to
receive such dividend or distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in the
Warrant Price, the number of Shares of Series Preferred purchasable hereunder
shall be adjusted, to the nearest whole share, to the product obtained by
multiplying the number of Shares purchasable immediately prior to such
adjustment in the Warrant Price by a fraction, the numerator of which shall be
the Warrant Price immediately prior to such adjustment and the denominator of
which shall be the Warrant Price immediately thereafter.
(e) Antidilution Rights. The other antidilution rights applicable to
the Shares of Series Preferred purchasable hereunder are set forth in the
Company's Certificate of Incorporation, as amended through the Date of Grant, a
true and complete copy of which is attached hereto as Exhibit B (the "Charter").
Such antidilution rights shall not be restated, amended, modified or waived in
any manner that is adverse to the holder hereof without such holder's prior
written consent. The Company shall promptly provide the holder hereof with any
restatement, amendment, modification or waiver of the Charter promptly after the
same has been made.
5. Notice of Adjustments. Whenever the Warrant Price or the number of
Shares purchasable hereunder shall be adjusted pursuant to Section 4 hereof, the
Company shall make a certificate signed by its 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 the number of Shares purchasable hereunder after giving effect
to such adjustment, and shall cause copies of such certificate to be mailed
(without regard to Section 13 hereof, by first class mail, postage prepaid) to
the holder of this Warrant. In addition, whenever the conversion price or
conversion ratio of the Series Preferred shall be adjusted, the Company shall
make a certificate signed by its 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
conversion price or ratio of the Series Preferred after giving effect to such
adjustment, and shall cause copies of such certificate to be mailed (without
regard to Section 13 hereof, by first class mail, postage prepaid) to the holder
of this Warrant. Whenever the Warrant Price or the number of Shares purchasable
hereunder shall be adjusted pursuant to the occurrence of a Qualified Financing,
the Company shall make a certificate signed by its chief financial officer
setting forth, in reasonable detail, the event requiring the adjustment, the
amount of the adjustment, the method by which such adjustment
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was calculated, and the Warrant Price and the number of Shares purchasable
hereunder after giving effect to such adjustment, and shall cause copies of such
certificate to be mailed (without regard to Section 13 hereof, by first class
mail, postage prepaid) to the holder of this Warrant.
6. Fractional Shares. No fractional shares of Series Preferred will be
issued in connection with any exercise hereunder, but in lieu of such fractional
shares the Company shall make a cash payment therefor based on the fair market
value of the Series Preferred on the date of exercise as reasonably determined
in good faith by the Company's Board of Directors.
7. Compliance with Act; Disposition of Warrant or Shares of Series
Preferred.
(a) Compliance with Act. The holder of this Warrant, by acceptance
hereof, agrees that this Warrant, and the shares of Series Preferred to be
issued upon exercise hereof and any Common Stock issued upon conversion thereof
are being acquired for investment and that such holder will not offer, sell or
otherwise dispose of this Warrant, or any shares of Series Preferred to be
issued upon exercise hereof or any Common Stock issued upon conversion thereof
except under circumstances which will not result in a violation of the Act or
any applicable state securities laws. Upon exercise of this Warrant, unless the
Shares being acquired are registered under the Act and any applicable state
securities laws or an exemption from such registration is available, the holder
hereof shall confirm in writing that the shares of Series Preferred so purchased
(and any shares of Common Stock issued upon conversion thereof) are being
acquired for investment and not with a view toward distribution or resale in
violation of the Act and shall confirm such other matters related thereto as may
be reasonably requested by the Company. This Warrant and all shares of Series
Preferred issued upon exercise of this Warrant and all shares of Common Stock
issued upon conversion thereof (unless registered under the Act and any
applicable state securities laws) shall be stamped or imprinted with a legend in
substantially the following form:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. NO SALE OR DISPOSITION
MAY BE EFFECTED WITHOUT (i) EFFECTIVE REGISTRATION STATEMENTS RELATED THERETO,
(ii) AN OPINION OF COUNSEL OR OTHER EVIDENCE, REASONABLY SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATIONS ARE NOT REQUIRED, (iii) RECEIPT OF NO-ACTION
LETTERS FROM THE APPROPRIATE GOVERNMENTAL AUTHORITIES, OR (iv) OTHERWISE
COMPLYING WITH THE PROVISIONS OF SECTION 7 OF THE WARRANT UNDER WHICH THESE
SECURITIES WERE ISSUED, DIRECTLY OR INDIRECTLY."
Said legend shall be removed by the Company, upon the request of a holder,
at such time as the restrictions on the transfer of the applicable security
shall have terminated. In addition, in connection with the issuance of this
Warrant, the holder specifically represents to the Company by acceptance of this
Warrant as follows:
(1) The holder is aware of the Company's business affairs and
financial condition, and has acquired information about the Company sufficient
to reach an informed and knowledgeable decision to acquire this Warrant. The
holder is acquiring this
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Warrant for its own account for investment purposes only and not with a view to,
or for the resale in connection with, any "distribution" thereof in violation of
the Act.
(2) The holder understands that this Warrant has not been
registered under the Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of the holder's
investment intent as expressed herein.
(3) The holder further understands that this Warrant must be
held indefinitely unless subsequently registered under the Act and qualified
under any applicable state securities laws, or unless exemptions from
registration and qualification are otherwise available. The holder is aware of
the provisions of Rule 144, promulgated under the Act.
(4) The holder is an "accredited investor" as such term is
defined in Rule 501 of Regulation D promulgated under the Act.
(b) Disposition of Warrant or Shares. With respect to any offer,
sale or other disposition of this Warrant or any shares of Series Preferred
acquired pursuant to the exercise of this Warrant prior to registration of such
Warrant or shares, the holder hereof agrees to give written notice to the
Company prior thereto, describing briefly the manner thereof, together with a
written opinion of such holder's counsel, or other evidence, if reasonably
satisfactory to the Company, to the effect that such offer, sale or other
disposition may be effected without registration or qualification (under the Act
as then in effect or any federal or state securities law then in effect) of this
Warrant or such shares of Series Preferred or Common Stock and indicating
whether or not under the Act certificates for this Warrant or such shares of
Series Preferred to be sold or otherwise disposed of require any restrictive
legend as to applicable restrictions on transferability in order to ensure
compliance with such law. Upon receiving such written notice and reasonably
satisfactory opinion or other evidence, the Company, as promptly as practicable
but no later than fifteen (15) days after receipt of the written notice, shall
notify such holder that such holder may sell or otherwise dispose of this
Warrant or such shares of Series Preferred or Common Stock, all in accordance
with the terms of the notice delivered to the Company. If a determination has
been made pursuant to this Section 7(b) that the opinion of counsel for the
holder or other evidence is not reasonably satisfactory to the Company, the
Company shall so notify the holder promptly with details thereof after such
determination has been made. Notwithstanding the foregoing, this Warrant or such
shares of Series Preferred or Common Stock may, as to such federal laws, be
offered, sold or otherwise disposed of in accordance with Rule 144 or 144A under
the Act, provided that the Company shall have been furnished with such
information as the Company may reasonably request to provide a reasonable
assurance that the provisions of Rule 144 or 144A have been satisfied. Each
certificate representing this Warrant or the shares of Series Preferred thus
transferred (except a transfer pursuant to Rule 144 or 144A) shall bear a legend
as to the applicable restrictions on transferability in order to ensure
compliance with such laws, unless in the aforesaid opinion of counsel for the
holder, such legend is not required in order to ensure compliance with such
laws. The Company may issue stop transfer instructions to its transfer agent in
connection with such restrictions.
(c) Market Stand-Off Agreement. The holder shall be subject to the
"Market Stand-Off Agreement" set forth in Section 2.12 of the Third Amended and
Restated Investor's
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Rights Agreement dated as of August 21, 2001 by and among the Company and
certain of its investors (as the same may be amended or restated from time to
time, the "Investors' Rights Agreement"), as if holder were a party thereto.
(d) Applicability of Restrictions. Neither any restrictions of any
legend described in this Warrant nor the requirements of Sections 7(b) and 7(c)
above shall apply to any transfer of, or grant of a security interest in, this
Warrant (or the Series Preferred or Common Stock obtainable upon exercise
thereof) or any part hereof (i) to a partner of the holder if the holder is a
partnership or to a member of the holder if the holder is a limited liability
company, (ii) to a partnership of which the holder is a partner or to a limited
liability company of which the holder is a member, or (iii) to any affiliate of
the holder if the holder is a corporation; provided, however, in any such
transfer, if applicable, the transferee shall on the Company's request agree in
writing to be bound by the terms of this Warrant as if an original holder
hereof.
8. Rights as Shareholders; Information. No holder of this Warrant, as
such, shall be entitled to vote or receive dividends or be deemed the holder of
Series Preferred or any other securities of the Company which may at any time be
issuable upon the exercise hereof for any purpose, nor shall anything contained
herein be construed to confer upon the holder of this Warrant, as such, any of
the rights of a shareholder of the Company or any right to vote for the election
of directors or upon any matter submitted to shareholders at any meeting
thereof, or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until this Warrant shall have been exercised
and the Shares purchasable upon the exercise hereof shall have become
deliverable, as provided herein. Notwithstanding the foregoing, the Company will
transmit to the holder of this Warrant such information, documents and reports
as are generally distributed to all of the holders of any class or series of the
securities of the Company concurrently with the distribution thereof to such
shareholders.
9. Registration Rights. The Company shall take such action as may
reasonably necessary to amend the Investors' Rights Agreement to include the
Shares as Registrable Securities, as such term is defined therein, solely for
the purposes of Sections 2.3 and 2.5 through 2.12 of the Investors' Rights
Agreement and the holder hereof shall execute and deliver such counterpart
signature pages to the Investors' Rights Agreement and take such other action as
may be reasonably necessary to become a party to the investors' Rights Agreement
or to have the Shares included as Registrable Securities thereunder.
10. Additional Rights.
10.1 Acquisition Transactions. The Company shall provide the holder of
this Warrant with at least twenty (20) days' written notice prior to closing
thereof of the terms and conditions of any of the following transactions (to the
extent the Company has notice thereof): (i) the sale, lease, exchange,
conveyance or other disposition of all or substantially all of the Company's
property or business, or (ii) any consolidation or the merger of the Company
with or into any other corporation or other entity or person, or any other
corporate reorganization, in which the stockholders of the Company immediately
prior to such consolidation, merger or reorganization, own less than fifty
percent (50%) of the Company's voting power immediately after such
consolidation, merger or reorganization, or any transaction or series of related
transactions in which in excess of fifty percent (50%) of the Company's voting
power is transferred. Any
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transaction described in (i) or (ii) above in which the sole consideration paid
in respect of the Company's property, business and stock is cash or publicly
traded securities shall be deemed a "Sale of the Company" for purposes of this
Warrant. If, following receipt of such notice from the Company, the holder of
this Warrant shall notify the Company not less than five (5) days prior to the
closing of such Sale of the Company of such holder's intent to exercise the
purchase right represented by this Warrant as provided in Section 2 above
(including, without limitation, by way of net issuance as provided in Section
10.2 below), such exercise will be deemed effective upon completion of such Sale
of the Company or, alternatively, rescinded in the event such Sale of the
Company is not completed. If, following receipt of timely notice from the
Company, the holder of this Warrant has not notified the Company of its election
not less than five (5) days prior to the closing of such Sale of the Company,
then: (X) if the fair market value of one share of the Series Preferred is
greater than the Warrant Price then in effect, this Warrant shall be deemed
automatically exercised pursuant to Section 10.2 and Section 10.3 below upon
completion of such Sale of the Company; and (Y) if the fair market value of one
share of the Series Preferred is equal to or less than the Warrant Price then in
effect, this Warrant will expire upon completion of such Sale of the Company.
10.2 Right to Convert Warrant into Stock: Net Issuance.
(a) Right to Convert. In addition to and without limiting the rights
of the holder under the terms of this Warrant, if the fair market price of one
share of Series preferred is greater tan the Warrant Price then in effect, the
holder shall have the right to convert this Warrant or any portion thereof (the
"Conversion Right") into shares of Series Preferred as provided in this Section
10.2 at any time or from time to time during the term of this Warrant. Upon
exercise of the Conversion Right with respect to a particular number of shares
subject to this Warrant (the "Converted Warrant Shares"), the Company shall
deliver to the holder (without payment by the holder of any exercise price or
any cash or other consideration) that number of shares of fully paid and
nonassessable Series Preferred as is determined according to the following
formula:
X= B - A
-----
Y
Where: X = the number of shares of Series Preferred that shall be issued
to holder
Y = the fair market value of one share of Series Preferred
A = the aggregate Warrant Price of the specified number of
Converted Warrant Shares immediately prior to the exercise of
the Conversion Right (i.e., the number of Converted Warrant
Shares multiplied by the Warrant Price)
B = the aggregate fair market value of the specified number of
Converted Warrant Shares (i.e., the number of Converted
Warrant Shares multiplied by the fair market value of one
Converted Warrant Share)
No fractional shares shall be issuable upon exercise of the Conversion
Right, and, if the number of shares to be issued determined in accordance with
the foregoing formula is other than a whole number, the Company shall pay to the
holder an amount in cash equal to the fair market
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value of the resulting fractional share on the Conversion Date (as hereinafter
defined). For purposes of Section 10 of this Warrant, shares issued pursuant to
the Conversion Right shall be treated as if they were issued upon the exercise
of this Warrant.
(b) Method of Exercise. The Conversion Right may be exercised by the
holder by the surrender of this Warrant at the principal office of the Company
together with a written statement (which may be in the form of Exhibit A-1 or
Exhibit A-2 hereto) specifying that the holder thereby intends to exercise the
Conversion Right and indicating the number of shares subject to this Warrant
which are being surrendered (referred to in Section 10.2(a) hereof as the
Converted Warrant Shares) in exercise of the Conversion Right. Such conversion
shall be effective upon receipt by the Company of this Warrant together with the
aforesaid written statement, or on such later date as is specified therein (the
"Conversion Date"), and, at the election of the holder hereof, may be made
contingent upon the closing of the sale of the Company's Common Stock to the
public in a public offering pursuant to a Registration Statement under the Act
(a "Public Offering"). Certificates for the shares issuable upon exercise of the
Conversion Right and, if applicable, a new warrant evidencing the balance of the
shares remaining subject to this Warrant, shall be issued as of the Conversion
Date and shall be delivered to the holder within thirty (30) days following the
Conversion Date.
(c) Determination of Fair Market Value. For purposes of this Section
10.2, "fair market value" of a share of Series Preferred (or Common Stock if the
Series Preferred has been automatically converted into Common Stock) as of a
particular date (the "Determination Date") shall mean:
(i) If the Conversion Right is exercised in connection with
and contingent upon a Public Offering, and if the Company's Registration
Statement relating to such Public Offering ("Registration Statement") has been
declared effective by the Securities and Exchange Commission, then the initial
"Price to Public" specified in the final prospectus with respect to such
offering.
(ii) If the Conversion Right is not exercised in connection
with and contingent upon a Public Offering, then as follows:
(A) If traded on a securities exchange, the fair market value of the
Common Stock shall be deemed to be the average of the closing prices of the
Common Stock on such exchange over the five trading days immediately prior to
the Determination Date, and the fair market value of the Series Preferred shall
be deemed to be such fair market value of the Common Stock multiplied by the
number of shares of Common Stock into which each share of Series Preferred is
then convertible;
(B) If traded on the Nasdaq Stock Market or other over-the-counter
system, the fair market value of the Common Stock shall be deemed to be the
average of the closing bid prices of the Common Stock over the five trading days
immediately prior to the Determination Date, and the fair market value of the
Series Preferred shall be deemed to be such fair market value of the Common
Stock multiplied by the number of shares of Common Stock into which each share
of Series Preferred is then convertible; and
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(C) If there is no public market for the Common Stock, then fair
market value shall be determined by the Company's board of directors acting in
good faith.
In making a determination under clauses (A) or (B) above, if on the
Determination Date, five trading days had not passed since the IPO, then the
fair market value of the Common Stock shall be the average closing prices or
closing bid prices, as applicable, for the shorter period beginning on and
including the date of the IPO and ending on the trading day prior to the
Determination Date (or if such period includes only one trading day the closing
price or closing bid price, as applicable, for such trading day). If closing
prices or closing bid prices are no longer reported by a securities exchange or
other trading system, the closing price or closing bid price shall be that which
is reported by such securities exchange or other trading system at 4:00 p.m. New
York City time on the applicable trading day.
10.3 Exercise Prior to Expiration. To the extent this Warrant is not
previously exercised as to all of the Shares subject hereto, and if the fair
market value of one share of the Series Preferred is greater than the Warrant
Price then in effect, this Warrant shall be deemed automatically exercised
pursuant to Section 10.2 above (even if not surrendered) immediately before its
expiration. For purposes of such automatic exercise, the fair market value of
one share of the Series Preferred upon such expiration shall be determined
pursuant to Section 10.2(c). To the extent this Warrant or any portion thereof
is deemed automatically exercised pursuant to this Section 10.3, the Company
agrees to promptly notify the holder hereof of the number of Shares, if any, the
holder hereof is to receive by reason of such automatic exercise.
11. Representations and Warranties. The Company represents and warrants to
the holder of this Warrant, as of the Date of Grant, as follows:
(a) This Warrant has been duly authorized and executed by the
Company and is a valid and binding obligation of the Company enforceable in
accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and the rules of law or
principles at equity governing specific performance, injunctive relief and other
equitable remedies.
(b) The shares of Series D Preferred Stock have been duly authorized
and reserved for issuance by the Company and, when issued in accordance with the
terms hereof, will be validly issued, fully paid and nonassessable and free from
preemptive rights. If this Warrant becomes exercisable for shares of Next Round
Preferred Stock, the Company shall duly authorize and reserve for issuance
sufficient shares of the Next Round Preferred Stock, and such shares, when
issued in accordance with the terms hereof, will be validly issued, fully paid
and nonassessable and free from preemptive rights.
(c) The rights, preferences, privileges and restrictions granted to
or imposed upon the Company's Series D Preferred Stock and the holders thereof
are as set forth in the Charter, and on the Date of Grant, each share of the
Company's Series D Preferred Stock represented by this Warrant is convertible
into one share of Common Stock. The rights, preferences, privileges and
restrictions granted to or imposed on the Company's Next Round Preferred Stock
shall be set forth in an amendment to the Charter.
-10-
(d) The shares of Common Stock issuable upon conversion of the
Series D Preferred Stock have been duly authorized and reserved for issuance by
the Company and, when issued in accordance with the terms of the Charter will be
validly issued, fully paid and nonassessable. If this Warrant becomes
exercisable for shares of Next Round Preferred Stock, the shares of Common Stock
issuable upon conversion of such shares of Next Round Preferred Stock will be
duly authorized and reserved for issuance by the Company and, when issued in
accordance with the terms of the Charter, as amended, will be validly issued,
fully paid and nonassessable.
(e) The execution and delivery of this Warrant are not, and the
issuance of the Shares upon exercise of this Warrant in accordance with the
terms hereof will not be, inconsistent with the Company's Charter or by-laws, do
not and will not contravene in any material respects any law, governmental rule
or regulation, judgment or order applicable to the Company, and do not and will
not conflict with or contravene any provision of, or constitute a default under,
any indenture, mortgage, contract or other instrument of which the Company is a
party or by which it is bound or require the consent or approval of, the giving
of notice to, the registration or filing with or the taking of any action in
respect of or by, any Federal, state or local government authority or agency or
other person, except for the filing of notices pursuant to federal and state
securities laws, which filings will be effected by the time required thereby.
(f) There are no actions, suits, audits, investigations or
proceedings pending or, to the knowledge of the Company, threatened against the
Company in any court or before any governmental commission, board or authority
which, if adversely determined, could have a material adverse effect on the
ability of the Company to perform its obligations under this Warrant.
(g) The number of shares of Common Stock of the Company outstanding
on the date hereof, on a fully diluted basis (assuming the conversion of all
outstanding convertible securities and the exercise of all outstanding options
and warrants), does not exceed 90,000,000 shares.
12. Modification and Waiver. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
13. Notices. Any notice, request, communication or other document required
or permitted to be given or delivered to the holder hereof or the Company shall
be delivered, or shall be sent by certified or registered mail, postage prepaid,
to each such holder at its address as shown on the books of the Company or to
the Company at the address indicated therefor on the signature page of this
Warrant.
14. Binding Effect on Successors. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets, and all of the obligations of
the Company relating to the Series Preferred issuable upon the exercise or
conversion of this Warrant shall survive the exercise, conversion and
termination of this Warrant and all of the covenants and agreements of the
Company shall inure to the benefit of the successors and assigns of the holder
hereof.
-11-
15. Lost Warrants or Stock Certificates. The Company covenants to the
holder hereof that, upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant or any
stock certificate and, in the case of any such loss, theft or destruction, upon
receipt of an indemnity reasonably satisfactory to the Company, or in the case
of any such mutilation upon surrender and cancellation of such Warrant or stock
certificate, the Company will make and deliver a new Warrant or stock
certificate, of like tenor, in lieu of the lost, stolen, destroyed or mutilated
Warrant or stock certificate.
16. Descriptive Headings. The descriptive headings of the various Sections
of this Warrant are inserted for convenience only and do not constitute a part
of this Warrant. The language in this Warrant shall be construed as to its fair
meaning without regard to which party drafted this Warrant.
17. Governing Law. This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Delaware.
18. Survival of Representations, Warranties and Agreements. All
representations and warranties of the Company and the holder hereof contained
herein shall survive the Date of Grant, the exercise or conversion of this
Warrant (or any part hereof) or the termination or expiration of rights
hereunder. All agreements of the Company and the holder hereof contained herein
shall survive indefinitely until, by their respective terms, they are no longer
operative.
19. Remedies. In case any one or more of the covenants and agreements
contained in this Warrant shall have been breached, the holders hereof (in the
case of a breach by the Company), or the Company (in the case of a breach by a
holder), may proceed to protect and enforce their or its rights either by suit
in equity and/or by action at law, including, but not limited to, an action for
damages as a result of any such breach and/or an action for specific performance
of any such covenant or agreement contained in this Warrant.
20. No Impairment of Rights. The Company will not, by amendment of its
Charter or through any other means, 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 of this Warrant against impairment.
21. Severability. The invalidity or unenforceability of any provision of
this Warrant in any jurisdiction shall not affect the validity or enforceability
of such provision in any other jurisdiction, or affect any other provision of
this Warrant, which shall remain in full force and effect.
22. Recovery of Litigation Costs. If any legal action or other proceeding
is brought for the enforcement of this Warrant, or because of an alleged
dispute, breach, default, or misrepresentation in connection with any of the
provisions of this Warrant, the successful or prevailing party or parties shall
be entitled to recover reasonable attorneys' fees and other costs incurred in
that action or proceeding, in addition to any other relief to which it or they
may be entitled.
-12-
23. Entire Agreement; Modification. This Warrant constitutes the entire
agreement between the parties pertaining to the subject matter contained in it
and supersedes all prior and contemporaneous agreements, representations, and
undertakings of the parties, whether oral or written, with respect to such
subject matter.
24. Acceptance. Receipt of this Warrant by the holder hereof shall
constitute acceptance of and agreement to all of the terms and conditions
contained herein.
-13-
The Company has caused this Warrant to be duly executed and delivered as
of the Date of Grant specified above.
MYOGEN, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President, Finance and
------------------------------------
Administration and Chief
Financial Officer
Address: 0000 Xxxx 000xx Xxxxxx,
Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000
-14-
EXHIBIT A-1
NOTICE OF EXERCISE
To: MYOGEN, INC. (the "Company")
1. The undersigned hereby:
[ ] elects to purchase ________ shares of [Series Preferred
Stock] [Common Stock] of the Company pursuant to the
terms of the attached Warrant, and tenders herewith
payment of the purchase price of such shares in full, or
[ ] elects to exercise its net issuance rights pursuant to
Section 10.2 of the attached Warrant with respect to
________ Shares of [Series Preferred Stock] [Common
Stock].
2. Please issue a certificate or certificates representing
________ shares in the name of the undersigned or in such other name or names as
are specified below:
-----------------------------------
(Name)
-----------------------------------
-----------------------------------
(Address)
3. The undersigned represents that the aforesaid shares are being
acquired for the account of the undersigned for investment and not with a view
to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares,
all except as in compliance with applicable securities laws.
-----------------------------------
(Signature)
-----------------------------------
(Date)
EXHIBIT A-2
NOTICE OF EXERCISE
To: MYOGEN, INC. (the "Company")
1. Contingent upon and effective immediately prior to the closing (the
"Closing") of the Company's public offering contemplated by the Registration
Statement on Form S____, filed __________ 200__, the undersigned hereby:
[ ] elects to purchase ________ shares of [Series Preferred Stock] [Common
Stock] of the Company (or such lesser number of shares as may be sold on
behalf of the undersigned at the Closing) pursuant to the terms of the
attached Warrant, or
[ ] elects to exercise its net issuance rights pursuant to Section 10.2 of
the attached Warrant with respect to ________ Shares of [Series Preferred
Stock] [Common Stock].
2. Please deliver to the custodian for the selling shareholders a stock
certificate representing such ________ shares.
3. The undersigned has instructed the custodian for the selling
shareholders to deliver to the Company $________ or, if less, the net proceeds
due the undersigned from the sale of shares in the aforesaid public offering. If
such net proceeds are less than the purchase price for such shares, the
undersigned agrees to deliver the difference to the Company prior to the
Closing.
-----------------------------------
(Signature)
-----------------------------------
(Date)
EXHIBIT B
CHARTER
[INTENTIONALLY OMITTED]
