Contract
Exhibit 10.23
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY
APPLICABLE STATE SECURITIES LAW, AND MAY NOT BE SOLD, PLEDGED,
OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 AND AN
EXEMPTION UNDER APPLICABLE STATE LAW OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT
SUCH REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE STOCK
Company: Alexza Molecular Delivery Corporation, a Delaware
corporation
Number of Shares: 14,232
Class of Stock: Series C Preferred
Warrant Price: $1.55871 per share
Issue Date: Is the Warrant Effective Date, which is the date in
which the Holder executes this Warrant
Expiration Date: The later of either (a) the 10th
anniversary after the Issue Date or (b) 7 years after
the date of the Company’s initial public offering.
THIS WARRANT CERTIFIES THAT, for the agreed upon value of $1.00
and for other good and valuable consideration, SILICON VALLEY
BANK (“Holder”) is entitled to purchase the number of
fully paid and nonassessable shares of the class of securities
(the “Shares”) of the company (the
“Company”) at the Warrant Price all as set forth above
and as adjusted pursuant to Article 2 of this Warrant,
subject to the provisions and upon the terms and conditions set
forth in this Warrant.
1.6.1 “Acquisition”. For the purpose of this Warrant, “Acquisition” means any sale, license, or other disposition of all or substantially all of the assets of the Company, or any reorganization, consolidation, or merger of the Company where the holders of the Company’s securities before the transaction beneficially own less than 50% of the outstanding voting securities of the surviving entity after the transaction. | |
1.6.2 Treatment of Warrant at Acquisition. |
A) Upon the written request of the
Company, Holder agrees that, in the event of an Acquisition
that is not an asset sale and in which the sole consideration is
cash, either (a) Holder shall exercise its conversion or
purchase right under this Warrant and such exercise will be
deemed effective immediately prior to the consummation of such
Acquisition or (b) if Holder elects not to exercise the
Warrant, this Warrant will expire upon the consummation of such
Acquisition. The Company shall provide the Holder with written
notice of its request relating to the foregoing (together with
such reasonable information as the Holder may request in
connection with such contemplated Acquisition giving rise to
such notice), which is to be delivered to Holder not less than
ten (10) days prior to the closing of the proposed
Acquisition.
B) Upon the written request of the
Company, Holder agrees that, in the event of an Acquisition that
is an “arms length” sale of all or substantially all
of the Company’s assets (and only its assets) to a third
party that is not an Affiliate (as defined below) of the
Company (a “True Asset Sale”), either
(a) Holder shall exercise its conversion or purchase right
under this Warrant and such exercise will be deemed effective
immediately prior to the consummation of such Acquisition or
(b) if Holder elects not to exercise the Warrant, this
Warrant will continue until the Expiration Date if the Company
continues as a going concern following the closing of any such
True Asset Sale. The Company shall provide the Holder with
written notice of its request relating to the foregoing
(together with such reasonable information as the Holder may
request in connection with such contemplated Acquisition giving
rise to such notice), which is to be delivered to Holder not
less than ten (10) days prior to the closing of the
proposed Acquisition.
C) Upon the closing of any
Acquisition other than those particularly described in
subsections (A) and (B) above, the successor entity
shall assume the obligations of this Warrant, and this Warrant
shall be exercisable for the same securities, cash, 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. The Warrant Price and/or number of Shares
shall be adjusted accordingly.
As used herein “Affiliate” shall mean any
person or entity that owns or controls directly or indirectly
ten (10) percent or more of the stock of Company, any
person or entity that controls or is controlled by or is under
common control with such persons or entities, and each of such
person’s or entity’s officers, directors, joint
ventures or partners, as applicable.
2.6 Certificate as to Adjustments. Upon each adjustment
of the Warrant Price, the Company shall promptly notify Holder in
writing, and, at the Company’s expense, promptly compute such
adjustment, and furnish Holder with a certificate of its Chief
Financial Officer setting forth such adjustment and the facts upon
which such adjustment is based. The Company shall, upon written
request, furnish Holder a certificate setting forth the Warrant Price
in effect upon the date thereof and the series of adjustments leading
to such Warrant Price.
ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 Representations and Warranties. The Company
represents and warrants to the Holder as follows:
(a) The initial Warrant Price referenced on the first page of
this Warrant is not greater than (i) the price per share at
which the Shares were last issued in an arms-length transaction in
which at least $500,000 of the Shares were sold and (ii) the
fair market value of the Shares as of the date of this Warrant.
(b) All Shares which may be issued upon the exercise of the
purchase right represented by this Warrant, and all securities, if
any, issuable upon conversion of the Shares, shall, upon issuance, be
duly authorized, validly issued, fully paid and nonassessable, and
free of any liens and encumbrances except for restrictions on
transfer provided for herein or under applicable federal and state
securities laws.
(c) The Capitalization Table previously provided to Holder
remains true and complete as of the Issue Date.
3.2 Notice of Certain Events. If the Company proposes
at any time (a) to declare any dividend or distribution upon any
of its stock, whether in cash, property, stock, or other securities
and whether or not a regular cash dividend; (b) to offer for
sale additional shares of any class of stock in a private equity
round of financing (which shall not include issuances of stock
options, warrants or convertible debt instruments); (c) to
effect any reclassification or recapitalization of any of its stock;
(d) to merge or consolidate with or into any other corporation,
or sell, lease, license, or convey all or substantially all of its
assets, or to liquidate, dissolve or wind up; or (e) offer
holders of registration rights the opportunity to participate in an
underwritten public offering of the company’s securities for
cash, then, in connection with each such event, the Company shall
give Holder: (1) at least 10 days prior written notice of
the date on which a record will be taken for such dividend,
distribution, or subscription rights (and specifying the date on
which the holders of common stock will be entitled thereto) or for
determining rights to vote, if any, in respect of the matters
referred to in (c) and (d) above; (2) in the case of the matters
referred to in (c) and (d) above at least 10 days prior written
notice of the date when the same will take place (and specifying the
date on which the holders of common stock will be entitled to
exchange their common stock for securities or other property
deliverable upon the occurrence of such event); and (3) in
the case of the matter referred to in (e) above, the same notice as
is given to the holders of such registration rights.
3.3 Registration Under Securities Act of 1933, as
amended. The Company agrees that the Shares or, if the Shares are
convertible into common stock of the Company, such common stock,
shall have certain incidental, or “Piggyback,” registration
rights pursuant to and as set forth in the Company’s Investor
Rights Agreement or similar agreement. The provisions set forth in
the Company’s Investors’ Right Agreement or similar
agreement relating to the above in effect as of the Issue Date may
not be amended, modified or waived without the prior written consent
of Holder unless such amendment, modification or waiver affects the
rights associated with the Shares in the same manner as such
amendment, modification, or waiver affects the rights associated with
all other shares of the same series and class as the Shares granted
to the Holder.
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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
WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE ACT, OR THE SECURITIES LAWS OF ANY STATE AND EXCEPT AND
PURSUANT TO THE PROVISIONS OF ARTICLE 5 BELOW, MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER SAID ACT APPLICABLE STATE SECURITIES LAW OR,
IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE
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ISSUER OF THESE SECURITIES, SUCH
OFFER, SALE OR TRANSFER,
PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
Silicon Valley Bancshares | |
Attn: Treasury Department | |
0000 Xxxxxx Xxxxx, XX 000 | |
Xxxxx Xxxxx, XX 00000 | |
Telephone: 000-000-0000 | |
Facsimile: 000-000-0000 |
Notice to the Company shall be addressed as follows until the
Holder receives notice of a change in address:
Alexza Molecular Deliver Corporation | |
Attn: ________________________________ |
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0000 X. Xxxxxx Xxxxxx | |
Xxxx Xxxx, XX 00000 | |
Telephone: _______________________________
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5.10 Governing Law. This Warrant shall be governed
by and construed in accordance with the laws of the State of
California, without giving effect to its principles regarding
conflicts of law.
“COMPANY” | |
Alexza Molecular Delivery Corporation, | |
a Delaware Corporation | |
By: /s/ Xxxxxx X. Xxxx | |
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Name: Xxxxxx X. Xxxx | |
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(Print) |
Title: | Chairman of the Board, President |
or Vice
President
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By: | |
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Name: | |
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(Print) |
Title: | Chief Financial Officer, Secretary, |
Assistant Treasurer
or Assistant Secretary
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“HOLDER” | |
Silicon Valley Bank | |
By: /s/ Xxxxx Xxxxx | |
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Name: Xxxxx Xxxxx | |
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Title: | Vice President |
Warrant Effective Date: |
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APPENDIX 1
NOTICE OF EXERCISE
1. Holder elects to purchase shares of
the Common/Series Preferred [strike one] Stock of xx pursuant to the terms of the attached Warrant, and tenders payment of the purchase price of the shares in full.
[or]
1. Holder elects to convert the attached Warrant into
Shares/cash [strike one] in the manner specified in the
Warrant. This conversion is exercised for
of the Shares covered by the Warrant.
[Strike paragraph that does not apply.]
2. Please issue a certificate or certificates representing
the shares in the name specified below.
Holders Name
(Address)
3. By its execution below and for the benefit of the
Company, Holder hereby restates each of the representations and
warranties in Article 4 of the Warrant as the date hereof.
HOLDER: | |
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By: | |
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Name: | |
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Title: | |
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(Date): | |
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For value received, Silicon Valley Bank hereby sells, assigns
and transfers unto:
Name: Silicon Valley Bancshares | |
Address: 0000 Xxxxxx Xxxxx (XX-000) | |
Xxxxx Xxxxx, XX 00000 | |
TaxID: 00-0000000 |
that certain Warrant to Purchase Stock issued by Alexza Molecular Delivery Corporation (the “Company”), on April 9, 2004 (the “Warrant”) together with all rights, title and interest therein.
SILICON VALLEY BANK |
By: | /s/ Xxxxx Xxxxx |
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Name: | Xxxxx Xxxxx |
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Title: | Vice President |
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Date:April 9, 2004
By its execution below, and for the benefit of the Company, Silicon Valley Bancshares makes each of the representations and warranties set forth in Article 4 of the Warrant as the date hereof.
SILICON VALLEY BANCSHARES |
By: | /s/ Xxxxxxxx Xxxxx |
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Name: | Xxxxxxxx Xxxxx |
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Title: | Treasurer |
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