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EXHIBIT 4.6
THIS NOTE IS A
RESTRICTED SECURITY WITHIN THE MEANING OF THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND ANY
APPLICABLE STATE SECURITIES LAWS, AND
MAY NOT BE OFFERED, SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT REGISTRATION
UNDER THE ACT OR THE OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT AN
EXEMPTION FROM REGISTRATION IS AVAILABLE OR
THAT SUCH TRANSFER MAY OTHERWISE
LAWFULLY BE MADE.
STRUCTURAL GENOMIX, INC.
AMENDED AND RESTATED CONVERTIBLE PROMISSORY NOTE
$6,000,000.00
Dated: December 16,
2004
San Diego, California
This
Amended and Restated Convertible Promissory Note is made as of
the
16th day of December, 2004, ("Restatement
Date") by and between Structural
GenomiX, Inc., a corporation duly organized
and existing under the laws of
Delaware (the "Company") and Millennium
Pharmaceuticals, Inc. (as successor in
interest to mHOLDINGS TRUST) or registered
assigns (the "Holder").
Preliminary Statements:
1. Holder
received from Company a Convertible Promissory Note dated
December 21, 2001 in the principal sum of
USD $6,000,000, as previously amended
by Amendment No. 1 dated March 14, 2003,
Amendment No. 2 dated August 29, 2003
and Amendment No. 3 dated February 5, 2004;
(the "Note").
2. Company
and Holder now wish to amend and restate the Note to set out
fully their respective rights and
obligations as set forth below.
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are
acknowledged, each of the undersigned hereby
agrees as follows:
Structural
GenomiX, Inc., a corporation duly organized and existing under
the laws of Delaware (the "Company"), for
value received, hereby promises to pay
to mHOLDINGS TRUST or registered assigns
(the "Holder"), the principal sum of
$6,000,000.00. This Note is executed and
delivered in connection with that
certain Convertible Promissory Note
Purchase Agreement dated December 21, 2001
by and among the Company, the Holder and
Millennium Pharmaceuticals, Inc.
("Millennium") (as the same may be amended,
modified or supplemented or
restated, the "Purchase Agreement"). All
capitalized terms used herein and not
otherwise defined herein shall have the
respective meanings given to them in the
Purchase Agreement.
1.
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1.
Principal;. As of the Restatement Date, the full principal amount
of
this Note has converted to the Convertible
Amount pursuant to Section 5.
2.
Interest. No interest shall accrue on the unpaid principal balance
of
this Note. Interest shall accrue on overdue
payments of principal, unless such
payments have been extended by the Holder,
at the annual rate of fifteen percent
(15%).
3.
Registration and Transfer of the Note. The Company will keep
the
registration and transfer books for the
Note. The Note may be transferred only
on the books of the Company. The Note may
not be transferred without the prior
written consent of the Company, except to
affiliates of mHoldings Trust (the
"Permitted Transferees"). The Note may be
transferred to a Permitted Transferee
only if (a) prior to any such transfer, the
Permitted Transferee enters into a
written agreement in form and substance
acceptable to the Company pursuant to
which the Permitted Transferee agrees to be
bound by all of the provisions of
the Note and the Purchase Agreement and (b)
such transfer complies with all
applicable federal and state securities
laws and prior to any such transfer, and
if requested by the Company, the Holder
provides to the Company an opinion of
counsel satisfactory to the Company
regarding compliance with applicable federal
and state securities laws. Upon surrender
or transfer of the Note at the
principal office of the Company, duly
endorsed for transfer or accompanied by a
proper assignment duly executed by the
registered owner or such owner's attorney
duly authorized in writing, and accompanied
by the documents described in the
preceding sentence, the Company will issue
and deliver to the transferee a new,
fully registered Note in like principal
amount. Any attempted transfer of the
Note, any portion thereof or any interest
therein that is not in compliance with
the provisions of this Section 4 shall be
null and void.
4. No
Prepayment. This Note may not be prepaid without the prior
written
consent of the Holder, except as expressly
provided herein.
5.
Conversion.
(a)
Subject to
Sections 5(b) - (e) below, portions of the principal
on the Note will convert into the right of
the Holder to receive shares of the
Company's equity securities as set forth
below in this Section 5 (the
"Conversion Securities"). The amount so
converted into the obligation to issue
shares of the Conversion Securities shall
at any time be referred to as the
"Convertible Amount": As of the Restatement
Date, the full principal amount of
this Note ($6,000,000) has converted to the
Convertible Amount;
(b) Actual
conversion of the Convertible Amount into the Conversion
Securities shall occur immediately upon the
closing of a firmly underwritten
public offering pursuant to an effective
registration statement under the
Securities Act of 1933, as amended,
covering the offer and sale of the Company's
Common Stock, (the "Common Stock") or other
class of stock for the account of
the Company and listing on a U.S. national
securities exchange or admitted for
quotation on the Nasdaq National Market
(the " IPO") or immediately prior to the
closing of any
2.
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Sale of the Company (as defined below) upon
the following terms:
(i) if the Convertible Amount converts pursuant to an IPO, then
upon
the closing of the IPO, the Convertible
Amount shall convert automatically,
without further action by the Company or
the Holder, into Common Stock or such
other class or type of securities
registered pursuant to the IPO (the "IPO
Stock") at the same price per share that
the IPO Stock is first sold to the
public in the IPO and the Company shall
promptly notify its transfer agent to
issue a certificate to the Holder for such
IPO stock; and
(ii) if the Convertible Amount converts pursuant to a Sale of
the
Company, then immediately prior to the
closing of the Sale of the Company, the
Convertible Amount shall convert
automatically, without further action by the
Company or the Holder, into the same
type(s) and class(es) of securities issued
at the Company's most recently completed
round of financing which yielded at
least $5,000,000 in gross proceeds to the
Company (a "Qualified Financing"). The
price at which the Convertible Amount
converts into such Conversion Securities
shall be the Sale Value per share of such
securities. The "Sale Value" per share
of the Conversion Securities shall be (i)
if the Conversion Securities will be
sold for cash in the Sale of the Company,
the amount of cash received per share
for the Conversion Securities; (ii) if the
Conversion Securities will be
exchanged for property other than cash, the
fair market value of the
consideration received per share in
exchange for the Conversion Securities;
(iii) if all or substantially all of the
assets of the Company will be sold,
leased or otherwise disposed (the "Asset
Sale"), the net book value per share of
the Conversion Securities as measured by
taking the total amount received in the
Asset Sale, subtracting any liabilities of
the Company and the Convertible
Amount existing immediately prior to the
Asset Sale, and dividing the result by
the Company's total issued and outstanding
shares of Common Stock on an as
converted basis immediately prior to the
Asset Sale; or (iv) any combination of
the foregoing, as applicable.
"Sale of the Company" shall mean (A) any
consolidation or 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 voting power of the
surviving entity immediately after such
consolidation, merger or reorganization; or
(B) any transaction or series of
related transactions to which the Company
is a party in which in excess of fifty
percent (50%) of the Company's voting power
is transferred; or (C) any Asset
Sale; provided that, notwithstanding the
foregoing, "Sale of the Company" shall
not include (x) any consolidation or merger
effected exclusively to change the
domicile of the Company, or (y) any
transaction or series of transactions
principally for bona fide equity financing
purposes in which cash is receive by
