Exhibit 4.7
THIS WARRANT AND THE UNDERLYING
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER THE
ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED.
ARCA BIOPHARMA , I NC .
WARRANT TO PURCHASE COMMON
STOCK
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No. CW
– 4
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October 10, 2008
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Void After October 10,
2013
This certifies that, for value
received, Boulder Ventures IV, L.P., with its principal office at
1900 Ninth Street, Suite 200, Boulder, CO 80302, or its assigns
(the “ Holder ” or “ Purchaser
”), is entitled to subscribe for and purchase at the Exercise
Price (as defined below) from ARCA biopharma, Inc., a Delaware
corporation, with its principal office at 8001 Arista Place, Suite
200, Broomfield, Colorado 80021 (the “ Corporation
”), up to a number of Exercise Shares (as defined below),
upon the terms and subject to the adjustments as provided
herein.
This Warrant is being issued
pursuant to the terms of the Note and Warrant Purchase Agreement,
dated September 24, 2008, as amended by the First Amendment
thereto, dated as of the date hereof, (as amended, the “
Note and Warrant Purchase Agreement ”) by and among
the Corporation and the Purchasers listed on the Schedule of
Purchasers thereto, as the same may be further amended from time to
time (the “ Schedule of Purchasers ”).
Capitalized terms used herein but not otherwise defined shall have
the meanings given to them in the Note and Warrant Purchase
Agreement.
1. Definitions
. As used herein, the following
terms shall have the following respective meanings:
(a) “ Exercise Period ” shall
mean the time period commencing with the date of this Warrant and
ending five (5) years from date of this Warrant, unless sooner
terminated as provided below.
(b) “ Exercise Price ” shall mean
the lesser of (i) $3.253 or (ii) the product of
(x) the Parent Trading Price (as defined in the Merger
Agreement) and (y) the Exchange Ratio (as defined in the
Merger Agreement and determined in accordance with the methodology
reflected in the Spreadsheet (as defined in the Merger Agreement));
provided, however that in no event shall the Exercise Price be less
than $1.6265; and provided, further that the Exercise Price shall
be subject to adjustment pursuant to the terms herein, including
Section 5 below. Notwithstanding the forgoing, if the Merger
(as defined below) does not close on or before March 31, 2009,
the Exercise Price shall be $1.6265, subject to adjustment pursuant
to the terms herein, including Section 5 below.
(c)
“ Exercise
Shares ” shall mean a number of shares of common stock of
the Corporation (the “ Common Stock ”) issuable
upon exercise of this Warrant equal to (i) one-fifth
(1/5 th ) of such Purchaser’s
Total Purchase Price (as defined in the Note and Warrant Purchase
Agreement) divided by (b) the Exercise Price, rounded
up to the nearest share and subject to adjustment pursuant to the
terms herein, including Section 5 below.
(d) “ Merger Agreement ” shall
mean that certain Agreement and Plan of Merger and Reorganization
dated September 24, 2008, by and among the Corporation,
Nuvelo, Inc., a Delaware corporation (the “ Parent
”) and Dawn Acquisition Sub, Inc., a Delaware corporation
(the “ Merger Sub ”), pursuant to
which Merger Sub will merge with and into the Corporation and
the stockholders of the Corporation will receive shares of the
capital stock of Parent in exchange for their capital stock of the
Corporation (the “ Merger ”).
2. E XERCISE OF W ARRANT .
2.1 I N G ENERAL . The
rights represented by this Warrant may be exercised in whole or in
part at any time during the Exercise Period, by delivery of the
following to the Corporation at its address set forth above (or at
such other address as it may designate by notice in writing to the
Holder):
(a) an executed Notice of Exercise in the form
attached hereto;
(b) payment of the Exercise Price either (i) in
cash or by check, or (ii) by cancellation of indebtedness, or
(iii) pursuant to Section 2.1 below; and
(c) this Warrant.
Upon the exercise of the rights
represented by this Warrant, a certificate or certificates for the
Exercise Shares so purchased, registered in the name of the Holder
or persons affiliated with the Holder, if the Holder so designates,
shall be issued and delivered to the Holder as soon as practicable
after the rights represented by this Warrant shall have been so
exercised.
The person in whose name any
certificate or certificates for Exercise Shares are to be issued
upon exercise of this Warrant shall be deemed to have become the
holder of record of such shares on the date on which this Warrant
was surrendered and payment of the Exercise Price was made,
irrespective of the date of delivery of such certificate or
certificates, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Corporation
are closed, such person shall be deemed to have become the holder
of such shares at the close of business on the next succeeding date
on which the stock transfer books are open.
2.2 Net Exercise
. Notwithstanding any provisions
herein to the contrary, if the fair market value of one share of
the Corporation’s Common Stock is greater than the Exercise
Price (at the date of calculation as set forth below), in lieu of
exercising this Warrant by payment of cash, the Holder may elect
(the “ Conversion Right ”) to receive shares
equal to the value (as
2.
determined below) of this Warrant (or the
portion thereof being canceled) by surrender of this Warrant at the
principal office of the Corporation together with the properly
endorsed Notice of Exercise, in which event the Corporation shall
issue to the Holder a number of shares of Common Stock computed
using the following formula:
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X = Y (A-B)
A
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Where X = the number of shares of Common Stock
to be issued to the Holder
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Y =
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the number of
shares of Common Stock purchasable under the Warrant or, if only a
portion of the Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such calculation)
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A =
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the fair market
value of one share of the Corporation’s Common Stock (at the
date of such calculation)
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B =
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Exercise Price
(as adjusted to the date of such calculation)
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For purposes of the above
calculation, the fair market value of one share of Common Stock
shall be determined by the Corporation’s Board of Directors
in good faith; provided, however, that in the event that this
Warrant is exercised when the Corporation’s Common Stock is
traded in a public market, the fair market value of each share of
Common Stock shall be the closing price of a share of Common Stock
for the business day immediately before the day the Holder delivers
its Notice of Exercise to the Company.
3. C OVENANTS OF THE C ORPORATION .
3.1 Covenants as to Exercise
Shares . The Corporation
covenants and agrees that all Exercise Shares that may be issued
upon the exercise of the rights represented by this Warrant will,
upon issuance, be validly issued and outstanding, fully paid and
nonassessable, and free from all taxes, liens and charges with
respect to the issuance thereof. The Corporation further covenants
and agrees that the Corporation shall at all times during the
Exercise Period have authorized and reserved, free from preemptive
rights, a sufficient number of shares of its Common Stock to
provide for the exercise of the rights represented by this Warrant.
If at any time during the Exercise Period the number of authorized
but unissued shares of Common Stock shall not be sufficient to
permit exercise of this Warrant, the Corporation will take such
corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such
purposes.
3.2 No Impairment
. Except and to the extent as waived
or consented to by the Holder, the Corporation will not, by
amendment of its Certificate of Incorporation or through any
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 hereunder by the
Corporation, but will at all times in good faith assist in the
carrying out of all the provisions of this Warrant and in the
taking of all such action as may be necessary or appropriate in
order to protect the exercise rights of the Holder against
impairment.
3.
3.3 Notices of Record
Date . In the event of
any taking by the Corporation of a record of the holders of any
class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend (other than a cash
dividend which is the same as cash dividends paid in previous
quarters) or other distribution, the Corporation shall mail to the
Holder, at least ten (10) days prior to the date specified
herein, a notice specifying the date on which any such record is to
be taken for the purpose of such dividend or
distribution.
3.4 Notice of
Expiration. If this
Warrant has not been fully exercised on or before the date thirty
(30) days prior to the end of the Exercise Period, the
Corporation shall thereafter provide Holder with at least twenty
(20) days advance written notice of the date on which this
Warrant is to expire. If the Corporation fails to provide such
notice, the Exercise Period shall be extended until the date thirty
(30) days af