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EXHIBIT 4.3
Execution Copy
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE OF
THIS WARRANT
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NO SALE OR
DISPOSITION MAY BE EFFECTED EXCEPT IN COMPLIANCE WITH RULE 144
UNDER SAID ACT OR
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF
COUNSEL FOR THE HOLDER, SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS
NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO-ACTION LETTER FROM
THE SECURITIES
AND EXCHANGE COMMISSION.
WARRANT TO PURCHASE 40,000 SHARES OF COMMON STOCK
August 28, 2002
THIS CERTIFIES THAT, for value received, GENERAL ELECTRIC CAPITAL
CORPORATION
("Holder") is entitled to subscribe for and purchase Forty Thousand
(40,000)
shares (the "Shares") of the fully paid and nonassessable Common
Stock, par
value $.01 per share (the "Common Stock") of AMICUS THERAPEUTICS,
INC., A
DELAWARE corporation (the "Company"), at the Warrant Price (as
hereinafter
defined), subject to the provisions and upon the terms and
conditions
hereinafter set forth.
1. Warrant Price. The Warrant Price shall initially be Seventy-Five
Cents ($.75)
per Share, subject to adjustment as provided in Section 7
below.
2. Conditions to Exercise. The purchase right represented by this
Warrant may be
exercised at any time, or from time to time, in whole or in part
during the term
commencing on the date hereof and ending at 5:00 P.M. Pacific time
on the tenth
anniversary of the date of this Warrant.
3. Method of Exercise; Payment; Issuance of Shares; Issuance of New
Warrant.
(a) Cash Exercise. Subject to Section 2 hereof, the purchase right
represented
by this Warrant may be exercised by the Holder hereof, in whole or
in part, by
the surrender of this Warrant (with a duly executed Notice of
Exercise in the
form attached hereto) at the principal office of the Company (as
set forth in
Section 18 below) and by payment to the Company, by check, of an
amount equal to
the then applicable Warrant Price per share multiplied by the
number of Shares
then being purchased. In the event of any exercise of the rights
represented by
this Warrant, certificates for the Shares of stock so purchased
shall be in the
name of, and delivered to, the Holder hereof, or as such Holder may
direct
(subject to the terms of transfer contained herein and upon payment
by such
Holder hereof of any applicable transfer taxes). Such delivery
shall be made
within 30 days after exercise of the Warrant and at the Company's
expense and,
unless this Warrant has been fully exercised or expired, a new
Warrant having
terms and conditions substantially identical to this Warrant and
representing
the portion of the Shares, if any, with respect to which this
Warrant shall not
have been exercised, shall also be issued to the Holder hereof
within 30 days
after exercise of the Warrant.
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(b) Net Issue Exercise. Holder may also elect to receive Shares
equal to the
value of this Warrant (or of any portion thereof remaining
unexercised) by
surrender of this Warrant at the principal office of the Company
together with
notice of such election, in which event the Company shall issue to
Holder the
number of Shares computed using the following formula:
X = Y
(A-B)
-------
A
Where:
X = the
number of Shares to be issued to Holder.
Y = the
number of Shares purchasable under this Warrant (at the date
of such calculation).
A = the
Fair Market Value of one share of Common Stock (at the date
of such calculation).
B =
Warrant Price (as adjusted to the date of such calculation).
(c) Fair Market Value. For purposes of this Section 3, Fair Market
Value of one
share of the Company's Common Stock shall mean:
(i) In the
event of an exercise in connection with an initial public
offering,
the per share Fair Market Value for the Common Stock shall be
the
offering price at which the underwriters initially sell Common
Stock
to the
public; or
(ii) The
average of the closing bid and asked prices of Common Stock
quoted in
the Over-The-Counter Market Summary, the last reported sale
price
quoted on the Nasdaq National Market System ("NMS") or on the
principal
stock exchange on which the Common Stock is listed, whichever
is
applicable, as published in the Western Edition of the Wall
Street
Journal
for the ten (10) trading days prior to the date of
determination
of Fair
Market Value; or
(iii) In
the event of an exercise in connection with a merger,
acquisition
or other
consolidation in which the Company is not the surviving entity,
the per
share Fair Market Value shall be the value to be received per
share of
Common Stock by all holders of the Common Stock in such
transaction as determined by the Board of Directors; or
(iv) In
any other instance, the per share Fair Market Value shall be as
determined
in good faith by the Company's Board of Directors.
In the
event of 3(c)(iii) or 3(c)(iv), above, the Company's Board of
Directors
shall prepare a certificate, to be signed by an authorized
officer of
the Company, setting forth in reasonable detail the basis for
and method
of determination of the per share Fair Market Value. The Board
will also
certify to the Holder that this per share Fair Market Value
will
be
applicable to all holders of the Company's Common Stock. Such
certification must be made to Holder at least thirty (30) business
days
prior to
the proposed effective date of the merger, consolidation, sale,
or other
triggering event as defined in 3(c)(iii) or 3(c)(iv).
(d) Automatic Exercise. To the extent this Warrant is not
previously exercised
and the Fair Market Value exceeds the Warrant Price at such time,
it shall be
automatically exercised in accordance with Sections 3(b) and 3(c)
hereof (even
if not surrendered) immediately before its expiration, involuntary
termination
or cancellation.
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4. Representations and Warranties of Holder and the Company.
(a) Representations and Warranties by Holder. The Holder represents
and warrants
to the Company with respect to this purchase as follows:
(i) The
Holder has substantial experience in evaluating and investing
in
private
placement transactions of securities of companies similar to
the
Company so
that the Holder is capable of evaluating the merits and risks
of its
investment in the Company and has the capacity to protect its
interests.
(ii)
Except for transfers to a Holder's affiliates, the Holder is
acquiring
this Warrant and the Shares issuable upon exercise of the
Warrant
(collectively the "Securities") for investment for its own
account
and not
with a view to, or for resale in connection with, any
distribution
thereof.
The Holder understands that the Securities have not been
registered
under the Securities Act of 1933, as amended (the "Act") by
reason of
a specific exemption from the registration provisions of the
Act
which
depends upon, among other things, the bona fide nature of the
investment
intent as expressed herein.
(iii) The
Holder acknowledges that the Securities must be held
indefinitely unless subsequently registered under the Act or an
exemption
from such
registration is available. The Holder is aware of the
provisions
of Rule
144 promulgated under the Act.
(iv) The
Holder is an "accredited investor" within the meaning of
Regulation
D promulgated under the Act.
(v) The
Holder has had an opportunity to discuss the Company's
business,
management
and financial affairs with its management and an opportunity to
review the
Company's facilities. The Holder understands that such
discussions, as well as the written information issued by the
Company,
were
intended to describe the aspects of the Company's business and
prospects
which the Company believes to be material but were not
necessarily a thorough or exhaustive description. The Holder is
relying
solely on
its own investigation of the Company's business and prospects
and not on
any representation made by the Company other than as provided
in Section
4(b) hereof.
(b) Company hereby represents and warrants to Holder that, except
as set forth
in the schedule attached to this Warrant as Exhibit A (the
"Disclosure
Schedule"), the statements in the following paragraphs of this
Section 4(b) are
true and correct as of the date hereof.
(i) Corporate Organization and Authority. Company (a) is a
corporation duly organized, validly existing, and in good standing
in its
jurisdiction of incorporation, (b) has the corporate power and
authority to own
and operate its properties and to carry on its business as now
conducted and as
proposed to be conducted; and (c) is qualified as a foreign
corporation in all
jurisdictions where such qualification is required, except where
failure to be
qualified would not have a material adverse effect on the
Company.
(ii) Corporate Power. Company has all requisite legal and
corporate
power and authority to execute, issue and deliver the Warrant, to
issue the
Common Stock issuable
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upon exercise or conversion of the Warrant, and to carry out and
perform its
obligations under the Warrant and any related agreements.
(iii) Authorization; Enforceability. All corporate action on
the
part of Company, its officers, directors and shareholders necessary
for the
authorization, execution, delivery and performance of its
obligations under this
Warrant and for the authorization, issuance and delivery of the
Warrant and
Common Stock issuable upon exercise of the Warrant has been and
this Warrant
constitutes the legally binding and valid obligation of Company
enforceable in
accordance with its terms.
(iv) Valid Issuance of Warrant and Common Stock. The Warrant
has
been validly issued and is free of restrictions on transfer other
than
restrictions on transfer set forth herein and under applicable
state and federal
securities laws. The Common Stock issuable upon conversion of this
Warrant, when
issued, sold and delivered in accordance with the terms of this
Warrant for the
consideration expressed herein, will be duly and validly issued,
fully paid and
nonassessable, and will be free of restrictions on transfer other
than
restrictions on transfer under this Warrant and under applicable
state and
federal securities laws. Subject to applicable restrictions on
transfer, the
issuance and delivery of the Warrant and the Common Stock issuable
upon
conversion of the Warrant are not subject to any preemptive or
other similar
rights or any liens or encumbrances except as specifically set
forth in the
Company's Certificate of Incorporation or this Warrant. Provided
that the Holder
continues to be an "accredited investor" within the meaning of
Regulation D
promulgated under the Act, the offer, sale and issuance of the
Warrant and
Common Stock, as contemplated by this Warrant, are exempt from the
prospectus
and registration requirements of applicable United States federal
and state
security laws, and neither Company nor any authorized agent acting
on its behalf
has or will take any action hereafter that would cause the loss of
such
exemption.
(v) No Conflict with Other Instruments. The execution, delivery,
and
performance of this Warrant will not result in any violation of, be
in conflict
with, or constitute a default under, with or without the passage of
time or the
giving of notice (a) any provision of Company's Certificate of
Incorporation or
by-laws; (b) any provision of any judgment, decree, or order to
which the
Company is a party or by which it is bound or an event which
results in the
creation of any material lien, charge or encumbrance upon any
material assets of
Company; (c) any contract, obligation, or commitment to which
Company is a party
or by which it is bound; or (d) any statute, rule, or governmental
regulation
applicable to Company.
(vi) Capitalization. As of the date hereof, the authorized
capital
stock of Company consists of 10,000,000 shares of Common Stock,
$.01 par value,
of which 2,304,041 shares are issued and outstanding, and 3,333,334
shares of
Preferred Stock, $.01 par value, all of which have been designated
Series A
Preferred Stock and are issued and outstanding. The outstanding
shares have been
duly authorized and validly issued (including, without limitation,
issued in
compliance with applicable federal and state securities laws), are
fully paid
and nonass
