Exhibit 10.40
EXHIBIT A
COMMON STOCK PURCHASE WARRANT
ALEXZA PHARMACEUTICALS, INC.
THIS COMMON STOCK PURCHASE WARRANT
(the “ Warrant ”) certifies that, for
value received, Biomedical Sciences Investment Fund
Pte Ltd (the “ Holder ”), is
entitled, upon the terms and subject to the limitations on exercise
and the conditions hereinafter set forth, at any time during the
Exercise Period (as defined below), to subscribe for and purchase
from Alexza Pharmaceuticals, Inc., a Delaware corporation (the
“ Company ”), up to a number of shares of
Common Stock, par value $0.0001 per share, of the Company (the
“ Common Stock ”) as provided for in
Section 2(c) (the “ Warrant Shares ”).
The purchase price of one share of Common Stock under this Warrant
shall be equal to the Exercise Price, as defined in
Section 2(b).
Section 1 .
Definitions . Capitalized terms used and not otherwise
defined herein shall have the meanings set forth in that certain
Stock and Warrant Purchase Agreement (the “ Purchase
Agreement ”), dated March 26, 2008, by and
between the Company and the Holder.
Section 2 .
Exercise .
a)
Exercise of Warrant . Exercise of the purchase rights
represented by this Warrant may be made, in whole or in part, at
any time or times during the Exercise Period by delivery to the
Company of a duly executed facsimile copy of the Notice of Exercise
Form annexed hereto (or such other office or agency of the Company
as it may designate by notice in writing to the registered Holder
at the address of such Holder appearing on the books of the
Company); provided , however , within 5 Trading Days
of the date said Notice of Exercise is delivered to the Company,
the Holder shall have surrendered this Warrant to the Company and
the Company shall have received payment of the aggregate Exercise
Price of the shares thereby purchased by wire transfer or
cashier’s check drawn on a United States bank.
b)
Exercise Price . The exercise price of the Common Stock
under this Warrant shall be $8.00 (such price to be adjusted for
stock splits, stock dividends and the like) per share;
provided , however , that if (i) the Pricing
Adjustment Point is not triggered, or (ii) a binding agreement
to acquire substantially all of the assets or a majority of the
outstanding voting securities of the Company (through merger,
acquisition, consolidation or otherwise) in which the aggregate
purchase price is less than $8.00 (such price to be adjusted for
stock splits, stock dividends and the like) per share is entered
into prior to the earlier of (a) the triggering of a Pricing
Adjustment Point or (b) the end of the Pricing Period (a
“ Pricing Change in Control Event ”),
then the exercise price of the Common Stock under this Warrant
shall be $7.22 (such price to be adjusted for stock splits, stock
dividends and the like) per share (the “ Exercise
Price ”); provided , further that if
this Warrant is exercised prior to December 31, 2008 other
than in connection with a Pricing Change in Control Event the
Exercise Price shall be $8.00 (such
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price to
be adjusted for stock splits, stock dividends and the like) per
share. The Exercise Price shall be subject to adjustment pursuant
to Section 3 hereof.
c)
Number of Warrant Shares . The number of shares of Common
Stock that the Holder may purchase by exercising this Warrant shall
equal the number of whole shares of Common Stock equal to
$3,000,000 divided by the Exercise Price determined pursuant to
Section 2(b).
d)
Exercise Period . This Warrant shall not become exercisable
unless and until an Exercise Trigger Event (as defined below)
occurs. If an Exercise Trigger Event occurs, this Warrant shall be
exercisable for the period commencing on the date of the Exercise
Trigger Event and ending on the close of business on the fifth year
anniversary of the date hereof (the “ Exercise
Period ”). For purposes of this Warrant, “
Exercise Trigger Event ” shall mean each of the
following events:
i. The
failure by the Company, including any of its Affiliates or a joint
venture of which the Company is stockholder or member, to achieve a
milestone set forth on Exhibit A hereto (each a “
Milestone ”, and collectively, the “
Milestones ”); provided , however
, that the Company shall have forty five (45) days after the
date on which the Company receives a Cure Notice (as defined on
Exhibit A) to cure any alleged failure before any such failure
shall be deemed an Exercise Trigger Event; and provided
further that with respect to any Milestone, the Company may
request the written consent of the Holder for the modification of
such Milestone, or the modification of the timing for the
performance of such Milestone, and the Holder hereby agrees that it
will not unreasonably withhold consent to such modification;
and
ii. The
termination by the Company of its operations in Singapore or the
transfer of all, or substantially all, of the Company’s
Singapore operations outside of Singapore without the prior written
consent of the Holder.
e)
Cashless Exercise . This Warrant may also be exercised
during the Exercise Period by means of a “cashless
exercise” in which the Holder shall be entitled to receive a
certificate for the number of Warrant Shares equal to the quotient
obtained by dividing [(A-B)*(X)] by (A), where:
(A) =
the VWAP on the Trading Day immediately preceding the date of such
election;
(B) =
the Exercise Price of this Warrant, as adjusted; and
(X) =
the number of Warrant Shares issuable upon exercise of this Warrant
in accordance with the terms of this Warrant by means of a cash
exercise rather than a cashless exercise.
For purposes of this
Section 2(e), “ VWAP ” shall mean
the daily volume weighted average price of the Company on the
Principal Market as reported by Bloomberg Financial L.P. using the
AQR function.
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f)
Mechanics of Exercise .
i.
Authorization of Warrant Shares . The Company covenants that
all Warrant Shares which may be issued upon the exercise of the
purchase rights represented by this Warrant will, upon exercise of
the purchase rights represented by this Warrant, be duly
authorized, validly issued, fully paid and nonassessable and free
from all taxes, liens and charges in respect of the issue thereof
(other than taxes in respect of any transfer occurring
contemporaneously with such issue).
ii.
Delivery of Certificates Upon Exercise . Certificates for
shares purchased hereunder shall be transmitted by the transfer
agent of the Company to the Holder by crediting the account of the
Holder’s prime broker with the Depository Trust Company
through its Deposit Withdrawal Agent Commission (“
DWAC ”) system if the Company is a participant
in such system and such system is available for transmitting such
certificates, or otherwise by physical delivery to the address
specified by the Holder in the Notice of Exercise within 5 Trading
Days from the delivery to the Company of the Notice of Exercise
Form, surrender of this Warrant and payment of the aggregate
Exercise Price as set forth above (“ Warrant Share
Delivery Date ”). This Warrant shall be deemed to
have been exercised on the date the aggregate Exercise Price is
received by the Company. The Warrant Shares shall be deemed to have
been issued, and Holder or any other person so designated to be
named therein shall be deemed to have become a holder of record of
such shares for all purposes, as of the date the Warrant has been
exercised by payment to the Company of the aggregate Exercise Price
and all taxes required to be paid by the Holder, if any, pursuant
to Section 2(f)(vi) prior to the issuance of such shares, have
been paid.
iii.
Delivery of New Warrants Upon Exercise . If this Warrant
shall have been exercised in part, the Company shall, at the time
of delivery of the certificate or certificates representing Warrant
Shares, deliver to the Holder a new Warrant evidencing the rights
of the Holder to purchase the unpurchased Warrant Shares called for
by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant.
iv.
Rescission Rights . If the Company fails to cause its
transfer agent to transmit to the Holder a certificate or
certificates representing the Warrant Shares pursuant to Section
2(f)(ii) by the date that is two business days after the Warrant
Share Delivery Date, then the Holder will have the right to rescind
such exercise.
v.
No Fractional Shares or Scrip . No fractional shares or
scrip representing fractional shares shall be issued upon the
exercise of this Warrant. As to any fraction of a share which the
Holder would otherwise be entitled to purchase upon such exercise,
the Company shall pay a cash adjustment in respect of such final
fraction in an amount equal to such fraction multiplied by the
Exercise Price.
vi.
Charges, Taxes and Expenses . Issuance of certificates for
Warrant Shares shall be made without charge to the Holder for any
issue or transfer tax or other incidental expense in respect of the
issuance of such certificate, all of which taxes and expenses shall
be paid by the Company, and such certificates shall be issued in
the name of the Holder or in such name or names as may be directed
by the Holder; provided , however , that in the
event
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certificates for Warrant Shares are to be issued in a name other
than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached
hereto duly executed by the Holder; and the Company may require, as
a condition thereto, the payment of a sum sufficient to reimburse
it for any transfer tax incidental thereto.
Section 3 .
Certain Adjustments; Early Termination .
a)
Stock Dividends and Splits . If the Company, at any time
while this Warrant is outstanding: (A) pays a stock dividend
or otherwise make a distribution or distributions on shares of its
Common Stock or any other equity or equity equivalent securities
payable in shares of Common Stock (which, for avoidance of doubt,
shall not include any shares of Common Stock issued by the Company
pursua
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