Exhibit 4.4
Execution Copy
WARRANT
THE SECURITIES EVIDENCED BY THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE “ SECURITIES ACT ”), OR
ANY OTHER APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN
RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND SUCH OTHER SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, HYPOTHECATED OR
OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO A TRANSACTION
WHICH IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION.
AUGUST 4, 2008
Warrant to Purchase up to 350,000
shares of Common Stock of ACADIA Pharmaceuticals Inc. (the “
Company ”).
In consideration for Kingsbridge
Capital Limited (the “ Investor ”) agreeing to
enter into that certain Common Stock Purchase Agreement, dated as
of the date hereof, between the Investor and the Company (the
“ Agreement ”), the Company hereby agrees that
the Investor or any other Warrant Holder (as defined below) is
entitled, on the terms and conditions set forth below, to purchase
from the Company at any time during the Exercise Period (as defined
below) up to 350,000 fully paid and non-assessable shares of common
stock, par value $0.0001 per share, of the Company (the “
Common Stock ”) at the Exercise Price (as defined
below), as the same may be adjusted from time to time pursuant to
Section 6 hereof. The resale of the shares of Common Stock or
other securities issuable upon exercise or exchange of this Warrant
is subject to the provisions of the Registration Rights Agreement.
Capitalized terms used herein and not otherwise defined shall have
the meanings given them in the Agreement.
Section 1. Definitions
.
“ Affiliate ”
shall mean any Person that, directly or indirectly through one or
more intermediaries, controls or is controlled by, or is under
direct or indirect common control with any other Person. For the
purposes of this definition, “ control ,” when
used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly
through the ownership of voting securities, and the term “
controls ” and “ controlled ” have
meanings correlative to the foregoing.
“ Closing Price ”
as of any particular day shall mean the closing price per share of
the Company’s Common Stock as reported by the Principal
Market on such day.
“ Exercise Period
” shall mean that period beginning six months after the date
of this Warrant and continuing until the earlier of (i) the
expiration of the five-year period thereafter, or (ii) a
Funding Default, subject in each case to earlier termination in
accordance with Section 6 hereof.
“ Exercise Price
” as of the date hereof shall mean $3.915.
“ Funding Default
” shall mean a failure by Investor to accept a Draw Down
Notice made by the Company and to acquire and pay for the Shares in
accordance therewith within three (3) Trading Days following
the delivery of such Shares to the Investor, provided such Draw
Down Notice was made in accordance with the terms and conditions of
the Agreement (including the satisfaction or waiver of the
conditions to the obligation of the Investor to accept a Draw Down
set forth in Article VII of the Agreement), provided further, that
such failure was reasonably within the control of the
Investor.
“ Per Share Warrant
Value ” shall mean the difference resulting from
subtracting the Exercise Price from the Closing Price on the
Trading Day immediately preceding the Exercise Date.
“ Person ” shall
mean an individual, a corporation, a partnership, a limited
liability company, an association, a trust or other entity or
organization, including a government or political subdivision or an
agency or instrumentality thereof.
“ Principal Market
” shall mean the NASDAQ Global Select Market, the NASDAQ
Global Market, the NASDAQ Capital Market, the American Stock
Exchange or the New York Stock Exchange, whichever is at the time
the principal trading exchange or market for the Common
Stock.
“ SEC ” shall
mean the United States Securities and Exchange
Commission.
“ Trading Day ”
shall mean any day other than a Saturday or a Sunday on which the
Principal Market is open for trading in equity
securities.
“ Warrant Holder
” shall mean the Investor or any permitted assignee or
permitted transferee of all or any portion of this
Warrant.
“ Warrant Shares
” shall mean those shares of Common Stock received upon
exercise of this Warrant.
Section 2. Exercise
.
(a) Method of Exercise . This
Warrant may be exercised in whole or in part (but not as to a
fractional share of Common Stock), at any time and from time to
time during the Exercise Period, by the Warrant Holder by surrender
of this Warrant, with the form of exercise attached hereto as
Exhibit A completed and duly executed by the Warrant
Holder (the “ Exercise Notice ”), to the Company
at the address set forth in Section 10.4 of the Agreement,
accompanied by payment of the Exercise Price multiplied by the
number of shares of Common Stock for which this Warrant is being
exercised (the “ Aggregate Exercise Price ”).
The later of the date on which an Exercise Notice or payment of the
Aggregate Exercise Price (unless this Warrant is exercised in
accordance with Section 2(c) below) is received by the Company
in accordance with this clause (a) shall be deemed an “
Exercise Date .”
(b) Payment of Aggregate Exercise
Price . Subject to paragraph (c) below, payment of the
Aggregate Exercise Price shall be made by wire transfer of
immediately available funds to an account designated by the
Company. If the amount of the payment received by the Company is
less than the Aggregate Exercise Price, the Warrant Holder will be
notified of the deficiency and shall make payment in that amount
within three (3) Trading Days. In the event the payment
exceeds the Aggregate Exercise Price, the Company will refund the
excess to the Warrant Holder within five (5) Trading Days of
receipt.
(c) Cashless Exercise . In
the event that the Warrant Shares to be received by the Warrant
Holder upon exercise of the Warrant may not be resold pursuant to
an effective registration statement or an exemption to the
registration requirements of the Securities Act and applicable
state laws, the Warrant Holder may, as an alternative to payment of
the Aggregate Exercise Price upon exercise in accordance with
paragraph (b) above, elect to effect a cashless exercise by so
indicating on the Exercise Notice and including a calculation of
the number of shares of Common Stock to be issued upon such
exercise in accordance with the terms hereof (a “ Cashless
Exercise ”). If a registration statement on Form S-3
under the Securities Act or such other form as deemed appropriate
by counsel to the Company for the registration for the resale by
the Warrant Holder of (x) the shares of Common Stock of the
Company that may be purchased under the Agreement, (y) the
Warrant Shares, or (z) any securities issued or issuable with
respect to any of the foregoing by way of exchange, stock dividend
or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or
otherwise, has been declared effective by the SEC and remains
effective, the Company may, in its sole discretion, permit the
Warrant Holder to effect a Cashless Exercise or require the Warrant
Holder to pay the Exercise Price of the Warrant Shares being
purchased by the Warrant Holder under this Warrant. In the event of
a Cashless Exercise, the Warrant Holder shall receive that number
of shares of Common Stock determined by (i) multiplying the
number of Warrant Shares for which this Warrant is being exercised
by the Per Share Warrant Value and (ii) dividing the product
by the Closing Price on the Trading Day immediately preceding the
Exercise Date, rounded down to the nearest whole share. The Company
shall cancel the total number of Warrant Shares equal to the excess
of the number of the Warrant Shares for which this Warrant is being
exercised over the number of Warrant Shares to be received by the
Warrant Holder pursuant to such Cashless Exercise.
(d) Replacement Warrant . In
the event that the Warrant is not exercised in full, the number of
Warrant Shares shall be reduced by the number of such Warrant
Shares for which this Warrant is exercised, and the Company, at its
expense, shall forthwith issue and deliver to or upon the order of
the Warrant Holder a new Warrant of like tenor in the name of the
Warrant Holder, reflecting such adjusted number of Warrant
Shares.
(e) No Settlement for Cash .
The Warrant cannot be settled for cash.
Section 3. Ten Percent
Limitation . The Warrant Holder may not exercise this Warrant
such that the number of Warrant Shares to be received pursuant to
such exercise aggregated with all other shares of Common Stock that
are then beneficially owned or deemed to be beneficially owned by
the Warrant Holder would result in (i) the Warrant Holder
owning more than 9.9% of all of such Common Stock as would be
outstanding on such Exercise Date, as determined in accordance with
Section 13(d) of the Exchange Act or (ii) the Company
being required to file any notification or report forms under the
Hart Scott Rodino Antitrust Improvements Act of 1976, as
amended.
Section 4. Delivery of Warrant
Shares .
(a) Subject to the terms and
conditions of this Warrant, as soon as practicable after the
exercise of this Warrant in full or in part, and in any event
within ten (10) Trading Days thereafter, the Company at its
expense (including, without limitation, the payment by it of any
applicable issue taxes) will cause to be deposited with the
Depositary Trust Company via book-entry, the number of validly
issued, fully paid and non-assessable Warrant Shares to which the
Warrant Holder shall be entitled on such exercise, together with
any other stock or other securities or property (including cash,
where applicable) to which the Warrant Holder is entitled upon such
exercise in accordance with the provisions hereof.
(b) This Warrant may not be
exercised as to fractional shares of Common Stock. In the event
that the exercise of this Warrant, in full or in part, would result
in the issuance of any fractional share of Common Stock, then in
such event the Warrant Holder shall receive the number of shares
rounded down to the nearest whole share.
Section 5. Representations,
Warranties and Covenants of the Company .
(a) The Warrant Shares, when issued
in accordance with the terms hereof, will be duly authorized and,
when paid for and issued in accordance with the terms hereof, shall
be validly issued, fully paid and non-assessable.
(b) The Company shall take all
commercially reasonable action and proceedings as may be required
and permitted by applicable law, rule and regulation for the legal
and valid issuance of this Warrant and the Warrant Shares to the
Warrant Holder.
(c) The Company has authorized and
reserved for issuance to the Warrant Holder the requisite number of
shares of Common Stock to be issued pursuant to this Warrant. The
Company shall at all times reserve and keep available, solely for
issuance and delivery as Warrant Shares hereunder, such shares of
Common Stock as shall from time to time be issuable as Warrant
Shares.
(d) From the date hereof through the
last date on which this Warrant is exercisable, the Company shall
take all commercially reasonable action to ensure that the Common
Stock remains listed or quoted on the Principal Market.
Section 6. Adjustment of the
Exercise Price . The Exercise Price and, accordingly, the
number of Warrant Shares issuable upon exercise of the Warrant,
shall be subject to adjustment from time to time upon the happening
of certain events as follows:
(a) Reclassification,
Consolidation, Merger, Mandatory Share Exchange, Sale or
Transfer .
(i) Upon occurrence of any of the
events specified in subsection (a)(ii) below (the “
Adjustment Events ”) while this Warrant is unexpired
and not exercised in full, the Warrant Holder may in its sole
discretion require the Company, or any successor or purchasing
corporation, as the case may be, without payment of any additional
consideration therefor, upon surrender by the Warrant Holder of the
Warrant to be replaced, to execute and deliver to the Warrant
Holder a new Warrant providing that the Warrant Holder shall have
the right to exercise such new Warrant (upon terms not less
favorable to the Warrant Holder than those then applicable to this
Warrant) and to receive upon such exercise, in lieu of each share
of Common Stock theretofore issuable upon exercise of this Warrant,
the kind and amount of shares of stock, other securities, money or
property receivable upon such Adjustment Event by the holder of one
share of Common Stock issuable upon exercise of this Warrant had
this Warrant been exercised immediately prior to such Adjustment
Event, and the Exercise Price shall be proportionately adjusted, as
applicable, such that the aggregate amount to be paid by the
Warrant Holder to acquire all of the Warrant Shares upon exercise
after such Adjustment Event shall be equal to the aggregate amount
to be paid by the Warrant Holder to acquire all of the Warrant
Shares upon exercise prior to such Adjustment Event. Such new
Warrant shall provide for adjustments that shall be as nearly
equivalent as may be practicable to the adjustments provided for in
this Section 6.
(ii) The Adjustment Events shall be
(1) any reclassification or change of Common Stock (other than
a change in par value, as a result of a subdivision or combination
of Common Stock or in connection with an Excluded Merger or Sale),
and (2) any consolidation, merger or mandatory share exchange
of the Company with or into another corp