EXHIBIT 4.1
VERENIUM CORPORATION
W ARRANT T O P URCHASE C OMMON S TOCK
Warrant
No.:
Number of Shares of Common Stock:
Date of Issuance: October 9, 2009 (“
Issuance Date ”)
Verenium Corporation, a Delaware
corporation (the “ Company ”), hereby certifies
that, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, [ INVESTOR
NAME ], the registered holder hereof or its permitted assigns
(the “ Holder ”), is entitled, subject to the
terms set forth below, to purchase from the Company, at the
Exercise Price (as defined below) then in effect, upon surrender of
this Warrant to Purchase Common Stock (including any Warrants to
Purchase Common Stock issued in exchange, transfer or replacement
hereof, the “ Warrant ”), at any time or times
on or after the date hereof (the “ Exercisability
Date”) , but not after 11:59 p.m., New York time, on the
Expiration Date (as defined below),
[ ( )]
1 fully paid nonassessable shares of Common Stock
(as defined below) (the “ Warrant Shares ”).
Except as otherwise defined herein, capitalized terms in this
Warrant shall have the meanings set forth in Section 15
. This Warrant is the Warrant to purchase Common Stock (this
“ Warrant ”) issued pursuant to (i) the
Company’s Prospectus Supplement, dated October 6, 2009
(the “ Prospectus ”) and (ii) the
Company’s Registration Statement on Form S-3 (File number
333-147403) (the “ Registration Statement
”).
1. EXERCISE OF
WARRANT.
(a) Mechanics of Exercise .
Subject to the terms and conditions hereof, this Warrant may be
exercised by the Holder on any day on or after the Exercisability
Date, in whole or in part, by (i) delivery of a written
notice, in the form attached hereto as Exhibit A (the
“ Exercise Notice ”), of the Holder’s
election to exercise this Warrant and (ii) (A) payment to the
Company of an amount equal to the applicable Exercise Price
multiplied by the number of Warrant Shares as to which this Warrant
is being exercised (the “ Aggregate Exercise Price
”) in cash or by wire transfer of immediately available funds
or (B) provided the conditions for cashless exercise set forth
in Section 1(d) are satisfied, by notifying the Company
that this Warrant is being exercised pursuant to a Cashless
Exercise (as defined in Section 1(d) ). The Holder
shall not be required to deliver the original Warrant in order to
effect an exercise hereunder. Execution and delivery of the
Exercise Notice with respect to less than all of the Warrant Shares
shall have the same effect as cancellation of the original Warrant
and issuance of a new Warrant evidencing the right to purchase the
remaining number of Warrant Shares. On or before the first
(1 st
) Business Day following the
date on which the Company has received each of the Exercise Notice
and the Aggregate Exercise Price (or notice of a Cashless Exercise)
(the “ Exercise Delivery Documents ”), the
Company shall transmit by facsimile an acknowledgment of
confirmation of receipt of the Exercise Delivery Documents to the
Holder and American Stock Transfer & Trust Company (the
Company’s “ Transfer Agent ”). On or
before the third (3 rd ) Business Day following the date on which
the Company has received all of the Exercise Delivery Documents
(the “ Share Delivery Date ”), the Company shall
(X) provided that the Transfer Agent is participating in The
Depository Trust Company (“ DTC ”) Fast
Automated Securities Transfer Program, upon the request of the
Holder, credit such aggregate number of Warrant Shares to which the
Holder is entitled pursuant to such exercise to the Holder’s
or its designee’s balance account with DTC through its
Deposit Withdrawal Agent Commission system, or (Y) if the
Transfer Agent is not participating in the DTC Fast Automated
Securities Transfer Program, issue and dispatch by overnight
courier to the address as specified in the Exercise Notice, a
certificate, registered in the Company’s share register in
the name of the Holder or its designee, for the number of shares of
Common Stock to which the Holder is entitled pursuant to such
exercise. Upon delivery of the Exercise
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1
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Insert a number
of shares equal to 40% of the number of Common Shares
purchased.
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Delivery Documents, the Holder shall be deemed
for all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been
exercised, irrespective of the date such Warrant Shares are
credited to the Holder’s DTC account or the date of delivery
of the certificates evidencing such Warrant Shares, as the case may
be. If this Warrant is submitted in connection with any exercise
pursuant to this Section 1(a) and the number of Warrant
Shares represented by this Warrant submitted for exercise is
greater than the number of Warrant Shares being acquired upon an
exercise, then the Company shall as soon as practicable and in no
event later than three Business Days after any exercise and at its
own expense, issue a new Warrant (in accordance with
Section 7(d) ) representing the right to purchase the
number of Warrant Shares purchasable immediately prior to such
exercise under this Warrant, less the number of Warrant Shares with
respect to which this Warrant is exercised. No fractional shares of
Common Stock are to be issued upon the exercise of this Warrant,
but rather the number of shares of Common Stock to be issued shall
be rounded to the nearest whole number. The Company shall pay any
and all taxes which may be payable with respect to the issuance and
delivery of Warrant Shares upon exercise of this
Warrant.
(b) Exercise Price . For
purposes of this Warrant, “ Exercise Price ”
means $7.59, subject to adjustment as provided herein.
(c) Company’s Failure to
Timely Deliver Securities . If the Company shall fail for any
reason or for no reason to issue to the Holder within three
(3) Business Days of receipt of the Exercise Delivery
Documents in compliance with the terms of this
Section 1 , a certificate for the number of shares of
Common Stock to which the Holder is entitled and register such
shares of Common Stock on the Company’s share register or to
credit the Holder’s balance account with DTC for such number
of shares of Common Stock to which the Holder is entitled upon the
Holder’s exercise of this Warrant, and if on or after such
Trading Day the Holder purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a
sale by the Holder of shares of Common Stock issuable upon such
exercise that the Holder anticipated receiving from the Company (a
“Buy-In” ), then the Company shall, within three
(3) Business Days after the Holder’s request and in the
Holder’s discretion, either (i) pay cash to the Holder
in an amount equal to the Holder’s total purchase price
(including brokerage commissions, if any) for the shares of Common
Stock so purchased (the “Buy-In Price” ), at
which point the Company’s obligation to deliver such
certificate (and to issue such Warrant Shares) shall terminate, or
(ii) promptly honor its obligation to deliver to the Holder a
certificate or certificates representing such Warrant Shares and
pay cash to the Holder in an amount equal to the excess (if any) of
the Buy-In Price over the product of (A) such number of shares
of Common Stock, times (B) the Closing Bid Price on the date
of exercise.
(d) Cashless Exercise .
Notwithstanding anything contained herein to the contrary, if a
registration statement covering the Warrant Shares that are the
subject of the Exercise Notice (the “ Unavailable Warrant
Shares ”), or an exemption from registration
, is not available for the resale of such Unavailable
Warrant Shares, the Holder may, with the consent of the Company (in
the Company’s sole discretion), exercise this Warrant in
whole or in part and, in lieu of making the cash payment otherwise
contemplated to be made to the Company upon such exercise in
payment of the Aggregate Exercise Price, receive upon such exercise
the “Net Number” of shares of Common Stock determined
according to the following formula (a “ Cashless
Exercise ”):
Net Number = (A x
B) – (A x C)
B
For purposes of the foregoing
formula:
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A =
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the total
number of shares with respect to which this Warrant is then being
exercised.
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B =
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the arithmetic
average of the Closing Sale Prices of the shares of Common Stock
for the five (5) consecutive Trading Days ending on the date
immediately preceding the date of the Exercise Notice.
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C =
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the Exercise
Price then in effect for the applicable Warrant Shares at the time
of such exercise.
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(e) Rule 144 . For purposes
of Rule 144(d) promulgated under the Securities Act, as in effect
on the date hereof, it is intended that the Warrant Shares issued
in a Cashless Exercise shall be deemed to have been acquired by the
Holder, and the holding period for the Warrant Shares shall be
deemed to have commenced, on the date this Warrant was originally
issued pursuant to the Prospectus.
(f) Disputes . In the case of
a dispute as to the determination of the Exercise Price or the
arithmetic calculation of the Warrant Shares, the Company shall
promptly issue to the Holder the number of Warrant Shares that are
not disputed.
(g) Beneficial Ownership .
The Company shall not effect the exercise of this Warrant, and the
Holder shall not have the right to exercise this Warrant, to the
extent that after giving effect to such exercise, the Holder
(together with the Holder’s affiliates) would beneficially
own in excess of 4.99% (the “ Maximum Percentage
”) of the shares of Common Stock outstanding immediately
after giving effect to such exercise. For purposes of the foregoing
sentence, the aggregate number of shares of Common Stock
beneficially owned by the Holder and its affiliates shall include
the number of shares of Common Stock issuable upon exercise of this
Warrant with respect to which the determination of such sentence is
being made, but shall exclude shares of Common Stock which would be
issuable upon (i) exercise of the remaining, unexercised
portion of this Warrant beneficially owned by the Holder and its
affiliates and (ii) exercise or conversion of the unexercised
or unconverted portion of any other securities of the Company
beneficially owned by the Holder and its affiliates (including,
without limitation, any convertible notes or convertible preferred
stock or warrants) subject to a limitation on conversion or
exercise analogous to the limitation contained herein. Except as
set forth in the preceding sentence, for purposes of this
paragraph, beneficial ownership shall be calculated in accordance
with Section 13(d) of the Securities Exchange Act of 1934, as
amended. For purposes of this Warrant, in determining the number of
outstanding shares of Common Stock, the Holder may rely on the
number of outstanding shares of Common Stock as reflected in
(1) the Company’s most recent Form 10-K, Form 10-Q,
Current Report on Form 8-K or other public filing with the
Securities and Exchange Commission, as the case may be, (2) a
more recent public announcement by the Company or (3) any
other notice by the Company or the Transfer Agent setting forth the
number of shares of Common Stock outstanding. For any reason at any
time, upon the written or oral request of the Holder, the Company
shall within two (2) Business Days confirm orally and in
writing to the Holder the number of shares of Common Stock then
outstanding. In any case, the number of outstanding shares of
Common Stock shall be determined after giving effect to the
conversion or exercise of securities of the Company, including this
Warrant, by the Holder and its affiliates since the date as of
which such number of outstanding shares of Common Stock was
reported. By written notice to the Company, the Holder may from
time to time increase or decrease the Maximum Percentage to any
other percentage not in excess of 9.99% specified in such notice;
provided that (i) any such increase will not be
effective until the sixty-first (61 st ) day after such notice is delivered to the
Company, and (ii) any such increase or decrease will apply
only to the Holder. The provisions of this paragraph shall be
construed and implemented in a manner otherwise than in strict
conformity with the terms of this Section 1(g) to
correct this paragraph (or any portion hereof) which may be
defective or inconsistent with the intended beneficial ownership
limitation herein contained or to make changes or supplements
necessary or desirable to properly give effect to such
limitation.
2. ADJUSTMENT OF EXERCISE PRICE
AND NUMBER OF WARRANT SHARES . The Exercise Price and the
number of Warrant Shares shall be adjusted from time to time as
follows:
(a) Adjustment upon Subdivision
or Combination of Common Stock . If the Company at any time on
or after the Issuance Date subdivides (by any stock split, stock
dividend, recapitalization, reorganization, scheme, arrangement or
otherwise) one or more classes of its outstanding shares of Common
Stock into a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision will be proportionately
reduced and the number of Warrant Shares will be proportionately
increased. If the Company at any time on or after the Issuance Date
combines (by any stock split, stock dividend, recapitalization,
reorganization, scheme, arrangement or otherwise) one or more
classes of its outstanding shares of Common Stock into a smaller
number of shares, the Exercise Price in effect immediately prior to
such combination will be proportionately increased and the number
of Warrant Shares will be proportionately decreased. Any adjustment
under this Section 2(a) shall become effective at the
close of business on the date the subdivision or combination
becomes effective.
(b) Other Events . If any
event occurs of the type contemplated by the provisions of this
Section 2 but not expressly provided for by such
provisions (including, without limitation, the granting of stock
appreciation rights, phantom stock rights or other rights with
equity features), then the Company’s Board of Directors will
make an appropriate adjustment in the Exercise Price and the number
of Warrant Shares so as to protect the rights of the Holder;
provided that no such adjustment pursuant to this
Section 2(b) will increase the Exercise Price or
decrease the number of Warrant Shares as otherwise determined
pursuant to this Section 2 ; provided further,
howeve r, that this subsection (b) shall not obligate the
Company to provide for price-based or any other anti-dilution
protection for the Holder as a result of the sale or other
issuances of the Company’s securities at a price below the
Exercise Price.
3. RIGHTS UPON DISTRIBUTION OF
ASSETS . If the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets)
to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of
cash, stock or other securities, property or options by way of a
dividend, spin off, reclassification, corporate rearrangement,
scheme of arrangement or other similar transaction) (a “
Distribution ”), at any time after the issuance of
this Warrant, then, in each such case:
(a) any Exercise Price in effect
immediately prior to the close of business on the record date fixed
for the determination of holders of shares of Common Stock entitled
to receive the Distribution shall be reduced, effective as of the
close of business on such record date, to a price determined by
multiplying such Exercise Price by a fraction of which (i) the
numerator shall be the Closing Bid Price of the shares of Common
Stock on the Trading Day immediately preceding such record date
minus the value of the Distribution (as determined in good faith by
the Company’s Board of Directors) applicable to one share of
Common Stock, and (ii) the denominator shall be the Closing
Bid Price of the shares of Common Stock on the Trading Day
immediately preceding such record date; and
(b) the number of Warrant Shares
shall be increased to a number of shares equal to the number of
shares of Common Stock obtainable immediately prior to the close of
business on the record date fixed for the determination of holders
of shares of Common Stock entitled to receive the Distribution
multiplied by the reciprocal of the fraction set forth in the
immediately preceding paragraph (a); provided that in the
event that the Distribution is of shares of Common Stock (or common
stock) (“ Other Shares of Common Stock ”) of a
company whose common shares are traded on a national securities
exchange or a national automated quotation system, then the Holder
may elect to receive a warrant to purchase Other Shares of Common
Stock in lieu of an increase in the number of Warrant Shares, the
terms of which shall be identical to those of this Warrant, except
that such warrant shall be exercisa
