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Exhibit 4.10
THESE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THEY
MAY NOT BE SOLD OR OFFERED FOR SALE
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER
SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION UNDER SAID ACT
AND ANY APPLICABLE STATE SECURITIES
LAWS.
NO.
STOCK SUBSCRIPTION WARRANT
TO PURCHASE COMMON STOCK OF
ALTUS BIOLOGICS, INC. (THE "COMPANY")
DATE OF INITIAL ISSUANCE: OCTOBER 20, 2000
THIS CERTIFIES
THAT for value received, TBCC FUNDING TRUST II or its
registered assigns (hereinafter called the
"Holder") is entitled to purchase
from the Company, at any time during the
Term of this Warrant, 27,322 shares of
common stock, $0.01 par value, of the
Company (the "Common Stock"), at the
Warrant Price, payable as provided herein.
The exercise of this Warrant shall be
subject to the provisions, limitations and
restrictions herein contained, and
may be exercised in whole or in part.
SECTION 1. DEFINITIONS.
For all purposes
of this Warrant, the following terms shall have the
meanings indicated:
COMMON STOCK -
shall mean and include the Company's authorized Common
Stock, $0.01 par value, as constituted at
the date hereof.
EXCHANGE ACT -
shall mean the Securities Exchange Act of 1934, as amended
from time to time.
SECURITIES ACT -
the Securities Act of 1933, as amended.
TERM OF THIS
WARRANT - shall mean the period beginning on the date of
initial issuance hereof and ending on
October 20, 2007.
WARRANT PRICE -
The lower of (A) $31.35 per share or (B) the price per
share (converted to a common stock price
basis using the applicable conversion
ratios as set forth in the Company's
articles of incorporation if the issuance
is other than common stock) at which the
next bona fide issuance of stock of the
Company is made in an equity financing
transaction of Company after the date
hereof other than for issuances of stock
arising from joint venture enterprises
or other business collaborations, which
price shall also be subject to
adjustment in accordance with Section 5
hereof.
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WARRANTS - this
Warrant and any other Warrant or Warrants issued in
connection with the Loan and Security
Agreement dated October 20, 2000 by and
between the Company and Transamerica
Business Credit Corporation (the "Loan
Agreement") to the original holder of this
Warrant, or any transferees from such
original holder or this Holder.
WARRANT SHARES -
shares of Common Stock purchased or purchasable by the
Holder of this Warrant upon the exercise
hereof.
SECTION 2. EXERCISE OF WARRANT.
2.1 PROCEDURE
FOR EXERCISE OF WARRANT. To exercise this Warrant in whole or
in part (but not as to any fractional share
of Common Stock), the Holder shall
deliver to the Company at its office
referred to in Section 12 hereof at any
time and from time to time during the Term
of this Warrant: (i) the Notice of
Exercise in the form attached hereto, (ii)
cash, certified or official bank
check payable to the order of the Company,
wire transfer of funds to the
Company's account, or evidence of any
indebtedness of the Company to the Holder
(or any combination of any of the
foregoing) in the amount of the Warrant Price
for each share being purchased, and (iii)
this Warrant. Notwithstanding any
provisions herein to the contrary, if the
Current Market Price (as defined in
Section 5) is greater than the Warrant
Price (at the date of calculation, as set
forth below), in lieu of exercising this
Warrant as hereinabove permitted, the
Holder may elect to receive shares of
Common Stock equal to the value (as
determined below) of this Warrant (or the
portion thereof being canceled) by
surrender of this Warrant at the office of
the Company referred to in Section 12
hereof, together with the Notice of
Exercise, in which event the Company shall
issue to the Holder that number of shares
of Common Stock computed using the
following formula:
CS = WCS x (CMP-WP)
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CMP
Where
CS equals the
number of shares of Common Stock to be issued to the Holder
WCS equals 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 exercised (at the date of
such calculation)
CMP equals the
Current Market Price (at the date of such calculation)
WP equals the
Warrant Price (as adjusted to the date of such calculation)
In the event of
any exercise of the rights represented by this Warrant, a
certificate or certificates for the shares
of Common Stock so purchased,
registered in the name of the Holder or
such other name or names as may be
designated by the Holder, shall be
delivered to the Holder hereof within a
reasonable time, not exceeding fifteen (15)
days, after the rights represented
by this Warrant shall have been so
exercised; and, unless this Warrant has
expired, a new Warrant representing the
number of shares (except a remaining
fractional share), if any, with respect to
which this Warrant shall not then
have been exercised shall also be issued to
the
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Holder hereof within such time. The person
in whose name any certificate for
shares of Common Stock is issued upon
exercise of this Warrant shall for all
purposes be deemed to have become the
holder of record of such shares on the
date on which the Warrant was surrendered
and payment of the Warrant Price and
any applicable taxes was made, irrespective
of the date of delivery of such
certificate, except that, if the date of
such surrender and payment is a date
when the stock transfer books of the
Company 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 TRANSFER
RESTRICTION LEGEND. Each certificate for Warrant Shares shall
bear the following legend (and any
additional legend required by (i) any
applicable state securities laws and (ii)
any securities exchange upon which
such Warrant Shares may, at the time of
such exercise, be listed) on the face
thereof unless at the time of exercise such
Warrant Shares shall be registered
under the Securities Act:
"The shares
represented by this certificate have not been registered under
the Securities
Act of 1933, as amended, and may not be sold or transferred
in the absence
of such registration or an exemption therefrom under said
Act."
Any certificate issued at any time in
exchange or substitution for any
certificate bearing such legend (except a
new certificate issued upon completion
of a public distribution under a
registration statement of the securities
represented thereby) shall also bear such
legend unless, in the opinion of
counsel for the Company the securities
represented thereby are not, at such
time, required by law to bear such
legend.
SECTION 3. COVENANTS AS TO COMMON STOCK.
The Company covenants and agrees that
all shares of Common Stock that may be
issued upon the exercise of the rights
represented by this Warrant will, upon
issuance, be validly issued, fully paid
and nonassessable, and free from all taxes,
liens and charges with respect to
the issue thereof. The Company further
covenants and agrees that it will pay
when due and payable any and all federal
and state stamp, original, issue or
similar taxes which taxes which may be
payable in respect of the issue of this
Warrant or any Common Stock or certificates
therefor issuable upon the exercise
of this Warrant. The Company further
covenants and agrees that the Company will
at all times have authorized and reserved,
free from preemptive rights, a
sufficient number of shares of Common Stock
to provide for the exercise of the
rights represented by this Warrant. The
Company further covenants and agrees
that if any shares of capital stock to be
reserved for the purpose of the
issuance of shares upon the exercise of
this Warrant require registration with
or approval of any governmental authority
under any federal or state law, but
not including any registration under the
Securities. Act of 1933, as amended,
the SEC Act of 1934, as amended, or any
state blue sky laws before such shares
may be validly issued or delivered upon
exercise, then the Company will in good
faith and as expeditiously as possible
endeavor to secure such registration or
approval but not including any registration
under the Securities Act of 1933, as
amended, the SEC Act of 1934, as amended,
or any state blue sky laws, as the
case may be. If and so long as the Common
Stock issuable upon the exercise of
this Warrant is listed on any national
securities exchange, the Company will, if
permitted by the rules of such exchange,
list and keep listed on such exchange,
upon
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official notice of issuance, all shares of
such Common Stock issuable upon
exercise of this Warrant.
SECTION 4. ADJUSTMENT OF NUMBER OF SHARE.
Upon each adjustment of the Warrant
Price as provided in Section 5, the Holder
shall thereafter be entitled to
purchase, at the Warrant Price resulting
from such adjustment, the number of
shares (calculated to the nearest tenth of
a share) obtained by multiplying the
Warrant Price in effect immediately prior
to such adjustment by the number of
shares purchasable pursuant hereto
immediately prior to such adjustment and
dividing the product thereof by the Warrant
Price resulting from such
adjustment.
SECTION 5. ADJUSTMENT OF WARRANT PRICE. The
Warrant Price shall be subject to
adjustment from time to time as follows:
(i) If, at any time during the Term of
this Warrant, the number of shares of
Common Stock outstanding is increased by a
stock dividend payable in shares of Common
Stock or by a subdivision or split-up
of shares of Common Stock, then, following
the record date fixed for the
determination of holders of Common Stock
entitled to receive such stock
dividend, subdivision or split-up, the
Warrant Price shall be appropriately
decreased so that the number of shares of
Common Stock issuable upon the
exercise hereof shall be increased in
proportion to such increase (in accordance
with Section 4) in outstanding shares.
(ii) If, at any
time during the Term of this Warrant, the number of shares
of Common Stock outstanding is decreased by
a combination of the outstanding
shares of Common Stock, then, following the
record date for such combination,
the Warrant Price shall appropriately
increase so that the number of shares of
Common Stock issuable upon the exercise
hereof shall be decreased in proportion
to such decrease (in accordance with
Section 4) in outstanding shares.
(iii) All
calculations under this Section 5 shall be made to the nearest
cent or to the nearest one-tenth (1/10) of
a share, as the case may be.
(iv) For the
purpose of any computation pursuant to this Section 5, the
Current Market Price at any date of one
share of Common Stock shall be deemed to
be the average of the daily closing prices
for the 15 consecutive business days
ending on the last business day before the
day in question (as adjusted for any
stock dividend, split, combination or
reclassification that took effect during
such 15 business day period). The closing
price for each day shall be the last
reported sales price regular way or, in
case no such reported sales took place
on such day, the average of the last
reported bid and asked prices regular way,
in either case on the principal national
securities exchange on which the Common
Stock is listed or admitted to trading or
as reported by Nasdaq (or if the
Common Stock is not at the time listed or
admitted for trading on any such
exchange or if prices of the Common Stock
are not reported by Nasdaq then such
price shall be equal to the average of
