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Exhibit 4.6
THESE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED UNLESS (A)
COVERED BY AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR (B) THE COMPANY
HAS BEEN FURNISHED WITH AN OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO THE
COMPANY TO THE EFFECT THAT NO REGISTRATION
IS REQUIRED FOR SUCH TRANSFER.
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Warrant No. RW-2
2,500,000 Shares
Amended and Restated
WARRANT
To Purchase Shares of Common Stock
of
ALTUS BIOLOGICS INC.
Dated September 26, 2001
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WHEREAS, Altus Biologics
Inc., a Delaware corporation (the "Company"),
intends to provide the Holder an
opportunity to increase its equity interest in
the Company through the acquisition of
shares of its Common Stock, $.0l par
value per share ("Common Stock"), upon the
exercise of a warrant with respect
thereto;
NOW, THEREFORE,
in consideration of the foregoing and other good and
valuable consideration, the receipt of
which is hereby acknowledged, the Company
certifies and agrees as follows:
This Warrant
certifies that, for value received, VERTEX PHARMACEUTICALS,
INCORPORATED (the "Holder"), or registered
assigns, is entitled to purchase from
the Company TWO MILLION FIVE HUNDRED
THOUSAND (2,500,000) shares (the "Shares")
of the fully paid and non-assessable Common
Stock of the Company, at a price of
$2.46 per share (the "Exercise Price"),
such number of Shares and Exercise Price
per Share subject to adjustment as provided
herein and all subject to the
conditions set forth herein. This Warrant
may be exercised at any time on or
before the "Expiration Date" which shall
mean February 1, 2009. This Warrant
amends and restates in its entirety that
certain Warrant No. W-2 for 2,500,000
shares of Common Stock issued February 1,
1999.
1. EXERCISE OF
WARRANT.
1.1. PROCEDURE.
The Holder or any person or entity to whom the Holder has
assigned its rights under this Warrant
(collectively referred to as the
"Warrantholder") may exercise this Warrant,
at any time or from time to time,
prior to the Expiration Date, on any
business day, by surrendering the Warrant,
accompanied by a written notice in the form
attached hereto (the
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"Exercise Notice"), to the Company at the
address designated in Section 8.4
hereof, exercising the Warrant and
specifying the total number of Shares the
Warrantholder will purchase pursuant to
such exercise. This Warrant may be
exercised in whole or in part as to any or
all of the Shares. A certificate or
certificates for the Shares purchased upon
exercise of this Warrant and, in the
event of a partial exercise of this
Warrant, a new Warrant of like tenor
representing the balance of the Shares
purchasable hereunder, shall be delivered
by the Company to the Warrantholder not
later than ten days after payment is
made for the Shares. No fractions of a
share of Common Stock will be issued upon
the exercise of this Warrant, but if a
fractional share would be issuable upon
exercise, the Company will pay in cash the
fair market value thereof as
determined under Section 1.2 below.
1.2. EXERCISE
MECHANICS. The Warrantholder may exercise the Warrant by
paying to the Company, by cash or check, an
amount equal to the aggregate
Exercise Price of the Shares being
purchased. As used herein, the fair market
value of the Common Stock shall mean the
mean between the highest and lowest
quoted selling prices on such date on the
securities market where the Common
Stock of the Company is traded, or if there
were no sales on the applicable
date, on the next preceding date within a
reasonable period (as determined in
the sole discretion of the Board of
Directors of the Company) on which there
were sales. In the event that there were no
sales in such a market within a
reasonable period, the fair market value
shall be as determined in good faith by
the Board of Directors. In the event the
Warrantholder disagrees with the fair
market value determined by the Board of
Directors, the Company and the
Warrantholder shall use their best efforts
to agree upon the selection of an
independent appraiser, who will have 30
days in which to determine the fair
market value of the Common Stock, and whose
determination will be final and
binding on all parties concerned. All costs
of such determination shall be borne
by the Company.
2. RECORD
HOLDER. A Warrant shall be deemed to have been exercised
immediately prior to the close of business
on the date of its surrender for
exercise as provided in Section 1.1 above
and the person entitled to receive the
Shares of Common Stock issuable upon such
exercise or conversion shall be
treated for all purposes as the holder of
such Shares of record as of the close
of business on such date.
3. PAYMENT OF
TAXES. The Company shall pay all taxes and other governmental
charges (other than income taxes) that may
be imposed in respect of the issue of
delivery of the Shares or any portion
thereof The Company shall not be required,
however, to pay any tax or other charge
imposed in connection with any transfer
involved in the issue of any certificate
for the Shares or any portion thereof
in any name other than that of the
registered holder of the Warrant surrendered
in connection with the purchase of such
shares, and in such case the Company
shall not be required to issue or deliver
any certificate until such tax or
other charge has been paid or it has been
established to the Company's
satisfaction that no tax or other charge is
due.
4. TRANSFER AND
EXCHANGE.
4.1 TRANSFER.
Subject to the terms hereof, including, without limitation,
Sections 5.1 and 5.3, the Warrant and all
rights thereunder are transferable, in
whole or in part, on the books
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of the Company maintained for such purpose
at its office designated in Section
8.4 hereof by the registered holder hereof
in person or by duly authorized
attorney, upon surrender of the Warrant
property endorsed. Upon any partial
exercise or transfer, the Company will
issue and deliver to such holder a new
warrant or warrants with respect to the
Shares not so exercised, converted or
transferred. Each taker and holder of the
Warrant, by taking or holding the
same, consents and agrees that the Warrant
when endorsed in blank shall be
deemed negotiable, and that when the
Warrant shall have been so endorsed, the
holder may be treated by the Company and
all other persons dealing with the
Warrant as the absolute owner of such
Warrant for any purpose and as the person
entitled to exercise the rights represented
thereby, or to the transfer on the
books of the Company, any notice to the
contrary notwithstanding; but until such
transfer on such books, the Company may
treat the registered holder of the
Warrant as the owner for all purposes. The
term "Warrant" as used herein shall
include the Warrant and, any warrants
delivered in substitution or exchange
therefor as provided herein.
4.2 EXCHANGE.
The Warrant is exchangeable for a warrant or warrants for the
same aggregate number of Shares, each new
Warrant to represent the right to
purchase such number of Shares as the
holder shall designate at the time of such
exchange. The Warrant may be subdivided, at
the Warrantholder's option, into
several warrants to purchase the Shares
(collectively, also referred to as the
"Warrant"). Such subdivision may be
accomplished in accordance with the
provisions of this Section 4.
5. TRANSFER OF
SECURITIES
5.1.
RESTRICTIONS ON TRANSFER. Neither the Warrant nor the Shares shall
be
transferable except upon the conditions
specified in this Section 5.1, which
conditions are intended to insure
compliance with the provisions of the
Securities Act of 1933 (the "1933 Act") in
respect to the transfer of the
Warrant and the Shares.
5.1.1. Unless and until otherwise permitted by this Section 5.1,
the
Warrant and each certificate or other
document evidencing any of the Shares
shall be endorsed with the legend
substantially in the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED UNLESS (A)
COVERED BY AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT, OR (B) THE
COMPANY HAS BEEN FURNISHED WITH AN OPINION
OF COUNSEL REASONABLY ACCEPTABLE TO
THE COMPANY TO THE EFFECT THAT NO
REGISTRATION IS REQUIRED FOR SUCH TRANSFER.
5.1.2. Neither the Warrant nor the Shares shall be transferred,
and
the Company shall not be required to
register any such transfer, unless and
until one of the following events shall
have occurred:
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(a) the Company shall have received an opinion of counsel
reasonably acceptable to the Company and
its counsel, stating that the
contemplated transfer is exempt from
registration under the 1933 Act as then in
effect, and the Rules and Regulations of
the Securities and Exchange Commission
(the "Commission") thereunder. Within ten
days after delivery to the Company and
its counsel of such an opinion, the Company
either shall deliver to the proposed
transferor a statement to the effect that
such opinion is not satisfactory in
the reasonable opinion of its counsel (and
shall specify in detail the legal
analysis supporting any such conclusion) or
shall authorize the Company's
transfer agent to make the requested
transfer;
(b) the Company shall have been furnished with a letter from
the
Commission in response to a written request
in form and substance acceptable to
counsel for the Company setting forth all
of the facts and circumstances
surrounding the contemplated transfer,
stating that the Commission will take no
action with regard to the contemplated
transfer; the Warrant or the Shares are
transferred pursuant to a registration
statement which has been filed with the
Commission and has been effective; or
(c) the restrictions on transfer imposed by this Section 5.1
shall cease and terminate as to the Warrant
and the Shares when (i) such
securities shall have been effectively
registered under the 1933 Act and sold by
the holder thereof in accordance with such
registration, or (ii) an acceptable
opinion as described in Section 5.1.2(a) or
a "no action" letter described in
Section 5.1.2(b) states that future
transfers of such securities by the
transferor or the contemplated transferee
would be exempt from registration
under the 1933 Act. When the restrictions
on transfer contained in this Section
5.1 have terminated as provided above, the
holder of the securities as to which
such restrictions shall have terminated or
the transferee of such holder shall
be entitled to receive promptly from the
Company, without expense to him, new
certificates not bearing the legend set
forth in Section 5.1.1 hereof.
5.2.
COOPERATION. The Company shall cooperate in supplying such
information
as may be reasonably requested by the
Warrantholder to complete and file any
information reporting forms presently or
subsequently required by the Commission
as a condition to the availability of an
exemption, presently existing or
subsequently adopted, from the 1933 Act for
the sale of the Warrant or Shares.
5.3. PERMITTED
TRANSFERS. The Warrantholder may, subject to all applicable
laws and rules, transfer this Warrant and
any Shares purchased hereunder only
with the prior written consent of the
Company; provided, however, that the
foregoing restriction shall terminate upon
the effective date of the initial
registration statement covering a public
offering of the Company's Common Stock,
which registration contemplates the
registration and continued reporting under
Section 13 or 15(d) of the Securities
Exchange Act of 1934. All certificates
evidencing Shares purchased under this
Warrant prior to the effective date of
such initial public offering shall bear a
legend substantially to the effect of
the foregoing.
6. ADJUSTMENTS
TO EXERCISE PRICE AND SHARES. The Exercise Price in effect
from time to time and the number of Shares
shall be subject to adjustment in
certain cases as set forth in this Section
6.
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6.1. SUBDIVISION
OR COMBINATION. In the event the outstanding Common Stock
shall be subdivided into a greater number
of shares of Common Stock, the
Exercise Price for the Shares shall,
simultaneously with the effectiveness of
such subdivision, be proportionately
reduced and the number of Shares
proportionately increased, and conversely,
in case the outstanding Common Stock
shall be combined into a small number of
shares of Common Stock, the Exercise
Price shall. simultaneously with the
effectiveness of such combination, be
proportionately increased and the number of
Shares proportionately reduced. For
the purposes of this Section 6, a
distribution or series of distributions of
Common Stock to holders of Common Stock in
which the number of shares
distributed is ten percent (10%) or more of
the number of shares of Common Stock
upon which the distribution is to be made
shall be deemed to be a subdivision of
Common Stock.
6.2. ADJUSTMENT
FOR REORGANIZATION, CONSOLIDATION OR MERGER.
6.2.1. In case of any reorganization of the Company (or any
other
corporation the stock or other securities
of which are at the time receivable on
the exercise of the Warrant) after the date
on which this Warrant is first
issued (the "Issuance Date"), or in case,
after such date, the Company (or any
such other corporation) shall consolidate
with or merge into another corporation
or convey all or substantially all of its
assets to another corporation, then
and in each such case the Warrantholder,
upon exercise of the Warrant as
provided in Section 1 hereof at any time
after the consummation of such
reorganization, consolidation, merger or
conveyance, shall be entitled to
receive, in lieu of the stock or other
securities and property receivable upon
the exercise of the Warrant prior to such
consummation, the stock or other
securities or property to which the
Warrantholder would have been entitled upon
such consummation if the Warrantholder had
exercised or converted the Warrant
immediately prior thereto; in each such
case, the terms of this Warrant,
including the exercise provisions of
Section 1, shall be applicable to the
shares of stock or other securities or
property receivable upon the exercise of
the Warrant after such consummation.
6.2.2. The Company shall not effect any consolidation, merger
or
conveyance of all or substantially all of
its assets unless prior to the
consummation thereof the successor
corporation (if other than the Company)
resulting from such consolidation or merger
or the corporation into or for the
securities of which the previously
outstanding stock of the Company shall be
charged in connection with such
consolidation or merger, or the corporation
purchasing such assets, as the case may be,
shall assume by written instrument,
in form and substance reasonably
satisfactory to the War
