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Exhibit 4.7
NEITHER THIS WARRANT NOR THE SECURITIES
ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. NO SALE OR
DISPOSITION MAY BE EFFECTED EXCEPT IN
COMPLIANCE WITH RULE 144 UNDER SAID ACT OR
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF
COUNSEL FOR THE HOLDER, SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE ACT OR RECEIPT OF A
NO-ACTION LETTER FROM THE SECURITIES
AND EXCHANGE COMMISSION.
WARRANT TO PURCHASE 1231 SHARES OF COMMON STOCK
October 28, 2002
THIS CERTIFIES THAT, for value received,
GENERAL ELECTRIC CAPITAL CORPORATION
("Holder") is entitled to subscribe for and
purchase One Thousand Two Hundred
Thirty One (1,231) shares of the fully paid
and nonassessable Common Stock (the
"Shares") of Altus Biologics, Inc., a
Massachusetts corporation (the "Company"),
at the Warrant Price (as hereinafter
defined), subject to the provisions and
upon the terms and conditions hereinafter
set forth. As used herein, the term
"Common Stock" shall mean the Company's
presently authorized Common Stock, and
any stock into which such Common Stock may
hereafter be converted or exchanged.
1. Warrant Price. The Warrant Price shall
initially be Four and 27/100 dollars
($4.27) per share, subject to adjustment as
provided in Section 7 below.
2. Conditions to Exercise. The purchase
right represented by this Warrant may be
exercised at any time, or from time to
time, in whole or in part during the term
commencing on the date hereof and ending at
5:00 P.M. Eastern time on the
seventh anniversary of the date of this
Warrant.
3. Method of Exercise; Payment; Issuance of
Shares; Issuance of New Warrant.
(a) Cash
Exercise. Subject to Section 2 hereof, the purchase right
represented by this Warrant may be
exercised by the Holder hereof, in whole or
in part, by the surrender of this Warrant
(with a duly executed Notice of
Exercise in the form attached hereto) at
the principal office of the Company (as
set forth in Section 17 below) and by
payment to the Company, by check, of an
amount equal to the then applicable Warrant
Price per share multiplied by the
number of shares then being purchased. In
the event of any exercise of the
rights represented by this Warrant,
certificates for the shares of stock so
purchased shall be in the name of, and
delivered to, the Holder hereof, or as
such Holder may direct (subject to the
terms of transfer contained herein and
upon payment by such Holder hereof of any
applicable transfer taxes). Such
delivery shall be made within 30 days after
exercise of the Warrant and at the
Company's expense and, unless this Warrant
has been fully exercised or expired,
a new Warrant having terms and conditions
substantially identical to this
Warrant and representing the portion of the
Shares, if any, with respect to
which this Warrant shall not have been
exercised, shall also be issued to the
Holder hereof within 30 days after exercise
of the Warrant.
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(b) Net Issue
Exercise. In lieu of exercising this Warrant pursuant to
Section 3(a), Holder may elect to receive
shares equal to the value of this
Warrant (or of any portion thereof
remaining unexercised) by surrender of this
Warrant at the principal office of the
Company together with notice of such
election, in which event the Company shall
issue to Holder the number of shares
of the Company's Common Stock computed
using the following formula:
X = Y (A-B)
-------
A
Where X = the
number of shares of Common Stock to be issued to Holder
Y = the number of shares of Common
Stock purchasable under this Warrant
(at the date of such
calculation).
A = the Fair Market Value of one share
of the Company's Common Stock (at
the date of such calculation).
B = Warrant Price (as adjusted to the
date of such calculation).
(c) Fair Market
Value. For purposes of this Section 3, Fair Market Value of
one share of the Company's Common Stock
shall mean:
(i) In the event of an exercise in connection with an Initial
Public
Offering, the
per share Fair Market Value for the Common Stock shall be the
Offering Price
at which the underwriters initially sell Common Stock to the
public; or
(ii) The average of the closing bid and asked prices of Common
Stock
quoted in the
Over-The-Counter Market Summary, or the last reported sale
price of the
Common Stock quoted on the Nasdaq National Market ("NNM") or
on any exchange
on which the Common Stock is listed, whichever is
applicable, as
published in the Wall Street Journal for the ten (10)
trading days
prior to the date of determination of Fair Market Value; or
(iii) In the event of an exercise in connection with a merger,
acquisition or
other consolidation in which the Company is not the
surviving
entity, the per share Fair Market Value for the Common Stock
shall be the
value to be received per share of Common Stock by all holders
of the Common
Stock in such transaction as determined by the Board of
Directors;
or
(iv) In any other instance, the per share Fair Market Value for
the
Common Stock
shall be as determined in good faith by the Company's Board of
Directors.
In the event of
3(c)(iii) or 3(c)(iv), above, the Company's Board of
Directors shall
prepare a certificate, to be signed by an authorized
officer of the
Company, setting forth in reasonable detail the basis for
and method of
determination of the per share Fair Market Value of the
Common Stock.
The Board will also certify to the Holder that this per share
Fair Market
Value will be applicable to all holders of the Company's Common
Stock. Such
certification must be made to Holder at least thirty (30)
business days
prior
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to the proposed
effective date of the merger, consolidation, sale, or other
triggering event
as defined in 3(c)(iii) or 3(c)(iv).
(d) Automatic
Exercise. To the extent this Warrant is not previously
exercised, it shall be automatically
exercised in accordance with Sections 3(b)
and 3(c) hereof (even if not surrendered)
immediately before its expiration.
4. Representations and Warranties of Holder
and Restrictions on Transfer Imposed
by the Securities Act of 1933.
(a)
Representations and Warranties by Holder. The Holder represents
and
warrants to the Company with respect to
this purchase as follows:
(i) The Holder has substantial experience in evaluating and
investing
in private
placement transactions of securities of companies similar to
the
Company so that
the Holder is capable of evaluating the merits and risks of
its investment
in the Company and has the capacity to protect its
interests.
(ii) The Holder is acquiring the Warrant and the Shares of
Common
Stock issuable
upon exercise of the Warrant (collectively the "Securities")
for investment
for its own account and not with a view to, or for resale in
connection with,
any distribution thereof. The Holder understands that the
Securities have
not been registered under the Securities Act of 1933, as
amended (the
"Act") by reason of a specific exemption from the registration
provisions of
the Act which depends upon, among other things, the bona fide
nature of the
investment intent as expressed herein. In this connection,
the Holder
understands that, in the view of the Securities and Exchange
Commission (the
"SEC"), the statutory basis for such exemption may be
unavailable if
this representation was predicated solely upon a present
intention to hold the
Securities for the minimum capital gains period
specked under
tax statutes, for a deferred sale, for or until an increase
or decrease in
the market price of the Securities or for a period of one
year or any
other fixed period in the future.
(iii) The Holder acknowledges that the Securities must be held
indefinitely
unless subsequently registered under the Act or an exemption
from such
registration is available. The Holder is aware of the
provisions
of Rule 144
promulgated under the Act ("Rule 144") which permits limited
resale of
securities purchased in a private placement subject to the
satisfaction of
certain conditions, including, in case the securities have
been held for
more than one but less than two years, the existence of a
public market
for the shares, the availability of certain public
information
about the Company, the resale occurring not less than one year
after a party
has purchased and paid for the security to be sold, the sale
being through a
"broker's transaction" or in a transaction directly with a
"market maker
(as provided by Rule 144(f,)) and the number of shares or
other securities
being sold during any three-month period not exceeding
specified
limitations.
(iv) The Holder further understands that at the time the Holder
wishes
to sell the
Securities there may be no public market upon which such a sale
may be effected,
and that even if such a public market exists, the Company
may not be
satisfying the current
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public
information requirements of Rule 144, and that in such event,
the
Holder may be
precluded from selling the Securities under Rule 144 unless
(a) a one-year
minimum holding period has been satisfied and (b) the Holder
was not at the
time of the sale nor at any time during the three-month
period prior to
such sale an affiliate of the Company.
(v) The Holder has had an opportunity to discuss the Company's
business,
management and financial affairs with its management and an
opportunity to
review the Company's facilities. The Holder understands that
such
discussions, as well as the written information issued by the
Company,
were intended to
describe the aspects of the Company's business and
prospects which
it
