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Exhibit 4.8
THIS WARRANT, AND THE SECURITIES ISSUABLE
HEREUNDER, HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (THE "ACT') OR THE APPLICABLE
SECURITIES LAWS OF ANY STATE, AND MAY NOT
BE SOLD, TRANSFERRED OR ASSIGNED
UNLESS REGISTERED UNDER THE ACT AND UNDER
APPLICABLE STATE SECURITIES LAWS, OR
UNLESS AN OPINION OF COUNSEL, REASONABLY
SATISFACTORY TO THE COMPANY, IS
OBTAINED TO THE EFFECT THAT SUCH SALE,
TRANSFER, OR ASSIGNMENT IS EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE ACT
AND SUCH STATE SECURITIES LAWS.
WARRANT TO PURCHASE 3,452 SHARES OF COMMON STOCK
April 4, 2002
THIS CERTIFIES THAT, for value received,
OXFORD FINANCE CORPORATION, ("Holder")
is entitled to subscribe for and purchase
Three Thousand Four Hundred Fifty Two
(3,452) 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 exchanged.
1. Warrant Price. The Warrant Price shall
initially be four and 0.2747100
dollars ($4.27471001) 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 on
the earlier of:
(a) 5:00 P.M. Eastern Standard time on
the fifth annual anniversary of
this Warrant Agreement; or
(b) The closing of the initial public
offering of the Company's Common
Stock pursuant to a registration statement under the Securities Act
of
1933, as
amended (the "Initial Public Offering"). The Company shall
provide notice of the Initial Public Offering to the Holder at
least
30 days prior to the closing thereof; or
(c) The effective date of the merger
of the Company with or into, the
consolidation of the Company with, or the sale by the Company of
all
or substantially all of its assets or all or substantially all of
its
shares to another corporation or other entity (other than such
a
transaction wherein the shareholders of the Company retain or
obtain a
majority of the voting capital stock of the surviving, resulting,
or
purchasing corporation); provided that the Company shall notify
the
registered Holder of this Warrant of the proposed effective date
of
the merger, consolidation, or sale at least 30 days prior to
the
effectiveness thereof.
In the event that, although the Company
shall have given notice of a transaction
pursuant to subparagraph (b) or
subparagraph (c) hereof, the transaction does
not close within 120 days of
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the day specified by the Company, unless
otherwise elected by the Holder any
exercise of the Warrant subsequent to the
giving of such notice shall be
rescinded and the Warrant shall again be
exercisable until terminated in
accordance with this Paragraph 2.
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 18 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 10
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 10 days after exercise of the Warrant.
(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
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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 the
Common
Stock quoted in the Over-The-Counter Market Summary, or the
average of, the last reported sale price of the Common Stock or
the closing price quoted on the Nasdaq National Market System
("NMS") or on any exchange on which the Common Stock is listed,
whichever is applicable, as published in The Wall Street
Journal
over 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, as described in Section 2(c), 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) If the Common Stock is not publicly traded, the per share
fair
market value of the Common Stock shall be as determined in good
faith by the Company's Board of Directors unless Holder elects
to
have such fair market value determined by an appraiser, which
election must be made by Holder within ten (10) business days
of
the date the Company notifies Holder of the fair market value
as
determined by its Board of Directors. In the event of such an
appraisal, the cost thereof shall be borne by the Holder unless
such appraisal results in a fair market value in excess of 115%
of that determined by the Company's Board of Directors, in
which
event the Company shall bear the cost of such appraisal.
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 to the proposed effective date of the merger,
consolidation,
sale, or other triggering event as defined in 3(c)(iii) and
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 immediately before: (i) its
expiration,
or (ii) the consummation of any consolidation or merger of the
Company, or any sale or transfer of a majority of the Company's
assets
or stock pursuant to Section 2(b).
4. Representations and Warranties of Holder
and Restrictions on Transfer Imposed
by the Securities Act of 1933.
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(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 i
