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Exhibit 4.9
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 THAT NO REGISTRATION IS
REQUIRED FOR SUCH TRANSFER.
Warrant No. W-5B
169,600
To Purchase Shares of Common Stock
of
ALTUS BIOLOGICS INC.
Dated February 22, 2001
WHEREAS,
pursuant to and in connection with that certain Strategic
Alliance
Agreement (the "Alliance Agreement") dated
as of the date hereof by and between
Altus Biologics Inc., a Massachusetts
corporation (the "Company"), and Cystic
Fibrosis Foundation Therapeutics, Inc., a
Maryland corporation ("CFFTI"), the
Company intends to provide CFFTI an
opportunity to obtain an equity interest in.
the Company through the acquisition of
shares of its Common Stock, $.01 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
dated as of February 22, 2001 (the "Issuance Date") certifies
that, for value received, CYSTIC FIBROSIS
FOUNDATION THERAPEUTICS, INC. (the
"Holder"), is entitled, subject to the
terms and conditions set forth herein, to
purchase from the Company a number of
shares equal to One Hundred Sixty Nine
Thousand Six Hundred (169,600) (the
"Warrant Shares") of the fully paid and
non-assessable Common Stock of the Company,
at a price of $.O1 (one cent) per
share (the "Exercise Price"), such number
of Warrant Shares and Exercise Price
subject to adjustment as provided herein.
This Warrant shall be fully vested as
of the Issuance Date. Subject to the terms
and conditions set forth herein, this
Warrant may be exercised at any time on or
after February 22, 2011 and before
February 22, 2013 (the "Expiration Date")
and shall be void thereafter;
provided, however, this Warrant may be
exercised earlier upon the first to occur
of (i) the Approval Date (as defined in the
Alliance Agreement); (ii) a
Technical Failure (as defined in the
Alliance Agreement); (iii) a Joint License
Event (as defined in the Alliance
Agreement); or (iv) a Company Default (as
defined in the Alliance Agreement).
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 or
transferred all or a portion of this
Warrant (collectively referred
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to as the "Warrantholder") may exercise
this Warrant, at any time or from time
to time, after the date on which this
Warrant may first be exercised pursuant to
the terms of the immediately preceding
paragraph and prior to the Expiration
Date, on any business day, by surrendering
the Warrant, accompanied by a written
notice in the form attached hereto (the
"Exercise Notice"), to the Company at
the address designated in Section 8.4
hereof, exercising the Warrant and
specifying the total number of Warrant
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 Warrant Shares. A
certificate or certificates for the
Warrant 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 Warrant Shares purchasable
hereunder, shall be delivered by the
Company to the Warrantholder not later than
ten days after payment is made for
the Warrant Shares purchased upon exercise.
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. NET
EXERCISE FORMULA. The Warrantholder may exercise the Warrant
either (i) by paying to the Company, by
cash or check, an amount equal to the
aggregate Exercise Price of the Warrant
Shares being purchased, or (ii) by
electing to receive Warrant Shares equal to
the value (as determined below) of
this Warrant by surrender of the Warrant
together with notice of such election,
in which event the Company shall issue to
the Warrantholder a number of Warrant
Shares computed using the following
formula:
X =
Y(A-B)
------
A
Where: X = the number of Warrant Shares to
be issued to the Warrantholder.
Y =
the number of Warrant Shares under this Warrant (or such lesser
number of Shares as the Warrantholder elects to purchase, in the
case
of a partial exercise).
A =
the fair market value of one share of Common Stock on the date
of
exercise.
B =
the Exercise Price.
As used herein,
the fair market value of the Common Stock shall be deemed
to be the mean between the highest and
lowest quoted selling prices as reported
in The Wall Street Journal on the last
trading day preceding the date of
determination on the primary securities
exchange where the Common Stock of the
Company is traded or if not traded on a
securities exchange, then on The Nasdaq
Stock Market, 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
(the "Board of Directors")) 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 negotiate in good faith
and 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
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concerned. If no individual appraiser can
be agreed upon, each party shall
select an appraiser and the two selected
appraisers shall select a third to
serve as the independent appraiser for
purposes of determining fair market
value. All costs of the independent
appraiser shall be borne equally by the
Company and the Warrantholder.
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 1.2. above and the
person entitled to receive the Warrant
Shares of Common Stock issuable upon such
exercise or conversion shall be
treated for all purposes as the holder of
such Warrant 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
the Warrant 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 Warrant 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 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 properly
endorsed; provided, however, that this
Warrant may not be transferred in part
unless such transfer is to a transferee who
pursuant to such transfer receives
the right to purchase at least 75,000
shares of Common Stock. Upon any partial
transfer, the Company will issue and
deliver to such holder a new warrant or
warrants with respect to the Warrant Shares
not so 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 Warrant
Shares, each new Warrant to represent the
right to purchase such number of Warrant
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 Warrant Shares (collectively, also
referred to as the "Warrant"). Such
subdivision may be accomplished in
accordance with the provisions of this
Section 4.
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5. TRANSFER OF SECURITIES.
5.1.
RESTRICTIONS ON TRANSFER. Neither the Warrant nor any of the
Warrant
Shares shall be transferable except upon
the conditions specified in this
Section 5.1, which conditions are intended
to insure compliance with applicable.
provisions of the 1933 Act.
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 Warrant
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 any of the Warrant 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:
(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 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 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; or
(c) (i) the Warrant or the Warrant Shares, as the case may be,
have
been registered pursuant to a registration
statement filed by or on behalf of
the Company, (ii) such registration
statement has been declared effective by the
Commission under the 1933 Act and is not
subject to any stop order, and (iii)
the Company has not sent a notice to the
Warrantholder requesting that sales
under such registration statement and the
related prospectus should be halted
until such time as the Company has
corrected or updated such registration
statement and the related prospectus.
The restrictions on transfer imposed by
Section 5.1 shall cease and terminate as
to the Warrant or the Warrant Shares, as
the case may be, 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
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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 from the Company, at the expense of
the Company, a new Warrant or a new
share certificate, as the case may be, 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 Warrant
Shares, which is expressly understood not
to include the completion or filing of
any registration statements or other forms
used to register such securities for
sale under the 1933 Act or any state's
securities laws.
5.3. PERMITTED
TRANSFERS. Subject to Section 5.1 above and subject to all
applicable laws and rules, the
Warrantholder may transfer this Warrant and any
Warrant Shares purchased hereunder.
6. ADJUSTMENTS TO EXERCISE PRICE AND
WARRANT SHARES. The Exercise Price in
effect from time to time and the number of
Warrant Shares shall be subject to
adjustment in certain cases as set forth in
this Section 6.
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 Warrant Shares
shall, simultaneously with the
effectiveness of such subdivision, be
proportionately reduced and the number of
Warrant . Shares proportionately increased,
and conversely, in case the
outstanding Common Stock shall be combined
into a smaller number of shares of
Common Stock, the Exercise Price shall
simultaneously with the effectiveness of
such combination, be proportionately
increased and the number of Warrant Shares
proportionately reduced. For the purpose 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
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
