|
Exhibit 4.9
THIS WARRANT AND THE
SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AN EXEMPTION FROM
SUCH REGISTRATION, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED.
Issue Date: March 25,
2008
AKESIS PHARMACEUTICALS,
INC.
WARRANT TO PURCHASE COMMON
STOCK
This Warrant to Purchase
Common Stock (the “ Warrant ”) is issued
to Avalon Ventures VII, L.P. (the “ Holder
”) by Akesis Pharmaceuticals, Inc., a Nevada corporation (the
“ Company ”), pursuant to the terms of
that certain Securities Purchase Agreement (the “
Purchase Agreement ”) dated as of
March 25, 2008 by and among the Company and the
Holder.
1. Purchase of Shares
. Subject to the terms and conditions hereinafter set forth and set
forth in the Purchase Agreement, the Holder of this Warrant is
entitled during the Exercise Period, upon surrender of this Warrant
at the principal office of the Company (or at such other place as
the Company shall notify the Holder hereof in writing), to
purchase, in whole or in part, from the Company 352,941 fully paid
and nonassessable Shares, at an exercise price per share equal
to the Exercise Price (as defined below).
2. Definitions
.
(a) “ Act
” shall mean the Securities Act of 1933, as
amended.
(b) “ Exercise
Price ” shall mean $0.85.
(c) “ Exercise
Period ” shall mean the term commencing on the date
of issuance of this Warrant and ending on the expiration of this
Warrant pursuant to Section 12 hereof.
(d) “
Shares ” shall mean shares of the
Company’s Common Stock.
(e) “ Change of
Control ” shall mean (i) a sale, lease or
disposition of all or substantially all of the assets of the
Company, or (ii) a merger or consolidation (in a single
transaction or a series of related transactions) of the Company
with or into any other corporation or corporations or other entity,
or any other corporate reorganization, where the stockholders of
the Company immediately prior to such event do not retain more than
fifty percent (50%) of the voting power of and interest in the
successor entity (excluding any transactions if the primary purpose
of the transaction is to obtain financing from new or existing
investors).
3. Method of Exercise
. While this Warrant remains outstanding and exercisable in
accordance with Section 1 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such
exercise shall be effected by:
(a) the surrender of the
Warrant, together with a notice of exercise to the Secretary of the
Company at its principal offices; and
(b) the payment to the
Company of an amount equal to the aggregate Exercise Price for the
number of Shares being purchased.
4. Net Exercise . In
lieu of cash exercising this Warrant, the Holder of this Warrant
may elect to receive shares equal to the value of this Warrant (or
the portion thereof being canceled) 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 the Holder
hereof a number of Shares computed using the following
formula:
Where
X — The number of
Shares to be issued to the Holder of this Warrant.
Y — The number of
Shares purchasable under this Warrant.
A — The fair market
value of one Share.
B — The Exercise Price
(as adjusted to the date of such calculations).
For purposes of this
Section 4, the fair market value of a Share shall mean the
average of the closing bid and asked prices of Shares quoted in the
over-the-counter market in which the Shares are traded or the
closing price quoted on any exchange on which the Shares are
listed, whichever is applicable, as published in the Western
Edition of The Wall Street Journal for the five
(5) trading days prior to the date of determination of fair
market value (or such shorter period of time during which such
stock was traded over-the-counter or on such exchange). If the
Shares are not traded on the over-the-counter market or on an
exchange, the fair market value shall be the price per Share that
the Company could obtain from a willing buyer for Shares sold by
the Company from authorized but unissued Shares, as such prices
shall be determined in good faith by the Company’s Board of
Directors.
5. Certificates for
Shares . Upon the exercise of the purchase rights evidenced by
this Warrant, one or more certificates for the number of Shares so
purchased shall be issued as soon as practicable thereafter, and in
any event within thirty (30) days of the delivery of the
subscription notice.
6. Issuance of Shares
. The Company covenants that the Shares, when issued pursuant to
the exercise of this Warrant, will be duly and validly issued,
fully paid and nonassessable and free from all taxes, liens, and
charges with respect to the issuance thereof.
7. Adjustment of Exercise
Price and Number of Shares . The number of and kind of
securities purchasable upon exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time as
follows:
(a) Subdivisions,
Combinations and Other Issuances . If the Company shall at any
time prior to the expiration of this Warrant subdivide the Shares,
by split-up or otherwise, or combine its Shares, or issue
additional shares of its Shares as a dividend
| 
