Exhibit 4.3
THIS WARRANT AND THE SHARES ISSUABLE
HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF
ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 5
BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED
OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION
IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE
STOCK
Company: Anesiva, Inc., a Delaware
corporation
Number of Shares: [
], subject to adjustment
Class of Stock: Common Stock, $0.001 par value
per share
Warrant Price: $1.6759, subject to
adjustment
Issue Date: September 30, 2008
Expiration Date: September 29,
2018
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Credit Facility:
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This Warrant is
issued in connection with that certain Loan and Security Agreement
of even date herewith among Oxford Finance Corporation, CIT
Healthcare, LLC, Compass Horizon Funding Company LLC and the
Company.
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THIS WARRANT CERTIFIES THAT, for
good and valuable consideration, [
] (together with any successor or permitted assignee or transferee
of this Warrant or of any shares issued upon exercise hereof,
“Holder”) is entitled to purchase the number of fully
paid and nonassessable shares (the “Shares”) of the
above-stated class of stock (the “Class”) of the
above-named company (the “Company”) at the above-stated
Warrant Price, all as set forth above and as adjusted pursuant to
Article 2 of this Warrant, subject to the provisions and upon
the terms and conditions set forth in this Warrant.
ARTICLE 1. EXERCISE
.
1.1 Method of Exercise .
Holder may exercise this Warrant, in whole or in part and from time
to time, by delivering the original of this Warrant together with a
duly executed Notice of Exercise in substantially the form attached
as Appendix 1 to the principal office of the Company. Unless Holder
is exercising the conversion right set forth in Article 1.2, Holder
shall also deliver to the Company a check, wire transfer (to an
account designated by the Company), or other form of payment
acceptable to the Company for the aggregate Warrant Price for the
Shares being purchased.
1.2 Conversion Right . In
lieu of exercising this Warrant as specified in Article 1.1, Holder
may from time to time convert this Warrant, in whole or in part,
into a number of Shares determined by dividing (a) the
aggregate fair market value of the Shares or other securities
otherwise issuable upon exercise of this Warrant minus the
aggregate Warrant Price of such Shares by (b) the fair market
value of one Share. The fair market value of the Shares shall be
determined pursuant to Article 1.3.
1.3 Fair Market Value . If
the Company’s common stock is traded in a public market, the
fair market value of a Share shall be the closing price of a share
of common stock reported for the business day immediately before
Holder delivers this Warrant together with its Notice of Exercise
to the Company. If the Company’s common stock is not traded
in a public market, the Board of Directors of the Company shall
determine fair market value in its reasonable good faith
judgment.
1.4 Delivery of Certificate and
New Warrant . Promptly after Holder exercises or converts this
Warrant and, if applicable, the Company receives payment of the
aggregate Warrant Price, and in all events within five
(5) days thereafter, the Company shall deliver to Holder
certificates for the Shares acquired and, if this Warrant has not
been fully exercised or converted and has not expired, a new
Warrant representing the Shares not so acquired.
1.5 Replacement of Warrants or
Stock Certificates . On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant or any stock certificate evidencing
Shares issued upon any exercise or conversion hereof, and, in the
case of loss, theft or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and amount to the
Company, or, in the case of mutilation, on surrender and
cancellation of this Warrant or such stock certificate, the Company
shall execute and deliver, in lieu of this Warrant or such stock
certificate, a new warrant or stock certificate of like
tenor.
1.6 Treatment of Warrant Upon
Acquisition of Company .
1.6.1 “ Acquisition
”. For the purpose of this Warrant, “Acquisition”
means any sale, license, or other disposition of all or
substantially all of the assets of the Company, or any
reorganization, consolidation, merger or sale of outstanding
capital stock of the Company where the holders of the
Company’s securities before the transaction beneficially own
less than a majority of the outstanding voting securities of the
surviving entity after the transaction.
1.6.2 Treatment of Warrant at
Acquisition .
A) Upon the written request of the
Company, Holder agrees that, in the event of an Acquisition in
which the sole consideration is cash, either (a) Holder shall
exercise its conversion or purchase right under this Warrant and
such exercise will be deemed effective immediately prior to the
consummation of such Acquisition or (b) if Holder elects not
to exercise the Warrant, this Warrant will expire upon the
consummation of such Acquisition. The Company shall provide the
Holder with written notice of its request relating to the foregoing
(together with such reasonable information as the Holder may
request in connection with such contemplated Acquisition giving
rise to such notice), which is to be delivered to Holder not less
than ten (10) days prior to the closing of the proposed
Acquisition.
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B) Upon the written request of the Company,
Holder agrees that, in the event of an Acquisition that is an
“arms length” sale of all or substantially all of the
Company’s assets (and only its assets) to a third party that
is not an Affiliate (as defined below) of the Company (a
“True Asset Sale”), either (a) Holder shall
exercise its conversion or purchase right under this Warrant and
such exercise will be deemed effective immediately prior to the
consummation of such Acquisition or (b) if Holder elects not
to exercise the Warrant, this Warrant will continue until the
Expiration Date if the Company continues as a going concern
following the closing of any such True Asset Sale. The Company
shall provide the Holder with written notice of its request
relating to the foregoing (together with such reasonable
information as the Holder may request in connection with such
contemplated Acquisition giving rise to such notice), which is to
be delivered to Holder not less than ten (10) days prior to
the closing of the proposed Acquisition.
C) Upon the closing of any
Acquisition other than those particularly described in subsections
(A) and (B) above, the successor entity shall assume the
obligations of this Warrant, and this Warrant shall be exercisable
for the same securities, cash, and property as would be payable for
the Shares issuable upon exercise of the unexercised portion of
this Warrant as if such Shares were outstanding on the record date
for the Acquisition and subsequent closing. The Warrant Price
and/or number of Shares shall be adjusted accordingly.
As used in this Article 1.6, “
Affiliate ” shall mean any person or entity that owns
or controls directly or indirectly ten percent (10%) or more
of the stock of Company, any person or entity that controls or is
controlled by or is under common control with such persons or
entities, and each of such person’s or entity’s
officers, directors, joint venturers or partners, as
applicable.
ARTICLE 2. ADJUSTMENTS TO THE
SHARES .
2.1 Stock Dividends, Splits,
Etc . If the Company declares or pays a dividend on the
outstanding shares of the Class payable in common stock or other
securities, then upon exercise of this Warrant, for each Share
acquired, Holder shall receive, without cost to Holder, the total
number and kind of securities to which Holder would have been
entitled had Holder owned the Shares of record as of the date the
dividend occurred. If the Company subdivides the outstanding shares
of the Class by reclassification or otherwise into a greater number
of shares, the number of Shares purchasable hereunder shall be
proportionately increased and the Warrant Price shall be
proportionately decreased. If the outstanding shares of the Class
are combined or consolidated, by reclassification or otherwise,
into a lesser number of shares, the Warrant Price shall be
proportionately increased and the number of Shares shall be
proportionately decreased.
2.2 Reclassification, Exchange,
Combinations or Substitution . Upon any reclassification,
exchange, substitution, or other event that results in a change of
the number and/or class of the securities issuable upon exercise or
conversion of this Warrant, Holder shall be entitled to receive,
upon exercise or conversion of this Warrant, the number and kind of
securities and property that Holder would have received for the
Shares if this Warrant had been exercised immediately before such
reclassification, exchange, substitution, or other event. The
Company or its successor shall promptly issue to Holder an
amendment to this Warrant setting forth the number and kind of such
new securities or other property issuable upon exercise or
conversion of this Warrant as a result of such reclassification,
exchange, substitution or other event that results in a change of
the number and/or class of securities issuable upon exercise or
conversion of
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this Warrant. The amendment to this Warrant
shall provide for adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this
Article 2 including, without limitation, adjustments to the Warrant
Price and to the number of securities or property issuable upon
exercise of the new Warrant. The provisions of this Article 2.2
shall similarly apply to successive reclassifications, exchanges,
substitutions, or other events.
2.3 [Intentionally Omitted]
.
2.4 No Impairment
.