Exhibit 4.11
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: ARYx Therapeutics, Inc., a
Delaware corporation
Number of Shares: 8547, subject to
adjustment
Class of Stock: Common Stock, $0.001
par value per share
Warrant Price: The average closing price
of the stock from the 10 trading days prior to the date of
closing
Issue Date: December 31, 2008.
Expiration Date: On the 5
th anniversary date from the date of
issuance.
Credit Facility: This Warrant is
issued in connection with that certain Loan and Security Agreement
of even date herewith between Oxford Finance Corporation, and the
Company.
THIS WARRANT CERTIFIES THAT, for
good and valuable consideration, OXFORD FINANCE CORPORATION
(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.
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
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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
. The Company shall
not, by amendment of its Amended and Restated Certificate of
Incorporation (the “Restated Certificate”) or through a
reorganization, transfer of
