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Exhibit 4.5
WARRANT
THE SECURITIES EVIDENCED BY THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “ SECURITIES ACT ”), OR ANY OTHER
APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND SUCH OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED, HYPOTHECATED OR OTHERWISE
DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO A TRANSACTION WHICH IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
MARCH 25,
2008
Warrant to Purchase up to
330,000 shares of Common Stock of Corcept Therapeutics Incorporated
(the “ Company ”).
In consideration for
Kingsbridge Capital Limited (the “ Investor ”)
agreeing to enter into that certain Common Stock Purchase
Agreement, dated as of the date hereof, between the Investor and
the Company (the “ Agreement ”), the Company
hereby agrees that the Investor or any other Warrant Holder (as
defined below) is entitled, on the terms and conditions set forth
below, to purchase from the Company at any time during the Exercise
Period (as defined below) up to 330,000 fully paid and
non-assessable shares of common stock, par value $0.001 per share,
of the Company (the “ Common Stock ”) at the
Exercise Price (as defined below), as the same may be adjusted from
time to time pursuant to Section 6 hereof. The resale of the
shares of Common Stock or other securities issuable upon exercise
or exchange of this Warrant is subject to the provisions of the
Registration Rights Agreement. Capitalized terms used herein and
not otherwise defined shall have the meanings given them in the
Agreement.
Section 1. Definitions
.
“ Affiliate
” shall mean any Person that, directly or indirectly through
one or more intermediaries, controls or is controlled by, or is
under direct or indirect common control with any other Person. For
the purposes of this definition, “ control ,”
when used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly
through the ownership of voting securities, and the term “
controls ” and “ controlled ” have
meanings correlative to the foregoing.
“ Closing Price
” as of any particular day shall mean the closing price per
share of the Company’s Common Stock as reported by Bloomberg
L.P. on such day.
“ Exercise
Period ” shall mean that period beginning six months
after the date of this Warrant and continuing until (i) the
expiration of the five-year period thereafter, or (ii) a
Funding Default, subject in each case to earlier termination in
accordance with Section 6 hereof.
“ Exercise Price
” as of the date hereof shall mean three dollars fifty two
and a half cents ($3.525), representing 125% of the average Closing
Price of the Common Stock during the five (5) Trading Days
immediately preceding the date of this Warrant.
“ Funding
Default ” shall mean a failure by Investor to accept a
Draw Down Notice made by the Company and to acquire and pay for the
Shares in accordance therewith within three (3) Trading Days
following the delivery of such Shares to the Investor, provided
such Draw Down Notice was made in accordance with the terms and
conditions of the Agreement (including the satisfaction or waiver
of the conditions to the obligation of the Investor to accept a
Draw Down set forth in Article VII of the Agreement), provided
further, that such failure was reasonably within the control of the
Investor.
“ Per Share Warrant
Value ” shall mean the difference resulting from
subtracting the Exercise Price from the Closing Price on the
Trading Day immediately preceding the Exercise Date.
“ Person ”
shall mean an individual, a corporation, a partnership, a limited
liability company, an association, a trust or other entity or
organization, including a government or political subdivision or an
agency or instrumentality thereof.
“ Principal
Market ” shall mean the NASDAQ Global Select Market, the
NASDAQ Global Market, the NASDAQ Capital Market, the American Stock
Exchange or the New York Stock Exchange, whichever is at the time
the principal trading exchange or market for the Common
Stock.
“ SEC ”
shall mean the United States Securities and Exchange
Commission.
“ Trading Day
” shall mean any day other than a Saturday or a Sunday on
which the Principal Market is open for trading in equity
securities.
“ Warrant Holder
” shall mean the Investor or any permitted assignee or
permitted transferee of all or any portion of this
Warrant.
“ Warrant Shares
” shall mean those shares of Common Stock received upon
exercise of this Warrant.
Section 2. Exercise
.
(a) Method of Exercise
. This Warrant may be exercised in whole or in part (but not as to
a fractional share of Common Stock), at any time and from time to
time during the Exercise Period, by the Warrant Holder by surrender
of this Warrant, with the form of exercise attached hereto as
Exhibit A completed and duly executed by the Warrant
Holder (the “ Exercise Notice ”), to the Company
at the address set forth in Section 10.4 of the Agreement,
accompanied by payment of the Exercise Price multiplied by the
number of shares of Common Stock for which this Warrant is being
exercised (the “ Aggregate Exercise Price ”).
The later of the date on which an Exercise Notice or payment of the
Exercise Price (unless this Warrant is exercised in accordance with
Section 2(c) below) is received by the Company in accordance
with this clause (a) shall be deemed an “ Exercise
Date .”
(b) Payment of Aggregate
Exercise Price . Subject to paragraph (c) below, payment
of the Aggregate Exercise Price shall be made by wire transfer of
immediately available funds to an account designated by the
Company. If the amount of the payment received by the Company is
less than the Aggregate Exercise Price, the Warrant Holder will be
notified of the deficiency and shall make payment in that amount
within three (3) Trading Days. In the event the payment
exceeds the Aggregate Exercise Price, the Company will refund the
excess to the Warrant Holder within five (5) Trading Days of
receipt.
(c) Cashless Exercise
. In the event that the Warrant Shares to be received by the
Warrant Holder upon exercise of the Warrant may not be resold
pursuant to an effective registration statement or an exemption to
the registration requirements of the Securities Act, and applicable
state laws, the Warrant Holder may, as an alternative to payment of
the Aggregate Exercise Price upon exercise in accordance with
paragraph (b) above, elect to effect a cashless exercise by so
indicating on the Exercise Notice and including a calculation of
the number of shares of Common Stock to be issued upon such
exercise in accordance with the terms hereof (a “ Cashless
Exercise ”). If a registration statement on Form S-1
under the Securities Act, or such other form as deemed appropriate
by counsel to the Company for the registration for the resale by
the Warrant Holder of (x) the shares of Common Stock of the
Company that may be purchased under the Agreement, (y) the
Warrant Shares, or (z) any securities issued or issuable with
respect to any of the foregoing by way of exchange, stock dividend
or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or
otherwise, has been declared effective by the SEC and remains
effective, the Company may, in its sole discretion, permit the
Warrant Holder to effect a Cashless Exercise or require the Warrant
Holder to pay the Exercise Price of the Warrant Shares being
purchased by the Warrant Holder under this Warrant. In the event of
a Cashless Exercise, the Warrant Holder shall receive that number
of shares of Common Stock determined by (i) multiplying the
number of Warrant Shares for which this Warrant is being exercised
by the Per Share Warrant Value and (ii) dividing the product
by the Closing Price on the Trading Day immediately preceding the
Exercise Date, rounded to the nearest whole share. The Company
shall cancel the total number of Warrant Shares equal to the excess
of the number of the Warrant Shares for which this Warrant is being
exercised over the number of Warrant Shares to be received by the
Warrant Holder pursuant to such Cashless Exercise.
(d) Replacement
Warrant . In the event that the Warrant is not exercised in
full, the number of Warrant Shares shall be reduced by the number
of such Warrant Shares for which this Warrant is exercised, and the
Company, at its expense, shall forthwith issue and deliver to or
upon the order of the Warrant Holder a new Warrant of like tenor in
the name of the Warrant Holder, reflecting such adjusted number of
Warrant Shares.
Section 3. Ten Percent
Limitation . The Warrant Holder may not exercise this Warrant
such that the number of Warrant Shares to be received pursuant to
such exercise aggregated with all other shares of Common Stock that
are then beneficially owned or deemed to be beneficially owned by
the Warrant Holder would result in the Warrant Holder owning more
than 9.9% of all of such Common Stock as would be outstanding on
such Exercise Date, as determined in accordance with
Section 13(d) of the Exchange Act.
Section 4. Delivery of
Warrant Shares .
(a) Subject to the terms and
conditions of this Warrant, as soon as practicable after the
exercise of this Warrant in full or in part, and in any event
within ten (10) Trading Days thereafter, the Company at its
expense (including, without limitation, the payment by it of any
applicable issue taxes) will cause to be issued in the name of and
delivered to the Warrant Holder, or as the Warrant Holder may
lawfully direct, a certificate or certificates for, or make deposit
with the Depositary Trust Company via book-entry of, the number of
validly issued, fully paid and non-assessable Warrant Shares to
which the Warrant Holder shall be entitled on such exercise,
together with any other stock or other securities or property
(including cash, where applicable) to which the Warrant Holder is
entitled upon such exercise in accordance with the provisions
hereof.
(b) This Warrant may not be
exercised as to fractional shares of Common Stock. In the event
that the exercise of this Warrant, in full or in part, would result
in the issuance of any fractional share of Common Stock, then in
such event the Warrant Holder shall receive the number of shares
rounded to the nearest whole share.
Section 5.
Representations, Warranties and Covenants of the Company
.
(a) The Warrant Shares, when
issued in accordance with the terms hereof, will be duly authorized
and, when paid for or issued in accordance with the terms hereof,
shall be validly issued, fully paid and non-assessable.
(b) The Company shall take
all commercially reasonable action and proceedings as may be
required and permitted by applicable law, rule and regulation for
the legal and valid issuance of this Warrant and the Warrant Shares
to the Warrant Holder.
(c) The Company has
authorized and reserved for issuance to the Warrant Holder the
requisite number of shares of Common Stock to be issued pursuant to
this Warrant. The Company shall at all times reserve and keep
available, solely for issuance and delivery as Warrant Shares
hereunder, such shares of Common Stock as shall from time to time
be issuable as Warrant Shares.
(d) From the date hereof
through the last date on which this Warrant is exercisable, the
Company shall take all steps commercially reasonable to ensure that
the Common Stock remains listed or quoted on the Principal
Market.
Section 6. Adjustment of
the Exercise Price . The Exercise Price and, accordingly, the
number of Warrant Shares issuable upon exercise of the Warrant,
shall be subject to adjustment from time to time upon the happening
of certain events as follows:
(a) Reclassification,
Consolidation, Merger, Mandatory Share Exchange, Sale or
Transfer .
(i) Upon occurrence of any of
the events specified in subsection (a)(ii) below (the “
Adjustment Events ”) while this Warrant is unexpired
and not exercised in full, the Warrant Holder may in its sole
discretion require the Company, or any successor or purchasing
corporation, as the case may be, without payment of any additional
consideration therefor, upon surrender by the Warrant Holder of the
Warrant to be replaced, to execute and deliver to the Warrant
Holder a new Warrant providing that the Warrant Holder shall have
the right to exercise such new Warrant (upon terms not less
favorable to the Warrant Holder than those then applicable to this
Warrant) and to receive upon such exercise, in lieu of each share
of Common Stock theretofore issuable upon exercise of this Warrant,
the kind and amount of shares of stock, other securities, money or
property receivable upon such Adjustment Event by the holder of one
share of Common Stock issuable upon exercise of this Warrant had
this Warrant been exercised immediately prior to such Adjustment
Event. Such new Warrant shall provide for adjustments that shall be
as nearly equivalent as may be practicable to the adjustments
provided for in this Section 6.
(ii) The Adjustment Events
shall be (1) any reclassification or change of Common Stock
(other than a change in par value, as a result of a subdivision or
combination of Common Stock or in connection with an Excluded
Merger or Sale), (2) any consolidation, merger or mandatory
share exchange of the Company with or into anothe
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