exv4w6






Exhibit 4.6



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 FOR 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 LAWS 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: Somaxon Pharmaceuticals, Inc., a Delaware corporation

Number of Shares: 200,000, subject to adjustment

Class of Stock: Common Stock, $0.0001 par value per share

Warrant Price: As set forth below

Issue Date: March 11, 2009

Expiration Date: March 11, 2019





			
	Credit Facility:	 	This Warrant is issued in connection with the repayment
of that certain Loan and Security Agreement dated May 21,
2008 among Silicon Valley Bank, Oxford Finance
Corporation and the Company, as amended (the “Loan
Agreement”).





     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
non-assessable 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.



     A. (1) Warrant Issued in Lieu of Prepayment Fee. This Warrant is issued to Holder in
connection with the Company’s prepayment in full of its obligations to Holder pursuant to, and in
accordance with, Section 2.1.1(e) of the Loan Agreement, and in lieu of payment by the Company of
the Prepayment Fee (as defined in the Loan Agreement), pursuant to the Payoff Letter among the
Company, Silicon Valley Bank and Holder dated the date hereof, which Holder, by its acceptance
hereof, and effective on Holder’s receipt of this executed Warrant and of payment in full of all
such obligations in accordance with Section 2.1.1(e) of the Loan Agreement, hereby waives.



          (2) Warrant Price. The purchase price per Share hereunder (the “Warrant Price”) shall
be equal to the closing price of a share of the Class as reported on the NASDAQ Global Market for
March 11, 2009, subject to adjustment from time to time in accordance with the provisions of this
Warrant.




 









 








ARTICLE 1. EXERCISE.




          1.1 Method of Exercise. Holder may exercise this Warrant 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 Class 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 Class 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, 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. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant 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,
the Company shall execute and deliver, in lieu of this Warrant, a new warrant 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,
exclusive 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 outstanding voting securities before the transaction
beneficially own less than a majority of the outstanding voting securities of the surviving entity
or, if applicable, its parent 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 that
is not a True Asset Sale (as defined below) in which the sole




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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 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.



D) Notwithstanding the foregoing provisions of this Section 1.6.2., in the event that the acquiror
in an Acquisition does not agree to assume this Warrant at and as of the closing thereof, this
Warrant, to the extent not exercised or converted on or prior to such closing, shall terminate and
be of no further force or effect as of immediately following such closing if all of the following
conditions are met: (i) the acquiror is subject to the reporting requirements of Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended, (ii) the class of stock or other
security of the acquiror that would be received by Holder in connection with such Acquisition were
Holder to exercise or convert this Warrant on or prior to the closing thereof is listed for trading
on a national securities exchange or approved for quotation on an automated inter-dealer quotation
system, and (iii) the value (determined as of the closing of such Acquisition in accordance with
the definitive agreements therefor) of the acquiror stock and/or other securities that would be
received by Holder in respect of each Share were Holder to exercise or convert this Warrant on or
prior to the closing of such Acquisition is equal to or greater than three (3) times the
then-effective Warrant Price.



As used in this Section 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




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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, and the
Warrant Price shall be adjusted proportionately. 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 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 Certificate of
Incorporation or through a reorganization, transfer of assets, consolidation, merger, dissolution,
issue, or sale of securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed under this Warrant by the Company,
but shall at all times in good faith assist in carrying out of all the provisions of this Article 2
and in taking all such action as may be necessary or appropriate to protect Holder’s rights under
this Article against impairment; provided, however, that notwithstanding the foregoing, nothing in
this Section 2.4 shall restrict or impair the Company’s right to effect changes to the rights,
preferences, and privileges associated with the Shares with the requisite consent of the
stockholders as may be required to amend the Certificate of Incorporation from time to time so long
as such amendment affects the rights, preferences, and privileges granted




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to Holder associated with the Shares in the same manner as the other holders of outstanding shares
of the Class.




          2.5 Fractional Shares. No fractional Shares shall be issuable upon exercise or
conversion of the Warrant and the number of Shares to be issued shall be rounded down to the
nearest whole Share. If a fractional share interest arises upon any exercise or conversion of the
Warrant, the Company shall eliminate such fractional share interest by paying Holder the amount
computed by multiplying the fractional interest by the fair market value of a full Share.




          2.6 Certificate as to Adjustments. Upon each adjustment of the Warrant Price, Class
and/or number of Shares, the Company shall promptly notify Holder in writing, and, at the Company’s
expense, promptly compute such adjustment, and furnish Holder with a certificate of its Chief
Financial Officer setting forth such adjustment and the facts upon which such adjustment is based.
The Company shall, upon written request, furnish Holder a certificate setting forth the Warrant
Price, Class and number of Shares in effect upon the date thereof and the series of adjustments
leading to such Warrant Price, Class and number of Shares.




ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.




          3.1 Representations and Warranties. The Company represents and warrants to, and
agrees with, the Holder as follows:




               (a) All Shares which may be issued upon the exercise of the purchase right represented by this
Warrant shall, upon issuance, be duly authorized, validly issued, fully paid and non-assessable,
and free of any liens and encumbrances except for restrictions on transfer provided for herein or
under applicable federal and state securities laws.



          3.2 Notice of Certain Events. If the Company proposes at any time (a) to declare any
dividend or distribution upon the outstanding shares of the same class and series as the Shares,
whether in cash, property, stock, or other securities and whether or not a regular cash dividend;
(b) to offer for subscription or sale pro rata to the holders of the outstanding shares of the same
class and series as the Shares any additional shares of any class or series of the Company’s stock;
(c) to effect any reclassification, reorganization or recapitalization of the outstanding shares of
the Class; (d) to effect an Acquisition or to liquidate, dissolve or wind up; or (e) offer holders
of registration rights the opportunity to participate in an underwritten public offering of the
Company’s securities for cash, then, in connection with each such event, the Company shall give
Holder notice thereof at the same time and in the same manner as the Company notifies the holders
of the outstanding shares of the Class thereof.




          3.3 No Shareholder Rights. Except as provided in this Warrant, Holder will not have
any rights as a shareholder of the Company until the exercise of this Warrant.



ARTICLE 4. REPRESENTATIONS, WARRANTIES OF THE HOLDER. The Holder represents and warrants
to the Company as follows:




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          4.1 Purchase for Own Account. This Warrant and the securities to be acquired upon
exercise of this Warrant by Holder will be acquired for investment for Holder’s account, not as a
nominee or agent, and not with a view to the public resale or distribution within the meaning of
the Act. Holder also represents that it has not been formed for the specific purpose of acquiring
this Warrant or the Shares.




          4.2 Disclosure of Information. Holder has received or has had full access to all the
information it considers necessary or appropriate to make an informed investment decision with
respect to the acquisition of this Warrant and its underlying securities. Holder further has had
an opportunity to ask questions and receive answers from the Company regarding the terms and
conditions of the offering of this Warrant and its underlying securities and to obtain additional
information (to the extent the Company possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify any information furnished to Holder or to which
Holder has access.




          4.3 Investment Experience. Holder understands that the purchase of this Warrant and
its underlying securities involves substantial risk. Holder has experience as an investor in
securities of companies in the development stage and acknowledges that Holder can bear the economic
risk of such Holder’s investment in this Warrant and its underlying securities and has such
knowledge and experience in financial or business matters that Holder is capable of evaluating the
merits and risks of its investment in this Warrant and its underlying securities and/or has a
preexisting personal or business relationship with the Company and certain of its officers,
directors or controlling persons of a nature and duration that enables Holder to be aware of the
character, business acumen and financial circumstances of such persons.




          4.4 Accredited Investor Status. Holder is an “accredited investor” within the meaning
of Regulation D promulgated under the Act.




          4.5 The Act. Holder understands that this Warrant and the Shares issuable upon
exercise or conversion hereof have not been registered under the Act in reliance upon a specific
exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the
Holder’s investment intent as expressed herein. Holder understands that this Warrant and the
Shares issued upon any exercise or conversion hereof must be held indefinitely unless subsequently
registered under the Act and qualified under applicable state securities laws, or unless exemption
from such registration and qualification are otherwise available.




ARTICLE 5. MISCELLANEOUS.




          5.1 Term: This Warrant is exercisable in whole or in part at any time and from time
to time on or before the Expiration Date. 




          5.2 Legends. This Warrant and the Shares shall be imprinted with a legend in
substantially the following form:





THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE ACT, OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT FOR AND
PURSUANT TO THE PROVISIONS OF ARTICLE 5 OF THAT



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CERTAIN WARRANT TO PURCHASE STOCK ISSUED BY THE COMPANY TO OXFORD FINANCE
CORPORATION DATED AS OF MARCH ___, 2009 MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS 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.



          5.3 Compliance with Securities Laws on Transfer. This Warrant and the Shares issuable
upon exercise of this Warrant may not be transferred or assigned in whole or in part without
compliance with applicable federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment representation letters and legal
opinions reasonably satisfactory to the Company, as reasonably requested by the Company). The
Company shall not require Holder to provide an opinion of counsel if the transfer is to any
Affiliate of Holder, provided that any such transferee is an “accredited investor” as defined in
Regulation D promulgated under the Act.




          5.4 Transfer Procedure. Subject to the provisions of Article 5.3 and upon providing
the Company with written notice, Holder may transfer all or part of this Warrant or the Shares
issuable upon exercise of this Warrant to any transferee, provided, however, in connection with any
such transfer, Holder will give the Company notice of the portion of the Warrant being transferred
with the name, address and taxpayer identification number of the transferee and Holder will
surrender this Warrant to the Company for reissuance to the transferee(s) (and Holder if
applicable).




          5.5 Notices. All notices and other communications from the Company to the Holder, or
vice versa, shall be deemed delivered and effective (a) upon the earlier of actual receipt and
three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail
return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by
electronic mail (if an email address is specified herein) or facsimile transmission; (c) one (1)
Business Day after deposit with a reputable overnight courier with all charges prepaid; or (d) when
delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be
notified and sent to the address, facsimile number, or email address indicated below. Either
Holder or the Company may change its mailing or email address or facsimile number by giving the
other party written notice thereof in accordance with the terms of this Section 5.5.




     To the Holder:


Oxford Finance Corporation

Attn: Mr. John Henderson

133 North Fairfax Street

Alexandria, VA 22314

Facsimile: 703-519-5225




     To the Company:



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Somaxon Pharmaceuticals, Inc.

Attn: Meg M. McGilley, Chief Financial Officer

3721 Valley Centre Drive, Suite 500

San Diego, CA 92130

Telephone: (858) 480-0402

Facsimile: (858) 509-1761

Email: mmcgilley@somaxon.com




     with copies to:


Somaxon Pharmaceuticals, Inc.

Attn: Matthew W. Onaitis, General Counsel

3721 Valley Centre Drive, Suite 500

San Diego, California 92130

Fax: (858) 509-1761

Email: monaitis@somaxon.com, and



Latham & Watkins LLP

Attn: Cheston J. Larson, Esq.

12636 High Bluff Drive, Suite 400

San Diego, California 92130

Fax: (858) 523-5450

Email: cheston.larson@lw.com




          5.6 Waiver. This Warrant and any term hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought.




          5.7 Attorney’s Fees. In the event of any dispute between the parties concerning the
terms and provisions of this Warrant, the party prevailing in such dispute shall be entitled to
collect from the other party all costs incurred in such dispute, including reasonable attorneys’
fees.




          5.8 Automatic Conversion upon Expiration. In the event that, upon the Expiration
Date, the fair market value of one Share (or other security issuable upon the exercise hereof) as
determined in accordance with Section 1.3 above is greater than the Warrant Price in effect on such
date, then this Warrant shall automatically be deemed on and as of such date to be converted
pursuant to Section 1.2 above as to all Shares (or such other securities) for which it shall not
previously have been exercised or converted, and the Company shall promptly deliver a certificate
representing the Shares (or such other securities) issued upon such conversion to Holder.




          5.9 Counterparts. This Warrant may be executed in counterparts, all of which together
shall constitute one and the same agreement.




[Remainder of page left blank intentionally]




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          5.10 Governing Law. This Warrant shall be governed by and construed in accordance
with the laws of the State of California, without giving effect to its principles regarding
conflicts of law.




	 
	“COMPANY”

	 

	SOMAXON PHARMACEUTICALS, INC.

	 

	By: /s/ Meg McGilley

	 

	Name: Meg McGilley

	          (Print)

	Title: CFO

	 

	“HOLDER”

	 

	OXFORD FINANCE CORPORATION

	 

	By: /s/ John G. Henderson

	 

	Name: John G. Henderson

	          (Print)

	Title: VP and General Counsel







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APPENDIX 1




NOTICE OF EXERCISE




     1. Holder elects to purchase                      shares of the Common/Series ___ Preferred [strike
one] Stock of                                          pursuant to the terms of the attached Warrant, and tenders payment
of the purchase price of the shares in full.



          [or]




     1. Holder elects to convert the attached Warrant into Shares/cash [strike one] in the manner
specified in the Warrant. This conversion is exercised for                                          of the Shares
covered by the Warrant.



     [Strike paragraph that does not apply.]



     2. Please issue a certificate or certificates representing the Shares in the name specified
below:



	 	 	 	 	 
	 

	 	 

               Holders Name
	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

               (Address)
	 	 






     3. By its execution below and for the benefit of the Company, Holder hereby restates each of
the representations and warranties in Article 4 of the Warrant as of the date hereof.



	 	 	 	 	 
	 	 	HOLDER:
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	(Date):	 	 
	 

	 	 	 	 






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