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 5th 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


 


2

















 


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


 


3

















 


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 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.


 


2.5           Fractional Shares.   No fractional Share 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 have been duly and validly reserved for issuance
upon exercise of this Warrant and shall, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable, and free of any liens and
encumbrances except for restrictions on transfer provided for herein or under
applicable federal and state securities laws.


 


(b)           The rights, privileges and restrictions granted to or imposed upon the
holders of the Shares are as set forth in Restated Certificate.


 


(c)           The execution and delivery of this Warrant does not, and the issuance
of Shares upon exercise of this Warrant in accordance with the terms


 


4

















 


hereof
will not, violate the Restated Certificate or the Company’s Amended and
Restated Bylaws; does not and will not violate any law, governmental
rule or regulation, judgment or order applicable to the Company; and does
not and will not conflict with or violate any provision of, or constitute a default
under, any indenture, mortgage, contract or other instrument to which the
Company is a party or by which it is bound or require the consent or approval
of, the giving of notice to, the registration or filing with or the taking of
any action in respect of or by any federal, state or local government authority
or agency or other person, except for the filing of notices pursuant to federal
and state securities laws, which filings will be effected by the time required
thereby.


 


(d)              There are no actions, suits, audits,
investigations or proceedings pending or, to the knowledge of the Company,
threatened against the Company in any court or before any governmental
commission, board or authority which, if adversely determined, could have a
material adverse effect on the ability of the Company to perform its
obligations under this Warrant.


 


(e)               The number of shares of common stock of the
Company outstanding on the Issue Date, on a fully diluted basis (assuming the
conversion of all outstanding convertible securities and the exercises of all
outstanding options and warrants) does not exceed 32,987,482 shares.


 


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
any of its stock; or (d) to effect an Acquisition or to liquidate,
dissolve or wind up; then, in connection with each such event, the Company
shall give Holder written notice thereof at the same time and in the same
manner as the Company gives written notice thereof to the holders of the
outstanding shares of the Class.


 


3.3           [Intentionally Omitted].


 


3.4           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. Notwithstanding the foregoing, the Company will
transmit to Holder such information, documents and reports as are generally
distributed to the holders of Common Stock concurrently with the distribution
thereof to such stockholders, including without limitation the notices the
Company must distribution pursuant to Article 3.2 above.


 


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


 


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.


 


5

















 


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 AND PURSUANT TO THE
PROVISIONS OF ARTICLE 5 OF THAT CERTAIN WARRANT TO PURCHASE STOCK ISSUED BY THE
COMPANY TO OXFORD FINANCE CORPORATION DATED AS OF DECEMBER
                ,
2008, 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


 


6

















 


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
when given personally or mailed by first-class registered or certified mail,
postage prepaid (or on the first business day after transmission by facsimile),
such address as may have been furnished to the Company or Holder, as the case
may be, in writing by the Company or such Holder from time to time. All notices
to Holder shall be addressed as follows until the Company receives notice of a
change of address in connection with a transfer or otherwise:


 


Oxford
Finance Corporation


Attn:
General Counsel


133
North Fairfax Street


Alexandria,
VA 22314


Facsimile:
703-519-5225


 


Notice
to the Company shall be addressed as follows until Holder receives notice of a
change in address:


 


ARYx
Therapeutics, Inc.


6300
Dumbarton Circle


Fremont,
CA 94555


Telephone:
510-585-2200


Facsimile:
510-585-2202


 


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.


 


7

















 


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 Article 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 Article 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.


 


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.


 


5.11
        Binding Effect on Successors.   Subject
to the provisions of Article 1.6 hereof, this Warrant shall be binding
upon any entity succeeding the Company by merger, consolidation or acquisition
of all or substantially all of the Company’s assets, and all obligations of the
Company relating to the Shares issuable upon the exercise or conversion of this
Warrant shall survive the exercise or conversion of this Warrant and all of the
covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of Holder.


 


5.12
        Severability.   The
invalidity or unenforceability of any provision of this Warrant in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction, or affect any other provision of this Warrant, which
shall remain in full force and effect.


 


[signature page follows]


 


8

















 


“COMPANY”


 


ARYx
THERAPEUTICS, INC.


 


 


	
  By: 

  	
  /s/ JOHN VARIAN

  	
   

  
	
   

  	
   

  	
   

  
	
  Name: 

  	
  JOHN VARIAN

  	
   

  
	
   

  	
  (Print)

  	
   

  
	
  Title: 

  	
  COO

  	
   

  
						



 


“HOLDER”


 


OXFORD FINANCE CORPORATION


 


	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name: 

  	
   

  	
   

  
	
   

  	
  (Print)

  	
   

  
	
  Title: 

  	
   

  	
   

  
					



 


 


Signature Page to Warrant


 

















 


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):