exv10w21



 




Exhibit 10.21



THIS
WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY APPLICABLE STATE
SECURITIES LAW, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT
TO RULE 144 AND AN EXEMPTION UNDER APPLICABLE STATE LAW OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS
COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.




WARRANT
TO PURCHASE STOCK



Corporation: Alexza
Molecular Delivery Corporation, a Delaware corporation



Number
of Shares: 24,058



Class
of Stock: Series C Preferred



Initial
Exercise Price: $1.55871 per share



Issue
Date: January 7, 2003



Expiration
Date: the later of (i) January 7, 2013 or
(ii) seven years after the date of the Company’s initial
public offering.



     THIS
WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and for
other good and valuable consideration, SILICON VALLEY BANK
(“Holder”) is entitled to purchase the number of fully paid
and nonassessable shares of the class of securities (the
“Shares”) of the corporation (the “Company”) at
the initial exercise price per Share (the “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 by delivering 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 Section 1.2, Holder shall also
deliver to the Company a check for the aggregate Warrant Price for
the Shares being purchased.



1.2  Conversion
Right.  In lieu of exercising this Warrant as specified
in Section 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 Section 1.3.



1.3  Fair
Market Value.  If the Shares are traded in a public
market, the fair market value of the Shares shall be the closing price
of the Shares (or the closing price of the Company’s stock into
which the Shares are convertible) reported for the business day
immediately before Holder delivers its Notice of Exercise to the
Company. If the Shares are not traded in public market, the Board of
Directors of the Company shall determine fair market value in its
reasonable good faith judgement.




1.4  Delivery
of Certificates and New Warrant.  Promptly after Holder exercises or
converts this Warrant, 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, or 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  Assumption
on Sale, Merger, or Consolidation of the 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, or
merger of the Company where the holders of the Company’s
securities before the transaction beneficially own
less than 50% of the outstanding voting securities of the surviving
entity after the transaction.



1.6.2  Assumption
of Warrant.  Upon the closing of any Acquisition, 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 Initial Exercise Price and/or number of Shares shall be
adjusted accordingly.



ARTICLE 2.  ADJUSTMENTS
TO THE SHARES.



2.1  Stock
Dividends, Splits, Etc.  If the Company declares or
pays a dividend on its common stock (or the Shares if the Shares are
securities other than common stock) payable in common stock, or other
securities, subdivides the outstanding common stock into a greater
amount of common stock, or, if the Shares are securities other than
common stock, subdivides the Shares in a transaction that increases
the amount of common stock into which the Shares are convertible,
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 or subdivision
occurred. If the outstanding shares are combined or consolidated, by
reclassification or otherwise, into a lesser number of shares, the
Initial Exercise Price shall be proportionately increased.



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. Such an
event shall include any automatic conversion of the outstanding or
issuable securities of the Company of the same class or series as the
Shares to common stock pursuant to the terms of the Company’s
Articles of Incorporation upon the closing of a registered public
offering of the Company’s common stock. The Company or its
successor shall promptly issue to Holder a new Warrant for such new
securities or other property. The new 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 Initial Exercise
Price and to the number of securities or property issuable upon
exercise of the new Warrant. The provisions of this Section 2.2
shall similarly apply to successive reclassifications, exchanges,
substitutions, or other events.




2.3  Adjustments
for Diluting Issuances.  The Warrant Price and the
number of Shares issuable upon exercise of this Warrant or, if the
Shares are Preferred Stock, the number of shares of common stock
issuable upon conversion of the Shares, shall be subject to
adjustment, from time to time in the manner set forth in the
Company’s Articles (Certificate) of Incorporation. The
provisions set forth for the Shares in the Company’s Articles
(Certificate) of Incorporation relating to the above in effect as of
the Issue Date may not be amended, modified or waived, without the
prior written consent of Holder unless such amendment, modification
or waiver affects Holder in the same manner as they affect all other
shareholders of the same series of shares granted to the Holder.



2.4  No
Impairment.  The Company shall not, by amendment of its
Articles 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




2










 






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 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, 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
in effect upon the date thereof and the series of adjustments leading
to such Warrant Price.



ARTICLE 3.
REPRESENTATIONS AND COVENANTS OF THE COMPANY.



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



          
(a)   The initial Warrant Price referenced on the first page of
this Warrant is not greater than (i) the price per share at
which the Shares were last issued in an arms-length transaction in
which at least $500,000 of the Shares were sold and (ii) the
fair market value of the Shares as of the date of this Warrant.



          
(b)   All Shares which may be issued upon the exercise of the
purchase right represented by this Warrant, and all securities, if
any, issuable upon conversion of the Shares, 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.



          
(c)   The Capitalization Table previously provided to Holder
remains true and complete as of the Issue Date.



     
3.2   Notice of Certain Events. If the Company proposes
at any time (a) to declare any dividend or distribution upon its
common stock, whether in cash, property, stock, or other securities
and whether or not a regular cash dividend; (b) to offer for
subscription pro rata to the holders of any class or series of its
stock any additional shares of stock of any class or series or other
rights; (c) to effect any reclassification or recapitalization
of common stock; (d) to merge or consolidate with or into any
other corporation, or sell, lease, license, or convey all or
substantially all of its assets, 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 (1) at least
10 days prior written notice of the date on which a record will
be taken for such dividend, distribution, or subscription rights (and
specifying the date on which the holders of common stock will be
entitled thereto) or for determining rights to vote, if any, in
respect of the matters referred to in (c) and (d) above; (2) in
the case of the matters referred to in (c) and (d) above at least
10 days prior written notice of the date when the same will take
place (and specifying the date on which the holders of common stock
will be entitled to exchange their common stock for securities or
other property deliverable upon the occurrence of such event); and
(3) in the case of the matter referred to in (e) above, the same
notice as is given to the holders of such registration rights.



     
3.3   Registration Under Securities Act of 1933, as
amended. The Company agrees that the Shares or, if the Shares are
convertible into common stock of the Company, such common stock,
shall be subject to the registration rights set forth in the
Company’s Investor Rights Agreement or similar agreement. The
provisions set forth in the Company’s Investors’ Right
Agreement or similar agreement relating to the above in effect as of
the Issue Date may not be amended, modified or waived without the



3








 



prior written consent of Holder unless such
amendment, modification or waiver affects Holder in the same
manner as they affect all other shareholders of the same series
of shares granted to the Holder.



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




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



    
4.1 Purchase for Own
Account. Except for transfers to Holder’s
affiliates, this Warrant and the securities to be acquired upon
exercise of this Warrant by the Holder will be acquired for
Investment for the 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 1933 Act, and the Holder has no
present intention of selling, granting any participation in, or
otherwise distributing the same. If not an individual, the
Holder also represents that the Holder has not been formed for
the specific purpose of acquiring this Warrant or the Shares.



    
4.2 Disclosure of
Information. The 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. The 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 the Holder or to which the
Holder has access.



    
4.3 Investment Experience. The
Holder understands that the purchase of this Warrant and its
underlying securities involves substantial risk. The Holder:
(i) has experience as an investor in securities of
companies in the development stage and acknowledges that the
Holder is able to fend for itself, 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 the Holder is capable of evaluating the
merits and risks of its investment in this Warrant and its
underlying securities and/or (ii) 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 the Holder to be aware of the
character, business acumen and financial circumstances of such
persons.



    
4.4 Accredited Investor
Status. The Holder is an “accredited
investor” within the meaning of Regulation D
promulgated under the 1933 Act.



    
4.5 Right of First Refusal. The
Holder acknowledges that the Bylaws of the Company specify that
all common and preferred stock of the Company is subject to a
right of first refusal in favor of the Company if the Holder
proposes to transfer the stock, subject to certain exceptions
specified in the Company’s Bylaws. Notwithstanding the
foregoing, Company agrees that the foregoing does not restrict
the Holder’s ability to transfer this Warrant pursuant to
section 5.4.




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. (a) This Warrant
and the Shares (and the securities issuable, directly or
indirectly, upon conversion of the Shares, if any) shall be
imprinted with a legend in substantially the following form:




		
	 	
    THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
    SECURITIES ACT OF 1933, AS AMENDED OR UNDER ANY APPLICABLE STATE
    LAWS, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
    WITHOUT AN EFFECTIVE REGISTRATION THERE OF UNDER SUCH ACT
    





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    AND AN EXEMPTION UNDER APPLICABLE STATE LAW OR PURSUANT TO
    RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY
    TO THE CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT
    REQUIRED.	 




          
(b) The Shares (and the securities issuable, directly or
indirectly, upon conversion of the Shares, if any) shall be
imprinted with a legend in substantially the following form:



			
	 	
    THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A
    RIGHT OF FIRST REFUSAL ON TRANSFERS, UPON TERMS AND CONDITIONS
    SPECIFIED IN THE ISSUER’S BYLAWS, A COPY OF WHICH BYLAWS
    MAY BE OBTAINED, WITHOUT CHARGE, AT THE ISSUER’S PRINCIPAL
    OFFICE.	 




     
5.3 Compliance with Securities Laws on Transfer.
This Warrant and the Shares issuable upon exercise of this
Warrant (and the securities issuable, directly or indirectly,
upon conversion of the Shares, if any) 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 an affiliate of Holder
or if there is no material question as to the availability of
current information as referenced in Rule 144(c), Holder
represents that it has complied with Rule 144(d) and (e) in
reasonable detail, the selling broker represents that it has
complied with Rule 144(f), and the Company is provided with
a copy of Holder’s notice of proposed sale.


     
5.4 Transfer Procedure. Subject to the provisions of
Section 5.3, upon receipt by Holder of the executed
Warrant, Holder will transfer all of this Warrant or the Shares
issuable upon exercise of this Warrant (or the securities
issuable, directly or indirectly, upon conversion of the Shares,
if any) to Silicon Valley Bancshares, Holder’s parent
company. Subject to the provisions of Section 5.3 and upon
providing Company with written notice, Silicon Valley Bancshares
may transfer all or part of this Warrant or the Shares issuable
upon exercise of this Warrant (or the Shares issuable directly
or indirectly, upon conversion of the Shares, if any) to The
Silicon Valley Bank Foundation, or to any affiliate of Holder,
or to any other transferee, provided, however, if Holder
transfers this Warrant to any transferee which is not an
affiliate of Holder, 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 will
surrender this Warrant to the Company for reissuance to the
transferee(s) (and Holder if applicable). The Company may refuse
to transfer this Warrant or the Shares to any person who
directly competes with the Company, unless, in either case, the
stock of the Company is publicly traded.


     
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, at
such address as may have been furnished to the Company or the
Holder, as the case may (or on the first business day after
transmission by facsimile) be, in writing by the Company or such
holder from time to time. Effective upon receipt of the fully
executed Warrant and the initial transfer described in
Article 5.4 above, all notices to the Holder shall be
addressed as follows until the Company receives notice of a
change of address in connection with a transfer or otherwise:



		
	 	
    Silicon Valley Bancshares 

     Attn: Treasury Department 

     3003 Tasman Drive, HA 200 

     Santa Clara, CA 95054 

     Telephone: 408-554-7400 

     Facsimile: 408-496-2405




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






		
	 	
    Alexza Molecular Deliver Corporation
	 
	 	
    Attn: Carol A. Christopher
	 	
    1001 E. Meadow Circle
	 	
    Palo Alto, CA 94303
	 	
    Telephone: (650) 687-3909
	 	
    Facsimile: (650) 687-3999



          
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 attorney’s 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 Exercise 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 the Holder.



          
5.9 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.



          
5.10 Market Stand-Off Provision. Holder agrees to be
bound by the “Market Stand-Off” provision (the
“Market Stand-Off Provision”) in section 3.9 of
Company’s Investors’ Rights Agreement (the
“Rights Agreement”) dated September 17, 2002. The
Market Stand-Off Provision provisions set forth in the Rights
Agreement may not be amended, modified, or waived without the
prior written consent of Holder unless such amendment,
modification or waiver affects the rights associated with the
Shares in the same manner as such amendment, modification, or
waiver affects the rights associated with all other shares of
the same series and class as the of Shares granted pursuant to
this Warrant.






		
	 	
    “COMPANY”
	 	
    Alexza Molecular Delivery Corporation






			
	 	By: 	
    /s/ Stephen A. Schneider



		
	 	
     




			
	 	Name: 	
    Stephen A. Schneider



		
	 	
     




			
	 	Title: 	
    Chairman of the Board, President or
Vice President

	 
			
	 	By: 	/s/ Carol A. Christopher



		
	 	
     

	 	
    Name: Carol A. Christopher



			
	 	Title: 	
    Chief Financial Officer, Secretary, Assistant Treasurer or
    Assistant Secretary






		
	 	
    “HOLDER”
	 	
    Silicon Valley Bank






			
	 	By: 	/s/ Mercy Forde



		
	 	
     

	 	
    Name: Mercy Forde
	 	
    Title: VP







 





ASSIGNMENT



For value received, Silicon Valley Bank hereby sells, assigns
and transfers unto:



		
	 	
    Name: Silicon Valley Bancshares
	 	
    Address: 3003 Tasman Drive (HA-200)
	 	
    Santa Clara, CA 95054
	 
	 	
    TaxID: 91-1962278





that certain Warrant to Purchase Stock issued by Alexza
Molecular Delivery Corp. (the “Company”), on Jan. 7, 2003 (the
“Warrant”) together with all rights, title and
interest therein.



		
	 	
    SILICON VALLEY BANK





			
	 	By: 	
    /s/ Mercy Forde



		
	 	
    




			
	 	Name: 	
    Mercy Forde



		
	 	
    




			
	 	Title: 	
    VP



		
	 	
    






Date: 1/7/03



By its execution below, and for the benefit of the Company,
Silicon Valley Bancshares makes each of the representations and
warranties set forth in Article 4 of the Warrant as of the
date hereof.



		
	 	
    SILICON VALLEY BANCSHARES





			
	 	By: 	
    /s/ Paulette Mehas



		
	 	
    




			
	 	Name: 	
    Paulette Mehas



		
	 	
    




			
	 	Title: 	
    Treasurer



		
	 	
    












 




AMENDMENT TO WARRANT AGREEMENT



     
    This Amendment to Warrant Agreement (the “Agreement”)
    is made as of March 4, 2003 by and between Silicon Valley
    Bancshares (“Holder”) and Alexza Molecular Delivery
    Corporation, a Delaware corporation
    (“Company”).




RECITALS



     
A.     Company and Silicon Valley Bank
(“SVB”) executed a Warrant to Purchase Stock, dated
January 7, 2003, together with all schedules and exhibits
thereto (the “Warrant Agreement”). Pursuant to the
terms and conditions in the Warrant Agreement, SVB transferred
its interest in the Warrant Agreement to Silicon Valley
Bancshares.



     
NOW, THEREFORE, the parties agrees as follows:






       1.     The
Issue Date is hereby amended to: January 27, 2003.


       2.     The Expiration Date is hereby amended to: the later of
    (i) January 27, 2013 or (ii) seven years after
    the date of the Company’s initial public offering.


       3.     LEGAL EFFECT: INTERPRETATION. This Agreement amends
    certain terms of the Warrant Agreement. Company confirms that,
    except as amended by this Agreement, the Warrant Agreement
    remains in full force and effect. Unless otherwise defined, all
    terms capitalized in this Agreement shall have the meanings
    assigned in the Warrant Agreement. This Agreement, together with
    the Warrant Agreement, constitutes the entire agreement of the
    parties with respect to the subject matter hereof, and
    supersedes all prior agreements and negotiations.


       4.     COUNTERPARTS. This Agreement may be executed in two or
    more counterparts, each of which shall be deemed an original,
    and all of which shall constitute one and the same
instrument.


       5.     TIME OF ESSENCE. Time is of the essence for the
    performance of all obligations set forth in this Agreement.


     
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first written above.




	 	 	 	 	 
	
    COMPANY:	 	
    HOLDER:
	 
	
    ALEXZA MOLECULAR DELIVERY CORPORATION	 	
    SILICON VALLEY BANCSHARES
	 
	
    
    By:         /s/ Carol A.
    Christopher
    

    	 	
    By:         /s/
Paulette Mehas
    
	 	 	 	 	 
	 
	
    
    Name:   Carol A. Christopher

    	 	
    Name:   Paulette Mehas
	 	 	 	 	 
	 
	
    
    Title:     CFO

    	 	
    Title:     Treasurer
	 	 	 	 	 




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