Exhibit 10.21
NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON CONVERSION OF THESE
SECURITIES HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
BORROWER.
THESE SECURITIES AND THE SECURITIES ISSUABLE UPON CONVERSION OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED
BY SUCH SECURITIES.
Date: January 23, 2004
$500,000
AEROGEN, INC.
SECURED CONVERTIBLE DEBENTURE DUE MARCH 1, 2004
THIS DEBENTURE is issued by Aerogen, Inc., a Delaware corporation (the
"Borrower"), in the aggregate principal amount of Five Hundred Thousand Dollars
($500,000) (the "Debenture").
FOR VALUE RECEIVED, the Borrower promises to pay to the order of the Carpenter
1983 Family Trust UA, or its registered assigns (the "Holder"), the principal
sum of Five Hundred Thousand Dollars ($500,000), on March 1, 2004 (the "Maturity
Date"), or such earlier date as this Debenture is required or permitted to be
repaid as provided hereunder, and to pay interest to the Holder on the aggregate
then outstanding principal amount of this Debenture in accordance with the
provisions hereof. This Debenture is subject to the following additional
provisions:
1.
DEFINITIONS.
IN ADDITION TO THE TERMS DEFINED
ELSEWHERE IN THIS DEBENTURE: (A) CAPITALIZED TERMS THAT ARE NOT OTHERWISE
DEFINED HEREIN HAVE THE MEANINGS GIVEN TO SUCH TERMS IN THE LOAN AND SECURITIES
PURCHASE AGREEMENT, DATED AS OF EVEN DATE HEREWITH, AMONG THE BORROWER AND THE
LENDER IDENTIFIED THEREIN (THE "LOAN AGREEMENT"), AND (B) THE FOLLOWING TERMS
HAVE THE MEANINGS INDICATED BELOW:
"CLOSING PRICE" MEANS, FOR ANY DATE, THE PRICE DETERMINED BY THE FIRST OF THE
FOLLOWING CLAUSES THAT APPLIES: (A) IF THE COMMON STOCK IS THEN LISTED OR QUOTED
ON AN ELIGIBLE MARKET, THE CLOSING SALE PRICE PER SHARE OF THE COMMON STOCK FOR
SUCH DATE (OR THE NEAREST
PRECEDING DATE) ON THE PRIMARY ELIGIBLE MARKET OR EXCHANGE ON WHICH THE COMMON
STOCK IS THEN LISTED OR QUOTED; (B) IF PRICES FOR THE COMMON STOCK ARE THEN
QUOTED ON THE OTC BULLETIN BOARD, THE CLOSING SALE PRICE PER SHARE OF THE COMMON
STOCK FOR SUCH DATE (OR THE NEAREST PRECEDING DATE) SO QUOTED; (C) IF PRICES FOR
THE COMMON STOCK ARE THEN REPORTED IN THE "PINK SHEETS" PUBLISHED BY THE
NATIONAL QUOTATION BUREAU INCORPORATED (OR A SIMILAR ORGANIZATION OR AGENCY
SUCCEEDING TO ITS FUNCTIONS OF REPORTING PRICES), THE MOST RECENT SALE PRICE PER
SHARE OF THE COMMON STOCK SO REPORTED; OR (D) IN ALL OTHER CASES, THE FAIR
MARKET VALUE OF A SHARE