Exhibit 10.15
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.
No. 1
$950,000.10
Date: September 9, 2003
AEROGEN, INC.
SECURED CONVERTIBLE DEBENTURE DUE DECEMBER 31, 2003
THIS DEBENTURE is one of a series of duly authorized and issued debentures of
Aerogen, Inc., a Delaware corporation (the "Borrower"), designated as its
Secured Convertible Debentures due December 31, 2003, in the aggregate principal
amount of up to Nine Hundred and Fifty Thousand Dollars and Ten Cents
($950,000.10) (the "Debentures").
FOR VALUE RECEIVED, the Borrower promises to pay to the order of SF Capital
Partners, Ltd. or its registered assigns (the "Holder"), the principal sum of
Nine Hundred Fifty Thousand Dollars and Ten Cents ($950,000.10), on December 31,
2003 (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. All holders of Debentures are referred to
collectively, as the "Holders."
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 SEPTEMBER 9, 2003, AMONG THE BORROWER
AND THE LENDERS 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