COMMON STOCK PURCHASE WARRANT D
EXHIBIT
4.4
Right
to
Purchase
__________
Shares
of
Common
Stock,
par
value
$0.001
per
share
THIS
CERTIFIES THAT,
for value received, ____________ or its registered assigns (the
“Holder”), is entitled to purchase from Geron Corporation, a Delaware
corporation (the "Company"), at any time or from time to time during the period
specified in Paragraph 2 hereof, ____________ (______) fully paid and
nonassessable shares of the Company's common stock, par value $0.001 per share
(the "Common Stock"), at a per share exercise price equal to the lesser of
(i)
120% of the average of the closing bid price of the Common Stock on the
Principal Exchange (as defined in that certain Securities Purchase Agreement,
dated December 13, 2006, by and among the Company and the Buyers listed on
the
execution page thereof (the "Purchase Agreement")) for the five (5) Trading
Day
(as defined in the Purchase Agreement) period immediately prior to the Exercise
Period Start Date (as defined below) and (ii) $12.14 (the "Exercise Price").
The
term "Warrant Shares," as used herein, refers to the shares of Common Stock
purchasable hereunder. The Warrant Shares and the Exercise Price are subject
to
adjustment as provided in Paragraph 4 hereof. The term "Warrants" means
this Warrant and the warrants (including the A Warrants, B Warrants and
the C Warrants (each as defined in the Purchase Agreement)) issued pursuant
to
the Purchase Agreement.
This
Warrant is subject to the following terms, provisions, and
conditions:
1. Manner
of Exercise; Issuance of Certificates; Payment for Warrant Shares
(a) Subject
to the provisions hereof, this Warrant may be exercised by the Holder, in whole
or in part, by the surrender of this Warrant, together with a completed exercise
agreement in the form attached hereto (the "Exercise Agreement"), to the Company
during normal business hours on any business day at the Company's principal
executive offices (or such other office or agency of the Company as it may
designate by notice to the Holder), and upon (i) payment to the Company in
cash,
by certified or official bank check or by wire transfer for the account of
the
Company of the Exercise Price for the Warrant Shares specified in the Exercise
Agreement or (ii) delivery to the Company of a written notice of an election
to
effect a "Cashless Exercise" (as defined in Paragraph 10(c) below) for the
Warrant Shares specified in the Exercise Agreement (a “Conversion”). The Company
may elect to provide that any exercise of the Warrant shall be a Conversion
(a
“Company-Elected Conversion”). The Company shall provide written notice of such
election (a “Company Conversion Election”) by the end of the business day
following the date of the receipt of the Exercise Agreement.
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The
Warrant Shares purchased by the Holder shall be deemed to be issued
to the
Holder or such holder's designee, as the record owner of such shares,
as
of the close of business on the date on which this Warrant shall
have been
surrendered, the completed Exercise Agreement shall have been delivered,
and payment shall have been made for such shares (or an election
to effect
a Conversion or a Company Conversion Election shall have been made)
as set
forth above. In the event of any exercise of the rights represented
by
this Warrant in accordance with and subject to the terms and conditions
hereof (whether by payment of the exercise price, Conversion or
Company-Elected Conversion), the Warrant Shares shall be issued
and
delivered to the Depository Trust Company account on the Holder’s behalf
via the Deposit Withdrawal Agent Commission system ("DWAC Transfer")
within a reasonable time, not exceeding two (2) trading days after
such
exercise (or,
if DWAC Transfer is not available or Holder requests in writing
otherwise,
certificates
for the Warrant Shares shall be issued, dated the date of such
exercise
and delivered to the Holder hereof within a reasonable time, not
exceeding
three (3) trading days after such exercise),
and the Holder hereof shall be deemed for all purposes to be the
holder of
the Warrant Shares so purchased as of the date of such exercise.
If the
Warrant Shares are issued pursuant to a Company-Elected Conversion,
the
number of Warrant Shares to be issued within the time period specified
in
the preceding sentence shall equal the number of Warrant Shares
to be
delivered if such Cashless Exercise was made at the Holder’s election (the
“Estimated Warrant Shares”); provided,
however,
that within three (3) trading days after the number of Warrant
Shares to
be issued pursuant to Paragraph 10(c) is able to be calculated
(i) if the
number of Estimated Warrant Shares exceeds the number of Warrant
Shares to
be delivered pursuant to Paragraph 10(c) hereof, Holder shall return
to
the Company the number of Warrant Shares which exceed the number
of
Warrant Shares to which Holder is entitled pursuant to Paragraph
10(c);
and (ii) if the Estimated Warrant Shares are less than the number
of
Warrant Shares to be delivered pursuant to Paragraph 10(c) hereof,
the
Company shall issue to Holder the number of Warrant Shares equal
to the
difference between the Estimated Warrant Shares and the Warrant
Shares to
be delivered pursuant to Paragraph 10(c). Any certificates requested
shall
be delivered in such denominations as may be requested by the Holder
and
shall be registered in the name of the Holder or such other name
as shall
be designated by the Holder. If this Warrant shall have been exercised
only in part, then, unless this Warrant has expired, the Company
shall, at
its expense, at the time of delivery of such certificates, deliver
to the
Holder a new Warrant representing the number of shares with respect
to
which this Warrant shall not then have been exercised. In the event
an
Exercise Agreement is delivered and the Company is unable to issue
the
Warrant Shares, the Holder may, at its option, rescind such Exercise
Agreement and such rescission will not effect the Holder's right
to an
extension of the Exercise Period pursuant to Section 4.13 of the
Purchase
Agreement. In any event, if the Company is unable to issue the
Warrant
Shares via DWAC transfer (or otherwise without restrictive legend),
because (i) the Securities and Exchange Commission (the “Commission”) has
issued a stop order with respect to the registration statement
relating to
the Shares (the “Registration Statement”), (ii) the Commission otherwise
has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, (iii) the Company
has
suspended or withdrawn the effectiveness of the Registration Statement,
either temporarily or permanently, (iv) no exemption from the registration
requirements is otherwise available (including, without limitation,
under
Section 3(a)(9) of the Act by virtue of a Conversion or Company-Elected
Conversion) or (v) otherwise, the Company shall not be required
to make
any cash payments to the Holder in lieu of issuance of the Warrant
Shares.
Further, subject to Section 4.13 of the Purchase Agreement, the
Warrant
shall not be exercisable if (i) the Registration Statement is not
effective at the time of exercise or (ii) an exemption from the
registration requirements of the Securities Act, as amended (the
"Act"),
is not available; provided, however, that for purposes of Section
4.13 of
the Purchase Agreement and the extension of the Exercise Period
pursuant
thereto, (x) the Company will have been deemed unable to issue
Warrant
Shares without restrictive legend and (y) the Warrant shall be
deemed to
have been exercised, if at the time the Holder attempts to deliver
an
Exercise Agreement, (1) the Registration Statement is not effective
and
(2) no exemption from the registration requirements of the Act
is
available (including, without limitation, under Section 3(a)(9)
of the Act
by virtue of a Conversion or Company-Elected Conversion).
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(b) Notwithstanding
anything in this Warrant to the contrary, in no event shall the Holder be
entitled to exercise a number of Warrants (or portions thereof) in excess of
the
number of Warrants (or portions thereof) upon exercise of which the sum of
(i)
the number of shares of Common Stock beneficially owned by the Holder and its
affiliates (other than shares of Common Stock which, but for this proviso,
may
be deemed beneficially owned through the ownership of the unexercised Warrants
and the unexercised or unconverted portion of any other securities of the
Company subject to a limitation on conversion or exercise analogous to the
limitation contained herein) and (ii) the number of shares of Common Stock
issuable upon exercise of the Warrants (or portions thereof) with respect to
which the determination described herein is being made, would result in
beneficial ownership by the Holder and its affiliates of more than 4.9% of
the
outstanding shares of Common Stock. For purposes of the immediately preceding
sentence, beneficial ownership shall be determined in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended, and Regulations 13D-G
thereunder, except as otherwise provided in this paragraph (b). Notwithstanding
anything in this Warrant to the contrary, the restrictions on exercise of this
Warrant set forth in this paragraph shall not be amended without (i) the written
consent of the Holder and the Company and (ii) the approval of the holders
of a
majority of the Common Stock present, or represented by proxy, and voting at
any
meeting called to vote on the amendment of such restriction.
2. Period
of Exercise.This Warrant is exercisable at any
time or from time to time on or after the earlier of (i) June 13, 2007 and
(ii)
immediately prior to the closing of a Fundamental Transaction (as defined below)
(“Exercise Period Start Date”) and before 5:00 p.m., New York City time on
December 15, 2010 (the "Exercise Period"); provided, however, that the Exercise
Period may be extended pursuant to Section 4.13 of the Purchase
Agreement.
3. Certain
Agreements of the Company. The Company hereby
covenants and agrees as follows:
(a) Shares
to be Fully Paid. All Warrant Shares will, upon
issuance in accordance with the terms of this Warrant, be validly issued, fully
paid, and nonassessable and free from all taxes, liens, and charges with respect
to the issue thereof.
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(b) Reservation
of Shares. During the Exercise Period, the Company
shall at all times have authorized, and reserved for the purpose of issuance
upon exercise of this Warrant, a suf-ficient number of shares of Common Stock
to
provide for the full exercise of this Warrant.
(c) Listing.
The Company shall promptly secure the listing of the Warrant Shares
upon each national securities exchange or automated quotation system, if any,
upon which shares of Common Stock are then listed (subject to official notice
of
issuance upon exercise of this Warrant) and shall maintain, so long as any
other
shares of Common Stock shall be so listed, such listing of all Warrant Shares;
and the Company shall so list on each national securities exchange or automated
quotation system, as the case may be, and shall maintain such listing of, any
other shares of capital stock of the Company issuable upon the exercise of
this
Warrant if and so long as any shares of the same class shall be listed on such
national securities exchange or automated quotation system.
(d) Certain
Actions Prohibited. The Company will not, by
amendment of its charter or through any 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 by it hereunder, but will at all times
in
good faith assist in the carrying out of all the provisions of this Warrant
and
in the taking of all such action as may reasonably be requested by the Holder
in
order to protect the exercise privilege of the Holder against dilution or other
impairment, consistent with the tenor and purpose of this Warrant. Without
limiting the generality of the foregoing, the Company (i) will not increase
the
par value of any shares of Common Stock receivable upon the exercise of this
Warrant above the Exercise Price then in effect, and (ii) will take all such
actions as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable shares of Common Stock upon
the
exercise of this Warrant.
(e) Successors
and Assigns. This Warrant will be binding upon any
entity succeeding to the Company by merger, consolidation, or acquisition of
all
or substantially all the Company's assets.
4. Antidilution
Provisions. During the Exercise Period, the
Exercise Price and the number of Warrant Shares shall be subject to adjustment
from time to time as provided in this Paragraph 4. In the event that any
adjustment of the Exercise Price as required herein results in a fraction of
a
cent, such Exercise Price shall be rounded up to the nearest cent.
(a) Subdivision
or Combination of Common Stock. If the Company at
any time subdivides (by any stock split, stock dividend, recapitalization,
reorganization, reclassification or otherwise) the shares of Common Stock
acquirable hereunder into a greater number of shares, then, after the date
of
record for effecting such subdivision, the Exercise Price in effect immediately
prior to such subdivision will be proportionately reduced. If the Company at
any
time combines (by reverse stock split, recapitalization, reorganization,
reclassification or otherwise) the shares of Common Stock acquirable hereunder
into
a smaller number
of shares, then, after the date of record for effecting such combination, the
Exercise Price in effect immediately prior to such combination will
be
proportionately
increased. "Common
Stock," for purposes of this Paragraph 4, includes the Common Stock, par value
$0.001 per share, and any additional class of stock
of
the Company having no preference as to dividends or
distributions on liquidation, provided that the shares purchasable pursuant
to
this Warrant shall include only
shares of Common Stock, par value $0.001 per share, in respect
of which this Warrant is exercisable, or shares resulting from any subdivision
or combination of such Common
Stock, or in the case of any reorganization, reclassification, consolidation,
merger, or sale of the character referred to in Paragraph 4(c) hereof, the
stock or other securities
or property provided for in such Paragraph.
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(b) Adjustment
in Number of Shares. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Paragraph 4, the number of
shares of Common Stock issuable upon exercise of this Warrant shall be adjusted
by multiplying a number equal to the Exercise Price in effect immediately prior
to such adjustment by the number of shares of Common Stock issuable upon
exercise of this Warrant immediately prior to such adjustment and dividing
the
product so obtained by the adjusted Exercise Price.
(c) Consolidation,
Merger or Sale. In case of (i) any consolidation
of the Company with, or merger of the Company into any other corporation or
entity, or (ii) any sale or conveyance of all or substantially all of the assets
of the Company other than in connection with a plan of complete liquidation
of
the Company (each of clause (i) and (ii) shall be referred to as a “Fundamental
Transaction”), then as a condition of such Fundamental Transaction, adequate
provision will be made whereby the Holder will thereafter (at any time or from
time to time during the remainder of the Exercise Period) have the right to
acquire and receive upon exercise of this Warrant in lieu of the shares of
Common Stock immediately theretofor acquirable upon the exercise of this
Warrant, such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for the number of shares of Common Stock
immediately theretofore acquirable and receivable upon exercise of this Warrant
had such Fundamental Transaction not taken place.
In
any
such case, the Company will make appropriate provision to insure that the
provisions of this Paragraph 4 hereof will thereafter be applicable as nearly
as
may be in relation to any shares of stock or securities thereafter deliverable
upon the exercise of this Warrant. The Company will not effect any Fundamental
Transaction unless prior to the consummation thereof, (i) the successor or
acquiring entity (if other than the Company), (ii) any other entity whose stock,
securities or assets the holders of the Common Stock of the Company are entitled
to receive as a result of such Fundamental Transaction and (iii) any parent,
subsidiary or affiliate of such successor, acquiring entity or other entity
whose common stock this Warrant shall be exercisable into by virtue of the
penultimate paragraph of this Section 4(c) (any or all of such entities being
hereafter referred to as a “Successor Entity”) assumes
by written instrument the obligations under this Paragraph 4 and the obligations
to deliver to the Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the Holder may be entitled to
acquire.
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Furthermore,
in the event of a transaction contemplated by this Paragraph 4(c) involving
the
acquisition of the Company by a Public Acquirer (as defined below) for
consideration consisting of all or part cash, at the option of the Holder,
in
lieu of any cash in respect of shares of Common Stock underlying this Warrant,
this Warrant (or such proportion thereof as is equal to the proportion of cash
to stock to be paid for the Company) shall thereafter be exercisable for the
common stock of the Public Acquirer for the remainder of the Exercise Period
(and otherwise in accordance with the terms hereof), with the number of shares
thereafter underlying this Warrant determined by multiplying the number of
shares for which this Warrant is exercisable immediately prior to such
transaction by a fraction, the numerator of which is the cash consideration
per
share paid for the Company and the denominator of which is the Market Price
of
the Public Acquirer’s common stock, where “Market Price” means the average
closing price of the Public Acquirer’s common stock over the five trading days
immediately following the closing date of the transaction. In the case of a
transaction involving partial cash consideration, the proportion of this Warrant
as is equal to the proportion of stock to cash in such transaction shall
thereafter be exercisable for stock of the Public Acquirer in accordance with
the preceding terms of this Paragraph 4(c), with the number of shares underlying
this Warrant adjusted to reflect the number of shares of common stock of the
Public Acquirer to be issued for each share of Common Stock of the Company.
Following any adjustment hereunder, the Exercise Price shall be proportionately
adjusted, by multiplying the Exercise Price then in effect by a fraction, the
numerator of which is the number of shares issuable prior to the adjustment
and
the denominator of which is the number of shares issuable after the adjustment.
“Public Acquirer” means any entity that has publicly traded common stock whether
publicly traded in the United States or in any other jurisdiction, it being
understood that (1) “common stock” as used in this Paragraph 4(c) includes
common equity equivalents, trust shares, limited partnership interests, ordinary
shares, American Depositary Receipts, American Depositary Shares, and any other
similar securities or derivate thereof, and (2) the Company shall be deemed
to
have been acquired by a Public Acquirer where any Successor Entity has publicly
traded common stock whether traded in the United States or any other
jurisdiction, even if such Successor Entity is not the direct acquirer or
successor to the Company. Following any transaction contemplated by this
Paragraph 4(c) the term Warrant Shares shall be deemed to refer to the shares
for which this Warrant is thereafter exercisable in accordance with the
provisions hereof.
In
addition, if holders of Common Stock are given a choice as to the securities,
cash (which shall be treated in accordance with the preceding paragraph) or
property to be received in a Fundamental Transaction (including a right to
elect
to receive any particular one or combination of more than one of the foregoing),
then the Holder shall be given the same choice of consideration upon any
exercise of this Warrant following such Fundamental Transaction, which choice
of
consideration can be made at the time of exercise at any time prior to the
expiration of the Exercise Period.
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(d) Distribution
of Assets. In case the Company shall declare or
make any distribution of its assets (including cash) to holders of Common Stock
as a partial liquidating dividend, by way of return of capital or otherwise,
then, after the date of record for determining stockholders entitled to such
distribution, but prior to the date of distribution, the Holder shall be
entitled upon exercise of this Warrant for the purchase of any or all of the
shares of Common Stock subject hereto, to receive the amount of such assets
which would have been payable to the holder had such holder been the holder
of
such shares of Common Stock on the record date for the determination of
stockholders entitled to such distribution.
(e) Notice
of Adjustment. Upon the occurrence of any event
which requires any adjustment of the Exercise Price, then, and in each such
case, the Company shall give notice thereof to the Holder, which notice shall
state the Exercise Price resulting from such adjustment and the increase or
decrease in the number of Warrant Shares purchasable at such price upon
exercise, setting forth in reasonable detail the method of calculation and
the
facts upon which such calculation is based. Such calculation shall be certified
by the chief financial officer of the Company.
(f) Minimum
Adjustment of Exercise Price. No adjustment of the
Exercise Price shall be made in an amount of less than 1% of the Exercise Price
in effect at the time such adjustment is otherwise required to be made, but
any
such lesser adjustment shall be carried forward and shall be made at the time
and together with the next subsequent adjustment which, together with any
adjustments so carried forward, shall amount to not less than 1% of such
Exercise Price.
(g) No
Fractional Shares. No fractional shares of Common
Stock are to be issued upon the exercise of this Warrant. If the exercise of
this Warrant would result in a fractional share of Common Stock, such fractional
share shall be disregarded and the number of shares of Common Stock issuable
upon exercise of the Warrant shall be the next higher number of shares.
(h) Other
Notices. In case at any time:
(i) the
Company shall declare any dividend upon the Common Stock payable in shares
of
stock of any class or make any other distribution (including dividends or
distributions payable in cash out of retained earnings) to the holders of the
Common Stock;
(ii) the
Company shall offer for subscription pro rata to the holders of the Common
Stock
any additional shares of stock of any class or other rights;
(iii) there
shall be any capital reorganization of the Company, or reclassification of
the
Common Stock, or consolidation or merger of the Company with or into, or sale
of
all or substantially all its assets to, another corporation or entity;
or
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(iv) there
shall be a voluntary or involuntary dissolution, liquidation or winding-up
of
the Company;
then,
in
each such case, the Company shall give to the Holder (a) notice of the date
on
which the books of the Company shall close or a record shall be taken for
determining the holders of Common Stock entitled to receive any such dividend,
distribution, or subscription rights or for determining the holders of Common
Stock entitled to vote in respect of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up and (b)
in
the case of any such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding-up, notice of the date (or, if not
then known, a reasonable approximation thereof by the Company) when the same
shall take place. Such notice shall also specify the date on which the holders
of Common Stock shall be entitled to receive such dividend, distribution, or
subscription rights or to exchange their Common Stock for stock or other
securities or property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation, or winding-up, as the
case may be. Such notice shall be given at least 15 days prior to the record
date or the date on which the Company's books are closed in respect thereto.
Failure to give any such notice or any defect therein shall not affect the
validity of the proceedings referred to in clauses (i), (ii), (iii) and (iv)
above.
(i) Certain
Events. If any event occurs of the type
contemplated by the adjustment provisions of this Paragraph 4 but not expressly
provided for by such provisions, the Company will give notice of such event
as
provided in Paragraph 4(e) hereof, and the Company's Board of Directors will
make an appropriate adjustment in the Exercise Price and the number of shares
of
Common Stock acquirable upon exercise of this Warrant so that the rights of
the
Holder shall be neither enhanced nor diminished by such event.
(j) Withholding
Taxes. In the event that an adjustment to the
Exercise Price (or a failure to adjust the Exercise Price) results in a
constructive distribution to the Holder of the Warrants under Section 305
of the Internal Revenue Code of 1986, as amended, the Company may withhold,
to
the extent required by applicable law, any applicable United States federal
withholding tax from any subsequent distributions of cash or property made
to
the Holder, including any Common Stock issued by the Company upon the exercise
of this Warrant.
5. Issue
Tax. The issuance of certificates for Warrant
Shares upon the exercise of this Warrant shall be made without charge to the
Holder or such shares for any issuance tax or other costs in respect thereof,
provided that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of
any
certificate in a name other than the Holder.
6. No
Rights or Liabilities as a Stockholder. This
Warrant shall not entitle the Holder to any voting rights or other rights as
a
stockholder of the Company. No provision of this Warrant, in the absence of
affirmative action by the Holder to purchase Warrant Shares, and no mere
enumeration herein of the rights or privileges of the Holder, shall give rise
to
any liability of such holder for the Exercise Price or as a stockholder of
the
Company, whether such liability is asserted by the Company or by creditors
of
the Company.
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7. Transfer,
Exchange, and Replacement of Warrant.
(a) Transfer.This
Warrant and the rights granted to the Holder are transferable, in whole or
in
part, upon surrender of this Warrant, together with a properly executed
assignment in the form attached hereto, at the office or agency of the Company
referred to in Paragraph 7(e) below. Until due presentment for registration
of transfer on the books of the Company, the Company may treat the registered
Holder as the owner and Holder for all purposes, and the Company shall not
be
affected by any notice to the contrary.
(b) Warrant
Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Holder at the office
or agency of the Company referred to in Paragraph 7(e) below, for new Warrants
of like tenor representing in the aggregate the right to purchase the number
of
shares of Common Stock which may be purchased hereunder, each of such new
Warrants to represent the right to purchase such number of shares as shall
be
designated by the Holder at the time of such surrender.
(c) Replacement
of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation
of
this Warrant and, in the case of any such loss, theft, or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount
to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company, at its expense, will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
(d) Cancellation;
Payment of Expenses. Upon the surrender of this
Warrant in connection with any transfer, exchange, or replacement as provided
in
this Paragraph 7, this Warrant shall be promptly canceled by the Company. The
Company shall pay all taxes (other than securities transfer taxes) and all
other
expenses (other than legal expenses, if any, incurred by the Holder or
transferees) and charges payable in connection with the preparation, execution,
and delivery of Warrants pursuant to this Paragraph 7.
(e) Register.
The Company shall maintain, at its principal executive offices (or such other
office or agency of the Company as it may designate by notice to the Holder),
a
register for this Warrant, in which the Company shall record the name and
address of the person in whose name this Warrant has been issued, as well as
the
name and address of each transferee and each prior owner of this Warrant.
8. Notices.
All notices, requests, and other communications required or permitted to be
given or delivered hereunder to the Holder shall be in writing, and shall be
personally delivered, or shall be sent by certified or registered mail or by
recognized overnight mail courier, postage prepaid and addressed, to such holder
at the address shown for such holder on the books of the Company, or at such
other address as shall have been furnished to the Company by notice from such
Holder.
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All
notices, requests, and other communications required or permitted to be given
or
delivered hereunder to the Company shall be in writing, and shall be personally
delivered, or shall be sent by certified or registered mail or by recognized
overnight mail courier, postage prepaid and addressed, to the office of the
Company at 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, Attn: Xxxxx
Xxxxxxxxx, fax no. (000) 000-0000 with copies to Xxxxxx & Xxxxxxx LLP, 000
Xxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, Attn: Xxxx X. Xxxxxxxxx, Esq.,
fax
no. (000) 000-0000, or at such other address as shall have been furnished
to the
Holder by notice from the Company. Any such notice, request, or other
communication may be sent by facsimile, but shall in such case be subsequently
confirmed by a writing personally delivered or sent by certified or registered
mail or by recognized overnight mail courier as provided above. All notices,
requests, and other communications shall be deemed to have been given either
at
the time of the receipt thereof by the person entitled to receive such notice
at
the address of such person for purposes of this Paragraph 8, or, if mailed
by
registered or certified mail or with a recognized overnight mail courier
upon
deposit with the United States Post Office or such overnight mail courier,
if
postage is prepaid and the mailing is properly addressed, as the case may
be.
9. Governing
Law.THIS WARRANT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF DELAWARE (WITHOUT REGARD
TO
PRINCIPLES OF CONFLICT OF LAWS). BOTH PARTIES IRREVOCABLY CONSENT TO THE
EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL COURTS AND THE STATE COURTS
LOCATED IN DELAWARE WITH RESPECT TO ANY SUIT OR PROCEEDING BASED ON OR ARISING
UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR
THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY AND IRREVOCABLY AGREE THAT ALL
CLAIMS IN RESPECT OF SUCH SUIT OR PROCEEDING MAY BE DETERMINED IN SUCH COURTS.
BOTH PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE THAT SERVICE
OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY'S RIGHT TO SERVE PROCESS
IN
ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT A FINAL
NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE
AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER
LAWFUL MANNER.
10. Miscellaneous.
(a) Amendments.
This Warrant and any provision hereof may only be amended by an instrument
in
writing signed by the Company and the Holder.
(b) Descriptive
Headings. The descriptive headings of the several
paragraphs of this Warrant are inserted for purposes of reference only, and
shall not affect the meaning or construction of any of the provisions
hereof.
10
(c) Cashless
Exercise. This Warrant may be exercised by presentation and
surrender of this Warrant to the Company at its principal executive offices
with
a written notice of the holder's intention to effect a cashless exercise,
including a calculation of the number of shares of Common Stock to be issued
upon such exercise in accordance with the terms hereof, or in connection with
a
Company-Elected-Conversion (a "Cashless Exercise"). In the event of a Cashless
Exercise, the Holder shall be entitled to receive a certificate for the number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by
(A),
where:
(A)
= the
closing price on the trading day immediately preceding the date of such
election; provided, however, that if the Cashless Exercise is in
connection with a Company-Elected Conversion, “A” in the formula above shall
equal the volume-weighted average price of the Company’s common stock as
reported by Bloomberg L.P., or any successor performing similar functions for
the five (5) trading days beginning the day immediately following the date
of
the Company-Elected Conversion.
(B)
= the
Exercise Price of this Warrant, as adjusted; and
(X)
= the
number of Warrant Shares issuable upon exercise of this Warrant in accordance
with the terms of this Warrant by means of a cash exercise rather than a
cashless exercise.
(d) Remedies.
The Company acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to the Holder by vitiating the intent and purpose of
the
transactions contemplated hereby. Accordingly, the Company acknowledges that
the
remedy at law for a breach of its obligations under this Warrant will be
inadequate and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Warrant, that the Holder shall be entitled,
in
addition to all other available remedies in law or in equity, to an injunction
or injunctions to prevent or cure any breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions of this Warrant,
without the necessity of showing economic loss and without any bond or other
security being required.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
11
EXHIBIT
4.4
IN
WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
| GERON CORPORATION | ||
| |
|
|
| By: | ||
|
Name:
Xxxxx X. Xxxxxxxxx
|
||
|
Title: Executive Vice President
and
Chief
Financial Officer
|
||
| Dated as of March 1, 2007 | ||
FORM
OF EXERCISE AGREEMENT
Dated:
________ __, 200_
To:
GERON
CORPORATION
The
undersigned, pursuant to the provisions set forth in the Warrant attached
hereto, hereby agrees to purchase ________ shares of Common Stock covered
by
such Warrant, and makes payment herewith in full therefor at the price per
share
provided by such Warrant in cash or by certified or official bank check in
the
amount of, or by surrender of securities issued by the Company (including
a
portion of the Warrant) having a market value (in the case of a portion of
this
Warrant, determined in accordance with Paragraph 10(c) of the Warrant) equal
to
$_________. Please issue a certificate or certificates for such shares of
Common
Stock in the name of and pay any cash for any fractional share to:
|
Name:
|
||
|
Signature:
|
||
|
Address:
|
||
|
Note:
The
above signature should correspond exactly with the name on
the face of the
Warrant attached hereto.
|
||
and,
if
said number of shares of Common Stock shall not be all the shares purchasable
under the Warrant attached hereto, a new Warrant is to be issued in the
name of
said undersigned covering the balance of the shares purchasable thereunder
less
any fraction of a share paid in cash.
FORM
OF ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns, and transfers all the
rights of
the undersigned under the Warrant attached hereto, with respect to the
number of
shares of Common Stock covered thereby set forth hereinbelow, to:
|
Name
of Assignee
|
Address
|
No
of Shares
|
,
and
hereby irrevocably constitutes and appoints
_____________________________________ as agent and attorney-in-fact to
transfer
said Warrant on the books of the within-named corporation, with full power
of
substitution in the premises.
|
Dated:
________ __, 200_
|
|
In
the presence of:
|
|
_________________________
|
|
Name:
|
||
|
Signature:
|
||
| Title of Signing Officer or Agent (if any): | ||
|
Address:
|
||
|
Note:
The
above signature should correspond exactly with the name on
the face of the
Warrant attached
hereto.
|
||
