Exhibit4.4
Amended and Restated Series D-2 Stock Purchase Warrant, dated as of May 23, 2003
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION 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.
Right to Purchase
500,901 Shares
of Common Stock,
par value $0.001
per share
GERON CORPORATION
SECOND AMENDED AND RESTATED SERIES D-2
STOCK PURCHASE WARRANT
Registered Owner:
This warrant is a duly authorized warrant (the "Warrant") of Geron
Corporation, a Delaware corporation (the "Company") referred to in the
Securities Purchase Agreement (the "Purchase Agreement"), dated as of June 29,
2000, by and between the Company and the Purchaser (as defined in the Purchase
Agreement), as amended by that certain Restructuring Agreement (the "Initial
Restructuring Agreement"), dated as of November 9, 2001, by and between the
Company and the Purchaser and as further amended by that certain Restructuring
Agreement (the "Second Restructuring Agreement"), dated as of May 23, 2003, by
and between the Company and the Purchaser. This Warrant is subject to the terms
and conditions of the Purchase Agreement, the Initial Restructuring Agreement
and the Second Restructuring Agreement, copies of which are on file at and may
be obtained from the Company at its principal office at the address set forth in
Section 11 hereof. This certifies that, for value received the Company grants
the following rights to the Registered Owner, or assigns, of this Warrant:
ARTICLE I. Issue. Upon tender (as defined in Section 5 hereof) to the Company,
the Company shall issue to the Registered Owner, RGC International Investors,
LDC, or assigns, up to the number of shares specified in Section 2 hereof of
fully paid and non-assessable shares of Common Stock, par value $.001 per share
("Common Stock"), that the Registered Owner, or assigns, is otherwise entitled
to purchase.
ARTICLE II. Number of Shares. The total number of shares of Common Stock that
the Registered Owner, or assigns, of this Warrant is entitled to receive upon
exercise of this Warrant is 500,901 shares of Common Stock, subject to
adjustment from time to time as set forth in Section 6 below. The Company shall
at all times have authorized, reserved and held available sufficient shares of
Common Stock to satisfy all conversion and purchase rights represented by
outstanding convertible securities, options and warrants, including this
Warrant, for issuance upon exercise of this Warrant, such number of shares equal
to 100% of the shares for which it may then be exercised. The Company covenants
and agrees that all shares of Common Stock that may be issued upon the exercise
of this Warrant shall, upon issuance, be duly and validly issued, fully paid and
non-assessable, and free from all taxes, liens and charges with respect to the
purchase and the issuance of the shares.
ARTICLE III. Exercise Price. The initial exercise price of this Warrant, the
price at which the shares of stock issuable upon exercise of this Warrant may be
purchased, is $7.50 and subject to adjustment from time to time pursuant to the
provisions of Section 6 below (the "Exercise Price").
3A. Payment of Exercise Price. The Registered Owner may pay the Exercise
Price in one of the following manners:
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A. Cash Exercise. The Registered Owner shall deliver immediately
available funds or a check payable to the Company; or
B. Cashless Exercise. At such time as, but only at such time as,
after the 120th day after the date of original issuance of this
Warrant (i.e. June 29, 2000) (the "Original Issue Date"), all of
the Registrable Securities (as defined in the Series D
Registration Rights Agreement) are not registered pursuant to an
effective registration statement, the Registered Owner shall have
the right to surrender this Warrant to the Company together with
a notice of cashless exercise, in which event the Company shall
issue to the Registered Owner the number of Warrant Shares
determined as follows:
where: X = Y (A-B)/A X = the number of Warrant Shares (as defined in the
Second Restructuring Agreement) to be issued to the Registered
Owner Y = the number of Warrant Shares with respect to which this
Warrant is being exercised A = the average of the Per Share
Market Value of the Common Stock for the five (5) Trading Days
immediately prior to (but not including) the date of exercise B =
the Exercise Price
For purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Registered
Owner, and the holding period for the Warrant Shares shall be deemed to have
been commenced, on the Original Issue Date to the extent permitted by Rule 144.
ARTICLE IV. Exercise Period. Subject to the provisions of Section 7(a) hereof,
this Warrant may be exercised at any time and from time to time on or after the
date on which this Warrant is issued and delivered and before 5:00 p.m., New
York City time on December 31, 2006 (the "Exercise Period"). If not exercised
during this period, this Warrant and all rights granted under this Warrant shall
expire and lapse.
ARTICLE V. Tender. This Warrant may be exercised, in whole or in part, by
actual delivery of (i) the Exercise Price in cash, (ii) a duly executed Warrant
Exercise Form, a copy of which is attached to this Warrant as Exhibit A,
properly executed by the Registered Owner, or assigns, of this Warrant, and
(iii) by surrender of this Warrant. The payment and Warrant Exercise Form must
be delivered, personally or by mail, to the registered office of the Company.
Documents sent by mail shall be deemed to be delivered when they are received by
the Company. 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.
ARTICLE VI. Adjustment of Exercise Price.
1. Common Stock Dividends; Common Stock Splits; Reverse Common Stock
Splits. If the Company, at any time while this Warrant is
outstanding, (a) shall pay a stock dividend on its Common Stock,
(b) subdivide outstanding shares of Common Stock into a larger
number of shares, (c) combine outstanding shares of Common Stock
into a smaller number of shares, or (d) issue by reclassification
of shares of Common Stock any shares of capital stock of the
Company, the Exercise Price shall be multiplied by a fraction the
numerator of which shall be the number of shares of Common Stock
(excluding treasury shares, if any) outstanding before such event
and the denominator of which shall be the number of shares of
Common Stock outstanding after such event. Any adjustment made
pursuant to this Section (6)(a) shall become effective
immediately after the record date for the determination of
shareholders entitled to receive such dividend or distribution
and shall become effective immediately after the effective date
in the case of a subdivision, combination or re-classification.
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2. [Intentionally Omitted.]
3. [Intentionally Omitted.]
4. Rounding. All calculations under this Section 6 shall be made to
the nearest cent or the nearest l/l00th of a share, as the case
may be.
5. Notice of Adjustment. Whenever the Exercise Price is adjusted
pursuant to Section 6(a), the Company shall promptly mail to the
holder of the Warrant, a notice setting forth the Exercise Price
after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Upon each adjustment of the
Exercise Price pursuant Section 6(a), 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.
6. Redemption Events. In case of (A) any reclassification of the
Common Stock, (B) any consolidation or merger of the Company with
or into another person pursuant to which (i) a majority of the
Company's Board of Directors will not constitute a majority of
the board of directors of the surviving entity or (ii) less than
51% of the outstanding shares of the capital stock of the
surviving entity will be held by the same shareholders of the
Company prior to such reclassification, consolidation or merger,
(C) the sale or transfer of all or substantially all of the
assets of the Company, (D) any compulsory share exchange pursuant
to which the Common Stock is converted into other securities,
cash or property, (E) suspension from listing or delisting of the
Common Stock from the National Market System of the Nasdaq Stock
Market ("Nasdaq") or any other exchange on which the Common Stock
is listed for a period of five (5) consecutive Trading Days, (F)
the Company's notice to any Registered Owner, including by way of
public announcement, at any time, of its intention, for any
reason, not to comply with proper requests for the exercise of
any such warrants, or (G) a breach by the Company of any
representation, warranty, covenant or other term or condition of
the Purchase Agreement, the Series D Registration Rights
Agreement or any other agreement, document, certificate or other
instrument delivered in connection with the transactions
contemplated thereby or hereby, except to the extent that such
breach would not have a Material Adverse Effect (as defined in
Section 3(a) of the Purchase Agreement) and except, in the case
of a breach of a covenant which is curable, only if such breach
continues for a period of at least ten (10) days after the
Company knows or reasonably should have known of the existence of
such breach (clauses (A) through (G) above referred to as a
"Redemption Event"), the holder of the Warrant shall have the
right thereafter to exercise the Warrant within ten (10) Business
Days of the Redemption Event for the shares of stock and other
securities, cash and property receivable upon or deemed to be
held by holders of Common Stock following such Redemption Event,
and the holder of the Warrant shall be entitled upon such event
to receive such amount of securities, cash or property as the
shares of the Common Stock of the Company into which the Warrant
could have been converted immediately prior to such Redemption
Event would have been entitled.
7. Reclassification, Etc. If:
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a. the Company shall declare a dividend (or any other
distribution) on its Common Stock; or
b. the Company shall declare a special nonrecurring cash
dividend on or a redemption of its Common Stock; or
c. the Company shall authorize the granting to all of the
holders of the Common Stock rights or warrants to subscribe
for or purchase any shares of capital stock of any class or
of any rights; or
d. the approval of any shareholders of the Company shall be
required in connection with any reclassification of the
Common Stock of the Company, any consolidation or merger to
which the Company is a party, any sale or transfer of all or
substantially all of the assets of the Company, of any
compulsory share exchange whereby the Common Stock is
converted into other securities, cash or property; or
e. the Company shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the
Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of exercise of this Warrant, and shall cause to be mailed to the
holder of this Warrant at its address as it shall appear below, at least thirty
(30) calendar days prior to the applicable record or effective date hereinafter
specified, a notice (provided such notice shall not include any material
non-public information) stating (x) the date on which a record is to be taken
for the purpose of such dividend, distribution, redemption, rights or warrants,
or if a record is not to betaken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distributions, redemption,
rights or warrants are to be determined or (y) the date on which such
reclassification, consolidation, merger, sale, transfer or share exchange is
expected to become effective or close, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities, cash or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer or share exchange;
provided, however, that the failure to mail such notice or any defect therein or
in the mailing thereof shall not affect the validity of the corporate action
required to be specified in such notice.
8. [Intentionally Omitted.]
In no event shall any provision in this Section 6 cause the Exercise Price
to be greater than the Exercise Price on the date of issuance of this Warrant.
ARTICLE VII. Restriction on Exercise by the Registered Owner.
(a) This Warrant may not be exercised during the Exercise Period so
long as any portion of the Restated Series D Debentures (as defined in
Section 8 hereof) remains outstanding.
(b) Notwithstanding anything in this Warrant to the contrary, in no
event shall the Holder of this Warrant 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 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 (including the
Restated Series D Debentures and the Restated Series D-1 Stock Purchase
Warrant (as defined in the Second Restructuring Agreement) issued to RGC)
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 9.9% 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
Regulation 13D-G thereunder, except as otherwise provided in clause (i)
hereof. Notwithstanding anything in this Warrant to the contrary, the
restriction on Holder 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 Company's Common Stock
present, or represented by proxy, and voting at any meeting called to vote
on the amendment of such restriction.
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(c) If on any date the Holder delivers a Warrant Exercise Form (the
"Determination Date"), (a) the Common Stock is listed for trading or quoted
on Nasdaq or the Nasdaq SmallCap Market, (b) the sum of: (i) the aggregate
number of shares of Common Stock that would then be issuable upon exercise
of this Warrant in accordance with the Warrant Exercise Form, (ii) the
aggregate number of shares of Common Stock that have previously been issued
upon exercise of this Warrant, (iii) the aggregate number of shares of
Common Stock that would then be issuable upon exercise of the Amended and
Restated Series D-1 Stock Purchase Warrant (the "D-1 Warrant") for which
the Company has received a Warrant Exercise Form, (iv) the aggregate number
of shares of Common Stock that have previously been issued upon exercise of
the D-1 Warrant, (v) the aggregate number of shares of Common Stock that
have previously been issued upon conversion of the Restated Series D
Debentures, and (vi) any shares of Common Stock issued upon conversion of
any other securities of the Company which, according to advice from Nasdaq
or written opinion of counsel to the Company, would be aggregated with the
Common Stock issuable upon conversion of this Warrant as required by the
applicable rules and regulations of Nasdaq (or any successor entity), would
equal or exceed twenty percent (20%) of the number of shares of Common
Stock outstanding immediately prior to the Original Issue Date (such 20%
calculated to equal 4,300,969 shares (the "Issuable Maximum")), and (c) the
Company shall not have previously obtained the vote of the stockholders of
the Company, if any, as may be required by the applicable rules and
regulations of Nasdaq (or any successor entity) to approve the issuance of
shares of Common Stock in excess of the Issuable Maximum, then with respect
to the Warrants then held by the Holder for which the exercise thereof
pursuant to the Warrant Exercise Form would result in an issuance of shares
of Common Stock in excess of the Issuable Maximum (the "Excess Shares"),
the Company will either (i) pay cash to the Holder in an amount equal to
the Exercise Amount in exchange for cancellation of such portion of this
Warrant for which such Warrant Exercise Form has been delivered or (ii)
deliver the Excess Shares. The "Exercise Amount" shall mean the product of
(i) the difference of (a) the Per Share Market Value on the Determination
Date less (b) the Exercise Price, multiplied by (ii) the number of Excess
Shares for which such Warrant Exercise Form is delivered. For purposes of
this Section 7(c), in the event that Warrant Exercise Forms are received
simultaneously with respect to each of the D-1 Warrant and this Warrant,
then shares of Common Stock shall be issued first upon exercise of the D-1
Warrant and then upon the exercise of this Warrant. If the Company fails
either to deliver the Excess Shares or pay the Exercise Amount in full
pursuant to this Section 7(c) within five (5) Business Days after the
Determination Date, the Company will pay interest on the Exercise Amount at
a rate of seven percent (7%) per annum to the Holder, accruing interest
daily from the Determination Date until (i) such amounts, plus all such
interest, if any, is paid in full or (ii) the Excess Shares are delivered
and any interest due pursuant to this Section 7(c), if any, is paid in
full. In no event shall the Company be required to issue shares of Common
Stock upon exercise of this Warrant if such issuance would violate the
rules of Nasdaq.
ARTICLE VIII. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meanings given to such terms in the Purchase
Agreement. As used in this Warrant, the following terms have the following
meanings:
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "affiliated," "controlling" and "controlled" have meanings
correlative to the foregoing.
"Appraiser" has the meaning assigned to it in Section 6(c)hereof.
"Business Day" means any day except Saturday, Sunday and any day which
shall be a legal holiday or a day on which banking institutions in the State of
New York generally are authorized or required by law or other government actions
to close.
"Common Stock" means the shares of the Company's common stock, par value
$.001 per share.
"Company" means Geron Corporation, a Delaware corporation.
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"Convertible Securities" has the meaning assigned to it in Section
6(h)(i)(A) hereof.
"Exercise Period" has the meaning assigned to it the Section 4 hereof.
"Exercise Price" has the meaning assigned to it in Section 3 hereof.
"Initial Restructuring Agreement" means that certain Restructuring
Agreement, dated as of November 9, 2001, between the Company and RGC.
"Market Price" has the meaning assigned to it in Section 6(h)(i) hereof.
"Options" has the meaning assigned to it in Section 6(h)(i)(A) hereof.
"Per Share Market Value" means on any particular date (i) the closing bid
price per share of the Common Stock on such date on Nasdaq or another registered
national stock exchange on which the Common Stock is then listed or if there is
no such price on such date, then the closing bid price on such exchange or
quotation system on the date nearest preceding such date, or (ii) if the Common
Stock is not listed then on the National Market System of the Nasdaq Stock
Market or any registered national stock exchange, the closing bid price for a
share of Common Stock in the over-the-counter market, as reported by the
National Quotation Bureau Incorporated (or similar organization or agency
succeeding to its functions of reporting prices) at the close of business on
such date, or (iii) if the Common Stock is not then publicly traded the fair
market value of a share of Common Stock as determined by an Appraiser selected
in good faith by the holder of this Warrant; provided, however, that the
Company, after receipt of the determination by such Appraiser, shall have the
right to select an additional Appraiser, in which case, the fair market value
shall be equal to the average of the determinations by each such Appraiser; and
provided, further that all determinations of the Per Share Market Value shall be
appropriately adjusted for any stock dividends, stock splits or other similar
transactions during such period.
"Purchase Agreement" means that certain Securities Purchase Agreement,
dated June 29, 2000, by and between the Company and the Purchaser (as defined in
the Purchase Agreement).
"Redemption Event" has the meaning assigned to it in Section 6(f) hereof.
"Registered Owner" means RGC International Investors, LDC, or such other
Person as shown on the records of the Company as being the registered owner of
this Warrant.
"Restated Series D Debentures" means the debentures issued by the Company
pursuant to and in the form attached as Exhibit A to the Second Restructuring
Agreement.
"RGC" means RGC International Investors, LDC.
"Second Restructuring Agreement" means that certain Restructuring
Agreement, dated as of May 23, 2003, between the Company and the Purchaser.
"Series D Registration Rights Agreement" means that certain Registration
Rights Agreement, dated as of June 29, 2000, by and between the Company and the
Initial Investor (as defined in the Series D Registration Rights Agreement), as
amended by Amendment No. 1 on November 9, 2001 and as further amended by
Amendment No. 2 on May 23, 2003.
"Trading Day(s)" means any day on which the primary market on which shares
of Common Stock are listed is open for trading.
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ARTICLE IX. Registration Rights. The Company will undertake the registration of
the Common Stock into which this Warrant is exercisable at such times and upon
such terms pursuant to the provisions of the Series D Registration Rights
Agreement.
ARTICLE X. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be deemed to have been received
(a) upon hand delivery (receipt acknowledged) or delivery by telex (with correct
answer back received), telecopy or facsimile (with transmission confirmation
report) at the address or number designated below (if received by 8:00 p.m. EST
where such notice is to be received), or the first business day following such
delivery (if delivered on a business day after during normal business hours
where such notice is to be received) or (b) on the second business day following
the date of mailing by express courier service, fully prepaid, addressed to such
address, or upon actual receipt of such mailing, whichever shall first occur.
The addresses for such communications are (i) if to the Company to Geron
Corporation, 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 attn: Xxxxx
Xxxxxxxxx, fax no. (000) 000-0000 with copies to Xxxxxx & Xxxxxxx LLP, 000
Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, Attn: Xxxx X. Xxxxxxxxx, Esq.,
fax no. (000) 000-0000 and (ii) if to any Registered Owner to the address set
forth immediately below such Registered Owner's name on the signature pages to
the Second Restructuring Agreement or such other address as may be designated in
writing hereafter, in the same manner, by such Person.
ARTICLE XI. Remedies. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the Registered Owner, or
assigns, by vitiating the intent and purpose of the transactions contemplated
hereby. Accordingly, the Company acknowledges that the remedy at law for breach
of its obligations hereunder will be inadequate and agrees, in the event of a
breach or threatened breach by the Company of any of the provisions hereunder,
that the Registered Owner, or assigns, shall be entitled, in addition to all
other available remedies in law or in equity, to an injunction or injunctions to
prevent or cure breaches of the provisions of this Security and to enforce
specifically the terms and provisions hereof, without the necessity of showing
economic loss and without any bond or other security being required.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer as of the date first set forth below.
GERON CORPORATION
By:/s/ XXXXX X. XXXXXXXXX
Xxxxx X. Xxxxxxxxx
Senior Vice President, Corporate
Development and Chief Financial Officer
Dated: May 23, 2003.
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EXHIBIT A
Warrant Exercise Form
---------------------
TO: GERON CORPORATION
The undersigned hereby: (1) irrevocably subscribes for and offers to
purchase _______ shares of Common Stock of Geron Corporation, pursuant to
Warrant No. ___ heretofore originally issued to ___________________ on June 29,
2000; (2) encloses a payment of $__________ for these shares at a price of
$________ per share (as adjusted pursuant to the provisions of the Warrant); and
(3) requests that a certificate for the shares be issued in the name of the
undersigned and delivered to the undersigned at the address specified below. The
undersigned represents that it is an accredited investor within the meaning of
Regulation D under the Securities Act.
Date:
Investor Name:
Taxpayer Identification
Number:
By:
Printed Name:
Title:
Address:
Note: The above signature should
correspond exactly with the name
on the face of this Warrant
Certificate or with the name of
assignee appearing in assignment
form below.
AND, if said number of shares shall not be all the shares purchasable under the
within Warrant, a new Warrant Certificate is to be issued in the name of said
undersigned for the balance remaining of the shares purchasable thereunder less
any fraction of a share paid in cash and delivered to the address stated above.
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