AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT C
Right to
Purchase _________
Shares of
Common Stock,
par value $0.001
per share
AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT C
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 an exercise price of $0.01 per share (the "Exercise Price"). The term "Warrant Shares," as used herein, refers to the shares of Common Stock purchasable hereunder. The Warrant Shares are subject to adjustment as provided in Paragraph 4 hereof. The term "Warrants" means this Warrant and the other warrants (including the A Warrants and the B Warrants (each as defined in the Purchase Agreement)) issued pursuant to 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").
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. 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.
3. Certain Agreements of the Company. The Company hereby covenants and agrees as follows:
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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 Paragraph 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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(g) 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
(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 30 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.
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7. Transfer, Exchange, and Replacement of Warrant.
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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.
(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.
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(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.
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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 13, 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. | ||