Form of 2010 Warrant
EXHIBIT 4.1
Form of 2010 Warrant
Right to
Purchase _______
Shares of
Common Stock,
par value $0.001
per share
Purchase _______
Shares of
Common Stock,
par value $0.001
per share
WARRANT
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 non-assessable shares of the Company’s common stock, par value $0.001
per share (the “Common Stock”), at a per share exercise price equal to $6.75
(the “Exercise Price”). This Warrant is being issued pursuant to that certain
Securities Purchase Agreement, dated as of January 14, 2010, by and among the
Company and the Buyers listed therein (the “Purchase Agreement”). 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 issued to the other Buyers (as defined in the Purchase
Agreement) 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. The Warrant Shares purchased by the Holder shall be deemed to be
issued to the Holder or such Xxxxxx’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 (as defined in the Purchase Agreement) 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).
(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 4.99% 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 date hereof
(“Exercise Period Start Date”) and before 9:00 p.m., New York City time on
October 31, 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.
(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 sufficient 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.
(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.
(i) In case of (1) any consolidation of the
Company with, or merger of the Company into any other corporation or entity, or
(2) 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 (1) and (2) 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.
(ii) In any such case, the Company will make
appropriate provision to insure that the provisions of this Paragraph 4(c)
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, (1) the successor or acquiring entity (if other than
the Company), (2) 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 (3) 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 subparagraph (iii) 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.
(iii) 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 (5) 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.
(iv) 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.
(v) Notwithstanding the foregoing, in the
event of a Fundamental Transaction by a Successor Entity that is not a Qualified
Public Acquirer (as defined below), the Holder may, in its sole discretion,
elect to receive cash in exchange for this Warrant in an amount equal to the
Theoretical Value (as defined below) of this Warrant at the time of the first
public announcement of the Fundamental Transaction (the “Announcement
Date”); provided, however,
that the option to receive cash described in this subparagraph (v) shall apply
only to the extent that the transaction is in whole or in part a cash purchase,
and only to the extent that the holders of Common Stock are receiving cash, and
such right to receive cash shall be pari passu with and
not in preference to the common stockholders right to receive cash. In the event
of a Fundamental Transaction involving a Successor Entity that is a Qualified
Public Acquirer, at the option of the Holder, such Public Acquirer shall list
for trading the Warrants, as adjusted pursuant to this Paragraph 4(c), on the
AMEX, ICE, CBOE and regional options exchanges and quotation
systems.
(vi) A “Qualified Public Acquirer” means a
Public Acquirer that (1) has “common stock” publicly traded on the NYSE, NASDAQ
Global Market, or the primary trading markets of the London Stock Exchange,
Tokyo Stock Exchange, Euronext, Deutsche Boerse or any other stock exchange
whose average daily U.S. dollar denominated trading volume (based on applicable
exchange rates) is at least equal to lowest average daily volume of the
aforementioned exchanges based on the trailing 12-month period ending on the
Trading Day immediately prior to the Announcement Date (“Listed Common”) and (2)
has Listed Common that trades at a dollar volume at least equal to the dollar
volume of the Company’s Common Stock, during the thirty (30) consecutive Trading
Day period ending on the Trading Day immediately prior to the Announcement Date.
“Theoretical Value” means the value calculated using the Black Scholes valuation
model, where intrinsic value, if any, is added to 75% of the difference between
full Theoretical Value and intrinsic value, and (1) the interest rate used will
be tied to the yield of closest matching duration U.S. Treasury issue; and (2)
the volatility figure used will be either (A) if the Company has listed options
(as it currently does), the volatility associated with those listed options, as
implied by the average price (using the midpoint between the bid and the ask
prices) of the relevant options (based on closest duration and strike price)
during the three (3) consecutive Trading Days immediately prior to the
Announcement Date; or (B) if the Company does not have listed options, the
thirty (30) day historical volatility of the Company’s Common Stock calculated
by Bloomberg L.P. (or a similar source selected by the Holder and the Company)
ending on the Trading Day immediately prior to the Announcement Date.
(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
(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.
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.
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.
(c) Cashless Exercise. If at the time of any exercise of this
Warrant during the Exercise Period the Warrant Shares cannot be sold or issued
pursuant to an effective registration statement, 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 in accordance with Paragraph 4 hereof; 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]
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 January 15, 2010 | ||
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. |
