CYCLACEL PHARMACEUTICALS, INC. WARRANT TO PURCHASE COMMON STOCK To Purchase _________ Shares of Common Stock
Exhibit 4.1
CYCLACEL PHARMACEUTICALS, INC.
WARRANT TO PURCHASE COMMON STOCK
To Purchase _________ Shares of Common Stock
WARRANT TO PURCHASE COMMON STOCK
To Purchase _________ Shares of Common Stock
Date of Issuance: July [—], 2011
VOID AFTER July [—], 2016
THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”) CERTIFIES THAT, for value received,
_____, or permitted registered assigns (the “Holder”), is entitled to subscribe for and
purchase at the Exercise Price (defined below) from Cyclacel Pharmaceuticals, Inc., a Delaware
corporation (the “Company”), up to
_____
shares of the common stock of the Company, par value
$0.001 per share (the “Common Stock”).
1. DEFINITIONS. As used herein, the following terms shall have the following
respective meanings:
(A) “Black Scholes Value” shall mean the value of this Warrant based on the Black and Scholes
Option Pricing Model obtained from the “OV” function on Bloomberg using (i) a price per share of
Common Stock equal to the Weighted Average Price of the Common Stock for the Trading Day
immediately preceding the date of consummation of the applicable Fundamental Transaction, (ii) a
risk-free interest rate corresponding to the U.S. Dollar — LIBOR swap rate for a period equal to
the remaining term of this Warrant as of the date of consummation of the applicable Fundamental
Transaction, (iii) an expected volatility equal to the greater of 100% or the 30-day volatility on the HVT function on Bloomberg
determined for the Trading Day immediately following the date of the public announcement of the applicable Fundamental Transaction, and (iv) a
remaining option time equal to the number of calendar days
between the date of the public announcement of the applicable Fundamental Transaction and the expiration
of the Exercise Period.
(B) “Bloomberg” shall mean Bloomberg Financial Markets.
(C) “Eligible Market” shall mean any of the NYSE Amex, New York Stock Exchange, The NASDAQ
Global Market, The NASDAQ Global Select Market or The NASDAQ Capital Market.
(D) “Exercise Period” shall mean the period commencing on January [—], 2012 and ending five
years from the date hereof, unless sooner terminated as provided below.
(E) “Exercise
Price” shall mean $1.36 per share, subject to adjustment pursuant to
Section 4 below.
(F) “Exercise Shares” shall mean the shares of Common Stock issuable upon exercise of this
Warrant.
(G) “Trading Day” shall mean (a) any day on which the Common Stock is listed or quoted and
traded on its primary Trading Market, (b) if the Common Stock is not then listed or quoted and
traded on any Eligible Market, then a day on which trading occurs on the OTC Bulletin Board (or any
successor thereto), or (c) if trading does not occur on the OTC Bulletin Board (or any successor
thereto), any Business Day.
(H) “Trading Market” shall mean the OTC Bulletin Board or any other Eligible Market, or any
national securities exchange, market or trading or quotation facility on which the Common Stock is
then listed or quoted.
(I) “Weighted Average Price” means, for any security as of any date, the dollar
volume-weighted average price for such security on the Principal Market during the period beginning
at 9:30:01 a.m., New York City time, and ending at 4:00:00 p.m., New York City time, as reported by
Bloomberg through its “Volume at Price” function or, if the foregoing does not apply, the dollar
volume-weighted average price of such security in the over-the-counter market on the electronic
bulletin board for such security during the period beginning at 9:30:01 a.m., New York City time,
and ending at 4:00:00 p.m., New York City time, as reported by Bloomberg, or, if no dollar
volume-weighted average price is reported for such security by Bloomberg for such hours, the
average of the highest closing bid price and the lowest closing ask price of any of the market
makers for such security as reported in the “pink sheets” by Pink Sheets LLC (formerly the National
Quotation Bureau, Inc.). If the Weighted Average Price cannot be calculated for such security on
such date on any of the foregoing bases, the Weighted Average Price of such security on such date
shall be the fair market value as mutually determined by the Company and the Holder. Any such
determination shall be appropriately adjusted for any share dividend, share split or other similar
transaction during such period.
2. EXERCISE OF WARRANT. The rights represented by this Warrant may be exercised in
whole or in part at any time during the Exercise Period, by delivery of the following to the
Company at its address set forth on the signature page hereto (or at such other address as it may
designate by notice in writing to the Holder):
(A) An executed Notice of Exercise in the form attached hereto;
(B) Payment of the Exercise Price either (i) in cash or by check or (ii) pursuant to
Section 2.1 below; and
(C) This
Warrant or a facsimile copy thereof.
Execution and delivery of the Notice of Exercise shall have the same effect as cancellation of
the original Warrant and issuance of a new Warrant evidencing the right to purchase the remaining
number of Exercise Shares, if any.
Certificates for shares purchased hereunder shall be transmitted by the transfer agent of the
Company to the Holder by crediting the account of the Holder’s prime broker with the Depository
Trust Company through its Deposit Withdrawal Agent Commission system if the Company is a
participant in such system, and otherwise by physical delivery to the address specified by the
Holder in the Notice of Exercise within three business days from the delivery to the Company of the
Notice of Exercise, surrender of this Warrant and payment of the aggregate Exercise Price as set
forth above. This Warrant shall be deemed to have been exercised on the date the Notice of Exercise
and the Exercise Price (whether paid in cash, check or pursuant to Section 2.1 below) are received
by the Company. For the avoidance of doubt, in the case of a net exercise, the Warrant shall be
deemed to have been exercised upon receipt by the Company of the Notice of Exercise with the
section indicating exercise by net exercise completed.
The person in whose name any certificate or certificates for Exercise Shares are to be issued
upon exercise of this Warrant shall be deemed to have become the holder of record of such shares on
the date on which the Notice of Exercise was received by the Company and payment of the Exercise
Price was made (whether paid in cash, check or pursuant to Section 2.1 below), irrespective of the
date of delivery of such certificate or certificates, except that, if the date of such surrender
and payment is a date when the
stock transfer books of the Company are closed, such person shall be deemed to have become the
holder of such shares at the close of business on the next succeeding date on which the stock
transfer books are open.
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Subject to the final sentence of this paragraph and to the extent permitted by law, the
Company’s obligations to issue and deliver Exercise Shares in accordance with the terms hereof are
absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the
same, any waiver or consent with respect to any provision hereof, the recovery of any judgment
against any person or entity or any action to enforce the same, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other
person or entity of any obligation to the Company or any violation or alleged violation of law by
the Holder or any other person or entity, and irrespective of any other circumstance which might
otherwise limit such obligation of the Company to the Holder in connection with the issuance of
Exercise Shares. The Holder shall, subject to the following proviso, have the right to pursue any
remedies available to it hereunder, at law or in equity, including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company’s failure to timely
deliver Exercise Shares upon exercise of this Warrant as required pursuant to the terms hereof;
provided, however, that notwithstanding anything to the contrary in this Warrant, if the Company is
for any reason unable to deliver Exercise Shares upon exercise of this Warrant as required pursuant
to the terms hereof, the Company shall have no obligation to pay to the Holder any cash or other
consideration or otherwise “net cash settle” this Warrant.
2.1. NET EXERCISE. If during the Exercise Period the fair market value of one share
of Common Stock is greater than the Exercise Price (at the date of calculation as set forth below),
and a registration statement covering the shares that are the subject of the Exercise Notice (the
“Unavailable Exercise Shares”) or an exemption from registration is not available for the resale of
the Unavailable Exercise Shares, in lieu of exercising this Warrant by payment of cash or by check,
the Holder may effect a “net exercise” of this Warrant, in which event, if so effected, the Holder
shall receive Exercise Shares equal to the value (as determined below) of this Warrant (or the
portion thereof being canceled) by surrender of this Warrant at the principal office of the Company
together with the properly endorsed Notice of Exercise in which event the Company shall issue to
the Holder a number of shares of Common Stock computed using the following formula:
X = Y (A-B)
A
A
Where
|
X | = | the number of Exercise Shares to be issued to the Holder | |||
| Y | = | the number of Exercise Shares with respect to which this Warrant is being exercised | ||||
| A | = | the Fair Market Value (as defined below) of one share of the Company’s Common Stock (at the date of such calculation) | ||||
| B | = | Exercise Price (as adjusted to the date of such calculation) |
For purposes of this Warrant, the “Fair Market Value” of one share of Common Stock shall mean
(i) the closing sales price for the shares of Common Stock on the Eligible Market where the Common
Stock is listed or traded as reported by Bloomberg Financial Markets (or a comparable reporting
service of national reputation selected by the Company and reasonably acceptable to the Holder if
Bloomberg Financial Markets is not then reporting sales prices of such security) (collectively,
“Bloomberg”) on the last trading day prior to the Exercise Date, or (ii) if an Eligible Market is
not the principal Trading Market for the shares of Common Stock, the closing sales price reported
by Bloomberg on the principal Trading Market for the Common Stock on the last trading day prior to
the Exercise Date, or (iii) if neither of the foregoing applies, the last sales price of such
security in the over-the-counter market on the pink
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sheets or bulletin board for such security as
reported by Bloomberg, or if no sales price is so reported for such security, the last bid price of such security as reported by
Bloomberg or (iv) if fair market value cannot be calculated as of such date on any of the foregoing
bases, the fair market value shall be as determined by the Board of Directors of the Company in the
exercise of its good faith judgment. For purposes of Rule 144 promulgated under the Securities Act
of 1933, as amended (the “Securities Act”), as in effect on the date hereof, assuming the Holder is
not an affiliate of the Company, it is intended that the Exercise Shares issued in a net exercise
pursuant to this Section 2.1 shall be deemed to have been acquired by the Holder, and the holding
period for the Exercise Shares shall be deemed to have commenced, on the date this Warrant was
originally issued.
2.2. ISSUANCE OF NEW WARRANTS. The Company shall register this Warrant, upon records
to be maintained by the Company for that purpose (the “Warrant Register”), in the name of
the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any
distribution to the Holder, and for all other purposes, absent actual notice to the contrary. Upon
thirty (30) days notice to the Holder, the Company may appoint a warrant agent to maintain the
Warrant Register. Upon any partial exercise of this Warrant, the Company, at its expense, will
forthwith and, in any event within five business days, issue and deliver to the Holder a new
warrant or warrants of like tenor, registered in the name of the Holder, exercisable, in the
aggregate, for the balance of the number of shares of Common Stock remaining available for purchase
under this Warrant.
2.3. PAYMENT OF TAXES AND EXPENSES. The Company shall pay any recording, filing,
stamp or similar tax which may be payable in respect of any transfer involved in the issuance of,
and the preparation and delivery of certificates (if applicable) representing, (i) any Exercise
Shares purchased upon exercise of this Warrant and/or (ii) new or replacement warrants in the
Holder’s name or the name of any transferee of all or any portion of this Warrant; provided,
however, that the Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance, delivery or registration of any certificates for Exercise
Shares or Warrants in a name other than that of the Holder. The Holder shall be responsible for all
other tax liability that may arise as a result of holding or transferring this Warrant or receiving
Exercise Shares upon exercise hereof.
3. COVENANTS OF THE COMPANY.
3.1. COVENANTS AS TO EXERCISE SHARES. The Company covenants and agrees that all
Exercise Shares that may be issued upon the exercise of the rights represented by this Warrant
will, upon issuance, be validly issued and outstanding, fully paid and nonassessable, and free from
all taxes, liens and charges with respect to the issuance thereof. The Company further covenants
and agrees that the Company will at all times during the Exercise Period, have authorized and
reserved, free from preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of the rights represented by this Warrant. If at any time during the Exercise Period
the number of authorized but unissued shares of Common Stock shall not be sufficient to permit
exercise of this Warrant, the Company will use its commercially reasonable efforts to take such
corporate action in compliance with applicable law as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common Stock to such number of shares
as shall be sufficient for such purposes.
3.2. NOTICES OF RECORD DATE AND CERTAIN OTHER EVENTS. In the event of any taking by
the Company of a record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend or other distribution, the Company
shall mail to the Holder, at least fifteen (15) days prior to the date on which any such record is
to be taken for the purpose of such dividend or distribution, a notice specifying such date. In the
event of any voluntary dissolution, liquidation or winding up of the Company, the Company shall
mail to the Holder, at least fifteen (15) days prior to the date of the occurrence of any such
event, a notice specifying
such date. In the event the Company authorizes or approves, enters into any agreement
contemplating, or solicits stockholder approval for any Fundamental Transaction, as defined in
Section 6 herein, the Company shall mail to the Holder, at least fifteen (15) days prior to
the date of the occurrence of such event, a notice specifying such date. Notwithstanding the
foregoing, the failure to deliver such notice or any defect therein shall not affect the validity
of the corporate action required to be described in such notice.
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4. ADJUSTMENT OF EXERCISE PRICE AND SHARES. The Exercise Price and number of Exercise
Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set
forth in this Section 4.
(A) If the Company, at any time while this Warrant is outstanding, (i) pays a stock dividend
on its Common Stock or otherwise makes a distribution on any class of capital stock that is payable
in shares of Common Stock, (ii) subdivides outstanding shares of Common Stock into a larger number
of shares, or (iii) combines outstanding shares of Common Stock into a smaller number of shares,
then in each such case (x) the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately
after such event and (y) the Exercise Shares shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding immediately after such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately
before such event. Any adjustment made pursuant to clause (i) of this paragraph shall become
effective immediately after the record date for the determination of stockholders entitled to
receive such dividend or distribution, and any adjustment pursuant to clause (ii) or (iii) of this
paragraph shall become effective immediately after the effective date of such subdivision or
combination.
(B) Upon the occurrence of any adjustment pursuant to this Section 4, the Company at its
expense will, at the written request of the Holder, promptly compute such adjustment in accordance
with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a
statement of the adjusted Exercise Price and adjusted number or type of Exercise Shares or other
securities issuable upon exercise of this Warrant (as applicable), describing the transactions
giving rise to such adjustments and showing in detail the facts upon which such adjustment is
based. Upon written request, the Company will promptly deliver a copy of each such certificate to
the Holder and to the Company’s transfer agent.
5. FRACTIONAL SHARES. No fractional shares shall be issued upon the exercise of this
Warrant as a consequence of any adjustment pursuant hereto. All Exercise Shares (including
fractions) issuable upon exercise of this Warrant may be aggregated for purposes of determining
whether the exercise would result in the issuance of any fractional share. If, after aggregation,
the exercise would result in the issuance of a fractional share, the number of Exercise Shares to
be issued will be rounded down to the nearest whole share.
6. FUNDAMENTAL TRANSACTIONS. If the Company shall effectuate any capital
reorganization, reclassification of its capital stock, or consummate a consolidation or merger with
another entity in which the Company is not the survivor, or shall effect a sale, transfer or other
disposition of all or substantially all of its assets to another entity (any such transaction being
hereinafter referred to as a “Fundamental Transaction”), then the Company shall use its
commercially reasonable efforts to ensure that lawful and adequate provision shall be made whereby
the Holder shall thereafter have the right to purchase and receive upon the basis and upon the
terms and conditions herein specified and in lieu of the Exercise Shares immediately theretofore
issuable upon exercise of this Warrant, such shares of stock, securities or assets as would have
been issuable or payable with respect to or in exchange for a number
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of Exercise Shares equal to the number of Exercise Shares immediately theretofore issuable upon
exercise of this Warrant, had such reorganization, reclassification, consolidation, merger, sale,
transfer or other disposition not taken place, and in any such case appropriate provision shall be
made with respect to the rights and interests of the Holder to the end that the provisions hereof
(including, without limitation, provision for adjustment of the Exercise Price to effectuate the
purposes of this Section 6) shall thereafter be applicable, as nearly equivalent as may be
practicable in relation to any share of stock, securities or assets thereafter deliverable upon the
exercise thereof. The Company shall not effect any such consolidation, merger, sale, transfer or
other disposition unless prior to or simultaneously with the consummation thereof the successor
entity (if other than the Company) resulting from such consolidation or merger, or the entity
purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall
assume the obligation to deliver to the Holder, at the last address of the Holder appearing on the
books of the Company, such shares of stock, securities or assets as, in accordance with the
foregoing provisions, the Holder may be entitled to purchase, and the other obligations under this
Warrant. The provisions of this Section 6 shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers, sales, transfers or other
dispositions, each of which transactions shall also constitute a Fundamental Transaction.
Notwithstanding the foregoing, in the event of a Fundamental Transaction, at the request of the
Holder delivered within 30 days after consummation of the Fundamental Transaction, the Company (or
the successor entity) shall purchase this Warrant from the Holder by paying to the Holder, within
seven Business Days after such request (or, if later, on the effective date of the Fundamental
Transaction), cash in an amount equal to the Black Scholes Value of the remaining unexercised
portion of this Warrant on the date of the consummation of such Fundamental Transaction. For the
avoidance of doubt, Fundamental Transactions shall not include any transaction in which the Company
is not a voluntary party thereto.
7. NO STOCKHOLDER RIGHTS. Other than as provided in Section 3.2 or otherwise
herein, this Warrant in and of itself shall not entitle the Holder to any voting rights or other
rights as a stockholder of the Company.
8. TRANSFER OF WARRANT. The Holder acknowledges that the Exercise Shares acquired
upon the exercise of this Warrant, if not registered with the United States Securities and Exchange
Commission, will have restrictions upon resale imposed by state and federal securities laws.
Subject to compliance with any applicable securities laws, this Warrant and all rights hereunder
are transferable, by the Holder in person or by duly authorized attorney, upon delivery of this
Warrant and the form of assignment attached hereto to any transferee designated by Xxxxxx. The
transferee shall sign an investment letter in form and substance reasonably satisfactory to the
Company and its counsel. Any purported transfer of all or any portion of this Warrant in violation
of the provisions of this Warrant shall be null and void.
9. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen,
mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise as it may
reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof),
issue a new Warrant of like denomination and tenor as this Warrant so lost, stolen, mutilated or
destroyed. Any such new Warrant shall constitute an original contractual obligation of the Company,
whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.
10. NOTICES, ETC. All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when
sent by confirmed facsimile to the facsimile number specified in writing by the recipient if sent
during normal business hours of the recipient on a Trading Day, if not, then on the next Trading
Day or (c) the next Trading Day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All communications shall be
sent to the Company at the address listed
on the signature page hereto and to Holder the address of the Holder appearing on the books of
the Company or at such other address as the Company or Holder may designate by ten (10) days
advance written notice to the other parties hereto.
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11. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute acceptance of
and agreement to all of the terms and conditions contained herein.
12. GOVERNING LAW. This Warrant and all rights, obligations and liabilities hereunder
shall be governed by, and construed in accordance with, the internal laws of the State of New York,
without giving effect to the principles of conflicts of law that would require the application of
the laws of any other jurisdiction.
13. AMENDMENT OR WAIVER. Any term of this Warrant may be amended or waived (either
generally or in a particular instance and either retroactively or prospectively) with the written
consent of the Company and the Holders of this Warrant. No waivers of any term, condition or
provision of this Warrant, in any one or more instances, shall be deemed to be, or construed as, a
further or continuing waiver of any such term, condition or provision.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized
officer as of July [—], 2011.
| CYCLACEL PHARMACEUTICALS, INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
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NOTICE OF EXERCISE
| (1) | o | The undersigned hereby elects to purchase [ ] shares of the common stock, par value $0.001 (the “Common Stock”), of CYCLACEL PHARMACEUTICALS, INC. (the “Company”) pursuant to the terms of the attached Warrant, and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any. | |
| o | The undersigned hereby elects to purchase [ ] shares of Common Stock of the Company pursuant to the terms of the net exercise provisions set forth in Section 2.1 of the attached Warrant, and shall tender payment of all applicable transfer taxes, if any. |
| (2) | Please issue the certificate for shares of Common Stock in the name of: |
(Social Security or other Identifying Number) |
||
(Street Address) |
||
(City, State, Zip Code) |
||
or deliver the shares of Common Stock to the following DWAC Account Number: |
||
| (3) | If such number of shares shall not be all the shares purchasable upon the exercise of the Warrants evidenced by this Warrant, a new warrant certificate for the balance of such Warrants remaining unexercised shall be registered in the name of and delivered to: |
Please insert social security or other identifying number: |
||
Dated:
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not
use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned
to
| Name: | ||||
| (Please print) | ||||
| Address: | ||||
| (Please print) |
Dated: , 20[__]
Holder’s Signature:
|
|
Holder’s Address:
|
|
NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face
of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations
and those acting in a fiduciary or other representative capacity should file proper evidence of
authority to assign the foregoing Warrant
