THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 4 OF THIS WARRANT
Exhibit
10.2
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE
ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER
SET FORTH IN SECTION 4 OF THIS
WARRANT
|
Number
of Shares: 150,000
|
|
|
(subject
to adjustment)
|
|
|
Date
of Issuance: March 5, 2007
|
BRAINSTORM
CELL THERAPEUTICS, INC.
(Void
after March 5, 2009)
BrainStorm
Cell Therapeutics, Inc., a Delaware corporation (the “Company”), for value
received, hereby certifies that Xxx Xxxxxxxxx, or its registered assigns (the
“Registered Holder”), is entitled, subject to the terms and conditions set forth
below, to purchase from the Company, at any time or from time to time on or
after the date of issuance and on or before 5:00 p.m. (New York time) on March
5, 2009, 150,000 shares of Common Stock, $0.00005 par value per share, of the
Company, at a purchase price of $0.45 per share. The shares purchasable upon
exercise of this Warrant, and the purchase price per share, each as adjusted
from time to time pursuant to the provisions of this Warrant, are hereinafter
referred to as the “Warrant Shares” and the “Purchase Price,”
respectively.
1. Exercise.
(a) This
Warrant may be exercised by the Registered Holder, in whole or in part, by
surrendering this Warrant, with the purchase form appended hereto as
Exhibit I
duly
executed by the Registered Holder or by the Registered Holder’s duly authorized
attorney, at the principal office of the Company, or at such other office or
agency as the Company may designate, accompanied by payment in full, in lawful
money of the United States, of the Purchase Price payable in respect of the
number of Warrant Shares purchased upon such exercise.
(b) The
Registered Holder may, at its option, elect to pay some or all of the Purchase
Price payable upon an exercise of this Warrant by canceling a portion of this
Warrant exercisable for such number of Warrant Shares as is determined by
dividing (i) the total Purchase Price payable in respect of the number of
Warrant Shares being purchased upon such exercise by (ii) the excess of the
Fair Market Value per share of Common Stock (as defined below) as of the
Exercise Date (as defined in subsection 1(c) below) over the Purchase Price
per
share. If the Registered Holder wishes to exercise this Warrant pursuant to
this
method of payment with respect to the maximum number of Warrant Shares
purchasable pursuant to this method, then the number of Warrant Shares so
purchasable shall be equal to the total number of Warrant Shares, minus the
product obtained by multiplying (x) the total number of Warrant Shares by
(y) a fraction, the numerator of which shall be the Purchase Price per
share and the denominator of which shall be the Fair Market Value per share
of
Common Stock as of the Exercise Date. The Fair Market Value per share of Common
Stock shall be determined as follows:
(i) If
the
Common Stock is listed on a national securities exchange, the Nasdaq Global
Market or another nationally recognized trading system as of the Exercise Date,
the Fair Market Value per share of Common Stock shall be deemed to be the
average of the high and low reported sale prices per share of Common Stock
thereon on the trading day immediately preceding the Exercise Date (provided
that if no such price is reported on such day, the Fair Market Value per share
of Common Stock shall be determined pursuant to clause (ii)).
(ii) If
the
Common Stock is not listed on a national securities exchange, the Nasdaq Global
Market or another nationally recognized trading system as of the Exercise Date,
the Fair Market Value per share of Common Stock shall be deemed to be the amount
most recently determined by the Board of Directors to represent the fair market
value per share of the Common Stock (including without limitation a
determination for purposes of granting Common Stock options or issuing Common
Stock under an employee benefit plan of the Company); and, upon request of
the
Registered Holder, the Board of Directors (or a representative thereof) shall
promptly notify the Registered Holder of the Fair Market Value per share of
Common Stock. Notwithstanding the foregoing, if the Board of Directors has
not
made such a determination within the three-month period prior to the Exercise
Date, then (A) the Board of Directors shall make a determination of the
Fair Market Value per share of the Common Stock within 15 days of a request
by
the Registered Holder that it do so, and (B) the exercise of this Warrant
pursuant to this subsection 1(b) shall be delayed until such determination
is
made.
(c) Each
exercise of this Warrant shall be deemed to have been effected immediately
prior
to the close of business on the day on which this Warrant shall have been
surrendered to the Company as provided in subsection 1(a) above (the “Exercise
Date”). At such time, the person or persons in whose name or names any
certificates for Warrant Shares shall be issuable upon such exercise as provided
in subsection 1(d) below shall be deemed to have become the holder or holders
of
record of the Warrant Shares represented by such certificates.
(d) As
soon
as practicable after the exercise of this Warrant in full or in part, and in
any
event within 10 days thereafter, the Company, at its expense, will cause to
be
issued in the name of, and delivered to, the Registered Holder, or as such
Holder (upon payment by such Holder of any applicable transfer taxes) may
direct:
(i) a
certificate or certificates for the number of full Warrant Shares to which
the
Registered Holder shall be entitled upon such exercise plus, in lieu of any
fractional share to which the Registered Holder would otherwise be entitled,
cash in an amount determined pursuant to Section 3 hereof; and
(ii) in
case
such exercise is in part only, a new warrant or warrants (dated the date hereof)
of like tenor, calling in the aggregate on the face or faces thereof for the
number of Warrant Shares equal (without giving effect to any adjustment therein)
to the number of such shares called for on the face of this Warrant minus the
sum of (a) the number of such shares purchased by the Registered Holder
upon such exercise plus (b) the number of Warrant Shares (if any) covered
by the portion of this Warrant cancelled in payment of the Purchase Price
payable upon such exercise pursuant to subsection 1(b) above.
-2-
2. Adjustments.
(a) Adjustment
for Stock Splits and Combinations.
If the
Company shall at any time or from time to time after the date on which this
Warrant was first issued (the “Original Issue Date”) effect a subdivision of the
outstanding Common Stock, the Purchase Price then in effect immediately before
that subdivision shall be proportionately decreased. If the Company shall at
any
time or from time to time after the Original Issue Date combine the outstanding
shares of Common Stock, the Purchase Price then in effect immediately before
the
combination shall be proportionately increased. Any adjustment under this
paragraph shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(b) Adjustment
for Certain Dividends and Distributions.
In the
event the Company at any time, or from time to time after the Original Issue
Date shall make or issue, or fix a record date for the determination of holders
of Common Stock entitled to receive, a dividend or other distribution payable
in
additional shares of Common Stock, then and in each such event the Purchase
Price then in effect immediately before such event shall be decreased as of
the
time of such issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the Purchase
Price then in effect by a fraction:
(1) the
numerator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close
of
business on such record date, and
(2) the
denominator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close
of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution;
provided,
however, if such record date shall have been fixed and such dividend is not
fully paid or if such distribution is not fully made on the date fixed therefor,
the Purchase Price shall be recomputed accordingly as of the close of business
on such record date and thereafter the Purchase Price shall be adjusted pursuant
to this paragraph as of the time of actual payment of such dividends or
distributions.
(c) Adjustment
in Number of Warrant Shares.
When
any adjustment is required to be made in the Purchase Price pursuant to
subsections 2(a) or 2(b), the number of Warrant Shares purchasable upon the
exercise of this Warrant shall be changed to the number determined by dividing
(i) an amount equal to the number of shares issuable upon the exercise of
this Warrant immediately prior to such adjustment, multiplied by the Purchase
Price in effect immediately prior to such adjustment, by (ii) the Purchase
Price in effect immediately after such adjustment.
-3-
(d) Adjustments
for Other Dividends and Distributions.
In the
event the Company at any time or from time to time after the Original Issue
Date
shall make or issue, or fix a record date for the determination of holders
of
Common Stock entitled to receive, a dividend or other distribution payable
in
securities of the Company (other than shares of Common Stock) or in cash or
other property (other than cash out of earnings or earned surplus, determined
in
accordance with generally accepted accounting principles), then and in each
such
event provision shall be made so that the Registered Holder shall receive upon
exercise hereof, in addition to the number of shares of Common Stock issuable
hereunder, the kind and amount of securities of the Company and/or cash and
other property which the Registered Holder would have been entitled to receive
had this Warrant been exercised into Common Stock on the date of such event
and
had the Registered Holder thereafter, during the period from the date of such
event to and including the Exercise Date, retained any such securities
receivable, giving application to all adjustments called for during such period
under this Section 2 with respect to the rights of the Registered
Holder.
(e) Adjustment
for Mergers or Reorganizations, etc.
If there
shall occur any reorganization, recapitalization, consolidation or merger
involving the Company in which the Common Stock is converted into or exchanged
for securities, cash or other property (other than a transaction covered by
subsections 2(a), 2(b) or 2(d)), then, following any such reorganization,
recapitalization, consolidation or merger, the Registered Holder shall receive
upon exercise hereof the kind and amount of securities, cash or other property
which the Registered Holder would have been entitled to receive if, immediately
prior to such reorganization, recapitalization, consolidation or merger, the
Registered Holder had held the number of shares of Common Stock subject to
this
Warrant. In
any
such case, appropriate adjustment (as determined in good faith by the Board
of
Directors of the Company) shall be made in the application of the provisions
set
forth herein with respect to the rights and interests thereafter of the
Registered Holder, to the end that the provisions set forth in this Section
2
(including provisions with respect to changes in and other adjustments of the
Purchase Price) shall thereafter be applicable, as nearly as reasonably may
be,
in relation to any securities, cash or other property thereafter deliverable
upon the exercise of this Warrant.
(f) Certificate
as to Adjustments.
Upon
the occurrence of each adjustment or readjustment of the Purchase Price pursuant
to this Section 2, the Company at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and furnish
to
the Registered Holder a certificate setting forth such adjustment or
readjustment (including the kind and amount of securities, cash or other
property for which this Warrant shall be exercisable and the Purchase Price)
and
showing in detail the facts upon which such adjustment or readjustment is based.
The Company shall, upon the written request at any time of the Registered
Holder, furnish or cause to be furnished to the Registered Holder a certificate
setting forth (i) the Purchase Price then in effect and (ii) the
number of shares of Common Stock and the amount, if any, of other securities,
cash or property which then would be received upon the exercise of this
Warrant.
3. Fractional
Shares.
The
Company shall not be required upon the exercise of this Warrant to issue any
fractional shares, but shall make an adjustment therefor in cash on the basis
of
the Fair Market Value per share of Common Stock, as determined pursuant to
subsection 1(b) above.
-4-
4. Requirements
for Transfer.
(a) This
Warrant and the Warrant Shares shall not be sold or transferred unless either
(i) they first shall have been registered under the Securities Act of 1933,
as amended (the “Act”), or (ii) the Company first shall have been furnished
with an opinion of legal counsel, reasonably satisfactory to the Company, to
the
effect that such sale or transfer is exempt from the registration requirements
of the Act.
(b) Notwithstanding
the foregoing, no registration or opinion of counsel shall be required for
(i) a transfer by a Registered Holder which is a corporation to a wholly
owned subsidiary of such corporation, a transfer by a Registered Holder which
is
a partnership to a partner of such partnership or a retired partner of such
partnership or to the estate of any such partner or retired partner, or a
transfer by a Registered Holder which is a limited liability company to a member
of such limited liability company or a retired member or to the estate of any
such member or retired member, provided that the transferee in each case agrees
in writing to be subject to the terms of this Section 4, or (ii) a
transfer made in accordance with Rule 144 under the Act.
(c) Each
certificate representing Warrant Shares shall bear a legend substantially in
the
following form:
“The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended, and may not be offered, sold or otherwise
transferred, pledged or hypothecated unless and until such securities are
registered under such Act or an opinion of counsel satisfactory to the Company
is obtained to the effect that such registration is not required.”
The
foregoing legend shall be removed from the certificates representing any Warrant
Shares, at the request of the holder thereof, at such time as they become
eligible for resale pursuant to Rule 144(k) under the Act.
5. No
Impairment.
The
Company will not, by amendment of its charter or through 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 of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of
all
such action as may be necessary or appropriate in order to protect the rights
of
the holder of this Warrant against impairment.
6. Notices
of Record Date, etc.
In the
event:
-5-
(a) the
Company shall take a record of the holders of its Common Stock (or other stock
or securities at the time deliverable upon the exercise of this Warrant) for
the
purpose of entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or purchase any shares
of
stock of any class or any other securities, or to receive any other right;
or
(b) of
any
capital reorganization of the Company, any reclassification of the Common Stock
of the Company, any consolidation or merger of the Company with or into another
corporation (other than a consolidation or merger in which the Company is the
surviving entity and its Common Stock is not converted into or exchanged for
any
other securities or property), or any transfer of all or substantially all
of
the assets of the Company; or
(c) of
the
voluntary or involuntary dissolution, liquidation or winding-up of the
Company,
then,
and
in each such case, the Company will mail or cause to be mailed to the Registered
Holder a notice specifying, as the case may be, (i) the record date for such
dividend, distribution or right, and the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation
or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at
the
time deliverable upon the exercise of this Warrant) shall be entitled to
exchange their shares of Common Stock (or such other stock or securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation
or
winding-up. Such notice shall be mailed at least ten days prior to the record
date or effective date for the event specified in such notice.
7. Reservation
of Stock.
The
Company will at all times reserve and keep available, solely for issuance and
delivery upon the exercise of this Warrant, such number of Warrant Shares and
other securities, cash and/or property, as from time to time shall be issuable
upon the exercise of this Warrant.
8. Exchange
of Warrants.
Upon
the surrender by the Registered Holder, properly endorsed, to the Company at
the
principal office of the Company, the Company will, subject to the provisions
of
Section 4 hereof, issue and deliver to or upon the order of such Holder, at
the
Company’s expense, a new Warrant or Warrants of like tenor, in the name of the
Registered Holder or as the Registered Holder (upon payment by the Registered
Holder of any applicable transfer taxes) may direct, calling in the aggregate
on
the face or faces thereof for the number of shares of Common Stock (or other
securities, cash and/or property) then issuable upon exercise of this
Warrant.
9. Replacement
of Warrants.
Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and (in the case of loss, theft or
destruction) upon delivery of an indemnity agreement (with surety if reasonably
required) in an amount reasonably satisfactory to the Company, or (in the case
of mutilation) upon surrender and cancellation of this Warrant, the Company
will
issue, in lieu thereof, a new Warrant of like tenor.
-6-
10. Transfers,
etc.
(a) The
Company will maintain a register containing the name and address of the
Registered Holder of this Warrant. The Registered Holder may change its or
his
address as shown on the warrant register by written notice to the Company
requesting such change.
(b) Subject
to the provisions of Section 4 hereof, this Warrant and all rights hereunder
are
transferable, in whole or in part, upon surrender of this Warrant with a
properly executed assignment (in the form of Exhibit II
hereto)
at the principal office of the Company.
(c) Until
any
transfer of this Warrant is made in the warrant register, the Company may treat
the Registered Holder as the absolute owner hereof for all purposes;
provided,
however,
that if
and when this Warrant is properly assigned in blank, the Company may (but shall
not be obligated to) treat the bearer hereof as the absolute owner hereof for
all purposes, notwithstanding any notice to the contrary.
11. Mailing
of Notices, etc.
All
notices and other communications from the Company to the Registered Holder
shall
be mailed by first-class certified or registered mail, postage prepaid, to
the
address last furnished to the Company in writing by the Registered Holder.
All
notices and other communications from the Registered Holder or in connection
herewith to the Company shall be mailed by first-class certified or registered
mail, postage prepaid, to the Company at its principal office set forth below.
If the Company should at any time change the location of its principal office
to
a place other than as set forth below, it shall give prompt written notice
to
the Registered Holder and thereafter all references in this Warrant to the
location of its principal office at the particular time shall be as so specified
in such notice.
12. No
Rights as Stockholder.
Until
the exercise of this Warrant, the Registered Holder shall not have or exercise
any rights by virtue hereof as a stockholder of the Company. Notwithstanding
the
foregoing, in the event (i) the Company effects a split of the Common Stock
by means of a stock dividend and the Purchase Price of and the number of Warrant
Shares are adjusted as of the date of the distribution of the dividend (rather
than as of the record date for such dividend), and (ii) the Registered
Holder exercises this Warrant between the record date and the distribution
date
for such stock dividend, the Registered Holder shall be entitled to receive,
on
the distribution date, the stock dividend with respect to the shares of Common
Stock acquired upon such exercise, notwithstanding the fact that such shares
were not outstanding as of the close of business on the record date for such
stock dividend.
13. Piggyback
Registration Rights.
The
Registered Holder shall have “piggyback registration rights” with respect to the
Warrant Shares, subject to certain limitations and conditions, including, among
others, cutback provisions and underwriter discretion, to be included by the
Company in a resale registration statement filed with the Securities and
Exchange Commission. The Registered Holder understands and acknowledges
that the Warrant Shares have not been registered for resale with the Securities
and Exchange Commission, and until such a registration is made and becomes
effective, the Warrant Shares may not be sold or transferred (other than
pursuant to an effective registration statement or an exemption from
registration).
-7-
14. Change
or Waiver.
Any
term of this Warrant may be changed or waived only by an instrument in writing
signed by the party against which enforcement of the change or waiver is sought.
15. Section
Headings.
The
section headings in this Warrant are for the convenience of the parties and
in
no way alter, modify, amend, limit or restrict the contractual obligations
of
the parties.
16. Governing
Law.
This
Warrant will be governed by and construed in accordance with the internal laws
of the State of New York (without reference to the conflicts of law provisions
thereof).
EXECUTED
as of the Date of Issuance indicated above.
| BRAINSTORM CELL THERAPEUTICS, INC. | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxx | |
| [Corporate Seal] |
Title: Chief Operating Officer |
|
| ATTEST: | ||
|
|
||
-8-
EXHIBIT
I
PURCHASE
FORM
To:_________________Dated:____________
The
undersigned, pursuant to the provisions set forth in the attached Warrant
(No. ___), hereby irrevocably elects to purchase (check
applicable box):
|
0
|
_____
shares of the Common Stock covered by such Warrant;
or
|
|
0
|
the
maximum number of shares of Common Stock covered by such Warrant
pursuant
to the cashless exercise procedure set forth in
Section 1(b).
|
The
undersigned herewith makes payment of the full purchase price for such shares
at
the price per share provided for in such Warrant, which is $________. Such
payment takes the form of (check
applicable box or boxes):
|
0
|
$______
in lawful money of the United States;
and/or
|
|
0
|
the
cancellation of such portion of the attached Warrant as is exercisable
for
a total of _____ Warrant Shares (using a Fair Market Value of $_____
per
share for purposes of this calculation);
and/or
|
|
0
|
the
cancellation of such number of Warrant Shares as is necessary, in
accordance with the formula set forth in Section 1(b), to exercise
this Warrant with respect to the maximum number of Warrant Shares
purchasable pursuant to the cashless exercise procedure set forth
in
Section 1(b).
|
Signature: ______________________
Address: _______________________
_______________________
-9-
EXHIBIT
II
ASSIGNMENT
FORM
FOR
VALUE
RECEIVED, ________________________________________ hereby sells, assigns and
transfers all of the rights of the undersigned under the attached Warrant (No.
____) with respect to the number of shares of Common Stock covered thereby
set
forth below, unto:
|
Name
of Assignee
|
Address
|
No.
of Shares
|
||
Dated:_____________________ Signature:________________________________
Signature
Guaranteed:
By:
_______________________
The
signature should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership
in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
-10-
