Exhibit 4.2
FORM OF WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND HAS BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL,
REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT.
Warrant No.: BUR - 100 Number of Shares: 50,000
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Date of Issuance: September 4, 2002
GERON CORPORATION
COMMON STOCK WARRANT AGREEMENT
Geron Corporation (the "Company"), for value received, hereby certifies that
Xxxxxxx & Company or their registered assigns (in accordance with Section 3
below) (the "Registered Holder"), is entitled, subject to the terms set forth
below, to purchase from the Company, at any time after the date hereof and on or
before the Expiration Date (as defined in Section 5 below), up to 50,000 shares
of Common Stock of the Company, as adjusted from time to time pursuant to the
terms of this Common Stock Warrant Agreement ("Warrant"), at a purchase price of
$4.00 per share. The shares purchasable upon exercise of this Warrant are
hereinafter referred to as the "Warrant Stock." The exercise price per share of
Warrant Stock is hereinafter referred to as the "Purchase Price."
1. EXERCISE.
(a) MANNER OF EXERCISE. This Warrant may be exercised by the Registered
Holder, by surrendering this Warrant, with the purchase form appended hereto as
Exhibit A duly executed by such Registered Holder or by such Registered Holder's
duly authorized attorney-in-fact, at the principal office of the Company, or at
such other office or agency as the Company may designate, accompanied by payment
in full by cash, check or wire transfer of the Purchase Price payable in respect
of the number of shares of Warrant Stock purchased upon such exercise.
(b) EFFECTIVE TIME OF EXERCISE. The 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, with
payment of the applicable Purchase Price, as provided in Section 1(a) above. At
such time, the person or persons in whose name or names any certificates for
Warrant Stock shall be issuable upon such exercise as provided in Section 1(c)
below shall be deemed to have become the holder or holders of record of the
Warrant Stock represented by such certificates.
(c) DELIVERY TO REGISTERED HOLDER. As soon as practicable after the
exercise of this Warrant, and in any event within ten (10) business 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 Registered Holder (upon
payment by such Registered Holder of any applicable transfer taxes) may direct,
a certificate or certificates for the number of shares of Warrant Stock to
which such Registered Holder shall be entitled.
2. CERTAIN ADJUSTMENTS.
(a) MERGERS AND CONSOLIDATIONS. If at any time there shall be a merger
or consolidation of the Company with another corporation, then, as a part of
such merger or consolidation, lawful provision shall be made so that the
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Registered Holder shall thereafter be entitled to receive upon exercise of this
Warrant during the period specified in this Warrant and upon payment of the
Purchase Price, the number of shares of stock or other securities or property
of the Company or the successor corporation resulting from such merger or
consolidation, to which a holder of the Common Stock deliverable upon exercise
of this Warrant would have been entitled under the provisions of the agreement
in such merger or consolidation if this Warrant had been exercised immediately
before that merger or consolidation. In any such case, appropriate adjustment
(as determined in good faith by the Company's Board of Directors) shall be made
in the application of the provisions of this Warrant with respect to the rights
and interests of the Registered Holder after the merger or consolidation to the
end that the provisions of this Warrant (including adjustment of the Purchase
Price then in effect and the number of shares of Warrant Stock) shall be
applicable after that event, as near as reasonably may be, in relation to any
shares or other property deliverable after that event upon exercise of this
Warrant.
(b) SPLITS, SUBDIVISIONS AND DIVIDENDS. In the event the Company should
at any time or from time to time fix a record date for the effectuation of a
split or subdivision of the outstanding shares of Common Stock or the
determination of the holders of Common Stock entitled to receive a dividend or
other distribution payable in additional shares of Common Stock or other
securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock (hereinafter
referred to as the "Common Stock Equivalents") without payment of any
consideration by such holder for the additional shares of Common Stock or
Common Stock Equivalents (including the additional shares of Common Stock
issuable upon conversion or exercise thereof), then, as of such record date (or
the date of such distribution, split or subdivision if no record date is
fixed), the per share Purchase Price shall be appropriately decreased and the
number of shares of Warrant Stock shall be appropriately increased in
proportion to such increase (or potential increase) of outstanding shares.
(c) COMBINATION OF SHARES. If the number of shares of Common Stock
outstanding at any time after the date hereof is decreased by a combination of
the outstanding shares of Common Stock, the per share Purchase Price shall be
appropriately increased and the number of shares of Warrant Stock shall be
appropriately decreased in proportion to such decrease in outstanding shares.
(d) ADJUSTMENT CERTIFICATE. When any adjustment is required to be made
in the securities issuable upon exercise of this Warrant, the Company shall
mail to the Registered Holder a certificate setting forth a statement of the
facts requiring such adjustment. Such certificate shall also set forth the kind
and amount of stock or other securities or property into which this Warrant
shall be exercisable following the occurrence of any of the events specified in
this Section 2.
3. TRANSFER RESTRICTIONS; REPRESENTATIONS.
(a) The Registered Holder of this Warrant acknowledges that this
Warrant and the Warrant Stock have not been registered under the Securities Act,
and agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of this Warrant or any Warrant Stock issued upon its exercise
in the absence of (i) an effective registration statement under the Securities
Act as to this Warrant or such Warrant Stock and registration or qualification
of this Warrant or such Warrant Stock or (ii) an opinion of counsel, reasonably
satisfactory to the Company, that such registration and qualification are not
required. This Warrant is not transferable without the prior written consent of
the Company. It is understood and agreed that this provision does not apply to,
or limit the sale, pledge, distribution, offers for sale, transfer or other
disposition of Warrant Stock after any exercise thereof pursuant to Section 1
hereof.
Not withstanding the foregoing, the Registered Holder has a right to
request registration of this Warrant and the Warrant Stock under the Securities
Act. The Company will, in any event, have a registration statement in effect
covering the Warrant and the Warrant Stock by the 5th anniversary of the
Issuance Date of the Warrant.
(b) The Registered Holder hereby further represents and warrants to the
Company with respect to the issuance of the Warrant and the purchase of the
Warrant Stock as follows:
(i) PURCHASE ENTIRELY FOR OWN ACCOUNT. This Warrant is issued
to the Registered Holder in reliance upon such Registered Holder's
representation to the Company, which by such Registered Holder's execution of
this Warrant such Registered Holder hereby confirms, that the Warrant and the
Warrant Stock will be acquired for investment for such Registered Holder's own
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account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that such Registered Holder has no
present intention of selling, granting any participation in, or otherwise
distributing the same.
(ii) KNOWLEDGE AND EXPERIENCE; ABILITY TO BEAR ECONOMIC RISKS.
The Registered Holder has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
investment contemplated by this Warrant and such party is able to bear the
economic risk of its investment in the Company (including a complete loss of
its investment). The Registered Holder is and will continue to be an
"accredited investor" as defined by Rule 501 of the Securities Act.
(iii) RESALE. The Registered Holder understands that the
Warrant being issued hereunder and the Warrant Stock to be purchased hereunder
are characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable
regulations, such securities may be resold without registration under the
Securities Act only in certain circumstances. In this regard, the Registered
Holder represents that it is familiar with Rule 144 under the Securities Act,
and understands the resale limitations imposed thereby and by the Securities
Act.
(iv) LEGENDS. The Registered Holder acknowledges that all
stock certificates representing shares of stock issued to the Registered Holder
upon exercise of this Warrant may, if such Warrant Stock is not registered
under the Securities Act, have affixed thereto a legend substantially in the
following form:
(x) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH
SECURITIES ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO AN EXEMPTION TO SUCH
SECURITIES ACT."
(y) Any legend required by the laws of any state in
which the securities will be issued.
(c) Subject to the provisions of Section 3(a) hereof, this Warrant and
all rights hereunder are transferable in whole or in part upon surrender of the
Warrant with a properly executed assignment (in the form of Exhibit B hereto)
at the principal office of the Company.
(d) The Company will maintain a register containing the names and
addresses of the Registered Holder(s) of this Warrant. Any Registered Holder
may change such Registered Holder's address as shown on the warrant register by
written notice to the Company requesting such change.
(f) The Company hereby represents and warrants to the Registered Holder
as follows:
(i) The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware.
(ii) The Company has requisite corporate right, power and
authority (including the due authorization by all necessary corporate action)
to enter into this Warrant and to perform its obligations hereunder without the
need for the consent of any other person; and this Warrant has been duly
authorized, executed and delivered and constitutes legal, valid and binding
obligations of the Company enforceable against it in accordance with the terms
hereof. The execution, delivery and performance of this Warrant by the Company
do not contravene or violate any laws, rules or regulations applicable to it.
(iii) The Company has taken such corporate action as is
necessary or appropriate to enable it to perform its obligations hereunder,
including, but not limited to, the issuance, sale and delivery of the Warrant.
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(iv) The Warrant Stock, when issued and paid for in compliance
with the provisions of this Warrant, will be validly issued, fully paid and
non-assessable.
4. NO IMPAIRMENT. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will 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 fulfill its obligations hereunder.
5. TERMINATION. This Warrant (and the right to purchase securities upon
exercise hereof) shall terminate upon the tenth anniversary of the Date of
Issuance (the "Expiration Date").
6. NOTICES OF CERTAIN TRANSACTIONS. In the event that:
(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 any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities or property,
or to receive any other right; or
(b) the Company shall effect 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), or any transfer of all or substantially
all of the assets of the Company, or
(c) the Company voluntarily or involuntarily dissolves, liquidates or
winds-up its business or affairs, then, and in each such case, the Company will
mail or cause to be mailed to the Registered Holder of this Warrant a notice
specifying, as the case may be, (i) the date on which a record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, and (ii) the effective
date on which such reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding-up is expected to take place, and
the record date for determining shareholders entitled to vote thereon. Such
notice shall be mailed at least ten (10) calendar days prior to the record date
or effective date for the event specified in such notice.
7. RESERVATION OF STOCK. The Company shall at all times reserve and keep
available, solely for the issuance and delivery upon the exercise of this
Warrant, such shares of Warrant Stock or other stock or securities, 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 of any
Warrant, properly endorsed, to the Company at the principal office of the
Company, the Company will, subject to the provisions of Section 3(a) hereof,
issue and deliver, at the Company's expense, a new warrant in a form
substantially similar to this Warrant, in the name of such Registered Holder or
as such Registered Holder (upon payment by such Registered Holder of any
applicable transfer taxes) may direct, calling in the aggregate on the face
thereof for the number of shares of Common Stock called for on the face of the
Warrant so surrendered.
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 in a form substantially similar to this Warrant.
10. MAILING OF NOTICES. Any notice required or permitted by this Warrant
shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by a nationally-recognized delivery service (such as Federal
Express or UPS) or confirmed facsimile, or forty-eight (48) hours after being
deposited in the U.S. mail as certified or registered mail with postage
prepaid, if such notice is addressed to the party to be notified at such
party's address or facsimile number as set forth below or as subsequently
modified by written notice.
11. NO RIGHTS AS STOCKHOLDER. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company (including without limitation the
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right to notification of stockholder meetings or the right to receive any
notice or other communication concerning the business or affairs of the
Company).
12. AMENDMENT OR WAIVER. Any term of this Warrant may be amended or waived
only by an instrument in writing signed by the party against which enforcement
of the amendment or waiver is sought.
13. HEADINGS. The headings in this Warrant are for purposes of reference
only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.
14. SUCCESSORS AND ASSIGNS. The terms and provisions of this Warrant shall
inure to the benefit of, and be binding upon, the Company and the Registered
Holder and their respective permitted successors and assigns (in the case of
the Registered Holder, in accordance with Section 3(a) hereof).
16. GOVERNING LAW. This Warrant shall be governed, construed and
interpreted in accordance with the laws of the State of California, without
giving effect to principles of conflicts of law thereof.
GERON CORPORATION REGISTERED HOLDER
By: /s/ Xxxxx X. Xxxxxxxxx Signature: /s/ Xxxx X. Xxxx
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Name: Xxxxx X. Xxxxxxxxx Name: Xxxx X. Xxxx
Title: Chief Financial Officer Title: COO / CFO
Address: Geron Corporation Address: Xxxxxxx & Company
000 Xxxxxxxxxxxx Xxxxx Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000 Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Dated: September 11, 2002 Dated: 9.25.02
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EXHIBIT A
PURCHASE FORM
To: GERON CORPORATION
Date: ___________________
The undersigned, pursuant to the provisions set forth in the attached
Warrant, hereby irrevocably elects to purchase shares of the Common Stock
covered by such Warrant and herewith makes payment of $___________,
representing the full purchase price for such shares at the price per share
provided for in such Warrant.
The undersigned hereby affirms and acknowledges the investment
representations and warranties made in the Warrant are true and correct as of
the date hereof, and accepts such shares subject to the restrictions of the
Warrant, copies of which are available from the Secretary of the Company.
Signature: _______________________________________
Name:
Title:
Address:
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EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED, _______________________ hereby sells, assigns and
transfers all of the rights of the undersigned under the attached Warrant with
respect to the number of shares of Common Stock covered thereby set forth below,
unto:
NAME OF ASSIGNEE ADDRESS No. OF SHARES
Signature: _______________________________________
Witness: ________________________________________
Dated: _____________________
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