EXHIBIT 4.3
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE ACT.
Right to Purchase
333,935 Shares
of Common Stock,
par value $0.001
per share
GERON CORPORATION
AMENDED AND RESTATED SERIES D-1
STOCK PURCHASE WARRANT
Registered Owner:
This warrant is a duly authorized warrant (the "Warrant") of Geron
Corporation, a Delaware corporation (the "Company") referred to in the
Securities Purchase Agreement (the "Purchase Agreement"), dated as of June 29,
2000, by and between the Company and the Purchaser (as defined in the Purchase
Agreement) and as amended by that certain Restructuring Agreement (the
"Restructuring Agreement"), dated as of November 9, 2001, by and between the
Company and the Purchaser. This Warrant is subject to the terms and conditions
of the Purchase Agreement and the Restructuring Agreement, copies of which are
on file at and may be obtained from the Company at its principal office at the
address set forth in Section 11 hereof. This certifies that, for value received
the Company grants the following rights to the Registered Owner, or assigns, of
this Warrant:
1. ISSUE. Upon tender (as defined in section 5 hereof) to the Company, the
Company shall issue to the Registered Owner, RGC International Investors, LDC,
or assigns, up to the number of shares specified in paragraph 2 hereof of fully
paid and non-assessable shares of Common Stock, par value $.001 per share
("Common Stock"), that the Registered Owner, or assigns, is otherwise entitled
to purchase.
2. NUMBER OF SHARES. The total number of shares of Common Stock that the
Registered Owner, or assigns, of this Warrant is entitled to receive upon
exercise of this Warrant is 333,935 shares of Common Stock, subject to
adjustment from time to time as set forth in paragraph 6 below. The Company
shall at all times have authorized, reserved and held available sufficient
shares of Common Stock to satisfy all conversion and purchase rights represented
by outstanding convertible securities, options and warrants, including this
Warrant, for issuance upon exercise of this Warrant, such number of shares equal
to 125% of the shares for which it may then be exercised. The Company covenants
and agrees that all shares of Common Stock that may be issued upon the exercise
of this Warrant shall, upon issuance, be duly and validly issued, fully paid and
non-assessable, and free from all taxes, liens and charges with respect to the
purchase and the issuance of the shares.
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3. EXERCISE PRICE. The initial exercise price of this Warrant, the price
at which the shares of stock issuable upon exercise of this Warrant may be
purchased, is $15.625 and subject to adjustment from time to time pursuant to
the provisions of paragraph 6 below (the "Exercise Price").
3A. PAYMENT OF EXERCISE PRICE. The Registered Owner may pay the Exercise
Price in one of the following manners:
(i) Cash Exercise. The Registered Owner shall deliver immediately
available funds or a check payable to the Company; or
(ii) Cashless Exercise. At such time as, but only at such time as,
after the 120th day after the date of issuance of this Warrant, all of the
Registerable Securities (as defined in the Registration Rights Agreement) are
not registered pursuant to an effective registration statement, the Registered
Owner shall have the right to surrender this Warrant to the Company together
with a notice of cashless exercise, in which event the Company shall issue to
the Registered Owner the number of Warrant Shares determined as follows:
where: X = Y (A-B)/A
X = the number of Warrant Shares (as defined in the
Restructuring Agreement) to be issued to the Registered
Owner
Y = the number of Warrant Shares with respect to which
this Warrant is being exercised
A = the average of the Per Share Market Value of the
Common Stock for the five (5) Trading Days immediately
prior to (but not including) the date of exercise
B = the Exercise Price
For purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Registered
Owner, and the holding period for the Warrant Shares shall be deemed to have
been commenced, on the issue date to the extent permitted by Rule 144.
4. EXERCISE PERIOD. This Warrant may be exercised at any time and from
time to time on or after the date on which this Warrant is issued and delivered
(the "Issue Date") and before 5:00, New York City time on June 30, 2003 (the
"Exercise Period"). If not exercised during this period, this Warrant and all
rights granted under this Warrant shall expire and lapse.
5. TENDER. This Warrant may be exercised, in whole or in part, by actual
delivery of (i) the Exercise Price in cash, (ii) a duly executed Warrant
Exercise Form, a copy of which is attached to this Warrant as Exhibit A,
properly executed by the Registered Owner, or assigns, of this
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Warrant, and (iii) by surrender of this Warrant. The payment and Warrant
Exercise Form must be delivered, personally or by mail, to the registered office
of the Company. Documents sent by mail shall be deemed to be delivered when they
are received by the Company. 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.
6. Adjustment of Exercise Price.
(a) Common Stock Dividends; Common Stock Splits; Reverse Common
Stock Splits. If the Company, at any time while this Warrant is outstanding, (a)
shall pay a stock dividend on its Common Stock, (b) subdivide outstanding shares
of Common Stock into a larger number of shares, (c) combine outstanding shares
of Common Stock into a smaller number of shares, or (d) issue by
reclassification of shares of Common Stock any shares of capital stock of the
Company, the Exercise Price shall be multiplied by a fraction the numerator of
which shall be the number of shares of Common Stock (excluding treasury shares,
if any) outstanding before such event and the denominator of which shall be the
number of shares of Common Stock outstanding after such event. Any adjustment
made pursuant to this paragraph (6)(a) shall become effective immediately after
the record date for the determination of shareholders entitled to receive such
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
(b) [Intentionally Omitted.]
(c) [Intentionally Omitted.]
(d) Rounding. All calculations under this section 6 shall be made to
the nearest cent or the nearest l/l00th of a share, as the case may be.
(e) Notice of Adjustment. Whenever the Exercise Price is adjusted
pursuant to paragraph 6(a), the Company shall promptly mail to the holder of the
Warrant, a notice setting forth the Exercise Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Upon
each adjustment of the Exercise Price pursuant paragraph 6(a), 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.
(f) Redemption Events. In case of (A) any reclassification of the
Common Stock, (B) any consolidation or merger of the Company with or into
another person pursuant to which (i) a majority of the Company's Board of
Directors will not constitute a majority of the board of directors of the
surviving entity or (ii) less than 51% of the outstanding shares of the capital
stock of the surviving entity will be held by the same shareholders of the
Company prior to such reclassification, consolidation or merger, (C) the sale or
transfer of all or substantially all of the assets of the Company, (D) any
compulsory share exchange pursuant to which the Common Stock is converted into
other securities, cash or property, (E) suspension from listing or delisting of
the
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Common Stock from the National Market System of the Nasdaq Stock Market
("Nasdaq") or any other exchange on which the Common Stock is listed for a
period of five (5) consecutive Trading Days, (F) the Company's notice to any
Registered Owner, including by way of public announcement, at any time, of its
intention, for any reason, not to comply with proper requests for the exercise
of any such warrants, or (G) a breach by the Company of any representation,
warranty, covenant or other term or condition of the Purchase Agreement, the
Registration Rights Agreement or any other agreement, document, certificate or
other instrument delivered in connection with the transactions contemplated
thereby or hereby, except to the extent that such breach would not have a
Material Adverse Effect (as defined in Section 3(a) of the Purchase Agreement)
and except, in the case of a breach of a covenant which is curable, only if such
breach continues for a period of at least ten (10) days after the Company knows
or reasonably should have known of the existence of such breach (clauses (A)
through (G) above referred to as a "Redemption Event"), the holder of the
Warrant shall have the right thereafter to exercise the Warrant within ten (10)
Business Days of the Redemption Event for the shares of stock and other
securities, cash and property receivable upon or deemed to be held by holders of
Common Stock following such Redemption Event, and the holder of the Warrant
shall be entitled upon such event to receive such amount of securities, cash or
property as the shares of the Common Stock of the Company into which the Warrant
could have been converted immediately prior to such Redemption Event would have
been entitled.
(g) Reclassification, Etc. If:
A. the Company shall declare a dividend (or any other
distribution) on its Common Stock; or
B. the Company shall declare a special nonrecurring cash
dividend on or a redemption of its Common Stock; or
C. the Company shall authorize the granting to all of the
holders of the Common Stock rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any rights; or
D. the approval of any shareholders of the Company shall be
required in connection with any reclassification of the Common Stock of
the Company, any consolidation or merger to which the Company is a party,
any sale or transfer of all or substantially all of the assets of the
Company, of any compulsory share exchange whereby the Common Stock is
converted into other securities, cash or property; or
E. the Company shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of exercise of this Warrant, and shall cause to be mailed to the
holder of this Warrant at its address as it shall appear below, at least thirty
(30) calendar days prior to the applicable record or effective date hereinafter
specified, a notice (provided such notice shall not include any material
non-public information) stating (x) the date on which a record is to be taken
for the purpose of such dividend, distribution, redemption, rights or warrants,
or if a record is not to betaken, the date as of which the
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holders of Common Stock of record to be entitled to such dividend,
distributions, redemption, rights or warrants are to be determined or (y)
the date on which such reclassification, consolidation, merger, sale,
transfer or share exchange is expected to become effective or close, and
the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities,
cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided,
however, that the failure to mail such notice or any defect therein or in
the mailing thereof shall not affect the validity of the corporate action
required to be specified in such notice.
(h) [Intentionally Omitted.]
In no event shall any provision in this Section 6 cause the Exercise Price
to be greater than the Exercise Price on the date of issuance of this Warrant.
7. RESTRICTION ON EXERCISE BY THE REGISTERED OWNER. Notwithstanding
anything in this Warrant to the contrary, in no event shall the Holder of this
Warrant 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 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
(including the Amended Series D Debentures (as defined in the Restructuring
Agreement)) and the Company's Series D-2 Stock Purchase Warrant issued to RGC)
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 9.9% of the outstanding
shares of Common Stock. For purposes of the immediately preceding sentence,
beneficial ownership shall be determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended, and Regulation 13D-G thereunder,
except as otherwise provided in clause (i) hereof. Notwithstanding anything in
this Warrant to the contrary, the restriction on Holder 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 Company's
Common Stock present, or represented by proxy, and voting at any meeting called
to vote on the amendment of such restriction.
8. DEFINITIONS. Capitalized terms used herein and not otherwise defined
herein shall have the meanings given to such terms in the Purchase Agreement. As
used in this Warrant, the following terms have the following meanings:
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "affiliated," controlling" and "controlled" have meanings
correlative to the foregoing.
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"Appraiser" has the meaning assigned to it in Section 6(c)hereof.
"Business Day" means any day except Saturday, Sunday and any day which
shall be a legal holiday or a day on which banking institutions in the state of
New York generally are authorized or required by law or other government actions
to close.
"Common Stock" means the shares of the Company's common stock, par value
$.001 per share.
"Company" means Geron Corporation, a Delaware corporation.
"Convertible Securities" has the meaning assigned to it in Section
6(h)(i)(A) hereof.
"Exercise Period" has the meaning assigned to it the Section 4 hereof.
"Exercise Price" has the meaning assigned to it in Section 3 hereof.
"Market Price" has the meaning assigned to it in Section 6(h)(i) hereof.
"Options" has the meaning assigned to it in Section 6(h)(i)(A) hereof.
"Per Share Market Value" means on any particular date (i) the closing bid
price per share of the Common Stock on such date on Nasdaq or another registered
national stock exchange on which the Common Stock is then listed or if there is
no such price on such date, then the closing bid price on such exchange or
quotation system on the date nearest preceding such date, or (ii) if the Common
Stock is not listed then on the National Market System of the Nasdaq Stock
Market or any registered national stock exchange, the closing bid price for a
share of Common Stock in the over-the-counter market, as reported by the
National Quotation Bureau Incorporated (or similar organization or agency
succeeding to its functions of reporting prices) at the close of business on
such date, or (iii) if the Common Stock is not then publicly traded the fair
market value of a share of Common Stock as determined by an Appraiser selected
in good faith by the holder of this Warrant; provided, however, that the
Company, after receipt of the determination by such Appraiser, shall have the
right to select an additional Appraiser, in which case, the fair market value
shall be equal to the average of the determinations by each such Appraiser; and
provided, further that all determinations of the Per Share Market Value shall be
appropriately adjusted for any stock dividends, stock splits or other similar
transactions during such period.
"Purchase Agreement" means that certain Securities Purchase Agreement,
dated June 29, 2000, by and between the Company and the Purchaser (as defined in
the Purchase Agreement).
"Redemption Event" has the meaning assigned to it in Section 6(f) hereof.
"Registered Owner" means RGC International Investors, LDC, or such other
Person as shown on the records of the Company as being the registered owner of
this Warrant.
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"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated as of June 29, 2000, by and between the Company and the Initial
Investor (as defined in the Registration Rights Agreement).
"Restructuring Agreement" means that certain Restructuring Agreement dated
as of November 9, 2001, between the Company and RGC.
"RGC" means RGC International Investors, LDC.
"Trading Day(s)" means any day on which the primary market on which shares
of Common Stock are listed is open for trading.
9. REGISTRATION RIGHTS. The Company will undertake the registration of the
Common Stock into which this Warrant is exercisable at such times and upon such
terms pursuant to the provisions of the Registration Rights Agreement.
10. [Intentionally Omitted].
11. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be deemed to have been received
(a) upon hand delivery (receipt acknowledged) or delivery by telex (with correct
answer back received), telecopy or facsimile (with transmission confirmation
report) at the address or number designated below (if received by 8:00 p.m. EST
where such notice is to be received), or the first business day following such
delivery (if delivered on a business day after during normal business hours
where such notice is to be received) or (b) on the second business day following
the date of mailing by express courier service, fully prepaid, addressed to such
address, or upon actual receipt of such mailing, whichever shall first occur.
The addresses for such communications are (i) if to the Company to Geron
Corporation, 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 attn: Xxxxx
Xxxxxxxxx, fax no. (000) 000-0000 with copies to Xxxxxx & Xxxxxxx, 000
Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, Attn: Xxxx X. Xxxxxxxxx, Esq.,
fax no. (000) 000-0000 and (ii) if to any Registered Owner to the address set
forth immediately below such Registered Owner's name on the signature pages to
the Restructuring Agreement or such other address as may be designated in
writing hereafter, in the same manner, by such Person.
12. REMEDIES. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the Registered Owner, or
assigns, by vitiating the intent and purpose of the transactions contemplated
hereby. Accordingly, the Company acknowledges that the remedy at law for breach
of its obligations hereunder will be inadequate and agrees, in the event of a
breach or threatened breach by the Company of any of the provisions hereunder,
that the Registered Owner, or assigns, shall be entitled, in addition to all
other available remedies in law or in equity, to an injunction or injunctions to
prevent or cure breaches of the provisions of this Security and to enforce
specifically the terms and provisions hereof, without the necessity of showing
economic loss and without any bond or other security being required.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer as of the date first set forth above.
GERON CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxx
Senior Vice President, Corporate
Development and Chief Financial
Officer
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EXHIBIT A
Warrant Exercise Form
TO: GERON CORPORATION
The undersigned hereby: (1) irrevocably subscribes for and offers to
purchase _______ shares of Common Stock of Geron Corporation, pursuant to
Warrant No. ___ heretofore originally issued to ___________________ on June 29,
2000; (2) encloses a payment of $__________ for these shares at a price of
$________ per share (as adjusted pursuant to the provisions of the Warrant); and
(3) requests that a certificate for the shares be issued in the name of the
undersigned and delivered to the undersigned at the address specified below. The
undersigned represents that it is an accredited investor within the meaning of
Regulation D under the Securities Act.
Date:
Investor Name:
Taxpayer Identification
Number:
By:
Printed Name:
Title:
Address:
Note: The above signature should correspond exactly with
the name on the face of this Warrant Certificate or
with the name of assignee appearing in assignment
form below.
AND, if said number of shares shall not be all the shares purchasable under the
within Warrant, a new Warrant Certificate is to be issued in the name of said
undersigned for the balance remaining of the shares purchasable thereunder less
any fraction of a share paid in cash and delivered to the address stated above.
