THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 6 OF THIS WARRANT
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Warrant No. 2003-02 Number of Shares: 50,000
(subject to adjustment)
Date of Issuance: June 10, 2003
Original Issue Date (as defined in subsection
3(a)): June 10, 2003
CYTOGEN CORPORATION
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(Void after June 10, 2006)
Cytogen Corporaton, a Delaware corporation (the "Company"), for value
received, hereby certifies that Xxxxxx Xxxxx, Ph.D. (the "Registered Holder") is
entitled, subject to the terms and conditions set forth below, to purchase from
the Company 50,000 shares of common stock, $0.01 par value per share (the
"Common Stock"), of the Company, at a purchase price of $5.65 per share. Unless
earlier terminated, this Warrant shall expire on or before 5:00 p.m. (New York
time) on June 10, 2006 (the "Final Exercise Date"). 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. Vesting Schedule.
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This Warrant will become exercisable ("vest") as to 8.333% of the original
number of Warrant Shares on each one-month anniversary of the Date of Issuance.
The right of exercise shall be cumulative so that to the extent this
Warrant is not exercised in any period to the maximum extent permissible it
shall continue to be exercisable with respect to all Warrant Shares for which it
is vested until the earlier of the Final Exercise Date or the termination of
this Warrant under Section 2 hereof.
2. Exercise.
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(a) Manner of Exercise. The Registered Holder may, at its option,
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elect to exercise this Warrant, in whole or in part, by surrendering this
Warrant, with the purchase form appended hereto as Exhibit I duly executed by or
---------
on behalf of the Registered Holder, 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) Exercise Date. Each exercise of this Warrant shall be deemed to
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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 2(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 2(c) below shall be deemed to have
become the holder or holders of record of the Warrant Shares represented by such
certificates.
(c) Issuance of Certificates. As soon as practicable after the
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exercise of this Warrant in whole or in part, and in any event within 30 days
thereafter, the Company will cause to be issued in the name of, and delivered
to, the Registered Holder, or as the Registered Holder (upon payment by the
Registered 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 number of Warrant Shares for which this Warrant
was so exercised.
3. Adjustments.
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(a) Adjustment for Stock Splits and Combinations. If the Company
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shall at any time or from time to time after the date on which this Warrant was
first issued (or, if this Warrant was issued upon partial exercise of, or in
replacement of, another warrant of like tenor, then the date on which such
original warrant was first issued) (either such date being referred to as 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
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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:
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(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, that if such record date shall have been fixed and such
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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 3(a) or 3(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.
(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 regular cash dividends paid 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, cash or other property which the Registered Holder would have
been entitled to receive had this Warrant been exercised 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 during such period, giving application to all adjustments called for
during such period under this Section 3 with respect to the rights of the
Registered Holder.
(e) Adjustment for Reorganization. If there shall occur any
-------------------------------
reorganization, recapitalization, reclassification, 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 3(a), 3(b) or 3(d)) (collectively, a "Reorganization"), then,
following such Reorganization, 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 pursuant to such
Reorganization if such exercise had taken place immediately prior to such
Reorganization. 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 set
-3-
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 3
(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 3, the
Company shall, as promptly as reasonably practicable but in any event not later
than 30 days thereafter, 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, as promptly as
reasonably practicable after the written request at any time of the Registered
Holder (but in any event not later than 30 days thereafter), 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.
4. Fractional Shares.
-----------------
(a) The Company shall not be required upon the exercise of this
Warrant to issue any fractional shares, but shall pay the value thereof to the
Registered Holder in cash on the basis of the Fair Market Value (as defined
below) per share of Common Stock.
(b) The Fair Market Value per share of Common Stock shall mean, as of
the Exercise Date: (i) if the common stock is listed on a national securities
exchange or quoted on the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ"), the last sale price of a share of Common
Stock on such day, as reported by such exchange or NASDAQ, or on a composite
tape reflecting transactions on such exchange or by NASDAQ, as the case may be;
(ii) if the common stock is not listed on a national securities exchange or
quoted on the NASDAQ, but is traded in the over-the-counter market, the average
of the high bid and high asked prices for a share of common stock on such day as
reported by the National Quotation Bureau, Inc.; and (iii) if the fair market
value of a share of common stock cannot be determined pursuant to clause (i) or
(ii) above, such price as the Company's Board of Directors shall determine,
which determination shall be conclusive as to the Fair Market Value of the
Common Sock.
5. Investment Representations. The Registered Holder represents and
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warrants to the Company as follows:
(a) Investment. He is acquiring the Warrant, and (if and when he
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exercises this Warrant) he will acquire the Warrant Shares, for its own account
for investment and not with a view to, or for sale in connection with, any
distribution thereof, nor with any present intention of distributing or selling
the same; and the Registered Holder has no present or contemplated agreement,
undertaking, arrangement, obligation, indebtedness or commitment providing for
the disposition thereof.
-4-
(b) Accredited Investor. The Registered Holder is an "accredited
--------------------
investor" as defined in Rule 501(a) under the Securities Act of 1933, as amended
(the "Act").
(c) Experience. The Registered Holder has made such inquiry
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concerning the Company and its business and personnel as he has deemed
appropriate; and the Registered Holder has sufficient knowledge and experience
in finance and business that he is capable of evaluating the risks and merits of
its investment in the Company.
6. Transfers, etc.
--------------
(a) This Warrant may not be sold, assigned, transferred, pledged or
otherwise encumbered by the Registered Holder, either voluntarily or by
operation of law. This Warrant shall be exercisable only by the Registered
Holder.
(b) The Warrant Shares issued upon exercise of this Warrant shall not
be sold or transferred unless either (i) they first shall have been registered
under 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.
(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.
(d) The Company will maintain a register containing the name and
address of the Registered Holder of this Warrant. The Registered Holder may
change its address as shown on the warrant register by written notice to the
Company requesting such change.
7. Notices of Record Date, etc. In the event:
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(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
-5-
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 send or cause to be sent 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 sent at least 5 days prior to
the record date or effective date for the event specified in such notice.
8. 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.
9. Exchange or Replacement of Warrants.
-----------------------------------
(a) 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 6 hereof, issue and deliver to or upon the order of the
Registered Holder a new Warrant or Warrants of like tenor, in the name of the
Registered Holder, 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.
(b) Upon receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant and upon delivery of an
indemnity agreement with surety if the Company requires in an amount
satisfactory to the Company.
10. Notices. All notices and other ommunications from the Company to the
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Registered Holder in connection herewith shall be mailed by certified or
registered mail, postage prepaid, or sent via a reputable international
overnight courier service guaranteeing two business day delivery, to the address
last furnished to the Company in writing by the Registered Holder. All notices
and other communications from the Registered Holder to the Company in connection
herewith shall be mailed by certified or registered mail, postage prepaid, or
sent via a reputable international overnight courier service guaranteeing two
business day delivery, to the Company at its principal office. If the Company
should at any time change the location of its principal office, it shall provide
(which notice may be provided by changing the address of its principal office on
public filings with the Securities and Exchange Commission) written notice to
the
-6-
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. All such notices and communications shall be deemed delivered (i) five
business days after being sent by certified or registered mail, return receipt
requested, postage prepaid, or (ii) three business days after being sent via a
reputable international overnight courier service guaranteeing delivery within
two business days.
11. 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.
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 change or waiver is sought. 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.
13. 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.
14. Governing Law. This Warrant will be governed by and construed and
--------------
enforced in accordance with the laws of the State of New Jersey, without regard
to its principles of conflict of laws. Each party consents to the jurisdiction
of the federal courts in New Jersey or the state courts of the State of New
Jersey in connection with any dispute arising under this Warrant or any of the
transactions contemplated hereby, and hereby waives, to the maximum extent
permitted by law, any objection, including any objections based on forum
non-conveniens, to the bringing of any such proceeding in such jurisdictions.
15. Facsimile Signatures. This Warrant may be executed by facsimile
---------------------
signature.
-7-
EXECUTED as of the Date of Issuance indicated above.
CYTOGEN CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President & Chief Executive Officer
ATTEST:
/s/ Xxxxxx Xxxxx
--------------------------------------
Xxxxxx Xxxxx, Ph.D.
EXHIBIT I
PURCHASE FORM
To: Dated:
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The undersigned herewith makes payment of $ , the full purchase price
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for shares at the price per share provided for in such Warrant. Such
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payment takes the form of lawful money of the United States.
The undersigned represents, warrants and covenants as follows:
(i) He is purchasing the Warrant Shares for its own account
for investment only, and not with a view to, or for sale in connection with, any
distribution of the Warrant Shares in violation of the Securities Act of 1933
(the "Securities Act"), or any rule or regulation under the Securities Act.
(ii) He has had such opportunity as he has deemed adequate to
obtain from representatives of the Company such information as is necessary to
permit him to evaluate the merits and risks of my investment in the Company.
(iii) He has sufficient experience in business, financial and
investment matters to be able to evaluate the risks involved in the purchase of
the Warrant Shares and to make an informed investment decision with respect to
such purchase.
(iv) He can afford a complete loss of the value of the Warrant
Shares and is able to bear the economic risk of holding such Warrant Shares for
an indefinite period.
(v) He understands that (i) the Warrant Shares have not been
registered under the Securities Act and are "restricted securities" within the
meaning of Rule 144 under the Securities Act, (ii) the Warrant Shares cannot be
sold, transferred or otherwise disposed of unless they are subsequently
registered under the Securities Act or an exemption from registration is then
available; (iii) in any event, the exemption from registration under Rule 144
will not be available for at least one year and even then will not be available
unless a public market then exists for the Common Stock, adequate information
concerning the Company is then available to the public, and other terms and
conditions of Rule 144 are complied with; and (iv) the Company has no obligation
or current intention to register the Warrant Shares under the Securities Act.
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Xxxxxx Xxxxx, Ph.D.
