Right to
Purchase _________
Shares of
Common Stock,
par value $0.001
per share
COMMON STOCK PURCHASE WARRANT D
THIS CERTIFIES THAT, for value received, _____________ or its
registered assigns (the "Holder"), is entitled to purchase from Geron
Corporation, a Delaware corporation (the "Company"), at any time or from time to
time during the period specified in Paragraph 2 hereof, ____________ (_________)
fully paid and nonassessable shares of the Company's common stock, par value
$0.001 per share (the "Common Stock"), at a per share exercise price equal to
the lesser of (i) 120% of the average of the closing bid price of the Common
Stock on the Principal Exchange (as defined in that certain Securities Purchase
Agreement, dated December 13, 2006, by and among the Company and the Buyers
listed on the execution page thereof (the "Purchase Agreement")) for the five
(5) Trading Day (as defined in the Purchase Agreement) period immediately prior
to the Exercise Period Start Date (as defined below) and (ii) $12.14 (the
"Exercise Price"). The term "Warrant Shares," as used herein, refers to the
shares of Common Stock purchasable hereunder. The Warrant Shares and the
Exercise Price are subject to adjustment as provided in Paragraph 4 hereof. The
term "Warrants" means this Warrant and the warrants (including the A Warrants, B
Warrants and the C Warrants (each as defined in the Purchase Agreement)) issued
pursuant to the Purchase Agreement.
This Warrant is subject to the following terms, provisions, and
conditions:
1. Manner of Exercise; Issuance of Certificates; Payment for Warrant
Shares
(a) Subject to the provisions hereof, this Warrant may be
exercised by the Holder, in whole or in part, by the surrender of this Warrant,
together with a completed exercise agreement in the form attached hereto (the
"Exercise Agreement"), to the Company during normal business hours on any
business day at the Company's principal executive offices (or such other
office or agency of the Company as it may designate by notice to the Holder),
and upon (i) payment to the Company in cash, by certified or official bank
check or by wire transfer for the account of the Company of the Exercise Price
for the Warrant Shares specified in the Exercise Agreement or (ii)
delivery to the Company of a written notice of an election to effect a "Cashless
Exercise" (as defined in Section 10(c) below) for the Warrant Shares specified
in the Exercise Agreement (a "Conversion"). The Company may elect to provide
that any exercise of the Warrant shall be a Conversion (a "Company-Elected
Conversion"). The Company shall provide written notice of such election (a
"Company Conversion Election") by the end of the business day following the
date of the receipt of the Exercise Agreement. The Warrant Shares purchased
by the Holder shall be deemed to be issued to the Holder or such holder's
designee, as the record owner of such shares, as of the close of business on
the date on which this Warrant shall have been surrendered, the completed
Exercise Agreement shall have been delivered, and payment shall have been made
for such shares (or an election to effect a Conversion or a Company Conversion
Election shall have been made) as set forth above. In the event of any
exercise of the rights represented by this Warrant in accordance with and
subject to the terms and conditions hereof (whether by payment of the exercise
price, Conversion or Company-Elected Conversion), the Warrant Shares shall be
issued and delivered to the Depository Trust Company account on the Holder's
behalf via the Deposit Withdrawal Agent Commission system ("DWAC Transfer")
within a reasonable time, not exceeding two (2) trading days after such exercise
(or, if DWAC Transfer is not available or Holder requests in writing otherwise,
certificates for the Warrant Shares shall be issued, dated the date of such
exercise and delivered to the Holder hereof within a reasonable time, not
exceeding three (3) trading days after such exercise), and the Holder hereof
shall be deemed for all purposes to be the holder of the Warrant Shares so
purchased as of the date of such exercise. If the Warrant Shares are issued
pursuant to a Company-Elected Conversion, the number of Warrant Shares to be
issued within the time period specified in the preceding sentence shall
equal the number of Warrant Shares to be delivered if such Cashless Exercise
was made at the Holder's election (the "Estimated Warrant Shares"); provided,
however, that within three (3) trading days after the number of Warrant Shares
to be issued pursuant to Section 10(c) is able to be calculated (i) if the
number of Estimated Warrant Shares exceeds the number of Warrant Shares to be
delivered pursuant to Section 10(c) hereof, Holder shall return to the Company
the number of Warrant Shares which exceed the number of Warrant Shares to which
Holder is entitled pursuant to Section 10(c); and (ii) if the Estimated Warrant
Shares are less than the number of Warrant Shares to be delivered pursuant to
Section 10(c) hereof, the Company shall issue to Holder the number of Warrant
Shares equal to the difference between the Estimated Warrant Shares and the
Warrant Shares to be delivered pursuant to Section 10(c). Any certificates
requested shall be delivered in such denominations as may be requested by the
Holder and shall be registered in the name of the Holder or such other name as
shall be designated by the Holder. 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. In the event an Exercise
Agreement is delivered and the Company is unable to issue the Warrant Shares,
the Holder may, at its option, rescind such Exercise Agreement and such
rescission will not effect the Holder's right to an extension of the Exercise
Period pursuant to Section 4.13 of the Purchase Agreement. In any event, if
the Company is unable to issue the Warrant Shares via DWAC transfer (or
otherwise without restrictive legend), because (i) the Securities and
Exchange Commission (the "Commission") has issued a stop order with respect
to the registration statement relating to the Shares (the "Registration
Statement"), (ii) the Commission otherwise has suspended or withdrawn the
effectiveness of the Registration Statement, either temporarily or permanently,
(iii) the Company has suspended or withdrawn the effectiveness of the
Registration Statement, either temporarily or permanently, (iv) no exemption
from the registration requirements is otherwise available (including, without
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limitation, under Section 3(a)(9) of the Act by virtue of a Conversion or
Company-Elected Conversion) or (v) otherwise, the Company shall not be required
to make any cash payments to the Holder in lieu of issuance of the Warrant
Shares. Further, subject to Section 4.13 of the Purchase Agreement, the Warrant
shall not be exercisable if (i) the Registration Statement is not effective at
the time of exercise or (ii) an exemption from the registration requirements
of the Securities Act, as amended (the "Act"), is not available; provided,
however, that for purposes of Section 4.13 of the Purchase Agreement and the
extension of the Exercise Period pursuant thereto, (x) the Company will have
been deemed unable to issue Warrant Shares without restrictive legend and (y)
the Warrant shall be deemed to have been exercised, if at the time the Holder
attempts to deliver an Exercise Agreement, (i) the Registration Statement is
not effective and (ii) no exemption from the registration requirements of the
Act is available (including, without limitation, under Section 3(a)(9) of
the Act by virtue of a Conversion or Company-Elected Conversion).
(b) Notwithstanding anything in this Warrant to the contrary,
in no event shall the Holder 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, but for this proviso, 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 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 4.9% 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 Regulations 13D-G thereunder, except as
otherwise provided in this paragraph (b). Notwithstanding anything in this
Warrant to the contrary, the restrictions on exercise of this Warrant 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 Common Stock present, or represented by proxy, and voting at any
meeting called to vote on the amendment of such restriction.
2. Period of Exercise. This Warrant is exercisable at any time or from
time to time on or after June 13, 2007 ("Exercise Period Start Date") and before
5:00 p.m., New York City time on December 15, 2010 (the "Exercise Period");
provided, however, that the Exercise Period may be extended pursuant to Section
4.13 of the Purchase Agreement.
3. Certain Agreements of the Company. The Company hereby covenants and
agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will, upon
issuance in accordance with the terms of this Warrant, be validly issued, fully
paid, and nonassessable and free from all taxes, liens, and charges with respect
to the issue thereof.
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(b) Reservation of Shares. During the Exercise Period, the
Company shall at all times have authorized, and reserved for the purpose of
issuance upon exercise of this Warrant, a sufficient number of shares of Common
Stock to provide for the full exercise of this Warrant.
(c) Listing. The Company shall promptly secure the of the
Warrant Shares upon each national securities exchange or automated quotation
system, if any, upon which shares of Common Stock are then listed (subject to
official notice of issuance upon exercise of this Warrant) and shall maintain,
so long as any other shares of Common Stock shall be so listed, such listing of
all Warrant Shares; and the Company shall so list on each national securities
exchange or automated quotation system, as the case may be, and shall maintain
such listing of, any other shares of capital stock of the Company issuable
upon the exercise of this Warrant if and so long as any shares of the same
class shall be listed on such national securities exchange or automated
quotation system.
(d) Certain Actions Prohibited. The Company will not, by
amendment of its charter or through any 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 to be observed or performed by it hereunder, but will at all times in
good faith assist in the carrying out of all the provisions of this Warrant and
in the taking of all such action as may reasonably be requested by the Holder
in order to protect the exercise privilege of the Holder against dilution or
other impairment, consistent with the tenor and purpose of this Warrant. Without
limiting the generality of the foregoing, the Company (i) will not increase
the par value of any shares of Common Stock receivable upon the exercise of this
Warrant above the Exercise Price then in effect, and (ii) will take all such
actions as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Common Stock
upon the exercise of this Warrant.
(e) Successors and Assigns. This Warrant will be binding upon
any entity succeeding to the Company by merger, consolidation, or acquisition of
all or substantially all the Company's assets.
4. Antidilution Provisions. During the Exercise Period, the Exercise
Price and the number of Warrant Shares shall be subject to adjustment from time
to time as provided in this Paragraph 4. In the event that any adjustment of the
Exercise Price as required herein results in a fraction of a cent, such Exercise
Price shall be rounded up to the nearest cent.
(a) Subdivision or Combination of Common Stock. If the
Company at any time subdivides (by any stock split, stock dividend,
recapitalization, reorganization, reclassification or otherwise) the shares of
Common Stock acquirable hereunder into a greater number of shares, then,
after the date of record for effecting such subdivision, the Exercise Price in
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effect immediately prior to such subdivision will be proportionately reduced.
If the Company at any time combines (by reverse stock split,
recapitalization, reorganization, reclassification or otherwise) the shares of
Common Stock acquirable hereunder into a smaller number of shares, then, after
the date of record for effecting such combination, the Exercise Price in
effect immediately prior to such combination will be proportionately increased.
"Common Stock," for purposes of this Paragraph 4, includes the Common Stock,
par value $0.001 per share, and any additional class of stock of the Company
having no preference as to dividends or distributions on liquidation, provided
that the shares purchasable pursuant to this Warrant shall include only shares
of Common Stock, par value $0.001 per share, in respect of which this Warrant
is exercisable, or shares resulting from any subdivision or combination of such
Common Stock, or in the case of any reorganization, reclassification,
consolidation, merger, or sale of the character referred to in Paragraph 4(c)
hereof, the stock or other securities or property provided for in such
Paragraph.
(b) Adjustment in Number of Shares. Upon each adjustment of
the Exercise Price pursuant to the provisions of this Paragraph 4, 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.
(c) Consolidation, Merger or Sale. In case of (i) any
consolidation of the Company with, or merger of the Company into any other
corporation or entity, or (ii) any sale or conveyance of all or substantially
all of the assets of the Company other than in connection with a plan of
complete liquidation of the Company (each of clause (i) and (ii) shall be
referred to as a "Fundamental Transaction"), then as a condition of such
Fundamental Transaction, adequate provision will be made whereby the Holder will
thereafter (at any time or from time to time during the remainder of the
Exercise Period) have the right to acquire and receive upon exercise of this
Warrant in lieu of the shares of Common Stock immediately theretofor acquirable
upon the exercise of this Warrant, such shares of stock, securities or assets as
may be issued or payable with respect to or in exchange for the number of
shares of Common Stock immediately theretofore acquirable and receivable upon
exercise of this Warrant had such Fundamental Transaction not taken place.
In any such case, the Company will make appropriate provision to insure
that the provisions of this Paragraph 4 hereof will thereafter be applicable as
nearly as may be in relation to any shares of stock or securities thereafter
deliverable upon the exercise of this Warrant. The Company will not effect any
Fundamental Transaction unless prior to the consummation thereof, the successor
or acquiring entity (if other than the Company) and any other entity (including
without limitation, any parent, subsidiary or affiliate of the successor or
acquiring entity) whose stock, securities or assets the holders of the Common
Stock of the Company are entitled to receive as a result of such Fundamental
Transaction (any
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or all of such entities being hereafter referred to as a "Successor
Entity") assumes by written instrument the obligations under this Paragraph 4
and the obligations to deliver to the Holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, the Holder may be
entitled to acquire.
Furthermore, in the event of a transaction contemplated by this Paragraph
4(c) involving the acquisition of the Company by a Public Acquirer (as defined
below) for consideration consisting of all or part cash, at the option of the
Holder, in lieu of any cash in respect of shares of Common Stock underlying this
Warrant, this Warrant (or such proportion thereof as is equal to the proportion
of cash to stock to be paid for the Company) shall thereafter be exercisable for
the common stock of the Public Acquirer for the remainder of the Exercise Period
(and otherwise in accordance with the terms hereof), with the number of shares
thereafter underlying this Warrant determined by multiplying the number of
shares for which this Warrant is exercisable immediately prior to such
transaction by a fraction, the numerator of which is the cash consideration per
share paid for the Company and the denominator of which is the Market Price of
the Public Acquirer's common stock, where "Market Price" means the average
closing price of the Public Acquirer's common stock over the five trading days
immediately following the closing date of the transaction. In the case of a
transaction involving partial cash consideration, the proportion of this Warrant
as is equal to the proportion of stock to cash in such transaction shall
thereafter be exercisable for stock of the Public Acquirer in accordance with
the preceding terms of this Paragraph 4(c), with the number of shares underlying
this Warrant adjusted to reflect the number of shares of common stock of the
Public Acquirer to be issued for each share of Common Stock of the Company.
Following any adjustment hereunder, the Exercise Price shall be proportionately
adjusted, by multiplying the Exercise Price then in effect by a fraction, the
numerator of which is the number of shares issuable prior to the adjustment and
the denominator of which is the number of shares issuable after the adjustment.
"Public Acquirer" means any entity that has publicly traded common stock whether
publicly traded in the United States or in any other jurisdiction, it being
understood that (1) "common stock" as used in this Paragraph 4(c) includes
common equity equivalents, trust shares, limited partnership interests, ordinary
shares, American Depositary Receipts, American Depositary Shares, and any other
similar securities or derivate thereof, and (2) the Company shall be deemed to
have been acquired by a Public Acquirer where any Successor Entity is a Public
Acquirer, even if such Successor Entity is not the direct acquirer or successor
to the Company. Following any transaction contemplated by this Paragraph 4(c)
the term Warrant Shares shall be deemed to refer to the shares for which this
Warrant is thereafter exercisable in accordance with the provisions hereof.
In addition, if holders of Common Stock are given a choice as to the
securities, cash (which shall be treated in accordance with the preceding
paragraph) or property to be received in a Fundamental Transaction (including a
right to elect to receive any particular one or combination of more than one of
the foregoing), then the Holder shall be given the same choice of consideration
upon any exercise of this Warrant following such Fundamental Transaction, which
choice of consideration can be made at the time of exercise at any time prior to
the expiration of the Exercise Period.
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(d) Distribution of Assets. In case the Company shall declare
or make any distribution of its assets (including cash) to holders of Common
Stock as a partial liquidating dividend, by way of return of capital or
otherwise, then, after the date of record for determining stockholders entitled
to such distribution, but prior to the date of distribution, the Holder shall
be entitled upon exercise of this Warrant for the purchase of any or all of the
shares of Common Stock subject hereto, to receive the amount of such assets
which would have been payable to the holder had such holder been the holder of
such shares of Common Stock on the record date for the determination of
stockholders entitled to such distribution.
(e) Notice of Adjustment. Upon the occurrence of any event
which requires any adjustment of the Exercise Price, then, and in each such
case, the Company shall give notice thereof to the Holder, which notice shall
state the Exercise Price resulting from such adjustment and the increase or
decrease in the number of Warrant Shares purchasable at such price upon
exercise, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. Such calculation shall be certified
by the chief financial officer of the Company.
(f) Minimum Adjustment of Exercise Price. No adjustment of the
Exercise Price shall be made in an amount of less than 1% of the Exercise Price
in effect at the time such adjustment is otherwise required to be made, but any
such lesser adjustment shall be carried forward and shall be made at the time
and together with the next subsequent adjustment which, together with any
adjustments so carried forward, shall amount to not less than 1% of such
Exercise Price.
(g) No Fractional Shares. No fractional shares of Common Stock
are to be issued upon the exercise of this Warrant. If the exercise of this
Warrant would result in a fractional share of Common Stock, such fractional
share shall be disregarded and the number of shares of Common Stock issuable
upon exercise of the Warrant shall be the next higher number of shares.
(h) Other Notices. In case at any time:
(i) the Company shall declare any dividend upon the Common Stock
payable in shares of stock of any class or make any other distribution
(including dividends or distributions payable in cash out of retained earnings)
to the holders of the Common Stock;
(ii) the Company shall offer for subscription pro rata to the
holders of the Common Stock any additional shares of stock of any class or other
rights;
(iii) there shall be any capital reorganization of the Company, or
reclassification of the Common Stock, or consolidation or merger of the Company
with or into, or sale of all or substantially all its assets to, another
corporation or entity; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
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then, in each such case, the Company shall give to the Holder (a) notice of the
date on which the books of the Company shall close or a record shall be taken
for determining the holders of Common Stock entitled to receive any such
dividend, distribution, or subscription rights or for determining the holders of
Common Stock entitled to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up and (b) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up, notice of
the date (or, if not then known, a reasonable approximation thereof by the
Company) when the same shall take place. Such notice shall also specify the date
on which the holders of Common Stock shall be entitled to receive such dividend,
distribution, or subscription rights or to exchange their Common Stock for stock
or other securities or property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding-up, as the case may be. Such notice shall be given at least 15 days
prior to the record date or the date on which the Company's books are closed in
respect thereto. Failure to give any such notice or any defect therein shall not
affect the validity of the proceedings referred to in clauses (i), (ii), (iii)
and (iv) above.
(i) Certain Events. If any event occurs of the type
contemplated by the adjustment provisions of this Paragraph 4 but not expressly
provided for by such provisions, the Company will give notice of such event as
provided in Paragraph 4(e) hereof, and the Company's Board of Directors will
make an appropriate adjustment in the Exercise Price and the number of shares of
Common Stock acquirable upon exercise of this Warrant so that the rights of the
Holder shall be neither enhanced nor diminished by such event.
(j) Withholding Taxes. In the event that an adjustment to the
Exercise Price (or a failure to adjust the Exercise Price) results in a
constructive distribution to the Holder of the Warrants under Section 305 of the
Internal Revenue Code of 1986, as amended, the Company may withhold, to the
extent required by applicable law, any applicable United States federal
withholding tax from any subsequent distributions of cash or property made to
the Holder, including any Common Stock issued by the Company upon the exercise
of this Warrant.
5. Issue Tax. The issuance of certificates for Warrant Shares upon the
exercise of this Warrant shall be made without charge to the Holder or such
shares for any issuance tax or other costs in respect thereof, provided that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any certificate in a name
other than the Holder.
6. No Rights or Liabilities as a Stockholder. This Warrant shall not
entitle the Holder to any voting rights or other rights as a stockholder of the
Company. No provision of this Warrant, in the absence of affirmative action by
the Holder to purchase Warrant Shares, and no mere enumeration herein of the
rights or privileges of the Holder, shall give rise to any liability of such
holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
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7. Transfer, Exchange, and Replacement of Warrant.
(a) Transfer. This Warrant and the rights granted to the
Holder are transferable, in whole or in part, upon surrender of this Warrant,
together with a properly executed assignment in the form attached hereto, at the
office or agency of the Company referred to in Paragraph 7(e) below. Until due
presentment for registration of transfer on the books of the Company, the
Company may treat the registered Holder as the owner and Holder for all
purposes, and the Company shall not be affected by any notice to the contrary.
(b) Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Holder at the office
or agency of the Company referred to in Paragraph 7(e) below, for new Warrants
of like tenor representing in the aggregate the right to purchase the number of
shares of Common Stock which may be purchased hereunder, each of such new
Warrants to represent the right to purchase such number of shares as shall be
designated by the Holder at the time of such surrender.
(c) Replacement of Warrant. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant and, in the case of any such loss, theft, or
destruction, upon delivery of an indemnity agreement reasonably satisfactory in
form and amount to the Company, or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company, at its expense, will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
(d) Cancellation; Payment of Expenses. Upon the surrender of
this Warrant in connection with any transfer, exchange, or replacement as
provided in this Paragraph 7, this Warrant shall be promptly canceled by the
Company. The Company shall pay all taxes (other than securities transfer taxes)
and all other expenses (other than legal expenses, if any, incurred by the
Holder or transferees) and charges payable in connection with the preparation,
execution, and delivery of Warrants pursuant to this Paragraph 7.
(e) Register. The Company shall maintain, at its principal
executive offices (or such other office or agency of the Company as it may
designate by notice to the Holder), a register for this Warrant, in which the
Company shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each transferee and
each prior owner of this Warrant.
8. Notices. All notices, requests, and other communications required
or permitted to be given or delivered hereunder to the Holder shall be in
writing, and shall be personally delivered, or shall be sent by certified or
registered mail or by recognized overnight mail courier, postage prepaid and
addressed, to such holder at the address shown for such holder on the books of
the Company, or at such other address as shall have been furnished to the
Company by notice from such Holder. All notices, requests, and other
communications required or permitted to be given or delivered hereunder to the
Company shall be in writing, and shall be personally delivered, or shall be sent
by certified or registered mail or by recognized overnight mail courier, postage
prepaid and addressed, to the office of the Company at 000 Xxxxxxxxxxxx Xxxxx,
Xxxxx Xxxx, Xxxxxxxxxx 00000, Attn: Xxxxx Xxxxxxxxx, fax no. (000) 000-0000 with
copies to Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000,
9
Attn: Xxxx X. Xxxxxxxxx, Esq., fax no. (000) 000-0000, or at such other address
as shall have been furnished to the Holder by notice from the Company. Any such
notice, request, or other communication may be sent by facsimile, but shall in
such case be subsequently confirmed by a writing personally delivered or sent by
certified or registered mail or by recognized overnight mail courier as provided
above. All notices, requests, and other communications shall be deemed to have
been given either at the time of the receipt thereof by the person entitled to
receive such notice at the address of such person for purposes of this Paragraph
8, or, if mailed by registered or certified mail or with a recognized overnight
mail courier upon deposit with the United States Post Office or such overnight
mail courier, if postage is prepaid and the mailing is properly addressed, as
the case may be.
9. Governing Law. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE OF DELAWARE (WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS). BOTH PARTIES IRREVOCABLY CONSENT TO THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES FEDERAL COURTS AND THE STATE COURTS LOCATED IN
DELAWARE WITH RESPECT TO ANY SUIT OR PROCEEDING BASED ON OR ARISING UNDER THIS
AGREEMENT, THE AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY AND IRREVOCABLY AGREE THAT ALL
CLAIMS IN RESPECT OF SUCH SUIT OR PROCEEDING MAY BE DETERMINED IN SUCH COURTS.
BOTH PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE THAT SERVICE
OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY'S RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT A FINAL
NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER
LAWFUL MANNER.
10. Miscellaneous.
(a) Amendments. This Warrant and any provision hereof may only
be amended by an instrument in writing signed by the Company and the Holder.
(b) Descriptive Headings. The descriptive headings of the
several paragraphs of this Warrant are inserted for purposes of reference only,
and shall not affect the meaning or construction of any of the provisions
hereof.
(c) Cashless Exercise. This Warrant may be exercised by
presentation and surrender of this Warrant to the Company at its principal
executive offices with a written notice of the holder's intention to effect a
cashless exercise, including a calculation of the number of shares of Common
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Stock to be issued upon such exercise in accordance with the terms hereof, or in
connection with a Company-Elected-Conversion (a "Cashless Exercise"). In the
event of a Cashless Exercise, the Holder shall be entitled to receive a
certificate for the number of Warrant Shares equal to the quotient obtained by
dividing [(A-B) (X)] by (A), where:
(A) = the closing price on the trading day immediately
preceding the date of such election; provided, however,
that if the Cashless Exercise is in connection with a
Company-Elected Conversion, "A" in the formula above
shall equal the volume-weighted average price of the
Company's common stock as reported by Bloomberg L.P.,
or any successor performing similar functions for the
five (5) trading days beginning the day immediately
following the date of the Company-Elected Conversion.
(B) = the Exercise Price of this Warrant, as adjusted; and
(X) = the number of Warrant Shares issuable upon exercise of
this Warrant in accordance with the terms of this Warrant by
means of a cash exercise rather than a cashless exercise.
(d) Remedies. The Company acknowledges that a breach by
it of its obligations hereunder will cause irreparable harm to the Holder
by vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, the Company acknowledges that the remedy at law for a breach of its
obligations under this Warrant will be inadequate and agrees, in the event of
a breach or threatened breach by the Company of the provisions of this Warrant,
that the Holder shall be entitled, in addition to all other available remedies
in law or in equity, to an injunction or injunctions to prevent or cure any
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions of this Warrant, without the necessity of showing economic
loss and without any bond or other security being required.
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11
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
GERON CORPORATION
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Dated as of March 1, 2007
12
FORM OF EXERCISE AGREEMENT
Dated: ________ __, 200_
To: GERON CORPORATION
The undersigned, pursuant to the provisions set forth in the Warrant
attached hereto, hereby agrees to purchase ________ shares of Common Stock
covered by such Warrant, and makes payment herewith in full therefor at the
price per share provided by such Warrant in cash or by certified or official
bank check in the amount of, or by surrender of securities issued by the Company
(including a portion of the Warrant) having a market value (in the case of a
portion of this Warrant, determined in accordance with Section 10(c) of the
Warrant) equal to $_________. Please issue a certificate or certificates for
such shares of Common Stock in the name of and pay any cash for any fractional
share to:
Name:
-------------------------------------------
Signature:
--------------------------------------
Address:
-----------------------------------------
-------------------------------------------------
-------------------------------------------------
Note: The above signature should correspond
exactly with the name on the face of the
Warrant attached hereto.
and, if said number of shares of Common Stock shall not be all the shares
purchasable under the Warrant attached hereto, a new Warrant is to be issued in
the name of said undersigned covering the balance of the shares purchasable
thereunder less any fraction of a share paid in cash.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers all the rights of the undersigned under the Warrant attached hereto,
with respect to the number of shares of Common Stock covered thereby set forth
hereinbelow, to:
Name of Assignee Address No of Shares
---------------- ------- ------------
, and hereby irrevocably constitutes and appoints_______________________________
as agent and attorney-in-fact to transfer said Warrant on the books of the
within-named corporation, with full power of substitution in the premises.
Dated: ________ __, 200_
In the presence of:
-------------------------
Name:
--------------------------------------
Signature:
---------------------------------
Title of Signing Officer or Agent (if any):
-------------------------------------------
Address:
-----------------------------------
-------------------------------------------
Note: The above signature should correspond
exactly with the name on the face of the
Warrant attached hereto.
