Right to
Purchase ____
Shares of
Common Stock,
par value $0.001
per share
AMENDED AND RESTATED COMMON
STOCK PURCHASE WARRANT A
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 an exercise price of $8.62 per share (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
other warrants (including the B Warrants and the C Warrants (each
as defined in the Purchase Agreement)) issued pursuant to that
certain Securities Purchase Agreement, dated November 10, 2004, by
and among the Company and the Buyers listed on the execution page
thereof (the "Purchase Agreement").
ˆ»Øð»&
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 Paragraph 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 Paragraph 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 Paragraph
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 Paragraph 10(c); and (ii) if the
Estimated Warrant Shares are less than the number of Warrant Shares
to be delivered pursuant to Paragraph 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 Paragraph 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 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, (1)
the Registration Statement is not effective and (2) 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).
2
(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 May 11, 2005 and before the earlier of (i)
8:00 p.m., New York City time on the fourth (4th) anniversary of
the date of issuance of this Warrant (the "Issue Date") and (ii)
immediately prior to the closing of a Fundamental Transaction (as
defined below) (the "Exercise Period"); provided, however, that the
Exercise Period may be extended pursuant to Section 4.13 of the
Purchase Agreement upon the occurrence of events set forth in such
section.
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.
3
(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 listing 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 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.
4
(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 adj
