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Exhibit 4.1
NEITHER THESE SECURITIES NOR THE
SECURITIES FOR WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES AND THE
SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN
SECURED BY SUCH SECURITIES.
ANTIGENICS
INC
WARRANT
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| Warrant No.
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Dated: April 9, 2008 |
Antigenics Inc., a Delaware
corporation (the “ Company ”), hereby
certifies that, for value received,
or its registered assigns (including permitted transferees, the
“ Holder ”), as registered owner of this
warrant (the “ Warrant ”), is entitled to
purchase from the Company up to a total of
shares (as adjusted from time to time as provided in
Section 9 ) of Common Stock (as defined below), at an
exercise price equal to $3.75 per share (as adjusted from time to
time as provided in Section 9 , the “
Exercise Price ”), at any time and from time to
time from and after October10, 2008 (the “ Initial
Exercise Date ”) to and including April 9, 2013
(the “ Expiration Date ”), and subject to
the following terms and conditions.
1. Definitions . The
capitalized terms used herein and not otherwise defined shall have
the meanings set forth below:
“
Affiliate ” of any specified Person means any
other person or entity directly or indirectly controlling,
controlled by or under direct or indirect common control with such
specified Person. For purposes of this definition, “
control ” means the power to direct the
management and policies of such Person or firm, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise.
“
Commission ” means the United States Securities
and Exchange Commission.
“ Common
Stock ” means the common stock of the Company, $0.01
par value per share.
“ Eligible
Market ” means any of the New York Stock Exchange,
the American Stock Exchange or Nasdaq (as defined below), and any
successor markets thereto.
“ Exchange
Act ” means the Securities Exchange Act of 1934, as
amended
“ Market
Price ” shall mean (i) if the principal trading
market for such securities is an exchange, the average of the last
reported sale prices per share for the last ten previous Trading
Days in which a sale was reported, as officially reported on any
consolidated tape, (ii) if clause (i) is not applicable,
the average of the closing bid price per share for the last ten
previous Trading Days as set forth by Nasdaq or (iii) if
clauses (i) and (ii) are not applicable, the average of
the closing bid price per share for the last ten previous Trading
Days as set forth in the National Quotation Bureau sheet listing
for such securities. Notwithstanding the foregoing, if there is no
reported sales price or closing bid price, as the case may be, on
any of the ten Trading Days preceding the event requiring a
determination of Market Price hereunder, then the Market Price
shall be determined in good faith after reasonable investigation by
resolution of the Board of Directors of the Company.
“ Nasdaq
” means the Nasdaq Global Market or Nasdaq Capital Market,
and any successor markets thereto.
“ Other
Securities ” refers to any capital stock (other than
Common Stock) and other securities of the Company or any other
Person which the Holder of this Warrant at any time shall be
entitled to receive, or shall have received, pursuant to the terms
hereof upon the exercise of this Warrant, in lieu of or in addition
to Common Stock.
“ Person
” means any court or other federal, state, local or other
governmental authority or other individual or corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of
any kind.
“ Trading
Day ” means (a) any day on which the Common
Stock is listed or quoted and traded on any Eligible Market or
(b) if the Common Stock is not then quoted and traded on any
Eligible Market, then a day on which trading occurs on the Nasdaq
Global Market (or any successor thereto).
“ Warrant
Shares ” shall initially mean shares of Common Stock
and in addition may include Other Securities and Substituted
Property (as defined in Section 9(e)(x) ) issued or
issuable from time to time upon exercise of this
Warrant.
2. Registration of
Warrant . The Company shall register this Warrant, upon records
to be maintained by the Company for that purpose (the “
Warrant Register ”), in the name of the record
Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for
the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes.
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3. Registration of
Transfers . The Company shall register the transfer of any
portion of this Warrant in the Warrant Register, upon surrender of
this Warrant, with the Form of Assignment attached hereto as
Appendix A duly completed and signed, to the Company at its
address specified herein. Upon any such registration and transfer,
a new warrant in substantially the form of a Warrant (any such new
warrant, a “ New Warrant ”), evidencing
the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of
this Warrant not so transferred, if any, shall be issued to the
transferring Holder. The acceptance of the New Warrant by the
transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a holder of a
Warrant.
4. Exercise and Duration
of Warrant .
(a) This Warrant shall be
exercisable, either in its entirety or for a portion of the number
of Warrant Shares, by the registered Holder at any time and from
time to time from and after the Initial Exercise Date to and
including the Expiration Date. At 5:00 P.M. New York City time
on the Expiration Date, the portion of this Warrant not exercised
prior thereto shall be and become void and of no value, and the
Holder hereof shall have no right to purchase any additional
Warrant Shares hereunder.
(b) A Holder may exercise
this Warrant by delivering to the Company, in accordance with
Section 13 , this Warrant, together with (i) an
exercise notice, in the form attached hereto as
Appendix B (the “ Exercise Notice
”), appropriately completed and duly signed, and
(ii) (A) payment of the Exercise Price for the number of
Warrant Shares as to which this Warrant is being exercised pursuant
to a Cash Exercise (as set forth in Section 4(c) below)
or (B) if available pursuant to Section 4(d)
below, by notifying the Company that this Warrant is being
exercised pursuant to a Cashless Exercise (as set forth in
Section 4(d) below), and the date such items are
received by the Company is an “ Exercise Date
.” Execution and delivery of an Exercise Notice in respect of
less than all of the Warrant Shares issuable upon exercise of this
Warrant shall result in the cancellation of the original Warrant
and issuance of a New Warrant evidencing the right to purchase the
remaining number of Warrant Shares.
(c) Cash Exercise . In
the event the Holder has elected to pay the Exercise Price in cash,
it shall pay the Exercise Price by certified bank check payable to
the order of the Company or by wire transfer of immediately
available funds in accordance with the Company’s instructions
(a “ Cash Exercise ”).
(d) Cashless Exercise
. Notwithstanding anything contained herein to the contrary, if, at
any time a registration statement covering the resale of the
Warrant Shares that are the subject of the Exercise Notice by the
Holder pursuant to the Securities Act (the “
Unavailable Warrant Shares ”) is not available
for the resale of such Unavailable Warrant Shares, and the Company
is otherwise obligated to have a resale registration statement
available for such resale, the Holder may, in its sole discretion,
exercise this Warrant in whole or in part and, in lieu of making
the cash payment otherwise contemplated to be made to the Company
upon such exercise in payment of the Exercise Price, elect instead
to receive upon such exercise the “Net Number” of
shares of Common Stock determined according to the following
formula (a “ Cashless Exercise
”):
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(A * B) – (A * C)
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B |
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For purposes of the foregoing
formula,
A = the total number of
shares with respect to which this Warrant is then being
exercised.
B = the weighted average
price per share of the Common Stock (as reported by Bloomberg) on
the Trading Day immediately preceding the date of the Exercise
Notice.
C = the Exercise Price then
in effect for the applicable Warrant Shares at the time of such
exercise.
Notwithstanding anything to the contrary
herein or in the Securities Purchase Agreement dated April 9,
2008 between the Company, the Holder, and other parties named
therein (the “ Securities Purchase Agreement
”), the Holder agrees that the Holder’s ability to
elect a Cashless Exercise if there is not an effective registration
statement covering the Warrant Shares represents the sole and
exclusive monetary remedy of the Holder for a registration default
with respect to the Warrant Shares, and in no event shall the
Company be required to satisfy the Warrants through net cash
settlement.
(e) Except as otherwise
provided for herein, this Warrant shall not entitle the Holder to
any voting rights or other rights as a stockholder of the Company
by virtue of the ownership hereof.
5. Delivery of Warrant
Shares .
(a) Upon exercise of this
Warrant, the Company shall promptly (but in no event later than
three Trading Days after the Exercise Date) issue or cause to be
issued and deliver or cause to be delivered to the Holder, in such
name or names as the Holder may designate, a certificate for the
Warrant Shares issuable upon such exercise (the “
Certificate ”) bearing no restrictive legends.
The Holder, or any Person so designated by the Holder to receive
the Warrant Shares, shall be deemed to have become holder of record
of such Warrant Shares as of the Exercise Date.
(b) Neither these securities
nor the securities for which these securities are exercisable have
been registered with the Commission or the securities commission of
any state in reliance upon an exemption from registration under the
Securities Act, and, accordingly, may not be offered or sold except
pursuant to an effective registration statement under the
Securities Act or pursuant to an available exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act and in accordance with applicable state securities
laws. The Holder acknowledges and agrees that the Warrant may be
sold only pursuant to an applicable exemption from the registration
requirements of the Securities Act and that the Warrant Shares may
only be sold pursuant to an effective registration statement under
the Securities Act or in accordance with any applicable exemption
from the registration requirements of the Securities
Act.
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(c) This Warrant is
exercisable, either in its entirety or, from time to time, for a
portion of the number of Warrant Shares. Upon surrender of this
Warrant following one or more partial exercises, the Company shall
issue or cause to be issued, at its expense, a New Warrant
evidencing the right to purchase the remaining number of Warrant
Shares.
(d) To the extent permitted
by law, the Company’s obligations to issue and deliver
Warrant Shares in accordance with the terms hereof are absolute and
unconditional, irrespective of any action or inaction by the Holder
to enforce the same, any waiver or consent with respect to any
provision hereof, the recovery of any judgment against any Person
or any action to enforce the same, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other Person of any obligation to the
Company or any violation or alleged violation of law by the Holder
or any other Person, and irrespective of any other circumstance
which might otherwise limit such obligation of the Company to the
Holder in connection with the issuance of Warrant Shares. Nothing
herein shall limit the Holder’s right to pursue any other
remedies available to it hereunder, in equity including, without
limitation, a decree of specific performance and/or injunctive
relief with respect to the Company’s failure to timely
deliver Common Stock upon exercise of this Warrant as required
pursuant to the terms hereof.
6. Charges, Taxes and
Expenses . Issuance and delivery of certificates for shares of
Common Stock upon exercise of this Warrant shall be made without
charge to the Holder for any issue or transfer tax, withholding
tax, transfer agent fee or other incidental tax or expense in
respect of the issuance of such certificates, all of which taxes
and expenses shall be paid by the Company; provided ,
however , that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the
issue, delivery or registration of any certificates for Warrant
Shares or Warrant in a name other than that of the Holder and that
the Holder will be required to pay any tax with respect to cash
received in lieu of fractional shares. The Holder shall be
responsible for all other tax liability of the Holder that may
arise as a result of holding or transferring this Warrant or
receiving Warrant Shares upon exercise hereof.
7. Replacement of
Warrant . If this Warrant is mutilated, lost, stolen or
destroyed, the Company, at the sole expense of the Holder (such
expenses, if any imposed by the Company to be reasonable), shall
issue or cause to be issued in exchange and substitution for and
upon cancellation hereof, or in lieu of and in substitution for
this Warrant, a New Warrant, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or
destruction and customary and reasonable indemnity, if requested by
the Company.
8. Reservation of Warrant
Shares . The Company covenants that it will at all times
reserve and keep available out of the aggregate of its authorized
but unissued and otherwise unreserved Common Stock, solely for the
purpose of enabling it to issue Warrant Shares upon exercise of
this Warrant as herein provided, the number of Warrant Shares which
are then issuable and deliverable upon the exercise of this entire
Warrant, free from all taxes, liens, claims, encumbrances with
respect to the issuance of such Warrant Shares and will not be
subject to any pre-emptive rights or similar rights (taking into
account the adjustments and
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restrictions of Section 9
hereof). The Company covenants that all Warrant Shares so issuable
and deliverable shall, upon issuance and the payment of the
applicable Exercise Price in accordance with the terms hereof, be
duly and validly authorized, issued, fully paid and nonassessable.
The Company will take all such action as may be necessary to assure
that such shares of Common Stock may be issued as provided herein
without violation of any applicable law or regulation, or of any
requirements of any securities exchange or automated quotation
system upon which the Common Stock may be listed or quoted, as the
case may be.
9. Certain Adjustments
. The Exercise Price and number of Warrant Shares issuable upon
exercise of this Warrant are subject to adjustment from time to
time as set forth in this Section 9.
(a) Stock Dividends .
If the Company, at any time while this Warrant is outstanding, pays
a dividend on its Common Stock payable in additional shares of
Common Stock or otherwise makes a distribution on any class of
capital stock that is payable in shares of Common Stock, then in
each such case the Exercise Price shall be multiplied by a
fraction, (A) the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to the opening
of business on the day after the record date for the determination
of stockholders entitled to receive such dividend or distribution
and (B) the denominator of which shall be the number of shares
of Common Stock outstanding immediately after the distribution date
of such dividend or distribution. Any adjustment made pursuant to
this Section 9(a) shall become effective immediately
after the record date for the determination of stockholders
entitled to receive such dividend or distribution; provided,
however , that if following such record date the Company
rescinds or modifies such dividend or distribution, the Exercise
Price shall be appropriately adjusted (as of the date that the
Company effectively rescinds or modifies such dividend or
distribution) to take into account the effect of such rescinded or
modified dividend or distribution on the Exercise Price pursuant to
this Section 9(a) .
(b) Stock Splits . If
the Company, at any time while this Warrant is outstanding,
(i) subdivides outstanding shares of Common Stock into a
larger number of shares, or (ii) combines outstanding shares
of Common Stock into a smaller number of shares, then in each such
case the Exercise Price shall be multiplied by a fraction,
(A) the numerator of which shall be the number of shares of
Common Stock outstanding immediately before such event and
(B) the denominator of which shall be the number of shares of
Common Stock outstanding immediately after such event. Any
adjustment pursuant to this Section 9(b) shall become
effective immediately after the effective date of such subdivision
or combination.
(c) Reclassifications
. A reclassification of the Common Stock (other than any such
reclassification in connection with a merger or consolidation to
which Section 9(e) applies) into shares of any other
class of stock shall be deemed:
(i) a distribution by the
Company to the holders of its Common Stock of such shares of such
other class of stock for the purposes and within the meaning of
this Section 9 ; and
(ii) if the outstanding
shares of Common Stock shall be changed into a larger or smaller
number of shares of Common Stock as part of such reclassification,
such change shall be deemed a subdivision or combination, as the
case may be, of the outstanding shares of Common Stock for the
purposes and within the meaning of Section 9(b)
.
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(d) Other
Distributions . If the Company, at any time while this Warrant
is outstanding, distributes to holders of Common Stock
(i) evidences of its indebtedness, (ii) shares of any
class of capital stock, (iii) rights or warrants to subscribe
for or purchase any shares of any class of capital stock or
(iv) any other asset, other than a distribution of Common
Stock covered by Section 9(a) , (in each case, “
Distributed Property ”), then in each such case
the Exercise Price in effect immediately prior to the record date
fixed for determination of stockholders entitled to receive such
distribution (and the Exercise Price thereafter applicable) shall
be adjusted (effective on and after such record date) to equal the
product of such Exercise Price multiplied by a fraction,
(A) the numerator of which shall be Market Price on such
record date less the then fair market value of the Distributed
Property distributed in respect of one outstanding share of Common
Stock, which, if the Distributed Property is other than cash or
marketable securities, shall be as reasonably determined in good
faith by the Board of Directors of the Company whose determination
shall be described in a board resolution, and (B) the
denominator of which shall be the Market Price on such record date;
provided, however , that if following the record date for
such distribution the Company rescinds or
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