EXHIBIT 4.2
CELL GENESYS, INC.
A MENDED AND R ESTATED W ARRANT T O P URCHASE C OMMON S TOCK
Warrant No.: 1A
Number of Shares of Common Stock:
4,265,403
Date of Original Issuance: May 14, 2008
(“ Issuance Date ”)
Cell Genesys, Inc., a Delaware
corporation (the “ Company ”), hereby certifies
that, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Capital Ventures
International, the registered holder hereof or its permitted
assigns (the “ Holder ”), is entitled, subject
to the terms set forth below, to purchase from the Company, at the
Exercise Price (as defined below) then in effect, upon surrender of
this Amended and Restated Warrant to Purchase Common Stock
(including any Warrants to Purchase Common Stock issued in
exchange, transfer or replacement hereof, the or this “
Warrant ”), at any time or times on or after the date
six (6) months from the date hereof (the “
Exercisability Date”) , but not after 11:59 p.m., New
York time, on the Expiration Date (as defined below), Four Million
Two Hundred Sixty-Five Thousand Four Hundred and Three
(4,265,403) fully paid nonassessable shares of Common Stock
(as defined below) (the “ Warrant Shares ”).
Except as otherwise defined herein, capitalized terms in this
Warrant shall have the meanings set forth in Section 15. This
Warrant is the Warrant to purchase Common Stock issued pursuant to
(i) Section 2 of that certain Subscription Agreement (the
“ Subscription Agreement ”), dated as of
May 9, 2008 (the “ Subscription Date ”), by
and between the Company and the Holder (the “ Subscription
Agreement ”) and (ii) the Company’s
Registration Statement on Form S-3 (File number 333-142482) (the
“ Registration Statement ”), such Warrant as
amended and restated on May 18, 2009.
1. EXERCISE OF WARRANT
.
(a) Mechanics of
Exercise . Subject to the terms and conditions hereof, this
Warrant may be exercised by the Holder on any day on or after the
Exercisability Date, in whole or in part, by delivery of a written
notice, in the form attached hereto as Exhibit A (the
“ Exercise Notice ”), of the Holder’s
election to exercise this Warrant. The Holder shall not be required
to deliver the original Warrant in order to effect an exercise
hereunder. Execution and delivery of the Exercise Notice with
respect to less than all of the Warrant Shares shall have the same
effect as cancellation of the original Warrant and issuance of a
new Warrant evidencing the right to purchase the remaining number
of Warrant Shares. On or before the second (2
nd
) Business Day
following the date on which the Company has received each of the
Exercise Notice (the “ Exercise Delivery Documents
”), the Company shall transmit by facsimile an acknowledgment
of confirmation of receipt of the Exercise Delivery Documents to
the Holder and the Company’s transfer agent (the “
Transfer Agent ”). On or before the third (3
rd
) Business Day
following the date on which the Company has received all of the
Exercise Delivery Documents (the “ Share Delivery Date
”), the Company shall (X) provided that the Transfer
Agent is participating in The Depository Trust Company (“
DTC ”) Fast Automated Securities
Transfer Program, upon the request
of the Holder, credit such aggregate number of Warrant Shares to
which the Holder is entitled pursuant to such exercise to the
Holder’s or its designee’s balance account with DTC
through its Deposit Withdrawal Agent Commission system, or
(Y) if the Transfer Agent is not participating in the DTC Fast
Automated Securities Transfer Program, issue and dispatch by
overnight courier to the address as specified in the Exercise
Notice, a certificate, registered in the Company’s share
register in the name of the Holder or its designee, for the number
of shares of Common Stock to which the Holder is entitled pursuant
to such exercise. Upon delivery of the Exercise Delivery Documents,
the Holder shall be deemed for all corporate purposes to have
become the holder of record of the Warrant Shares with respect to
which this Warrant has been exercised, irrespective of the date
such Warrant Shares are credited to the Holder’s DTC account
or the date of delivery of the certificates evidencing such Warrant
Shares, as the case may be. If this Warrant is submitted in
connection with any exercise pursuant to this Section 1(a) and
the number of Warrant Shares represented by this Warrant submitted
for exercise is greater than the number of Warrant Shares being
acquired upon an exercise, then the Company shall as soon as
practicable and in no event later than three Business Days after
any exercise and at its own expense, issue a new Warrant (in
accordance with Section 7(d)) representing the right to
purchase the number of Warrant Shares purchasable immediately prior
to such exercise under this Warrant, less the number of Warrant
Shares with respect to which this Warrant is exercised. No
fractional shares of Common Stock are to be issued upon the
exercise of this Warrant, but rather the number of shares of Common
Stock to be issued shall be rounded up to the nearest whole number.
The Company shall pay any and all taxes which may be payable with
respect to the issuance and delivery of Warrant Shares upon
exercise of this Warrant.
(b) Exercise Price . For
purposes of this Warrant, “ Exercise Price ”
means $10.00, subject to adjustment as provided herein.
(c) Company’s Failure to
Timely Deliver Securities . If the Company shall fail for any
reason or for no reason to issue to the Holder within three
(3) Business Days of receipt of the Exercise Delivery
Documents in compliance with the terms of this Section 1, a
certificate for the number of shares of Common Stock to which the
Holder is entitled and register such shares of Common Stock on the
Company’s share register or to credit the Holder’s
balance account with DTC for such number of shares of Common Stock
to which the Holder is entitled upon the Holder’s exercise of
this Warrant, and if on or after such Trading Day the Holder
purchases (in an open market transaction or otherwise) shares of
Common Stock to deliver in satisfaction of a sale by the Holder of
shares of Common Stock issuable upon such exercise that the Holder
anticipated receiving from the Company (a
“Buy-In” ), then the Company shall, within three
(3) Business Days after the Holder’s request and in the
Holder’s discretion, either (i) pay cash to the Holder
in an amount equal to the Holder’s total purchase price
(including brokerage commissions, if any) for the shares of Common
Stock so purchased (the “Buy-In Price” ), at
which point the Company’s obligation to deliver such
certificate (and to issue such Warrant Shares) shall terminate, or
(ii) promptly honor its obligation to deliver to the Holder a
certificate or certificates representing such Warrant Shares and
pay cash to the Holder in an amount equal to the excess (if any) of
the Buy-In Price over the product of (A) such number of shares
of Common Stock, times (B) the Closing Bid Price on the date
of exercise.
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(d) Cashless Exercise . Upon
exercise of this Warrant, in whole or in part, the Holder shall
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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Net Number =
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(A x B) - (A x C)
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B
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For purposes of the foregoing
formula:
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A=
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the total
number of shares with respect to which this Warrant is then being
exercised.
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B=
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the arithmetic
average of the Closing Sale Prices of the shares of Common Stock
for the five (5) consecutive Trading Days ending on the date
immediately preceding the date of the Exercise Notice.
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C=
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the Exercise
Price then in effect for the applicable Warrant Shares at the time
of such exercise.
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(e) Rule 144 . For purposes
of Rule 144(d) promulgated under the Securities Act, as in effect
on the date hereof, it is intended that the Warrant Shares issued
in a Cashless Exercise shall be deemed to have been acquired by the
Holder, and the holding period for the Warrant Shares shall be
deemed to have commenced, on the date this Warrant was originally
issued pursuant to the Subscription Agreement.
(f) Disputes . In the case of
a dispute as to the determination of the Exercise Price or the
arithmetic calculation of the Warrant Shares, the Company shall
promptly issue to the Holder the number of Warrant Shares that are
not disputed.
(g) Beneficial Ownership .
The Company shall not effect the exercise of this Warrant, and the
Holder shall not have the right to exercise this Warrant, to the
extent that after giving effect to such exercise, such Person
(together with such Person’s affiliates) would beneficially
own in excess of 9.99% (the “ Maximum Percentage
”) of the shares of Common Stock outstanding immediately
after giving effect to such exercise. For purposes of the foregoing
sentence, the aggregate number of shares of Common Stock
beneficially owned by such Person and its affiliates shall include
the number of shares of Common Stock issuable upon exercise of this
Warrant with respect to which the determination of such sentence is
being made, but shall exclude shares of Common Stock which would be
issuable upon (i) exercise of the remaining, unexercised
portion of this Warrant beneficially owned by such Person and its
affiliates and (ii) exercise or conversion of the unexercised
or unconverted portion of any other securities of the Company
beneficially owned by such Person and its affiliates (including,
without limitation, any convertible notes or convertible preferred
stock or warrants) subject to a limitation on conversion or
exercise analogous to the limitation contained herein. Except as
set forth in the preceding sentence, for purposes of this
paragraph, beneficial ownership shall be calculated in accordance
with Section 13(d) of the Securities Exchange Act of 1934, as
amended. For purposes of this Warrant, in determining the number of
outstanding shares of Common Stock, the Holder may rely on the
number of outstanding shares of Common Stock as reflected in
(1) the Company’s most recent Form 10-K, Form 10-Q,
Current Report on Form 8-K or other
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public filing with
the Securities and Exchange Commission, as the case may be,
(2) a more recent public announcement by the Company or
(3) any other notice by the Company or the Transfer Agent
setting forth the number of shares of Common Stock outstanding. For
any reason at any time, upon the written or oral request of the
Holder, the Company shall within two (2) Business Days confirm
orally and in writing to the Holder the number of shares of Common
Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to
the conversion or exercise of securities of the Company, including
this Warrant, by the Holder and its affiliates since the date as of
which such number of outstanding shares of Common Stock was
reported. By written notice to the Company, the Holder may from
time to time increase or decrease the Maximum Percentage to any
other percentage not in excess of 9.99% specified in such notice;
provided that (i) any such increase will not be
effective until the sixty-first (61 st ) day after such notice is
delivered to the Company, and (ii) any such increase or
decrease will apply only to the Holder. The provisions of this
paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 1(h)
to correct this paragraph (or any portion hereof) which may be
defective or inconsistent with the intended beneficial ownership
limitation herein contained or to make changes or supplements
necessary or desirable to properly give effect to such
limitation.
2. ADJUSTMENT OF EXERCISE PRICE
AND NUMBER OF WARRANT SHARES . The Exercise Price and the
number of Warrant Shares shall be adjusted from time to time as
follows:
(a) RESERVED.
(b) Adjustment upon Subdivision
or Combination of Common Stock . If the Company at any time on
or after the Subscription Date subdivides (by any stock split,
stock dividend, recapitalization, reorganization, scheme,
arrangement or otherwise) one or more classes of its outstanding
shares of Common Stock into a greater number of shares, the
Exercise Price in effect immediately prior to such subdivision will
be proportionately reduced and the number of Warrant Shares will be
proportionately increased. If the Company at any time on or after
the Subscription Date combines (by any stock split, stock dividend,
recapitalization, reorganization, scheme, arrangement or otherwise)
one or more classes of its outstanding shares of Common Stock into
a smaller number of shares, the Exercise Price in effect
immediately prior to such combination will be proportionately
increased and the number of Warrant Shares will be proportionately
decreased. Any adjustment under this Section 2(b) shall become
effective at the close of business on the date the subdivision or
combination becomes effective.
(c) Other Events . If any
event occurs of the type contemplated by the provisions of this
Section 2 but not expressly provided for by such provisions
(including, without limitation, the granting of stock appreciation
rights, phantom stock rights or other rights with equity features),
then the Company’s Board of Directors will make an
appropriate adjustment in the Exercise Price and the number of
Warrant Shares so as to protect the rights of the Holder; provided
that no such adjustment pursuant to this Section 2(c) will
increase the Exercise Price or decrease the number of Warrant
Shares as otherwise determined pursuant to this
Section 2.
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3. RIGHTS UPON DISTRIBUTION OF
ASSETS . If the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets)
to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of
cash, stock or other securities, property or options by way of a
dividend, spin off, reclassification, corporate rearrangement,
scheme of arrangement or other similar transaction) (a “
Distribution ”), at any time after the issuance of
this Warrant, then, in each such case:
(a) any Exercise Price in effect
immediately prior to the close of business on the record date fixed
for the determination of holders of shares of Common Stock entitled
to receive the Distribution shall be reduced, effective as of the
close of business on such record date, to a price determined by
multiplying such Exercise Price by a fraction of which (i) the
numerator shall be the Closing Bid Price of the shares of Common
Stock on the Trading Day immediately preceding such record date
minus the value of the Distribution (as determined in good faith by
the Company’s Board of Directors) applicable to one share of
Common Stock, and (ii) the denominator shall be the Closing
Bid Price of the shares of Common Stock on the Trading Day
immediately preceding such record date; and
(b) the number of Warrant Shares
shall be increased to a number of shares equal to the number of
shares of Common Stock obtainable immediately prior to the close of
business on the record date fixed for the determination of holders
of shares of Common Stock entitled to receive the Distribution
multiplied by the reciprocal of the fraction set forth in the
immediately preceding paragraph (a); provided that in the
event that the Distribution is of shares of Common Stock (or common
stock) (“ Other Shares of Common Stock ”) of a
company whose common shares are traded on
