Exhibit 4.4
CERUS CORPORATION
W ARRANT TO P URCHASE C OMMON S TOCK
Warrant No.:
2009-[ ]
Number of Shares of Common Stock:
Date of Issuance: August
[ ], 2009 (“ Issuance Date
”)
Cerus Corporation, a Delaware
corporation (the “ Company ”), certifies that,
for good and valuable consideration, the receipt and sufficiency of
which are acknowledged,
[ ],
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 Warrant to
Purchase Common Stock (including any Warrants to Purchase Common
Stock issued in exchange, transfer or replacement hereof, the
“ Warrant ”), at any time or times on or after
the six (6) month anniversary of the Issuance Date (the
“ Exercisability Date ”), but not after 5:30
p.m., New York Time, on the Expiration Date (as defined below),
[ ]
([ ])
fully paid and 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 one
of a series of warrants to purchase shares of Common Stock
(collectively, the “ Warrants ”) issued pursuant
to those certain Subscription Agreements, dated as of
August 19, 2009 (the “ Subscription Date
”), by and among the Company and the investors (the “
Investors ”) referred to therein (the “
Subscription Agreements ”) pursuant to the
Company’s Registration Statements on Form S-3 (No. 333-154842
and No. 333-161214) (collectively, the “ Registration
Statement ”).
1. EXERCISE OF WARRANT
.
(a) Mechanics of Exercise .
Subject to the terms and conditions hereof (including, without
limitation, the limitations set forth in Section 1(d)), this
Warrant may be exercised by the Holder on any day on or after the
Exercisability Date, in whole or in part (but not as to fractional
shares), by (i) 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 and (ii) if both (A) the Holder is not
electing a Cashless Exercise (as defined below) pursuant to
Section 1(c) of this Warrant and (B) a registration
statement registering the issuance of the Warrant Shares under the
Securities Act of 1933, as amended (the “ Securities
Act ”), is effective and available for the issuance of
the Warrant Shares, or an exemption from registration under the
Securities Act is available for the issuance of the Warrant Shares,
payment to the Company of an amount equal to the applicable
Exercise Price multiplied by the number of Warrant Shares as to
which this Warrant is being exercised (the “ Aggregate
Exercise Price ”) in cash or wire transfer of immediately
available funds (a “ Cash Exercise ”). The
Holder shall not be required to surrender this Warrant in order to
effect an exercise hereunder, provided that in the event of
an exercise of this Warrant for all Warrant Shares then issuable
hereunder, this Warrant is surrendered to the Company by the second
Trading Day following the date on which the Company has received
each of the Exercise Notice and, if this
Warrant is being exercised pursuant to a Cash
Exercise, the Aggregate Exercise Price (the “ Exercise
Delivery Documents ”). On or before the first Trading Day
following the date on which the Company has received 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 for
the Common Stock (the “ Transfer Agent ”). The
Company shall deliver any objection to the Exercise Delivery
Documents on or before the first Trading Day following the date on
which the Company has received all of the Exercise Delivery
Documents. In the event of any discrepancy or dispute, the records
of the Company shall be controlling and determinative in the
absence of manifest error. On or before the third Trading Day
following the date on which the Company has received the Exercise
Notice, and in the case of a Cash Exercise, the Aggregate Exercise
Price (the “ Share Delivery Date ”), the Company
shall, upon the request of the Holder, credit such aggregate number
of shares of Common Stock to which the Holder is entitled pursuant
to such exercise to the Holder’s or its designee’s
balance account with The Depository Trust Company (“
DTC ”) through its Deposit Withdrawal Agent Commission
system, or if the Transfer Agent is not participating in the Fast
Automated Securities Transfer Program (the “ FAST
Program ”) or if the certificates are required to bear a
legend regarding restriction on transferability, 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
and surrender of this Warrant, 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
five Trading Days after any exercise and at its own expense, issue
a new Warrant (in accordance with Section 7(e)) 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. The Company shall pay any and all taxes that may be
payable with respect to the issuance and delivery of Warrant Shares
upon exercise of this Warrant; 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 registration of
any certificates for Warrant Shares or Warrants in a name other
than that of the Holder or an affiliate thereof. The Holder shall
be responsible for all other tax liability that may arise as a
result of holding or transferring this Warrant or receiving Warrant
Shares upon exercise hereof. In addition to any other rights
available to the Holder, if the Company fails to cause the Transfer
Agent to transmit to the Holder a certificate or the certificates
representing the Warrant Shares or to credit the Holder’s
balance account with DTC for such number of Warrant Shares to which
the Holder is entitled upon the Holder’s exercise pursuant to
an exercise on or before the Share Delivery Date, and if after such
date the Holder purchases (in an open market transaction or
otherwise) or the Holder’s brokerage firm otherwise
purchases, shares of Common Stock to deliver in satisfaction of a
sale by the Holder of the Warrant Shares which the Holder
anticipated receiving upon such exercise (a “ Buy-In
”), then the Company shall within three (3) Trading 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
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(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 or
credit such Holder’s balance account with DTC) shall
terminate, or (ii) promptly honor its obligation to deliver to
the Holder a certificate or certificates representing such Warrant
Shares or credit such Holder’s balance account with DTC 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 VWAP on the date of
exercise.
(b) Exercise Price . For
purposes of this Warrant, “ Exercise Price ”
means $2.90 per share of Common Stock, subject to adjustment as
provided herein.
(c) Cashless Exercise .
Notwithstanding anything contained herein to the contrary, if a
registration statement registering the issuance of the Warrant
Shares under the Securities Act is not effective or available for
the issuance of the Warrant Shares, 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 Aggregate 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
”):
Net Number = (A x B) - (A x
C)
B
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 of the
shares of Common Stock (as reported by Bloomberg) on the date
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 herein to
the contrary, on the Termination Date, this Warrant shall be
automatically exercised via cashless exercise pursuant to this
Section 1(c).
(d) Limitations on Exercises
. (1) 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 Holder (together with such Holder’s affiliates and any
other Persons acting as a group together) would beneficially own in
excess of 4.99% (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
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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 (the “ Exchange Act ”), it being
acknowledged that the Company is not representing to the Holder
that such calculation is in compliance with Section 13(d) of
the Exchange Act, and the Holder is solely responsible for any
schedules required to be filed in accordance therewith. 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 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, where such request indicates
that it is being made pursuant to this Warrant, the Company shall
within one Trading Day 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 the Warrants, 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 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 61 st day after such notice is delivered to the
Company and (ii) any such increase or decrease will apply only
to the Holder and not to any other holder of Warrants.
(e) No Fractional Shares or
Scrip . No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant. As to any
fraction of a share that the Holder would otherwise be entitled to
purchase upon such exercise, the Company shall pay a cash
adjustment in respect of such final fraction in an amount equal to
such fraction multiplied by the Exercise Price.
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) Adjustment upon Subdivision
or Combination of Shares of Common Stock . If the Company at
any time on or after the Subscription Date subdivides (by any stock
split, stock dividend, recapitalization 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
combination, reverse stock split 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(a) shall become effective at the close of
business on the date the subdivision or combination becomes
effective.
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(b) Other Events . If any
event occurs of the type contemplated by the provisions of
Section 2(a) 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
to the holders of the Company’s equity securities), 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(b) will increase
the Exercise Price or decrease the number of Warrant Shares as
otherwise determined pursuant to this Section 2.
(c) Notwithstanding anything to the
contrary in this Warrant, in no event shall the Exercise Price be
reduced below the par value of the Company’s Common
Stock.
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 Weighted Average 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
Weighted Average 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 of a company whose common shares are traded on a national
securities exchange or a national automated quotation system
(“ Other Shares of Common Stock ”), then the
Holder may elect to receive a warrant to purchase Other Shares of
Common Stock in lieu of an increase in the number of Warrant
Shares, the terms of which shall be identical to those of this
Warrant, except that such warrant shall be exercisable into the
number of shares of Other Shares of Common Stock that would have
been payable to the Holder pursuant to the Distribution had the
Holder exercised this Warrant immediately prior to such record date
and with an aggregate exercise price equal to the product of the
amount by which the exercise price of this Warrant was decreased
with respect to the Distribution pursuant to the terms of the
immediately preceding paragraph (a) and the number of Warrant
Shares calculated in accordance with the first part of this
paragraph (b).
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4. PURCHASE RIGHTS; FUNDAMENTAL
TRANSACTIONS .
(a) Purchase Rights . In
addition to any adjustments pursuant to Section 2 above, if at
any time prior to the Expiration Date the Company grants, issues or
sells any Options, Convertible Securities or rights to purchase
stock, warrants, securities or other property pro rata to the
record holders of any class of shares of Common Stock (the “
Purchase Rights ”), then the Holder will be entitled
to acquire, upon the terms applicable to such Purchase Rights, the
aggregate Purchase Rights which the Holder could have acquired if
the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any
limitations on the exercise of this Warrant) immediately before the
date on which a record is taken for the grant, issuance or sale of
such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be
determined for the grant, issue or sal
