Exhibit 4.1
COMMON STOCK PURCHASE
WARRANT
To Purchase [ —
] Shares of Common Stock
of
CELL THERAPEUTICS,
INC.
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Initial
Issuance Date: August 19, 2009
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Warrant No. WC-
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THIS COMMON STOCK PURCHASE WARRANT
(this “ Warrant ”) certifies that, for value
received, [ —
] (the “ Holder
”) is entitled, upon the terms and subject to the limitations
on exercise and the conditions hereinafter set forth, at any time
on or after the Initial Issuance Date (the “ Initial
Exercise Date ”) and on or before the nine month
anniversary of the Initial Issuance Date (the “
Termination Date ”) but not thereafter, to subscribe
for and purchase from Cell Therapeutics, Inc., a Washington
corporation (the “ Company ”), up to [
—
] shares (the “
Warrant Shares ”) of common stock, no par value per
share (the “ Common Stock ”), of the Company.
The purchase price of one share of Common Stock under this Warrant
shall be equal to the Exercise Price (as defined in
Section 2(b) of this Warrant).
Section 1
. Definitions . Capitalized
terms used and not otherwise defined herein shall have the meanings
set forth in that certain Securities Purchase Agreement, dated
August 19, 2009 (the “ Purchase Agreement
”), between the Company and the Holder.
Section 2
. Exercise .
(a) Exercise of Warrant .
Exercise of the purchase rights represented by this Warrant may be
made, in whole or in part, at any time or times on or after the
Initial Exercise Date and on or before the Termination Date by
(1) delivery to the Company of a duly executed facsimile copy
of a Notice of Exercise the form of which is attached to this
Warrant (the “ Notice of Exercise ”) (or such
other office or agency of the Company as it may designate by notice
in writing to the registered Holder at the address of the Holder
appearing on the books of the Company); provided ,
however , within five (5) Trading Days of the date said
Notice of Exercise is delivered to the Company, if this Warrant is
exercised in full, the Holder shall have surrendered this Warrant
to the Company and (2) the Company shall have received payment
of the aggregate Exercise Price (as defined in
Section 2(b) of this Warrant) of the shares thereby
purchased by wire transfer or cashier’s check drawn on a
United States bank. Notwithstanding anything herein to the
contrary, the Holder shall not be required to physically surrender
this Warrant to the Company until the Holder has purchased all of
the Warrant Shares available hereunder and this Warrant has been
exercised in full. Partial exercises of this Warrant resulting in
purchases of a portion of the total number of Warrant Shares
available hereunder shall have the effect of lowering the
outstanding number of Warrant Shares purchasable hereunder in an
amount equal to the applicable number of Warrant Shares purchased.
The Holder and the Company shall maintain records showing the
number of Warrant Shares purchased and the date of such purchases.
The Company shall deliver any objection to any Notice of Exercise
within one (1) Business Day of receipt of such notice. In the
event of any dispute or discrepancy, the records of the Holder
shall be controlling and determinative in the absence of manifest
error. The Holder and any assignee, by
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acceptance of this Warrant,
acknowledge and agree that, by reason of the provisions of this
paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for
purchase hereunder at any given time may be less than the amount
stated on the face of this Warrant .
(b) Exercise Price . The
exercise price per share of the Common Stock under this Warrant
shall be $1.70 , subject to adjustment hereunder (the
“ Exercise Price ”).
(c) Cashless Exercise . If at
the time of exercise of this Warrant there is no effective
registration statement registering (or the prospectus contained
therein is not available for) the issuance of the Warrant Shares to
the Holder and also at such time of exercise all of the Warrant
Shares are not then registered for resale by the Holder into the
market at market prices from time to time on an effective
registration statement for use on a continuous basis (or the
prospectus contained therein is not available for use), then this
Warrant may also be exercised at such time by means of a
“cashless exercise” in which 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:
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(A) =
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the VWAP on the
Trading Day immediately preceding the date of such
election;
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(B) =
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the Exercise
Price of this Warrant, as adjusted; and
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(X) =
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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.
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“ VWAP ” means,
for any date, the price determined by the first of the following
clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average
price of the Common Stock for such date (or the nearest preceding
date) on the Trading Market on which the Common Stock is then
listed or quoted for trading as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m.
(New York City time)); (b) if the Common Stock is then listed
or quoted on the OTC Bulletin Board and the OTC Bulletin Board is
not a Trading Market, the volume weighted average price of the
Common Stock for such date (or the nearest preceding date) on the
OTC Bulletin Board; (c) if the Common Stock is not then quoted
for trading on the OTC Bulletin Board and if prices for the Common
Stock are then reported in the “Pink Sheets” published
by Pink OTC Markets, Inc. (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent
bid price per share of the Common Stock so reported; or (d) in
all other cases, the fair market value of a share of Common Stock
as determined by an independent appraiser selected in good faith by
the Holder and reasonably acceptable to the Company, the fees and
expenses of which shall be paid by the Company.
(d) Holder’s
Restrictions . Notwithstanding anything to the contrary
contained in this Warrant, this Warrant shall not be exercisable by
the Holder to the extent (but only to the extent) that the Holder
or any of its affiliates would beneficially own 10% or
more
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(the “ Maximum
Percentage ”) of the Common Stock. To the extent the
above limitation applies, the determination of whether this Warrant
shall be exercisable (vis-à-vis other convertible,
exercisable or exchangeable securities owned by the Holder) and of
which warrants shall be exercisable (as among all warrants owned by
the Holder) shall, subject to such Maximum Percentage limitation,
be determined on the basis of the first submission to the Company
for conversion, exercise or exchange (as the case may be). No prior
inability to exercise this Warrant pursuant to this paragraph shall
have any effect on the applicability of the provisions of this
paragraph with respect to any subsequent determination of
exercisability. For the purposes of this paragraph, beneficial
ownership and all determinations and calculations (including,
without limitation, with respect to calculations of percentage
ownership) shall be determined in accordance with
Section 13(d) of the Securities and Exchange Act of 1934, as
amended (the “ Exchange Act ”), and the rules
and regulations promulgated thereunder. The provisions of this
paragraph shall be implemented in a manner otherwise than in strict
conformity with the terms of this paragraph to correct this
paragraph (or any portion of this Warrant) which may be defective
or inconsistent with the intended Maximum Percentage beneficial
ownership limitation herein contained or to make changes or
supplements necessary or desirable to properly give effect to such
Maximum Percentage limitation. The limitations contained in this
paragraph shall apply to a successor Holder of this Warrant. The
holders of Common Stock shall be third party beneficiaries of this
paragraph and the Company may not waive this paragraph without the
consent of holders of a majority of its Common Stock. For any
reason at any time, upon the written or oral request of the Holder,
the Company shall within one (1) Business Day confirm orally
and in writing to the Holder the number of shares of Common Stock
then outstanding, including by virtue of any prior conversion or
exercise of convertible or exercisable securities into Common
Stock, including, without limitation, pursuant to this Warrant or
securities issued pursuant to the Purchase Agreement.
(e) Mechanics of Exercise
.
(i) Authorization of Warrant
Shares . The Company covenants that all Warrant Shares which
may be issued upon the exercise of the purchase rights represented
by this Warrant will, upon exercise of the purchase rights
represented by this Warrant and payment of the Exercise Price
therefor, be duly authorized, validly issued, fully paid and
nonassessable and free from all taxes, liens and charges in respect
of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue).
(ii) Delivery of Certificates
Upon Exercise . Certificates representing Warrant Shares shall
be transmitted by the transfer agent of the Company to the Holder
by crediting the account of the Holder’s prime broker with
the Depository Trust Company through its Deposit Withdrawal Agent
Commission (“ DWAC ”) system if the Company is a
participant in such system and either (A) there is an
effective registration statement permitting the issuance of the
Warrant Shares to or resale of the Warrant Shares by the Holder or
(B) this Warrant is being exercised, after the first
anniversary of the issuance of this Warrant, via cashless exercise,
and otherwise by physical delivery to the address specified by the
Holder in the
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Notice of Exercise within three
(3) Business Days from the delivery to the Company of the
Notice of Exercise, surrender of this Warrant (if required) and
payment of the aggregate Exercise Price as set forth above
(including, by cashless exercise, if permitted) (“ Warrant
Share Delivery Date ”). If all or any portion of a
Warrant is exercised at a time when there is an effective
registration statement to cover the issuance or resale of the
Warrant Shares or if the legend is not required under applicable
securities laws, such Warrant Shares shall be issued free of all
legends on or before the Warrant Share Delivery Date. This Warrant
shall be deemed to have been exercised on the first date on which
the Notice of Exercise has been delivered to the Company, the
Company has received the Exercise Price (or documentation of
cashless exercise, if permitted) and all taxes required to be paid
by the Holder, if any, pursuant to Section 2(e)(vii) of
this Warrant before the issuance of such shares have been paid. The
Warrant Shares shall be deemed to have been issued, and Holder or
any other person so designated to be named therein shall be deemed
to have become a holder of record of such shares for all purposes,
on the first date on which the Notice of Exercise has been
delivered to the Company, the Company has received the Exercise
Price (or documentation of cashless exercise, if permitted) and all
taxes required to be paid by the Holder, if any, pursuant to
Section 2(e)(vii) of this Warrant before the issuance
of such shares have been paid.
(iii) Delivery of New Warrants
Upon Exercise . If this Warrant shall have been exercised in
part, the Company shall, at the request of a Holder and upon
surrender of this Warrant certificate, at the time of delivery of
the certificate or certificates representing Warrant Shares,
deliver to Holder a new Warrant evidencing the rights of Holder to
purchase the unpurchased Warrant Shares called for by this Warrant,
which new Warrant shall in all other respects be identical with
this Warrant.
(iv) Rescission Rights . If
the Company fails to cause its transfer agent to transmit to the
Holder a certificate or certificates representing the Warrant
Shares pursuant to Section 2 of this Warrant by the
Warrant Share Delivery Date, then the Holder will have the right to
rescind such exercise.
(v) Compensation for Buy-In on
Failure to Timely Deliver Certificates Upon Exercise . In
addition to any other rights available to the Holder, if the
Company fails to cause its transfer agent to transmit to the Holder
a certificate or certificates representing the Warrant Shares
pursuant to an exercise on or before the Warrant Share Delivery
Date pursuant to this Section 2(e) , and if after such
date the Holder is required by its broker to purchase (in an open
market transaction or otherwise) 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 (1) pay in cash
to the Holder the amount by which (x) the Holder’s total
purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount
obtained by multiplying (A) the number of Warrant Shares that
the Company was required to deliver to the Holder in connection
with the exercise at
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issue times (B) the price at
which the sell order giving rise to such purchase obligation was
executed, and (2) at the option of the Holder, either
reinstate the portion of this Warrant and equivalent number of
Warrant Shares for which such exercise was not honored or deliver
to the Holder the number of shares of Common Stock that would have
been issued had the Company timely complied with its exercise and
delivery obligations hereunder. For example, if the Holder
purchases Common Stock having a total purchase price of $11,000 to
cover a Buy-In with respect to an attempted exercise of shares of
Common Stock with an aggregate sale price giving rise to such
purchase obligation of $10,000, under clause (1) of the
immediately preceding sentence the Company shall be required to pay
the Holder $1,000. The Holder shall provide the Company written
notice indicating the amounts payable to the Holder in respect of
the Buy-In, together with applicable confirmations and other
evidence reasonably requested by the Company. Nothing herein shall
limit a Holder’s right to pursue any other remedies available
to it hereunder, at law or in equity including, without limitation,
a decree of specific performance and/or injunctive relief with
respect to the Company’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of
this Warrant as required pursuant to the terms of this
Warrant.
(vi) 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 which 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.
(vii) Charges, Taxes and
Expenses . Issuance of certificates for Warrant Shares shall be
made without charge to the Holder for any issue or transfer tax or
other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the
Company, and such certificates shall be issued in the name of the
Holder or in such name or names as may be directed by the Holder;
provided , however , that in the event certificates
for Warrant Shares are to be issued in a name other than the name
of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by
the Holder; and the Company may require, as a condition thereto,
the payment of a sum sufficient to reimburse it for any transfer
tax incidental thereto.
(viii) Closing of Books . The
Company will not close its shareholder books or records in any
manner which prevents the timely exercise of this Warrant, pursuant
to the terms of this Warrant.
Section 3
. Certain Adjustments
.
(a) Stock Dividends and
Splits . If the Company, at any time while this Warrant is
outstanding: (A) pays a stock dividend or otherwise makes a
distribution or distributions on shares of its Common Stock or any
other equity or equity equivalent
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securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any
shares of Common Stock issued by the Company pursuant to this
Warrant), (B) subdivides outstanding shares of Common Stock
into a larger number of shares, (C) combines (including by way
of reverse stock-split) outstanding shares of Common Stock into a
smaller number of shares, or (D) issues by reclassification of
shares of the Common Stock any shares of capital stock of the
C