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EXHIBIT
4.13
FORM
OF
AMENDED AND
RESTATED COMMON STOCK PURCHASE WARRANT A
Right to
Purchase _______
Shares of
Common Stock,
par value $0.001
per share
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 a per share exercise price equal to the
lesser of (i) average of the closing bid prices of the Common Stock
on the Principal Exchange (as defined in that certain Securities
Purchase Agreement dated as of December 13, 2006, by and among the
Company and the Buyers listed therein (the "Purchase Agreement"))
for the five (5) Trading Day (as defined in the Purchase Agreement)
period ending on December 15, 2009 and (ii) $7.50 (the "Exercise
Price"); provided, however, that the Exercise Price shall not be
less than $6.80, except as adjusted pursuant to Section 4
hereof.
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) .
(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 June 13,
2007 (“Exercise Period Start Date”) and before 5:00
p.m., New York City time on December 15, 2011 (the "Exercise
Period"); provided, however, that the Exercise Period may be
extended pursuant to Section 4.13 of the Purchase
Agreement.
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.
(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.
2
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.
(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 adjusted Exercise Price.
(c) Consolidation, Merger or Sale
. (i) In case of (1) any consolidation of the Company with,
or merger of the Company into any other corporation or entity, or
(2) any sale or conveyance of all or substantially all of the
assets of the Company other than in connection with a plan of
complete liquidation of the Company (each of clause (1) and (2)
shall be referred to as a “Fundamental Transaction”),
then, as a condition of such Fundamental Transaction, adequate
provision will be made whereby the Holder will thereafter (at any
time or from time to time during the remainder of the Exercise
Period) have the right to acquire and receive upon exercise of this
Warrant in lieu of the shares of Common Stock immediately
theretofor acquirable upon the exercise of this Warrant, such
shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for the number of shares of Common
Stock immediately theretofore acquirable and receivable upon
exercise of this Warrant had such Fundamental Transaction not taken
place.
(ii) In any such case, the Company will make appropriate
provision to insure that the provisions of this Paragraph 4(c)
hereof will thereafter be applicable as nearly as may be in
relation to any shares of stock or securities thereafter
deliverable upon the exercise of this Warrant. The Company will not
effect any Fundamental Transaction unless, prior to the
consummation thereof, (1) the successor or acquiring entity (if
other than the Company), (2) any other entity whose stock,
securities or asset
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