Exhibit 4.1
FORM OF COMMON STOCK PURCHASE
WARRANT
To Purchase
Shares of Common Stock of
CELL THERAPEUTICS,
INC.
Initial Issuance Date:
May 11, 2009
THIS COMMON STOCK PURCHASE WARRANT
(the “ 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 close of business on the fifth anniversary of the
Initial Exercise 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).
Section 1
. Definitions . Capitalized
terms used and not otherwise defined herein shall have the meanings
set forth in that certain Securities Purchase Agreement, dated
May 11, 2009 (the “ Purchase Agreement ”),
among the Company and the Holder and others.
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 the Notice of Exercise Form annexed hereto (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 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 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 the 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 Form within 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
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the absence of manifest error.
The Holder and any assignee, by 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 hereof .
b) Exercise Price . The
exercise price per share of the Common Stock under this Warrant
shall be $1.40, subject to adjustment hereunder (the “
Exercise Price ”).
c) Cashless Exercise . If at
the time of exercise hereof 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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=
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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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=
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the Exercise
Price of this Warrant, as adjusted; and
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(X)
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=
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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.
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d) Holder’s
Restrictions . Notwithstanding anything to the contrary
contained in this Warrant, this Warrant shall not be exercisable by
the Holder hereof to the extent (but only to the extent) that the
Holder or any of its affiliates would beneficially own in excess of
9.99% (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 Exchange Act (as defined in the Purchase
Agreement) 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 hereof) 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
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exercise, and otherwise by physical
delivery to the address specified by the Holder in the Notice of
Exercise within 3 Business Days from the delivery to the Company of
the Notice of Exercise Form, 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 Form 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) 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 Form 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) 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 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
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Shares that the Company was required
to deliver to the Holder in connection with the exercise at 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 the 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
the Warrant as required pursuant to the terms hereof.
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 hereof.
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