Exhibit 4.11
CELL THERAPEUTICS,
INC.
and
[
], as Warrant Agent
FORM OF COMMON
STOCK
WARRANT AGREEMENT
Dated as of
[
]
TABLE OF CONTENTS
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Page
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ARTICLE I ISSUANCE
OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
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1
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Section 1.1
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Issuance of
Warrants
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1
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Section
1.2
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Execution and
Delivery of Warrant Certificates
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1
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Section
1.3
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Issuance of
Warrant Certificates
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2
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ARTICLE II WARRANT
PRICE, DURATION AND EXERCISE OF WARRANTS
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3
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Section
2.1
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Warrant
Price
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3
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Section
2.2
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Duration of
Warrants
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3
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Section
2.3
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Exercise of
Warrants
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3
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ARTICLE III OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
CERTIFICATES
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4
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Section
3.1
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No Rights as
Warrant Securityholder Conferred by Warrants or Warrant
Certificates
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4
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Section
3.2
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Lost, Stolen,
Mutilated or Destroyed Warrant Certificates
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4
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Section
3.3
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Holder of
Warrant Certificate May Enforce Rights
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5
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Section
3.4
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Adjustments
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5
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Section
3.5
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Notice to
Warrantholders
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8
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Section
3.6
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[If the
Warrants are subject to acceleration by the Company,
insert—Acceleration of Warrants by the Company
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8
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ARTICLE IV EXCHANGE
AND TRANSFER OF WARRANT CERTIFICATES
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9
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Section
4.1
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Exchange and
Transfer of Warrant Certificates
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9
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Section
4.2
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Treatment of
Holders of Warrant Certificates
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10
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Section
4.3
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Cancellation of
Warrant Certificates
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10
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ARTICLE
V CONCERNING THE
WARRANT AGENT
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10
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Section
5.1
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Warrant
Agent
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10
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Section
5.2
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Conditions of
Warrant Agent’s Obligations
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10
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Section
5.3
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Resignation and
Appointment of Successor
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12
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ARTICLE
VI MISCELLANEOUS
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13
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Section
6.1
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Amendment
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13
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Section
6.2
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Notices and
Demands to the Company and Warrant Agent
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13
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Section
6.3
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Addresses
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14
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-i-
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Section 6.4
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Governing
Law
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14
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Section 6.5
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Delivery of
Prospectus
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14
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Section 6.6
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Obtaining of
Governmental Approvals
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14
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Section 6.7
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Persons Having
Rights Under Warrant Agreement
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14
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Section 6.8
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Headings
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14
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Section 6.9
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Counterparts
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14
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Section 6.10
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Inspection of
Agreement
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15
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-ii-
CELL THERAPEUTICS,
INC.
Form of Common Stock Warrant
Agreement
COMMON STOCK WARRANT
AGREEMENT , dated as of
[ ]
between Cell Therapeutics, Inc., a Washington corporation (the
“ Company ”) and
[ ],
a [corporation] [national banking association] organized and
existing under the laws of
[ ]
and having a corporate trust office in
[ ],
as warrant agent (the “ Warrant Agent
”).
WHEREAS , the Company proposes to sell [if Warrants are
sold with other securities—[title of such other securities
being offered] (the “ Other Securities ”)
with] warrant certificates evidencing one or more warrants (the
“ Warrants ” or individually a “
Warrant ”) representing the right to purchase
Common Stock of the Company, no par value per share (the “
Warrant Securities ”), such warrant
certificates and other warrant certificates issued pursuant to this
Agreement being herein called the “ Warrant
Certificates ”; and
WHEREAS , the Company desires the Warrant Agent to act
on behalf of the Company, and the Warrant Agent is willing so to
act, in connection with the issuance, registration, transfer,
exchange, exercise and replacement of the Warrant Certificates, and
in this Agreement wishes to set forth, among other things, the form
and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, registered, transferred,
exchanged, exercised and replaced;
NOW THEREFORE
, in consideration of the premises
and of the mutual agreements herein contained, the parties hereto
agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND
EXECUTION AND
DELIVERY OF WARRANT
CERTIFICATES
Section 1.1 Issuance of
Warrants. [If Warrants
alone—Upon issuance, each Warrant Certificate shall evidence
one or more Warrants.] [If Other Securities and
Warrants—Warrants shall be [initially] issued in connection
with the issuance of the Other Securities [but shall be separately
transferable on and after
[ ]
(the “Detachable Date”)] [and shall not be separately
transferable] and each Warrant Certificate shall evidence one or
more Warrants.] Each Warrant evidenced thereby shall represent the
right, subject to the provisions contained herein and therein, to
purchase one Warrant Security. [If Other Securities and
Warrants—Warrant Certificates shall be initially issued in
units with the Other Securities and each Warrant Certificate
included in such a unit shall evidence
[ ]
Warrants for each [$
[ ]principal
amount] [ shares] of Other Securities included in such
unit.]
Section 1.2 Execution and
Delivery of Warrant Certificates. Each Warrant Certificate, whenever issued, shall
be in registered form substantially in the form set forth in
Exhibit A hereto, shall be dated the date of its countersignature
by the Warrant Agent and may have such letters, numbers, or other
marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the
officers of the Company
executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities
exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the
Company by any of its present or future chief executive officers,
presidents, executive vice presidents, vice presidents, chief
financial officers, chief legal officers, treasurers, assistant
treasurers, controllers, assistant controllers, secretaries or
assistant secretaries under its corporate seal reproduced thereon.
Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced on
the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be
valid for any purpose, and no Warrant evidenced thereby shall be
exercisable, until such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company
shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company
who shall have signed any of the Warrant Certificates either
manually or by facsimile signature shall cease to be such officer
before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding
that the person who signed Warrant Certificates ceased to be such
officer of the Company; and any Warrant Certificate may be signed
on behalf of the Company by such persons as, at the actual date of
the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of
this Agreement any such person was not such officer.
The term “holder” or
“holder of a Warrant Certificate” as used herein shall
mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant
Agent for that purpose [If Other Securities and Warrants are not
immediately detachable—or upon the registration of the Other
Securities prior to the Detachable Date. Prior to the Detachable
Date, the Company will, or will cause the registrar of the Other
Securities to, make available at all times to the Warrant Agent
such information as to holders of the Other Securities as may be
necessary to keep the Warrant Agent’s records up to
date].
Section 1.3 Issuance of
Warrant Certificates. Warrant Certificates evidencing the right to
purchase Warrant Securities may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant
Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the
Company, countersign such Warrant Certificates and shall deliver
such Warrant Certificates to or upon the order of the
Company.
-2-
ARTICLE II
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
Section 2.1 Warrant
Price. During the period
specified in Section 2.2, each Warrant shall, subject to the
terms of this Warrant Agreement and the applicable Warrant
Certificate, entitle the holder thereof to initially purchase the
number of Warrant Securities specified in the applicable Warrant
Certificate at an initial exercise price of $
[ ]
per Warrant Security, subject to adjustment upon the occurrence of
certain events, as hereinafter provided. Such purchase price per
Warrant Security is referred to in this Agreement as the “
Warrant Price .”
Section 2.2 Duration of
Warrants. Each Warrant
may be exercised in whole or in part at any time, as specified
herein, on or after [the date thereof]
[ ]
and at or before
[ ]
p.m., [City] time, on or such later date as the Company may
designate by notice to the Warrant Agent and the holders of Warrant
Certificates mailed to their addresses as set forth in the record
books of the Warrant Agent (the “ Expiration
Date ”). Each Warrant not exercised at or before
[ ]
p.m., [City] time, on the Expiration Date shall become void, and
all rights of the holder of the Warrant Certificate evidencing such
Warrant under this Agreement shall cease.
Section 2.3 Exercise of
Warrants.
(a) During the period specified in
Section 2.2, the Warrants may be exercised to purchase a whole
number of Warrant Securities in registered form by providing
certain information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in lawful money of the United
States of America, [in cash or by certified check or official bank
check in New York Clearing House funds] [by bank wire transfer in
immediately available funds] the Warrant Price for each Warrant
Security with respect to which a Warrant is being exercised to the
Warrant Agent at its corporate trust office, provided that such
exercise is subject to receipt within five business days of such
payment by the Warrant Agent of the Warrant Certificate with the
form of election to purchase Warrant Securities set forth on the
reverse side of the Warrant Certificate properly completed and duly
executed. The date on which payment in full of the Warrant Price is
received by the Warrant Agent shall, subject to receipt of the
Warrant Certificate as aforesaid, be deemed to be the date on which
the Warrant is exercised; provided, however, that if, at the date
of receipt of such Warrant Certificates and payment in full of the
Warrant Price, the transfer books for the Warrant Securities
purchasable upon the exercise of such Warrants shall be closed, no
such receipt of such Warrant Certificates and no such payment of
such Warrant Price shall be effective to constitute the person so
designated to be named as the holder of record of such Warrant
Securities on such date, but shall be effective to constitute such
person as the holder of record of such Warrant Securities for all
purposes at the opening of business on the next succeeding day on
which the transfer books for the Warrant Securities purchasable
upon the exercise of such Warrants shall be opened, and the
certificates for the Warrant Securities in respect of which such
Warrants are then exercised shall be issuable as of the date on
such next succeeding day on which the transfer books shall next be
opened, and until such date the Company shall be under no duty to
deliver any certificate for such Warrant Securities. The Warrant
Agent shall deposit all funds received by it in payment of the
Warrant
-3-
Price in an account of the Company maintained
with it and shall advise the Company by telephone at the end of
each day on which a payment for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such telephone advice to the Company
in writing.
(b) The Warrant Agent shall, from
time to time, as promptly as practicable, advise the Company of
(i) the number of Warrant Securities with respect to which
Warrants were exercised, (ii) the instructions of each holder
of the Warrant Certificates evidencing such Warrants with respect
to delivery of the Warrant Securities to which such holder is
entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants for
the remaining Warrant Securities after such exercise, and
(iv) such other information as the Company shall reasonably
require.
(c) As soon as practicable after the
exercise of any Warrant, the Company shall issue to or upon the
order of the holder of the Warrant Certificate evidencing such
Warrant the Warrant Securities to which such holder is entitled, in
fully registered form, registered in such name or names as may be
directed by such holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company
shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, a new Warrant Certificate
evidencing Warrants for the number of Warrant Securities remaining
unexercised.
(d) The Company shall not be
required to pay any stamp or other tax or other governmental charge
required to be paid in connection with any transfer involved in the
issue of the Warrant Securities, and in the event that any such
transfer is involved, the Company shall not be required to issue or
deliver any Warrant Security until such tax or other charge shall
have been paid or it has been established to the Company’s
satisfaction that no such tax or other charge is due.
(e) Prior to the issuance of any
Warrants there shall have been reserved, and the Company shall at
all times through the Expiration Date keep reserved, out of its
authorized but unissued Warrant Securities, a number of shares
sufficient to provide for the exercise of the Warrants.
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS
OF HOLDERS OF WARRANT
CERTIFICATES
Section 3.1 No Rights as
Warrant Securityholder Conferred by Warrants or Warrant
Certificates. No Warrant
Certificate or Warrant evidenced thereby shall entitle the holder
thereof to any of the rights of a holder of Warrant Securities,
including, without limitation, the right to receive the payment of
dividends or distributions, if any, on the Warrant Securities or to
exercise any voting rights, except to the extent expressly set
forth in this Agreement or the applicable Warrant
Certificate.
Section 3.2 Lost, Stolen,
Mutilated or Destroyed Warrant Certificates.
Upon receipt by the Warrant Agent of
evidence reasonably satisfactory to it and the Company
of
-4-
the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and/or
indemnity reasonably satisfactory to the Warrant Agent and the
Company and, in the case of mutilation, upon surrender of the
mutilated Warrant Certificate to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a
bona fide purchaser, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and
deliver, in exchange for or in lieu of the lost, stolen, destroyed
or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing Warrants for a like number of Warrant
Securities. Upon the issuance of any new Warrant Certificate under
this Section 3.2, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including
the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and
delivered pursuant to this Section 3.2 in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent an
additional contractual obligation of the Company, whether or not
the lost, stolen or destroyed Warrant Certificate shall be at any
time enforceable by anyone, and shall be entitled to the benefits
of this Agreement equally and proportionately with any and all
other Warrant Certificates duly executed and delivered hereunder.
The provisions of this Section 3.2 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of mutilated, lost, stolen or destroyed
Warrant Certificates.
Section 3.3 Holder of
Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this
Agreement, any holder of a Warrant Certificate, without the consent
of the Warrant Agent, the holder of any Warrant Securities or the
holder of any other Warrant Certificate, may, in such
holder’s own behalf and for such holder’s own benefit,
enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or otherwise in
respect of, such holder’s right to exercise the Warrants
evidenced by such holder’s Warrant Certificate in the manner
provided in such holder’s Warrant Certificate and in this
Agreement.
Section 3.4
Adjustments.
(a) In case the Company shall at any
time subdivide its outstanding shares of Common Stock into a
greater number of shares, the Warrant Price in effect immediately
prior to such subdivision shall be proportionately reduced and the
number of Warrant Securities purchasable under the Warrants shall
be proportionately increased. Conversely, in case the outstanding
shares of Common Stock of the Company shall be combined into a
smaller number of shares, the Warrant Price in effect immediately
prior to such combination shall be proportionately increased and
the number of Warrant Securities purchasable under the Warrants
shall be proportionately decreased.
(b) If at any time or from time to
time the holders of Common Stock (or any shares of stock or other
securities at the time receivable upon the exercise of the
Warrants) shall have received or become entitled to receive,
without payment therefore,
(i) Common Stock or any shares of
stock or other securities which are at any time directly or
indirectly convertible into or exchangeable for Common Stock, or
any rights or options to subscribe for, purchase or otherwise
acquire any of the foregoing by way of dividend or other
distribution;
-5-
(ii) any cash paid or payable
otherwise than as a cash dividend paid or payable out of the
Company’s current or retained earnings;
(iii) any evidence of the
Company’s indebtedness or rights to subscribe for or purchase
the Company’s indebtedness; or
(iv) Common Stock or additional
stock or other securities or property (including cash) by way of
spinoff, split-up, reclassification, combination of shares or
similar corporate rearrangement (other than shares of Common Stock
issued as a stock split or adjustments in respect of which shall be
covered by the terms of Section 3.4(a) above),
then and in each such case, the holder of each
Warrant shall, upon the exercise of the Warrant, be entitled to
receive, in addition to the number of Warrant Securities receivable
thereupon, and without payment of any additional consideration
therefore, the amount of stock and other securities and property
(including cash and indebtedness (or rights to subscribe for or
purchase indebtedness) which such holder would hold on the date of
such exercise had he been the holder of record of such Warrant
Securities as of the date on which holders of Common Stock received
or became entitled to receive such shares or all other additional
stock and other securities and property.
(c) In case of (i) any
reclassification, capital reorganization, or change in the Common
Stock of the Company (other than as a result of a subdivision,
combination, or stock dividend provided for in Section 3.4(a)
or Section 3.4(b) above), (ii) share exchange, merger or
similar transaction of the Company with or into another person or
entity (other than a share exchange, merger or similar transaction
in which the Company is the acquiring or surviving corporation and
which does not result in any change in the Common Stock other than
the issuance of additional shares of Common Stock) or
(iii) the sale, exchange, lease, transfer or other disposition
of all or substantially all of the properties and assets of the
Company as an entirety (in any such case, a “
Reorganization Event ”), then, as a condition
of such Reorganization Event, lawful provisions shall be made, and
duly executed documents evidencing the same from the Company or its
successor shall be delivered to the holders of the Warrants, so
that the holders of the Warrants shall have the right at any time
prior to the expiration of the Warrants to purchase, at a total
price equal to that payable upon the exercise of the Warrants, the
kind and amount of shares of stock and other securities and
property receivable in connection with such Reorganization Event by
a holder of the same number of Warrant Securities as were
purchasable by the holders of the Warrants immediately prior to
such Reorganization Event. In any such case appropriate provisions
shall be made with respect to the rights and interests of the
holders of the Warrants so that the provisions hereof shall
thereafter be applicable with respect to any shares of stock or
other securities and property deliverable upon exercise the
Warrants, and appropriate adjustments shall be made to the Warrant
Price payable hereunder provided the aggregate purchase price shall
remain the same. In the case of any transaction described in
clauses (ii) and (iii) above, the Company shall thereupon
be relieved of any further obligation hereunder or under the
Warrants, and the Company as the predecessor corporation
may
-6-
thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming
entity thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the
Warrants issuable hereunder which heretofore shall not have been
signed by the Company, and may execute and deliver securities in
its own name, in fulfillment of its obligations to deliver Warrant
Securities upon exercise of the Warrants. All the Warrants so
issued shall in all respects have the same legal rank and benefit
under this Agreement as the Warrants theretofore or thereafter
issued in accordance with the terms of this Agreement as though all
of such Warrants had been issued at the date of the execution
hereof. In any case of any such Reorganization Event, such changes
in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a
written opinion of legal counsel as conclusive evidence that any
such Reorganization Event complies with the provisions of this
Section 3.4.
(d) The Company may, at its option,
at any time until the Expiration Date, reduce the then current
Warrant Price to any amount deemed appropriate by the Board of
Directors of the Company for any period not exceeding twenty
consecutive days (as evidenced in a resolution adopted by such
Board of Directors), but only upon giving the notices required by
Section 3.5 at least ten days prior to taking such
action.
(e) Except as herein otherwise
expressly provided, no adjustment in the Warrant Price shall be
made by reason of the issuance of shares of Common Stock, or
securities convertible into or exchangeable for shares of Common
Stock, or securities carrying the right to purchase any of the
foregoing or for any other reason whatsoever.
(f) No fractional Warrant Securities
shall be issued upon the exercise of Warrants. If more than one
Warrant shall be exercised at one time by the same holder, the
number of full Warrant Securities which shall be issuable upon such
exercise shall be computed on the basis of the aggregate number of
Warrant Securities purchased pursuant to the Warrants so exercised.
Instead of any fractional Warrant Security which would otherwise be
issuable upon exercise of any Warrant, the Company shall pay a cash
adjustment in respect of such fraction in an amount equal to the
same fraction of the last sales price (or bid price if there were
no sales) per Warrant Security, in either case as reported on the
New York Stock Exchange Composite Tape on the business day which
next precedes the day of exercise or, if the Warrant Securities are
not then listed or admitted to trading on the New York Stock
Exchange, on the principal national securities exch