EXHIBIT 4.11
CERUS CORPORATION
and
, AS WARRANT AGENT
FORM OF DEBT
SECURITIES
WARRANT AGREEMENT
DATED AS OF
CERUS CORPORATION
FORM OF DEBT SECURITIES WARRANT
AGREEMENT
D EBT S ECURITIES W ARRANT A GREEMENT (this “Agreement”), dated as of
between C ERUS C ORPORATION , a
Delaware 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”).
W HEREAS , the
Company has entered into an indenture dated as of [
(the “Senior Indenture”), with
, as trustee (such trustee, and any successors to such trustee,
herein called the “Senior Trustee”), providing for the
issuance from time to time of its unsubordinated debt securities,
to be issued in one or more series as provided in the Senior
Indenture (the “Debt Securities”);] [
(the “Subordinated Indenture”), with
, as trustee (such trustee, and any successors to such trustee,
herein called the “Subordinated Trustee”), providing
for the issuance from time to time of its subordinated debt
securities, to be issued in one or more series as provided in the
Subordinated Indenture (the “Debt
Securities”);]
W HEREAS , the
Company proposes to sell title of 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 [title of Debt Securities purchasable through exercise of
Warrants] (the “Warrant Debt Securities”), such warrant
certificates and other warrant certificates issued pursuant to this
Agreement being herein called the “Warrant
Certificates”; and
W HEREAS , 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.
N OW ,
T HEREFORE
, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as
follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND
EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
1.1 Issuance of
Warrants. [If Warrants
alone—Upon issuance, each Warrant Certificate shall evidence
one or more Warrants.] [If Other Securities and
Warrants—Warrant Certificates 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
Debt 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].
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, senior 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 such 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].
1.3 Issuance of Warrant
Certificates. Warrant
Certificates evidencing the right to purchase Warrant Debt
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.
ARTICLE 2
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
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 purchase the principal amount of Warrant
Debt Securities specified in the applicable Warrant Certificate at
an exercise price of
% of the principal amount thereof [plus accrued amortization, if
any, of the original issue discount of the Warrant Debt Securities]
[plus accrued interest, if any, from the most recent date from
which interest shall have been paid on the Warrant Debt Securities
or, if no interest shall have been paid on the Warrant Debt
Securities, from the date of their initial issuance.] [The original
issue discount ($
for each $1,000 principal amount of Warrant Debt Securities)
will be amortized at a
% annual rate, computed on a[n] [semi-] annual basis [using a
360-day year consisting of twelve 30-day months].] Such purchase
price for the Warrant Debt Securities is referred to in this
Agreement as the “Warrant Price.”
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.
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
Debt 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 Debt 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 Debt 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 Debt 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 Debt
Securities on such date, but shall be effective to constitute such
person as the holder of record of such Warrant Debt Securities for
all purposes at the opening of business on the next succeeding day
on which the transfer books for the Warrant Debt Securities
purchasable upon the exercise of such Warrants shall be opened, and
the certificates for the Warrant Debt 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 Debt Securities.
The Warrant Agent shall deposit all funds received by it in payment
of the Warrant 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 Debt 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 Debt 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 Debt Securities after such exercise, and (iv) such
other information as the Company or the [Senior] [Subordinated]
Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any
Warrant, the Company shall issue, pursuant to the Indenture, in
authorized denominations, to or upon the order of the holder of the
Warrant Certificate evidencing such Warrant, the Warrant Debt
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 Debt 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 Debt Securities, and in the event that any such transfer is
involved, the Company shall not be required to issue or deliver any
Warrant Debt Securities 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 Debt Securities, a number of shares sufficient
to provide for the exercise of the Warrants.
ARTICLE 3
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANT
CERTIFICATES
3.1 No Rights As Holders of
Warrant Debt Securities 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 Debt
Securities, including, without limitation, the right to receive the
payment of principal of (or premium, if any) or interest, if any,
on the Warrant Debt Securities or to enforce any of the covenants
in the Indenture.
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 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
principal amount of Warrant Debt 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.
3.3 Holder Of Warrant Certificate
May Enforce Rights. Notwithstanding any of the provisions of this
Agreement, any holder of any Warrant Certificate, without the
consent of the Warrant Agent, the [Senior] [Subordinated] Trustee,
the holder of any Warrant Debt 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 Certificates and in this
Agreement.
3.4 Merger, Sale, Conveyance or
Lease. In case of
(a) any 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) or (b) 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’s successor shall be delivered to the holders of the
Warrants, so that such successor shall succeed to and be
substituted for the Company, and assume all the Company’s
obligations under, this Agreement and the Warrants. The Company
shall thereupon be relieved of any further obligation hereunder or
under the Warrants, and the Company as the predecessor corporation
may 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 Debt 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.
3.5 Notice To
Warrantholders. In case
the Company shall (a) effect any Reorganization Event or
(b) make any distribution on or in respect of the [title of
Warrant Debt Securities] in connection with the dissolution,
liquidation or winding up of the Company, then the Company shall
mail to each holder of Warrants at such holder’s address as
it shall appear on the books of the Warrant Agent, at least ten
days prior to the applicable date hereinafter specified, a notice
stating the date on which such Reorganization Event, dissolution,
liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of [title of Warrant
Debt Securities] of record shall be entitled to exchange their
shares of [title of Warrant Debt Securities] for securities or
other property deliverable upon such Reorganization Event,
dissolution, liquidation or winding up. No failure to mail such
notice nor any defect therein or in the mailing thereof shall
affect any such transaction.
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT
CERTIFICATES
4.1 Exchange and Transfer of
Warrant Certificates. [If
Other Securities with Warrants which are immediately
detachable—Upon] [If Other Securities with Warrants which are
not immediately detachable—Prior to the Detachable Date, a
Warrant Certificate may be exchanged or transferred only together
with the Other Security to which the Warrant Certificate was
initially attached, and
