EXHIBIT 4.10
CERUS CORPORATION
and
, AS WARRANT AGENT
FORM OF PREFERRED
STOCK
WARRANT AGREEMENT
DATED AS OF
CERUS CORPORATION
FORM OF PREFERRED STOCK WARRANT
AGREEMENT
P REFERRED S TOCK 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 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 [title of Preferred Stock purchasable through exercise of
Warrants] (the “Warrant 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 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 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 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 number of Warrant Securities
specified in the applicable Warrant Certificate at an 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.”
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.,
[ ]
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.,
[ ]
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
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 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 3
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANT
CERTIFICATES
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.
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 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.
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.
3.4 Adjustments.
(a) In case the Company shall at any time subdivide
its outstanding shares of [title of Preferred Stock purchasable
through exercise of Warrants] 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 [title of Preferred
Stock purchasable through exercise of Warrants] 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 [title of Preferred Stock purchasable through exercise of
Warrants] (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) [title of Preferred Stock purchasable through
exercise of Warrants] or any shares of stock or other securities
which are at any time directly or indirectly convertible
into or exchangeable for [title of Preferred
Stock purchasable through exercise of Warrants], or any rights or
options to subscribe for, purchase or otherwise acquire any of the
foregoing by way of dividend or other distribution;
(ii) any cash paid or payable otherwise than in
accordance with the terms of [title of Preferred Stock purchasable
through exercise of Warrants] or 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) [title of Preferred Stock purchasable through
exercise of Warrants] 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 [title of Preferred Stock
purchasable through exercise of Warrants] 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
[title of Preferred Stock purchasable through exercise of Warrants]
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 [title of Preferred Stock
purchasable through the exercise of the Warrants] 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 [title of Preferred Stock purchasable through
the exercise of the Warrants] other than the issuance of additional
shares of [title of Preferred Stock purchasable through the
exercise of the Warrants]) 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 shares of [title of Preferred Stock
purchasable through the exercise of the Warrants] 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
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.
(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 any securities of the Company 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 or the Nasdaq Stock Market,
Inc. (“NASDAQ”), as applicable, 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 or NASDAQ, on the principal national securities
exchange on which the Warrant Securities are listed or admitted to
trading or, if not listed or admitted to trading on any national
securities exchange
