Exhibit 4.1
GENVEC, INC.
Warrant To Purchase
Common Stock
Warrant
No.: 2008-
Number of Shares of Common Stock:
Date of Issuance:
___, 2008 (“ Issuance Date ”)
GenVec,
Inc., a Delaware Corporation, (the “ Company ”),
hereby certifies that, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
, the registered holder hereof or its permitted assigns (the
“ Holder ”), is entitled, subject to the terms
set forth below, to purchase from the Company, at the Exercise
Price (as defined below) then in effect, upon surrender of this
Warrant to Purchase Common Stock (including any Warrants to
Purchase Common Stock issued in exchange, transfer or replacement
hereof, the “ Warrant ”), at any time or times
on or after the
(the “ Exercisability Date ”) 1 , but not after
11:59 p.m., New York Time, on the Expiration Date (as defined
below) 0.20 fully paid and nonassessable shares of Common Stock (as
defined below) (the “ Warrant Shares ”). Except
as otherwise defined herein, capitalized terms in this Warrant
shall have the meanings set forth in Section 14. This Warrant
is one of a series of warrants to purchase shares of Common Stock
(the “ SPA Warrants ” issued pursuant to those
certain Purchase Agreements, dated as of
___, 2008 (the “ Subscription Date ”), by and
among the Company and the investors (the “ Investors
”) referred to therein (the “ Purchase
Agreements ”) pursuant to the Company’s
Registration Statement on Form S-3 (No. 333-140373) (the
“ Registration Statement ”).
1.
EXERCISE OF WARRANT .
(a)
Mechanics of Exercise . Subject to the terms and conditions
hereof (including, without limitation, the limitations set forth in
Section 1(d)), this Warrant may be exercised by the Holder on
any day on or after the Exercisability Date, in whole or in part
(but not as to fractional shares), by (i) delivery of a
written notice, in the form attached hereto as Exhibit A
(the “ Exercise Notice ”), of the Holder’s
election to exercise this Warrant and (ii) payment to the
Company of an amount equal to the applicable Exercise Price
multiplied by the number of Warrant Shares as to which this Warrant
is being exercised (the “ Aggregate Exercise Price
”) in cash or wire transfer of immediately available funds.
The Holder shall not be required to surrender this Warrant in order
to effect an exercise hereunder, provided that this Warrant is
surrendered to the Company by the second Business Day following the
date on which the Company has received each of the Exercise Notice
and the Aggregate Exercise Price (the “Exercise Delivery
Documents”). On or before the first Business Day following
the date on which the Company has received each of the Exercise
Notice and the Aggregate Exercise Price (the “ Exercise
Delivery Documents ”), the Company shall transmit by
facsimile an acknowledgment of confirmation of receipt of the
Exercise Delivery Documents to the Holder and the Company’s
transfer agent (the “ Transfer Agent ”). The
Company shall deliver any objection to the Exercise Delivery
Documents on or before the second Business Day following the date
on which the Company has received all of the Exercise
Delivery
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To be six months from the Issuance Date. |
Documents. In the event of any discrepancy or dispute, the records
of the Company shall be controlling and determinative in the
absence of manifest error. On or before the third Business Day
following the date on which the Company has received all of the
Exercise Delivery Documents and after the Company shall have
received this Warrant (the “ Share Delivery Date
”), the Company shall, (X) provided that the Transfer
Agent is participating in The Depository Trust Company (“
DTC ”) Fast Automated Securities Transfer Program (the
“ FAST Program ”) and so long as the
certificates therefor are not required to bear a legend regarding
restriction on transferability, upon the request of the Holder,
credit such aggregate number of shares of Common Stock to which the
Holder is entitled pursuant to such exercise to the Holder’s
or its designee’s balance account with DTC through its
Deposit Withdrawal Agent Commission system, or (Y), if the Transfer
Agent is not participating in the FAST Program or if the
certificates are required to bear a legend regarding restriction on
transferability, issue and dispatch by overnight courier to the
address as specified in the Exercise Notice, a certificate,
registered in the Company’s share register in the name of the
Holder or its designee, for the number of shares of Common Stock to
which the Holder is entitled pursuant to such exercise. Upon
delivery of the Exercise Delivery Documents and surrender of this
Warrant, the Holder shall be deemed for all corporate purposes to
have become the holder of record of the Warrant Shares with respect
to which this Warrant has been exercised, irrespective of the date
such Warrant Shares are credited to the Holder’s DTC account
or the date of delivery of the certificates evidencing such Warrant
Shares, as the case may be. If this Warrant is submitted in
connection with any exercise pursuant to this Section 1(a) and the
number of Warrant Shares represented by this Warrant submitted for
exercise is greater than the number of Warrant Shares being
acquired upon an exercise, then the Company shall as soon as
practicable and in no event later than five Business Days after any
exercise and at its own expense, issue a new Warrant (in accordance
with Section 7(d)) representing the right to purchase the
number of Warrant Shares purchasable immediately prior to such
exercise under this Warrant, less the number of Warrant Shares with
respect to which this Warrant is exercised. The Company shall pay
any and all taxes that may be payable with respect to the issuance
and delivery of Warrant Shares upon exercise of this Warrant.
(b)
Exercise Price . For purposes of this Warrant, “
Exercise Price ” means $2.016 per share of Common
Stock, subject to adjustment as provided herein.
(c)
Limitations on Exercises . (1) The Company shall not
effect the exercise of this Warrant, and the Holder shall not have
the right to exercise this Warrant, to the extent that after giving
effect to such exercise, such Person (together with such
Person’s affiliates) would beneficially own in excess of 9.99
% (the “ Maximum Percentage ”) of the shares of
Common Stock outstanding immediately after giving effect to such
exercise. For purposes of the foregoing sentence, the aggregate
number of shares of Common Stock beneficially owned by such Person
and its affiliates shall include the number of shares of Common
Stock issuable upon exercise of this Warrant with respect to which
the determination of such sentence is being made, but shall exclude
shares of Common Stock which would be issuable upon
(i) exercise of the remaining, unexercised portion of this
Warrant beneficially owned by such Person and its affiliates and
(ii) exercise or conversion of the unexercised or unconverted
portion of any other securities of the Company beneficially owned
by such Person and its affiliates (including, without limitation,
any convertible notes or convertible preferred stock or warrants)
subject to a limitation on conversion or exercise analogous to the
limitation contained herein. Except as set forth in the preceding
sentence, for purposes of this paragraph, beneficial ownership
shall be calculated in accordance with Section
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13(d) of
the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”). For purposes of this Warrant, in
determining the number of outstanding shares of Common Stock, the
Holder may rely on the number of outstanding shares of Common Stock
as reflected in (1) the Company’s most recent Form 10-K,
Form 10-Q, Current Report on Form 8-K or other public filing with
the Securities and Exchange Commission, as the case may be,
(2) a more recent public announcement by the Company or
(3) any other notice by the Company or the Transfer Agent
setting forth the number of shares of Common Stock outstanding. For
any reason at any time, upon the written or oral request of the
Holder, where such request indicates that it is being made pursuant
to this Warrant, the Company shall within two Business Days confirm
orally and in writing to the Holder the number of shares of Common
Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to
the conversion or exercise of securities of the Company, including
the SPA Warrants, by the Holder and its affiliates since the date
as of which such number of outstanding shares of Common Stock was
reported. By written notice to the Company, the Holder may increase
or decrease the Maximum Percentage to any other percentage not in
excess of 9.99% specified in such notice; provided , that
(i) any such increase will not be effective until the 61
st day
after such notice is delivered to the Company and (ii) any
such increase or decrease will apply only to the Holder and not to
any other holder of SPA Warrants.
(2)
No Exercise That Triggers Pill . This Warrant may not be
exercised to acquire Warrant Shares to the extent that when added
to those already beneficially owned by the Holder for purposes of
the Rights Agreement dated as of September 7, 2001 between the
Company and American Stock Transfer & Trust Company (the
“ Rights Agreement ”), such Warrant Shares would
cause such Holder to become an Acquiring Person as that term is
used in the Rights Agreement with respect to that Holder.
2.
ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES .
The Exercise Price and the number of Warrant Shares shall be
adjusted from time to time as follows:
(a)
Adjustment upon Subdivision or Combination of shares of Common
Stock . If the Company at any time on or after the Subscription
Date subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its
outstanding shares of Common Stock into a greater number of shares,
the Exercise Price in effect immediately prior to such subdivision
will be proportionately reduced and the number of Warrant Shares
will be proportionately increased. If the Company at any time on or
after the Subscription Date combines (by combination, reverse stock
split or otherwise) one or more classes of its outstanding shares
of Common Stock into a smaller number of shares, the Exercise Price
in effect immediately prior to such combination will be
proportionately increased and the number of Warrant Shares will be
proportionately decreased. Any adjustment under this Section 2(a)
shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(b)
Other Events . If any event occurs of the type contemplated
by the provisions of Section 2(a) but not expressly provided for by
such provisions (including, without limitation, the granting of
stock appreciation rights, phantom stock rights or other rights
with equity features to the holders of the Company’s equity
securities), then the Company’s Board of Directors will make
an appropriate adjustment in the Exercise Price and the number of
Warrant Shares so as to protect the rights of the Holder;
provided , that no such adjustment pursuant to this
Section 2(b)
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will
increase the Exercise Price or decrease the number of Warrant
Shares as otherwise determined pursuant to this
Section 2.
3.
RIGHTS UPON DISTRIBUTION OF ASSETS . If the Company shall
declare or make any dividend or other distribution of its assets
(or rights to acquire its assets) to holders of shares of Common
Stock, by way of return of capital or otherwise (including, without
limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off,
reclassification, corporate rearrangement, scheme of arrangement or
other similar transaction) (a “ Distribution ”),
at any time after the issuance of this Warrant, then, in each such
case:
(a) any
Exercise Price in effect immediately prior to the close of business
on the record date fixed for the determination of holders of shares
of Common Stock entitled to receive the Distribution shall be
reduced, effective as of the close of business on such record date,
to a price determined by multiplying such Exercise Price by a
fraction of which (i) the numerator shall be the Weighted
Average Price of the shares of Common Stock on the Trading Day
immediately preceding such record date minus the value of the
Distribution (as determined in good faith by the Company’s
Board of Directors) applicable to one share of Common Stock, and
(ii) the denominator shall be the Weighted Average Price of
the shares of Common Stock on the Trading Day immediately preceding
such record date; and
(b) the
number of Warrant Shares shall be increased to a number of shares
equal to the number of shares of Common Stock obtainable
immediately prior to the close of business on the record date fixed
for the determination of holders of shares of Common Stock entitled
to receive the Distribution multiplied by the reciprocal of the
fraction set forth in the immediately preceding paragraph (a);
provided , that in the event that the Distribution is of
shares of Common Stock or common stock of a company whose common
shares are traded on a national securities exchange or a national
automated quotation system (“ Other Shares of Common
Stock ”), then the Holder may elect to receive a warrant
to purchase Other Shares of Common Stock in lieu of an increase in
the number of Warrant Shares, the terms of which shall be identical
to those of this Warrant, except that such warrant shall be
exercisable into the number of shares of Other Shares of Common
Stock that would have been payable to the Holder pursuant to the
Distribution had the Holder exercised this Warrant immediately
prior to such record date and with an aggregate exercise price
equal to the product of the amount by which the exercise price of
this Warrant was decreased with respect to the Distribution
pursuant to the terms of the immediately preceding paragraph
(a) and the number of Warrant Shares calculated in accordance
with the first part of this paragraph (b).
4.
PURCHASE RIGHTS; FUNDAMENTAL TRANSACTIONS .
(a)
Purchase Rights . In addition to any adjustments pursuant to
Section 2 above, if at any time prior to the Expiration Date
the Company grants, issues or sells any Options, Convertible
Securities or rights to purchase stock, warrants, securities or
other property pro rata to the record holders of any class of
shares of Common Stock (the “ Purchase Rights
”), then the Holder will be entitled to acquire, upon the
terms applicable to such Purchase Rights, the aggregate Purchase
Rights which the Holder could have acquired if the Holder had held
the number of shares of Common Stock acquirable upon complete
exercise of this Warrant (without regard to any
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limitations on the exercise of this Warrant) immediately before the
date on which a record is taken for the grant, issuance or sale of
such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be
determined for the grant, issue or sale of such Purchase
Rights.
(b)
Fundamental Transactions . Upon the occurrence of any
Fundamental Transaction, the Successor Entity shall succeed to, and
be substituted for (so that from and after the date of such
Fundamental Transaction, the provisions of this Warrant referring
to the “Company” shall refer instead to the Successor
Entity), and may exerc
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