EXHIBIT 4.2
THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
“ACT”), OR UNDER THE PROVISIONS OF ANY APPLICABLE STATE
SECURITIES LAWS. THIS SECURITY MAY NOT BE SOLD, PLEDGED,
TRANSFERRED OR ASSIGNED EXCEPT IN A TRANSACTION WHICH IS EXEMPT
UNDER PROVISIONS OF THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN THE
CASE OF AN EXEMPTION, ONLY IF THE ISSUER HAS RECEIVED AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH TRANSACTION DOES NOT
REQUIRE REGISTRATION OF THIS SECURITY UNDER THE ACT OR APPLICABLE
STATE SECURITIES LAWS.
GTC BIOTHERAPEUTICS,
INC.
Warrant for the Purchase of
Shares of Common Stock
Warrant Certificate Issue Date:
May 6, 2008
No.
FOR VALUE RECEIVED, GTC
BIOTHERAPEUTICS, INC., a
Massachusetts corporation (the “Company”), hereby
certifies that
(the “Holder”) is entitled, subject to the provisions
of this Warrant Certificate (as hereinafter defined), to purchase
from the Company, in the aggregate, at the times specified herein,
a number of the fully paid and non-assessable shares of the
Company’s Common Stock (as hereinafter defined) equal to the
Warrant Shares (as hereinafter defined), at a purchase price per
share equal to the Exercise Price (as hereinafter defined). The
number of Warrant Shares and the Exercise Price are each subject to
adjustment from time to time as hereinafter set forth.
(a) DEFINITIONS. The
following terms, as used herein, have the following
meanings:
“Acquisition”
means (x) a merger or
consolidation in which the Company’s stockholders immediately
prior to the transaction do not own, directly or indirectly, more
than fifty percent (50%) of the common stock of the surviving
corporation and in which all stockholders are provided the right to
sell their shares, or (y) the sale or transfer of all or
substantially all of the assets of the Company in one or a series
of related transactions.
“Business
Day” means any day
except a Saturday, Sunday or other day on which commercial banks in
the City of New York are required or authorized by law to
close.
“Common
Stock” means the
Company’s Common Stock, $0.01 par value per share.
“Exercise
Price” means $0.61
per Warrant Share, subject to adjustment from time to time as
provided herein.
“Expiration
Date” means
May 6, 2013.
“Marketable
Securities” means
stock or other securities that may be listed or quoted for trading
on the date in question on the Nasdaq Capital Market, the Nasdaq
Global Market, the Nasdaq Global Select Market, or the New York
Stock Exchange.
“Person”
means an individual, partnership,
corporation, trust, joint stock company, association, joint
venture, or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
“ Warrant Certificate
” means this warrant issued by the Company to the
Holder.
“Warrant
Shares” means
150,000 shares of Common Stock, subject to adjustment from time to
time as provided herein.
(b) EXERCISE OF WARRANT
CERTIFICATE.
(1) The Holder is entitled to
exercise this Warrant Certificate in whole or in part at any time,
or from time to time after 10 days’ prior written notice to
the Company at the Notice address set forth in Section
(j) below on or prior to 5:00 p.m. (Eastern Standard Time) on
the Expiration Date or, if the Expiration Date is not a Business
Day, then on the next succeeding day that shall be a Business Day,
by presentation and surrender hereof to the Company with the duly
executed Notice of Exercise (the “Exercise Notice
Form”) in substantially the same form as annexed as Annex
A hereto and accompanied by proper payment of the Exercise
Price for the number of Warrant Shares specified in such form (the
“Specified Warrant Shares”), all subject to the terms
and conditions hereof.
(2) At the option of the Holder, the
Exercise Price may be paid in lawful money of the United States in
cash or by certified or official bank check or bank cashier’s
check payable to the order of the Company, or by any combination of
such cash or check. Upon receipt by the Company of this Warrant
Certificate and the Exercise Notice Form, together with the
applicable Exercise Price, at the Company’s office designated
for such purpose (which office initially shall be that set forth in
Section (j) herein), in proper form for exercise (the date of
such event being the “Exercise Date”), the Holder shall
be deemed to be the holder of record of the Warrant Shares
deliverable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that
certificates representing such Warrant Shares shall not then be
actually delivered to the Holder. The Company shall pay any and all
documentary, stamp
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or similar issue or transfer taxes of the United
States or any state thereof payable in respect of the issue or
delivery of the Warrant Shares. The Company shall not be required,
however, to pay any tax or other charge imposed in connection with
any transfer involved in the issue of any certificate for Warrant
Shares, and in such case the Company shall not be required to issue
or deliver any stock certificate until such tax or other charge has
been paid or it has been established to the Company’s
satisfaction that no tax or other charge is due.
If the Holder exercises this Warrant
Certificate in part, this Warrant Certificate shall be surrendered
by the Holder to the Company and a new Warrant Certificate of the
same tenor and for the number of Warrant Shares that have not been
exercised shall be executed by the Company. The Company shall
register the new Warrant Certificate in the name of the Holder and
deliver the new Warrant Certificate to the Holder, which new
Warrant Certificate shall, in all other respects, be identical to
this Warrant Certificate.
Upon surrender of this Warrant
Certificate in conformity with the foregoing provisions, the
Company shall transfer to the Holder of this Warrant Certificate
appropriate evidence of ownership of any shares of Common Stock or
other securities or property (including any money) to which the
Holder is entitled, registered or otherwise placed in, or payable
to the order of, such name or names as may be directed in writing
by the Holder, and shall deliver such evidence of ownership and any
other securities or property (including any money) to the person or
persons entitled to receive the same, together with an amount in
cash in lieu of any fraction of a share as provided in paragraph
(e) below.
(c) RESTRICTIVE LEGEND .
Certificates representing any shares of Common Stock issued
pursuant to the Warrant Certificate shall bear a restrictive
legend, in form reasonably satisfactory to the Company, to the
extent that and for so long as, in the opinion of counsel to the
Company, such legend shall be required or advisable.
(d) RESERVATION OF SHARES .
The Company hereby agrees that at all times there shall be reserved
for issuance and delivery upon exercise of the Warrants such number
of its authorized but unissued shares of Common Stock or other
securities of the Company from time to time issuable upon exercise
of this Warrant Certificate as will be sufficient to permit the
exercise in full of this Warrant Certificate. All such shares shall
be duly authorized and, when issued upon such exercise, shall be
validly issued, fully paid and nonassessable, free and clear of all
liens, security interests, charges and other encumbrances imposed
by the Company or restrictions on sale and free and clear of all
preemptive rights.
(e) FRACTIONAL SHARES . No
fractional shares or scrip representing fractional shares shall be
issued upon the exercise of any Warrant Certificate. With respect
to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such
fraction multiplied by the Exercise Price in effect at the date of
such exercise.
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(f) TRANSFER, SALE OR LOSS OF
WARRANT CERTIFICATE . This Warrant Certificate and the Warrant
Shares issued pursuant to this Warrant Certificate shall not be
sold or transferred unless either (i) they first shall have
been registered under the Securities Act of 1933, as amended (the
“Act”), and under applicable state securities or blue
sky laws, or (ii) the Company first
