Exhibit 4.1
THIS WARRANT AND THE SHARES
ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY TO SUCH EFFECT, THE SUBSTANCE
OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
PLURISTEM THERAPEUTICS INC.
COMMON STOCK PURCHASE WARRANT
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Warrant No.:
________________
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Original Issue
Date: January 29, 2009
Original Exercisability Date: July 29, 2009
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Initial Holder:
________________
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No. of Shares
Subject to Warrant: ________________
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Exercise Price
Per Share: $1.90
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Expiration
Time: 10 a.m., New York time, on July 29, 2014 (subject to
acceleration as provided herein)
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Pluristem
Therapeutics Inc., a Nevada corporation (the
“Company”), hereby certifies that, for value received,
the Initial Holder shown above, or its permitted registered assigns
(the “Holder”), is entitled to purchase from the
Company up to the number of shares of its common stock shown above
(the “Common Stock”) (each such share, a “Warrant
Share” and all such shares, the “Warrant Shares”)
at the exercise price shown above (as may be adjusted from time to
time as provided herein, the “Exercise Price”), at any
time and from time to time on or after the Original Exercisability
Date shown above and through and including the Expiration Time
shown above (the “Expiration Time”), and subject to the
following terms and conditions:
This
Warrant is being issued pursuant to a Subscription Agreement, dated
January 29, 2009 (the “Subscription Agreement”), by and
between the Company and the Initial Holder.
1.
Definitions . In
addition to the terms defined elsewhere in this Warrant,
capitalized terms that are not otherwise defined herein have the
meanings given to such terms in the Subscription
Agreement.
2.
List of Warrant
Holders . The Company shall register this Warrant, upon
records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder
(which shall include the Initial Holder or, as the case may be, any
registered assignee to which this Warrant is permissibly assigned
hereunder from time to time). The Company may deem and treat
the registered Holder of this Warrant as the absolute owner hereof
for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the
contrary.
3.
List of Transfers;
Restrictions on Transfer . The Company shall register any
transfer of all or any portion of this Warrant in the Warrant
Register, upon surrender of this Warrant, with the Form of
Assignment attached hereto duly completed and signed, to the
Company at its address specified herein. Upon any such registration
or transfer, a new Warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new Warrant, a
“New Warrant”), evidencing the portion of this Warrant
so transferred shall be issued to the transferee and a New Warrant
evidencing the remaining portion of this Warrant not so
transferred, if any, shall be issued to the transferring Holder.
The acceptance of the New Warrant by the transferee thereof shall
be deemed the acceptance by such transferee of all of the rights
and obligations in respect of the New Warrant that the Holder has
in respect of this Warrant.
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4.
Exercise and Duration
of Warrant .
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(a)
All or any part of this
Warrant shall be exercisable by the registered Holder in any manner
permitted by Section 10 of this Warrant at any time and from
time to time on or after the Original Exercisability Date and
through and including the Expiration Time. At the Expiration Time,
the portion of this Warrant not exercised prior thereto shall be
and become void and of no value and this Warrant shall be
terminated and shall no longer be outstanding.
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(b)
The Holder may exercise
this Warrant by delivering to the Company (i) an exercise notice,
in the form attached hereto (the “Exercise Notice”),
completed and duly signed, and (ii) if such Holder is not utilizing
the cashless exercise provisions set forth in this Warrant, payment
of the Exercise Price for the number of Warrant Shares as to which
this Warrant is being exercised. The date such items are
delivered to the Company (as determined in accordance with the
notice provisions hereof) is an “Exercise Date .” The
Holder shall not be required to deliver the original Warrant in
order to effect an exercise hereunder, but if it is not so
delivered then such exercise shall constitute an agreement by the
Holder to deliver the original Warrant to the Company as soon as
practicable thereafter. Execution and delivery of the
Exercise Notice shall have the same effect as cancellation of the
original Warrant and issuance of a New Warrant evidencing the right
to purchase the remaining number of Warrant Shares.
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5.
Delivery of Warrant
Shares .
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(a)
Upon exercise of this
Warrant, the Company shall promptly (but in no event later than
three (3) Trading Days after the Exercise Date) issue or cause to
be issued and cause to be delivered to or upon the written order of
the Holder and in such name or names as the Holder may designate, a
certificate for the Warrant Shares issuable upon such exercise.
“Trading Day” shall mean a date on which the
Company’s Common Stock trades on its principal trading
market. The Holder, or any Person permissibly so designated by the
Holder to receive Warrant Shares, shall be deemed to have become
the holder of record of such Warrant Shares as of the Exercise
Date. The Company shall, upon the written request of the
Holder, use its best efforts to deliver, or cause to be delivered,
Warrant Shares hereunder electronically through the Depository
Trust and Clearing Corporation or another established clearing
corporation performing similar functions, if available;
provided, that, the Company may, but will not be required
to, change its transfer agent if its current transfer agent cannot
deliver Warrant Shares electronically through the Depository Trust
and Clearing Corporation. If as of the time of exercise the
Warrant Shares constitute restricted or control securities, the
Holder, by exercising, agrees not to resell them except in
compliance with all applicable securities laws.
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(b)
To the extent permitted
by law, the Company’s obligations to issue and deliver
Warrant Shares in accordance with the terms hereof are absolute and
unconditional, irrespective of any action or inaction by the Holder
to enforce the same, any waiver or consent with respect to any
provision hereof, the recovery of any judgment against any Person
or any action to enforce the same, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other Person of any obligation to the
Company or any violation or alleged violation of law by the Holder
or any other Person, and irrespective of any other circumstance
that might otherwise limit such obligation of the Company to the
Holder in connection with the issuance of Warrant Shares. Nothing
herein shall limit a Holder’s right to pursue any other
remedies available to it hereunder, at law or in equity including,
without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company’s failure to
timely deliver certificates representing shares of Common Stock
upon exercise of the Warrant as required pursuant to the terms
hereof.
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6.
Charges, Taxes and
Expenses . Issuance and delivery of certificates for shares of
Common Stock upon exercise of this Warrant shall be made without
charge to the Holder for any issue or transfer tax, withholding
tax, transfer agent fee or other incidental tax or expense in
respect of the issuance of such certificates, all of which taxes
and expenses shall be paid by the Company; provided,
however, that the Company shall not be required to pay any tax
that may be payable in respect of any transfer involved in the
registration of any certificates for Warrant Shares or the Warrants
in a name other than that of the Holder. The Holder shall be
responsible for all other tax liability that may arise as a result
of holding or transferring this Warrant or receiving Warrant Shares
upon exercise hereof.
7.
Replacement of
Warrant . If this Warrant is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in
exchange and substitution for and upon cancellation hereof, or in
lieu of and substitution for this Warrant, a New Warrant, but only
upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction and customary and reasonable
indemnity, if requested. Applicants for a New Warrant under such
circumstances shall also comply with such other reasonable
regulations and procedures and pay such other reasonable
third-party costs as the Company may prescribe. If a New Warrant is
requested as a result of a mutilation of this Warrant, then the
Holder shall deliver such mutilated Warrant to the Company as a
condition precedent to the Company’s obligation to issue the
New Warrant.
8.
Reservation of
Warrant Shares . The Company covenants that it will at all
times reserve and keep available out of the aggregate of its
authorized but unissued and otherwise unreserved Common Stock,
solely for the purpose of enabling it to issue Warrant Shares upon
exercise of this Warrant as herein provided, the number of Warrant
Shares that are then issuable and deliverable upon the exercise of
this entire Warrant, free from preemptive rights or any other
contingent purchase rights of persons other than the Holder (taking
into account the adjustments and restrictions of Section 9). The
Company covenants that all Warrant Shares so issuable and
deliverable shall, upon issuance and the payment of the applicable
Exercise Price in accordance with the terms hereof, be duly and
validly authorized, issued and fully paid and
nonassessable.
9.
Certain Adjustments;
Termination Under Certain Circumstances . The Exercise Price
and number of Warrant Shares issuable upon exercise of this Warrant
are subject to adjustment from time to time as set forth in this
Section 9.
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(a)
Stock Dividends and
Splits . If the Company, at any time while this Warrant is
outstanding, (i) pays a stock dividend on its Common Stock or
otherwise makes a distribution on any class of capital stock that
is payable in shares of Common Stock, (ii) subdivides outstanding
shares of Common Stock into a larger number of shares, or (iii)
combines outstanding shares of Common Stock into a smaller number
of shares, then in each such case the Exercise Price shall be
multiplied by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding immediately before such event
and of which the denominator shall be the number of shares of
Common Stock outstanding immediately after such event. Any
adjustment made pursuant to clause (i) of this paragraph shall
become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or
distribution, and any adjustment pursuant to clause (ii) or (iii)
of this paragraph shall become effective immediately after the
effective date of such subdivision or combination.
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(b)
Pro Rata
Distributions . If the Company, at any time while this
Warrant is outstanding, distributes to all holders of Common Stock
for no consideration (i) evidences of its indebtedness, (ii) any
security (other than a distribution of Common Stock covered by the
preceding paragraph), (iii) rights or warrants to subsc
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