EXHIBIT 10.23
THE SECURITIES REPRESENTED HEREBY AND ISSUABLE UPON EXERCISE THEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION THEREUNDER OR EXEMPTIONS FROM SUCH REGISTRATION
REQUIREMENTS. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER
OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS
IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
CELSION CORPORATION
WARRANT TO PURCHASE SHARES OF COMMON STOCK
VOID AFTER _________ _____, 200_
1. Warrant to Purchase Common Stock.
1.1 Warrant to Purchase Shares. This warrant (this
"Warrant") certifies that for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, __________________ (the "Warrant
Holder") is entitled, effective as of __________, 200_, subject to the terms and
conditions of this Warrant to purchase from Celsion Corporation, a Delaware
corporation (the "Company") up to a total of___________ shares of Common Stock,
par value $0.01 per share, of the Company (the "Shares") at the price of $0.60
per share (the "Exercise Price") prior to 5:00 p.m. prevailing Eastern time on
_________ _____, 200_ (the "Expiration Date"). The Warrant must be exercised, in
whole or in part, any time on or before the Expiration Date, subject to earlier
call by the Company as provided herein. Unless the context otherwise requires,
the term "Shares" shall mean and include the Common Stock of the Company and
other securities and property at any time receivable or issuable upon exercise
of this Warrant. The term "Warrant" as used herein, shall include this Warrant
and any warrants delivered in substitution or exchange therefor as provided
herein.
1.2 Adjustment of Exercise Price and Number of Shares. The
number and character of Shares issuable upon exercise of this Warrant (or any
shares of stock or other securities or property at the time receivable or
issuable upon exercise of this Warrant) and the Exercise Price therefor, are
subject to adjustment upon occurrence of the following events:
(a) Adjustment for Stock Splits, Stock Dividends,
Recapitalizations, etc. The Exercise Price of this Warrant and the number of
Shares issuable upon exercise of this Warrant each shall be proportionally
adjusted to reflect any stock dividend, stock split, reverse stock split,
combination of shares, reclassification, recapitalization or other similar event
altering the number of outstanding shares of the Company's Common Stock.
(b) Adjustment for Other Dividends and
Distributions. In case the Company shall make or issue, or shall fix a record
date for the determination of eligible holders entitled to receive, a dividend
or other distribution with respect to the Shares payable in securities of the
Company then, and in each such case, the Warrant Holder, on exercise of this
Warrant at any time after the consummation, effective date or record date of
such event, shall receive, in addition to the Shares (or such other stock or
securities) issuable on such exercise prior to such date, the securities of the
Company to which such Warrant Holder would have been entitled upon such date if
such Warrant Holder had exercised this Warrant immediately prior thereto (all
subject to further adjustment as provided in this Warrant).
(c) Adjustment for Capital Reorganization,
Consolidation, Merger. If any capital reorganization of the capital stock of the
Company, or any consolidation or merger of the Company with or into another
corporation, or the sale of all or substantially all of the Company's assets to
another corporation shall be effected in such a way that holders of the
Company's Common Stock will be entitled to receive stock, securities or assets
with respect to or in exchange for the Company's Common Stock, then in each such
case the Warrant Holder, upon the exercise of this Warrant at any time after the
consummation of such capital reorganization, consolidation, merger, or sale,
shall be entitled to receive, in lieu of the stock or other securities and
property receivable upon the exercise of this Warrant prior to such
consummation, the stock or other securities or property to which such Warrant
Holder would have been entitled upon such consummation if such Warrant Holder
had exercised this Warrant immediately prior to the consummation of such capital
reorganization, consolidation, merger, or sale, all subject to further
adjustment as provided in this Section 1.2; and in each such case, the terms of
this Warrant shall be applicable to the shares of stock or other securities or
property receivable upon the exercise of this Warrant after such consummation.
2. Manner of Exercise.
2.1 Warrant Exercise Agreement. This Warrant may be
exercised, in whole or in part, on any business day on or prior to the
Expiration Date, subject to earlier call by the Company as provided herein. To
exercise this Warrant, the Warrant Holder must surrender to the Company this
Warrant and deliver to the Company: (a) a duly executed exercise agreement in
the form attached hereto as Exhibit A, or in such other form as may be approved
by the Company from time to time (the "Warrant Exercise Agreement"); (b) if
applicable, a spousal consent in the form attached hereto as Exhibit B; and (c)
payment in full of the Exercise Price for the number of Shares to be purchased
upon exercise hereof. If someone other than the Warrant Holder exercises this
Warrant, then such person must submit to the Company each of the items set forth
in clauses (a) through (c) of the foregoing sentence and, in addition, must
submit documentation acceptable to the Company that such person has the right to
exercise this Warrant. Upon a partial exercise, this Warrant shall be
surrendered, and a new Warrant of the same tenor for purchase of the number of
remaining Shares not previously purchased shall be issued by the Company to the
Warrant Holder. This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender of, if such date is
not a business day, then as of the close of business on the next succeeding
business day, for exercise as provided above, and the person entitled to receive
the Shares issuable upon such exercise shall be treated for all purposes as the
holder of record of such Shares as of the close of business on such deemed
exercise date.
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2.2 Limitations on Exercise. This Warrant may not be
exercised as to fewer than One Hundred (100) Shares unless it is exercised as to
all Shares as to which this Warrant is then exercisable.
2.3 Payment. The Warrant Exercise Agreement shall be
accompanied by full payment of the Exercise Price for the Shares being purchased
in cash (by certified or cashier's check or wire transfer or other immediately
available funds) or, where permitted by law and provided that a public market
for the Company's stock exists, (a) through a "same day sale" commitment from
the Warrant Holder and a broker-dealer that is a member of the National
Association of Securities Dealers (an "NASD Dealer"), whereby the Warrant Holder
irrevocably elects to exercise this Warrant and to sell a portion of the Shares
so purchased to pay for the Exercise Price and whereby the NASD Dealer
irrevocably commits, upon receipt of such Shares, to forward the Exercise Price
directly to the Company or (b) through a "margin" commitment from the Warrant
Holder and an NASD Dealer, whereby the Warrant Holder irrevocably elects to
exercise this Warrant and to pledge the Shares so purchased to the NASD Dealer
in a margin account as security for a loan from the NASD Dealer in the amount of
the Exercise Price and whereby the NASD Dealer irrevocably commits upon receipt
of such Shares to forward the Exercise Price directly to the Company.
2.4 Tax Withholding. Prior to the issuance of the Shares
upon exercise of this Warrant, the Warrant Holder must pay or provide for any
applicable federal or state withholding obligations of the Company.
2.5 Issuance of Shares. Provided that the Warrant Exercise
Agreement and payment have been received by the Company as provided above, the
Company shall issue the Shares (adjusted as provided herein) registered in the
name of the Warrant Holder, the Warrant Holder's authorized assignee, or the
Warrant Holder's legal representative, and shall deliver one or more
certificates representing the Shares as the Warrant Holder reasonably may
request with the appropriate legends affixed thereto.
3. Registration Rights. The Shares will have the registration
rights as provided for in Section 4 of the Subscription Agreement entered into
between the Company and the Warrant Holder in connection with the issuance and
purchase of this Warrant (the "Subscription Agreement").
4. Redemption. The Company, at its sole discretion, may, at any
time and from time to time after January 31, 2002, redeem and cancel all or any
part of the outstanding Warrants upon the payment of consideration consisting of
one cent ($0.01) for each Warrant redeemed and cancelled; provided, however,
that any such redemptions and cancellations may be made by the Company only upon
thirty (30) calendar days' prior written notice (the "Redemption Date" being the
close of business on the thirtieth (30th) day following the date the notice is
deemed to be given to Warrant Holders pursuant to Section 9 hereof) and only if
the closing sales price for a share of the Company's Common Stock as reported on
the American Stock Exchange or similar national market has been equal to or
greater than $1.50 for any period of at least ten (10) consecutive trading days
commencing on or after February 1, 2002; and provided further that the holder of
any Warrant subject to such redemption and cancellation may exercise such
Warrant at any time prior to the expiration of the thirty (30)-day notice
period; and provided further that the Company's right to redeem and cancel the
Warrant shall be suspended in the event the shelf registration statement
required under Section 4 of the Subscription Agreement is subject to a stop
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order or is otherwise not in effect or if a Warrant Holder is advised under
Section 4(c) of the Subscription Agreement that the prospectus thereto contains
a material misstatement or omission during any portion of the thirty (30)-day
notice period, with such suspension to terminate and the Company's right to
redeem and cancel to be reinstated on the date following the date on which (i) a
registration statement covering the Shares is effective and not subject to any
stop orders and (ii) the Company has delivered to the Warrant Holder a
prospectus covering the Shares of such Warrant Holder under Section 4(c) of the
Subscription Agreement. The notice period shall then be extended for a period
equal to the number of days during the notice period during which registration
was not effective or the prospectus was not available or contained a material
misstatement or omission. If less than all of the outstanding Warrants are
redeemed and cancelled, Warrants shall be redeemed and cancelled on a pro rata
basis.
5. Compliance with Laws and Regulations. The exercise of this
Warrant and the issuance and transfer of Shares shall be subject to compliance
by the Company and the Warrant Holder with all applicable requirements of
federal and state securities laws and with all applicable requirements of any
stock exchange and/or over-the-counter market on which the Company's Common
Stock may be listed at the time of such issuance or transfer.
6. Transfer and Exchange. This Warrant and the rights hereunder may
not be transferred in whole or in part without the Company's prior written
consent, which consent shall not be unreasonably withheld, and may not be
transferred unless such transfer complies with all applicable securities laws.
If a transfer of all or part of this Warrant is permitted as provided in the
preceding sentence, then this Warrant and all rights hereunder may be
transferred, in whole or in part, on the books of the Company or its agent
maintained for such purpose at the principal office of the Company or its agent,
by the Warrant Holder hereof in person or by duly authorized attorney, upon
surrender of this Warrant properly endorsed and upon payment of any necessary
transfer tax or other governmental charge imposed upon such transfer. Upon any
permitted partial transfer, the Company will issue and deliver to the Warrant
Holder a new Warrant or Warrants of like tenor with respect to the portion of
the Warrant not so transferred. Each taker and holder of this Warrant or any
portion hereof, by taking or holding the same, consents and agrees to be bound
by the terms, conditions, representations and warranties hereof, including the
registration provisions contained in Section 4 of the Subscription Agreement,
(and as a condition to any transfer of this Warrant the transferee shall execute
an agreement confirming the same), and, when this Warrant shall have been so
endorsed, the person in possession of this Warrant may be treated by the
Company, and all other persons dealing with this Warrant, as the absolute owner
hereof for any purpose and as the person entitled to exercise the rights
represented hereby, any notice to the contrary notwithstanding; provided,
however that until a transfer of this Warrant is duly registered on the books of
the Company or its agent, the Company may treat the Warrant Holder hereof as the
owner of this Warrant for all purposes.
7. Privileges of Stock Ownership. The Warrant Holder shall not have
any of the rights of a shareholder with respect to any Shares until such time,
if any, as the Warrant Holder exercises this Warrant and pays the Exercise Price
in accordance with the terms hereof.
8. Entire Agreement. The Warrant Exercise Agreement is incorporated
herein by reference. This Warrant, the Warrant Exercise Agreement, and the
Subscription Agreement for the purposes and to the extent set forth herein,
constitute the entire agreement of the parties and supersede all prior
undertakings and agreements with respect to the subject matter hereof.
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9. Notices. Any notice required to be given or delivered to the
Company under the terms of this Warrant shall be in writing and addressed to the
Secretary of the Company at its principal corporate offices. Any notice required
to be given or delivered to the Warrant Holder shall be in writing and addressed
to the Warrant Holder at the address indicated below or at such other address as
such party may designate in writing from time to time to the Company. All
notices shall be deemed to have been given or delivered: upon personal delivery;
five (5) calendar days after deposit in the United States mail by certified or
registered mail (return receipt requested) with postage thereon prepaid; one (1)
business day after deposit for next business day delivery with any return
receipt express courier (prepaid); or one (1) business day after transmission by
fax or telecopier with confirmation of transmission thereof.
10. Successors and Assigns. This Warrant shall be binding upon and
inure to the benefit of the successors and assigns of the Company. Subject to
the restrictions on transfer set forth herein, this Warrant shall be binding
upon the Warrant Holder and the Warrant Holder's heirs, executors,
administrators, legal representatives, successors and assigns.
11. Governing Law. This Warrant shall be governed by and construed
in accordance with the laws of the State of Maryland as such laws are applied to
agreements between Maryland residents entered into and to be performed entirely
within Maryland.
12. Acceptance. The Warrant Holder has read and understands the
terms and provisions of this Warrant, and accepts this Warrant subject to all
the terms and conditions hereof. The Warrant Holder acknowledges that there may
be adverse tax consequences upon exercise of this Warrant or disposition of the
Shares and that the Warrant Holder should consult a tax adviser prior to such
exercise or disposition.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its __________ ____, 200.
CELSION CORPORATION
Signed:
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Printed:
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Title:
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Address:
10220-I Old Columbia Road
Columbia, Maryland 21046-1785
[SIGNATURE PAGE TO WARRANT]
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EXHIBIT A
CELSION CORPORATION
WARRANT EXERCISE AGREEMENT
CELSION CORPORATION
10220-I Old Columbia Road
Columbia, Maryland 21046-1785
Attention: Chief Financial Officer
The Warrant Holder hereby elects to purchase the number of shares (the
"Shares") of the Common Stock, par value $0.01 per share, of Celsion Corporation
(the "Company") as set forth below, pursuant to that certain Warrant dated as of
the date set forth below (the "Warrant"), the terms and conditions of which are
hereby incorporated by reference (please print):
Warrant Holder:
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Social Security or Tax I.D. No.:
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Address:
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Warrant Date:
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Date of Exercise:
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Exercise Price Per Share:
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Number of Shares Subject to Exercise and Purchase:
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Total Exercise Price:
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Exact Name of Title to Shares:
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The Warrant Holder hereby delivers to the Company the Total Exercise
Price as follows (check and complete as appropriate):
1. in cash in the amount of $_______, receipt of which is
acknowledged by the Company;
2. through a "same-day-sale" commitment from the Warrant Holder and
the broker named below in the amount of $_________ and
substantially in the form attached hereto as Attachment 1; or
3. through a "margin" commitment from the Warrant Holder and the
broker named below in the amount of $_________ and substantially
in the form attached hereto as Attachment 2.
Broker Name:__________________ Brokerage Firm:_________________
Tax Consequences. THE COMPANY IS UNDER NO OBLIGATION TO REPORT THE
EXERCISE OF THIS WARRANT TO THE INTERNAL REVENUE SERVICE OR ANY TAXING AUTHORITY
OF ANY STATE, LOCAL OR OTHER JURISDICTION. THE WARRANT HOLDER UNDERSTANDS THAT
HE, SHE
OR IT MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF THE WARRANT HOLDER'S
PURCHASE OR DISPOSITION OF THE SHARES. THE WARRANT HOLDER REPRESENTS THAT HE,
SHE OR IT HAS CONSULTED WITH ANY TAX CONSULTANT(S) THE WARRANT HOLDER DEEMS
ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE SHARES AND THAT
THE WARRANT HOLDER IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
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Name of Warrant Holder
---------------------------------
Signature of Warrant Holder
---------------------------------
Printed Name
---------------------------------
Title
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EXHIBIT B
SPOUSAL CONSENT
The undersigned spouse of the Warrant Holder has read, understands, and
hereby approves the Warrant Exercise Agreement between the Warrant Holder and
the Company (the "Agreement"). In consideration of the Company's granting the
Warrant Holder the right to purchase the Shares as set forth in the Agreement,
the undersigned hereby agrees to be bound irrevocably by the Agreement and
further agrees that any community property interest shall similarly be bound by
the Agreement. The undersigned hereby appoints the Warrant Holder as his or her
attorney-in-fact with respect to any amendment or exercise of any rights under
the Agreement.
Date:
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Warrant Holder's Spouse
Address:
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ATTACHMENT 1
SAME DAY SALE COMMITMENT
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Celsion Corporation
10220-I Old Columbia Road
Columbia, Maryland 21046-1785
Attention: Chief Financial Officer
The undersigned Warrant Holder ("Warrant Holder") desires to exercise
that certain warrant described in the attached Warrant Exercise Agreement (the
"Warrant") with respect to _________ shares of Celsion Corporation (the
"Company") Common Stock (the "Number of Shares"), and to sell immediately
_________ of the Number of Shares (the "Same-Day Sale Shares") through the
undersigned broker (the "Broker") and for the Broker to pay directly to the
Company from the proceeds from such sale $__________ (the "Exercise Price").
Accordingly, the Warrant Holder hereby represents as follows: (i) the
Warrant Holder hereby irrevocably exercises the Warrant with respect to the
Number of Shares and (ii) the Warrant Holder hereby irrevocably elects to sell
through the Broker the Same-Day-Sale Shares and unconditionally authorizes the
Company or its transfer agent to deliver certificates representing the
Same-Day-Sale Shares to the Broker.
The Broker hereby represents as follows: (i) the Broker is a member in
good standing of the National Association of Securities Dealers, Inc. and (ii)
the Broker irrevocably commits to pay to the Company, no more than one (1)
business day after receiving certificates representing the Same-Day-Sale Shares,
the Exercise Price by check or wire transfer to an account specified by the
Company.
WARRANT HOLDER: BROKER:
- ------------------------------- -------------------------------
(Name) (Name of Firm)
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(Signature) (Signature)
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(Printed) (Printed Name)
- ------------------------------- -------------------------------
(Title) (Title)
ATTACHMENT 2
MARGIN COMMITMENT
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CELSION CORPORATION
10220-I Old Columbia Road
Columbia, Maryland 21046-1785
Attention: Chief Financial Officer
The undersigned Warrant Holder ("Warrant Holder") desires to exercise
that certain warrant described in the attached Warrant Exercise Agreement (the
"Warrant") with respect to _________ shares of Celsion Corporation (the
"Company") Common Stock (the "Number of Shares"), and to pledge immediately
________ of the Number of Shares (the "Margin Shares") through the undersigned
broker (the "Broker") as security for a loan from the Broker and for the Broker
to pay directly to the Company $________ (the "Exercise Price").
Accordingly, the Warrant Holder hereby represents as follows: (i) the
Warrant Holder hereby irrevocably exercises the Warrant with respect to the
Number of Shares and (ii) the Warrant Holder hereby irrevocably elects to pledge
to the Broker the Margin Shares and unconditionally authorizes the Company or
its transfer agent to deliver certificates representing the Margin Shares to the
Broker.
The Broker hereby represents as follows: (i) the Broker is a member in
good standing of the National Association of Securities Dealers, Inc. and (ii)
the Broker irrevocably commits to pay to the Company, no more than one (1)
business day after receiving certificates representing the Margin Shares, the
Exercise Price by check or wire transfer to an account specified by the Company.
WARRANT HOLDER: BROKER:
- ------------------------------- -------------------------------
(Name) (Name of Firm)
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(Signature) (Signature)
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(Printed) (Printed Name)
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(Title) (Title)