EXHIBIT 4.4
THE SECURITIES REPRESENTED HEREBY AND ISSUABLE UPON EXERCISE THEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
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 EXEMPTION 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 UNITS CONSISTING OF ONE SHARE OF COMMON
STOCK AND ONE COMMON STOCK PURCHASE WARRANT
VOID AFTER JANUARY __, 2007
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 is hereby acknowledged, Moors & Cabot, Inc. (the "Warrant
Holder") is entitled, effective as of January __, 2002, subject to the terms and
conditions of this Warrant, to purchase from Celsion Corporation, a Delaware
corporation (the "Company"), up to a total of ______________________________
(__________ ) units of the Company (the "Units") at a purchase price (the
"Exercise Price") of Sixty-Two and One Half Cents ($0.625) per Unit, at any time
prior to 5:00 p.m. prevailing Eastern time on January __, 2007 (the "Expiration
Date"). Each Unit will consist of one (1) share of the Company's common stock,
par value One Cent ($0.01) per share ("Share") and the right (the "Underlying
Warrant") to acquire one (1) Share ("Warrant Share") at a price of Sixty Cents
($0.60) per share (the "Underlying Warrant Exercise Price") prior to the
Expiration Date. . The Underlying Warrant must also 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 Units issuable upon exercise of this Warrant and the
Underlying Warrant (or any shares of stock or other securities or property at
the time receivable or issuable upon exercise of this Warrant and the Underlying
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
Units issuable upon exercise of this Warrant, as well as the Underlying Warrant
Exercise Price and the number of Shares issuable upon exercise of the Underlying
Warrant shall each 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 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 and the Underlying
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 and the Underlying 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 and the Underlying 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 and the Underlying 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"); and (b)
payment in full of the Exercise Price for the number of Units 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) and (b) of the foregoing sentence and, in addition, must submit
(c) documentation acceptable to the Company that such person has the right to
exercise this Warrant and (d) if applicable, a spousal consent in the form
attached hereto as Exhibit B. Upon a partial exercise, this Warrant shall be
surrendered, and a new warrant of the same tenor for purchase of the number of
remaining Units 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) Units unless it is exercised as to
all Units 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 Units being purchased,
in cash (by certified or cashier's check or wire transfer or other immediately
available funds.
2.4 Tax Withholding. Prior to the issuance of the Units 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, any other documentation required hereby and payment as required
hereby have been received by the Company as provided above, the Company shall
issue the Shares (adjusted as provided herein) pursuant to the Units purchased,
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 and the Underlying Warrant as the
Warrant Holder reasonably may request with the appropriate legends affixed
thereto.
3. Registration Rights. The Shares and the Warrant 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 share subject to a 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 the Warrant Holder
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 One Dollar and Fifty Cents
($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 order or is
otherwise not in effect or if the 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 and Warrant Shares is effective and
not subject to any stop order and (ii) the Company has delivered to the Warrant
Holder a prospectus covering the Shares and the Warrant 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
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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 Units, Shares, the Underlying Warrants
and the Warrant 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 its 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 or Warrant Shares
until such time, if any, as the Warrant Holder exercises this Warrant or the
Underlying Warrant and pays the Exercise Price or the Underlying Warrant
Exercise Price in accordance with the terms hereof or of the Underlying Warrant,
as the case may be.
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.
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
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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.
[Execution Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its __________ as of January __, 2002.
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
MOORS & CABOT, INC.
Signed:
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Printed:
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Title:
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Address:
505 Sansome Street
San Francisco, CA 94111
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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 Units (as
defined in 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 Unit:
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Number of Units Subject to Exercise and Purchase:
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Total Exercise Price:
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Exact Name of Title to Units and Shares:
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The Warrant Holder hereby delivers to the Company the Total Exercise
Price in cash, in the aggregate amount of $_______, receipt of which is
acknowledged by the Company.
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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 UNITS (INCLUDING THE SHARES, THE UNDERLYING
WARRANT OR THE WARRANT SHARES (EACH, AS DEFINED IN THE WARRANT)). 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 UNITS (INCLUDING THE SHARES, THE UNDERLYING WARRANT OR THE
WARRANT SHARES (EACH, AS DEFINED IN THE WARRANT)) AND THAT THE WARRANT HOLDER IS
NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
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Name of Warrant Holder
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Signature of Warrant Holder
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Printed Name
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Title
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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