EXHIBIT 4.3
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CORPORATION
FORM OF WARRANT
THE SECURITIES REPRESENTED HEREBY AND ISSUABLE UPON EXERCISE HEREOF 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.
Serial Number:
CELSION CORPORATION
WARRANT TO PURCHASE SHARES OF COMMON STOCK
VOID AFTER ___________, 2008
1. Warrant to Purchase Common Stock.
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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 _________, 2003, 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 (the
"Shares") of Common Stock, par value $0.01 per share, of the Company (the
"Common Stock"), at the price of $1.20 per share (the "Exercise Price") prior to
5:00 p.m. prevailing Eastern time on __________, 2008 (the "Expiration Date"),
subject to earlier call by the Company as provided in Section 4 hereof (the
"Call"). The Warrant must be exercised, if at all, in whole or in part, any time
on or before the Expiration Date, subject to earlier Call by the Company. 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
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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 Common Stock 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.
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2.1 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. 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 (a "Spousal Consent"); 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 (to the extent applicable) 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 like 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
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immediately prior to the close of business on the date of its surrender or, 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.
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 Exercise Agreement shall be accompanied by
full payment of the Exercise Price for the Shares being purchased in cash (by
certified or cashiers 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 Exercise
Agreement, the spousal consent, if necessary, and payment have been received by
the Company as provided in Section 2.3 hereof, 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 of the Shares. The Shares are subject to
registration under the Securities Act of 1933, as amended pursuant to Section 4
of the Subscription Agreement entered into between the Company and the Warrant
Holder in connection with the sale 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 the date hereof, Call, redeem and cancel
all or any part of the outstanding Warrants upon the payment of consideration
consisting of $0.0001 per Share 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 Warrant
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Holders pursuant to Section 9 hereof or, if such day is not a business day, then
the close of business on the next succeeding business day) 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 $2.75 for any period of at least twenty (20) consecutive trading days
commencing on or after the date hereof; 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 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 day following the day 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
Called, redeemed and cancelled, Warrants shall be Called, 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,
as the case may be, 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 a Subscription Agreement or such other document of
instrument as the Company may require 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
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that until a transfer of this Warrant is duly registered on the books of the
Company or its agent, the Company may treat the holder of this Warrant 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 of Section 2 hereof and complies with any
other applicable provisions of this Agreement.
8. Entire Agreement. The Warrant Exercise Agreement attached
as Exhibit A hereto and, to the extent applicable, the Spousal Consent attached
as Exhibit B hereto, are incorporated herein by reference. This Warrant, the
Warrant Exercise Agreement, the Spousal Consent, to the extent applicable, the
Representations and Warranties of the Warrant Holder, as Investor, set forth in
the Subscription Agreement and the Subscription Agreement otherwise 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 Warrant Holder 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 reputable 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 and inure to the benefit of the Warrant Holder and the Warrant Holder's
heirs, executors, administrators, legal representatives, successors and
permitted 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 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.
[Signature Page Follows.]
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COMPANY SIGNATURE
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
Chief Financial Officer as of __________, 2003.
CELSION CORPORATION
Signed:
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Printed: Anthony P. Deasey
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Title: Executive Vice President-Finance and
Administration, Chief Financial Officer
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Address: 10220-I Old Columbia Road
Columbia, Maryland 21046-1785
WARRANT HOLDER SIGNATURE
IN WITNESS WHEREOF, the Warrant Holder has executed this Warrant or has caused
this Warrant to be executed by its __________ as of ___________ ____, 2003.
INDIVIDUAL WARRANT HOLDER:
Signed:
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Printed:
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Address:
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WARRANT HOLDER THAT IS AN ENTITY
Name of Entity:
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Signed:
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Printed:
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Title:
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Address:
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[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 herein (please print):
Warrant Holder:_________________________________________________________________
Social Security or Tax I.D. No.:________________________________________________
Address: _______________________________________________________________________
Warrant Date:___________________________________________________________________
Date of Exercise:_______________________________________________________________
Exercise Price Per Share:_______________________________________________________
Number of Shares Subject to Exercise and Purchase:______________________________
Total Exercise Price:___________________________________________________________
Exact Name of Title to Shares:__________________________________________________
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: 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
A-1
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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
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Signature of Warrant Holder
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Printed Name
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Title
A-2
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EXHIBIT B
CELSION CORPORATION
SPOUSAL CONSENT
TO
WARRANT EXERCISE AGREEMENT
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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Signature of Warrant Holder's Spouse
Address:
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B-1
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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 that the Warrant
Holder: (i) hereby irrevocably exercises the Warrant with respect to the Number
of Shares and (ii) 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 that the Broker: (i) is a member in good
standing of the National Association of Securities Dealers, Inc. and (ii)
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:
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(Name) (Name of Firm)
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(Signature) (Signature)
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(Printed Name) (Printed Name)
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(Title) (Title)
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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 that the Warrant
Holder: (i) hereby irrevocably exercises the Warrant with respect to the Number
of Shares and (ii) 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 that the Broker: (i) is a member in good
standing of the National Association of Securities Dealers, Inc. and (ii)
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:
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(Name) (Name of Firm)
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(Signature) (Signature)
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(Printed Name) (Printed Name)
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(Title) (Title)