EXHIBIT 4.4
CELSION CORPORATION
FORM OF PLACEMENT AGENT 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 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 JULY 23, 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 July 23, 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 July 23, 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 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
in accordance with Section 2.3 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
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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
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.
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(a) Cash; Same Day Sale; Margin Commitment. Except as
otherwise provided in Paragraph (b) of this Section 2.3, 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.
(b) Net Exercise. Notwithstanding any provisions
herein to the contrary, if the per share fair market value of the Common Stock
is greater than the Exercise Price (at the date of calculation as set forth
below, which date shall be the date of surrender of this Warrant or, if such
date is not a business day, then as of the close of business on the next
succeeding business day), the Holder may elect to receive Shares equal to the
net value (as determined below) of this Warrant by surrender of this Warrant at
the principal office of the Company together with the properly Warrant Exercise
Agreement reflecting such election, in which event the Company shall issue to
the Holder a number of shares of Common Stock computed using the following
formula:
Y (A-B)
X= -------
A
Where X = the number of Shares to be issued to the Holder
Y = the number of Shares purchasable under the Warrant
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A = the fair market value of one Share (at the date
of calculation)
B = the Exercise Price (as adjusted to the date of
calculation)
For purposes of the above calculation, the fair market value of one Share shall
be determined by the Company's Board of Directors in good faith; provided,
however, that where there exists a public market for the Company's Common Stock
at the time of such exercise, the fair market value per Share shall be equal to
the average of last reported sale prices of the Common Stock or the closing
prices quoted on The American Stock Market or on any other exchange on which the
Common Stock is listed, whichever is applicable, for the five (5) trading days
prior to the date of determination of fair market value or, if the Common Stock
is not then traded on an exchange, then average of the closing bid and asked
prices of the Common Stock quoted in the Over-The-Counter Market Summary for
such five- (5)-day period.
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 issuance and acquisition 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 ("Call")
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 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
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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 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.
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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
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.
[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 ________________________ as of ___________ ____, 2003.
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
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 (circle 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:
4. through the "net exercise" procedure set forth in Section 4.2 of the
Agreement.
A-1
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.
- -------------------------------------
Name of Warrant Holder
- -------------------------------------
Signature of Warrant Holder
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Printed Name
- -------------------------------------
Title
A-2
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:___________________ _________________________________________
Signature of Warrant Holder's Spouse
Address: _______________________________
_______________________________
_______________________________
B-1
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)
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)
- ----------------------- -----------------------
(Title) (Title)