EXHIBIT 4.6
Definitive
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:
(REPLACING WARRANT #: JULY2003PPW-01 ISSUED TO SILVER LAKE ENTERPRISES, LLC)
CELSION CORPORATION
WARRANT TO PURCHASE SHARES OF COMMON STOCK
VOID AFTER ______________, 2008
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 ________________, 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.
Definitive
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.
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
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Definitive
(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 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").
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Definitive
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 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,
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Definitive
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.
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.
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Definitive
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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Definitive
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,
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Chief Financial Officer
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Address: 10220-L 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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Definitive
EXHIBIT A
CELSION CORPORATION
WARRANT EXERCISE AGREEMENT
CELSION CORPORATION
10220-L 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:
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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: 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
Definitive
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
- -------------------------------------
Printed Name
- -------------------------------------
Title
A-2
Definitive
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
Definitive
ATTACHMENT 1
SAME DAY SALE COMMITMENT
--------------, -------
Celsion Corporation
10220-L 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:
- ----------------------------- ------------------------------
(Name) (Name of Firm)
- ----------------------------- ------------------------------
(Signature) (Signature)
- ----------------------------- ------------------------------
(Printed Name) (Printed Name)
- ----------------------------- ------------------------------
(Title) (Title)
Definitive
ATTACHMENT 2
MARGIN COMMITMENT
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CELSION CORPORATION
10220-L 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)
- ----------------------------- ------------------------------
(Signature) (Signature)
- ----------------------------- ------------------------------
(Printed Name) (Printed Name)
- ----------------------------- ------------------------------
(Title) (Title)