FORM OF
COMMON STOCK WARRANT
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR QUALIFIED OR REGISTERED
UNDER STATE SECURITIES OR BLUE SKY LAWS. NEITHER THIS WARRANT NOR SUCH
SECURITIES MAY BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933,
APPLICABLE STATE SECURITIES OR BLUE SKY LAWS AND THE APPLICABLE RULES AND
REGULATIONS THEREUNDER.
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APOLLON, INC.
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Name of Registered Holder: [ ]
No. [ ] Date of Issuance:
Warrant for the Purchase of [ ] Shares of Common Stock
IN CONSIDERATION OF the loan by the initial registered holder hereof
(the "Initial Holder") of $[ ] to Apollon, Inc., a Pennsylvania corporation
(the "Company"), and for value received, the Company hereby grants the rights
herein specified and certifies that the Initial Holder or any registered
assignee of the Initial Holder (each of the Initial Holder and any such
registered assignee being hereinafter referred to as the "Holder"), is entitled,
subject to the conditions and upon the terms of this Warrant, to purchase from
the Company, at any time or from time to time during the Exercise Period (as
defined in Section 1), the number of shares of Common Stock (as defined in
Section 1) set forth above. The number of shares of Common Stock to be received
upon the exercise of this Warrant and the Exercise Price are subject to
adjustment from time to time as hereinafter set forth.
Section 1. Certain Definitions. Terms defined in the preceding
paragraph and elsewhere in this Warrant have the respective meanings provided
for therein. The following additional terms, as used herein, have the following
respective meanings:
"Act" means the Securities Act of 1933, as amended.
"Common Stock" means the fully paid and nonassessable shares of common
stock of the Company, par value $.01 per share, together with any other equity
securities that may be issued by the Company in addition thereto or in
substitution therefor, as provided herein.
"Exercise Period" means the period beginning on the date of this
Warrant and ending on _______________.
"Exercise Price" means an amount per share equal to $____, subject to
change or adjustment pursuant to Section 9 hereof.
"Investors" means Centocor Delaware, Inc., DSV Partners IV, Technology
Leaders, L.P. and Technology Leaders Offshore C.V.
"Notes" means the three promissory notes issued by the Company on
_______________, two of which were each in the principal amount of $_______ and
were issued to each of Centocor Delaware, Inc. and DSV Partners IV, one of which
was in the principal amount of $_______ and was issued to Technology Leaders,
L.P., and one of which was in the principal amount of $_______ and was issued to
Technology Leaders Offshore C.V.
"Reorganization Event" means (i) any capital reorganization or
leveraged recapitalization of the Company or reclassification of the Common
Stock (other than a subdivision, combination or reclassification of the
outstanding Common Stock for which adjustment is provided in Subsection 9.1 and
other than a change in the par value of the Common Stock or an increase in the
authorized capital stock of the Company not involving the issuance of any shares
thereof), (ii) any consolidation of the Company with, or merger of the Company
with or into, another person (including any individual, partnership, joint
venture, corporation, trust or group thereof) (other than a consolidation or
merger with a subsidiary of the Company in which the Company is the continuing
corporation and in which the Company issues securities representing, immediately
prior to such issuance, no more than 30% of the combined voting power of the
Company's then outstanding voting securities having power to vote in the
election of directors and for which no adjustment is required by Subsection 9.1)
or any sale, lease, transfer or conveyance of all or substantially all of the
property and assets of the Company or (iii) the announcement or commencement by
any "person" or "group" (within the meaning of Section 13(d) and Section 14(d)
of the Exchange Act) of a bona fide tender offer or exchange offer in accordance
with the rules and regulations of the Exchange Act to purchase, or the
acquisition of securities in the Company, such that after such acquisition or
proposed purchase, the acquiror "beneficially owns" or would "beneficially own"
(as defined in Rule 13d-3 under the Exchange Act), securities in the Company
representing 30% or more of the combined voting power of the Company's then
outstanding securities having power to vote in the election of directors.
"Warrant" means one of the Common Stock Warrants issued by the Company
to each of the Investors in connection with the issuance of the Notes, including
this Warrant and any Warrant or Warrants which may be issued pursuant to Section
4 or 6 hereof in substitution or exchange for or upon transfer of this Warrant,
any Warrant which may be issued pursuant to Section 2 hereof upon partial
exercise of this Warrant and any Warrant which may be issued pursuant to Section
7 hereof upon the loss, theft, destruction or mutilation of this Warrant.
"Warrant Register" means the register maintained at the principal
office of the Company, or at the office of its agent, in which the name of the
Holder of this Warrant shall be registered.
"Warrant Shares" means the shares of Common Stock, as adjusted from
time to time, deliverable upon exercise of this Warrant.
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Section 2. Exercise of Warrant. This Warrant may be exercised, in
whole or in part, at any time or from time to time during the Exercise Period,
by presentation and surrender hereof to the Company at its principal office at
the address set forth on the signature page hereof (or at such other address of
the Company or any agent appointed by the Company to act hereunder as the
Company or such agent may hereafter designate in writing to the Holder), with
the purchase form annexed hereto (the "Purchase Form") duly executed and
accompanied by cash or a certified or official bank check drawn to the order of
"Apollon, Inc." (or its successor in interest, if any) in the amount of the
Exercise Price, multiplied by the number of Warrant Shares specified in such
Purchase Form. If this Warrant should be exercised in part only, the Company or
its agent shall, upon surrender of this Warrant, execute and deliver a Warrant
evidencing the right of the Holder thereof to purchase the balance of the
Warrant Shares purchasable hereunder. Upon receipt by the Company during the
Exercise Period of this Warrant and such Purchase Form in proper form for
exercise, together with proper payment of the Exercise Price at its principal
office, or by its agent at its office, the Holder shall be deemed to be the
holder of record of the number of Warrant Shares specified in such Purchase
Form. If the date of such receipt by the Company or its agent is a date on
which the stock transfer books of the Company are closed, such person shall be
deemed to have become the record holder of such Warrant Shares on the next
business day on which the stock transfer books of the Company are open. The
Company shall pay any and all documentary, stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of such Warrant Shares. Any
Warrant issued upon partial exercise of this Warrant pursuant to this Section 2
shall be dated the date of this Warrant.
Section 3. Reservation of Shares. The Company shall at all times
keep reserved solely for issuance and delivery pursuant to the Warrants the
number of shares of its Common Stock that are or would be issuable from time to
time upon exercise of all Warrants. All such shares shall be duly authorized
and, when issued upon such exercise, shall be validly issued, fully paid and
nonassessable, free and clear of all liens, security interests, charges and
other encumbrances or restrictions on sale and free of all preemptive rights.
Before taking any action that would cause an adjustment pursuant to Section 9
hereof reducing the Exercise Price below the then par value (if any) of the
Warrant Shares issuable upon exercise of this Warrant, the Company will take any
corporate action that may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
Warrant Shares at the Exercise Price as so adjusted.
Section 4. Transfer in Compliance with Applicable Securities Laws.
4.1 Neither this Warrant nor any of the Warrant Shares, nor any
interest in either, may be sold, assigned, pledged, hypothecated, encumbered or
in any other manner transferred or disposed of, in whole or in part, except in
accordance with Section 6 hereof and in compliance with applicable United States
federal and state securities laws and the terms and conditions hereof. Except
as provided in Subsection 4.2, each Warrant shall bear the following legend:
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON THE
EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR QUALIFIED OR REGISTERED UNDER STATE SECURITIES OR BLUE
SKY LAWS. NEITHER THIS WARRANT NOR SUCH SECURITIES MAY BE SOLD,
OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF
1933, APPLICABLE STATE SECURITIES
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OR BLUE SKY LAWS AND THE APPLICABLE RULES AND
REGULATIONS THEREUNDER.
4.2 If (x) the Warrant Shares have been registered under the Act
and registered or qualified under applicable state securities or Blue Sky laws
or (y) the Holder has received an opinion of counsel reasonably satisfactory to
the Company that the Warrant Shares may be freely sold or transferred without
registration under the Act or registration or qualification under applicable
state securities or Blue Sky laws, the Holder may require the Company to issue,
in substitution for a Warrant with the foregoing legend, a Warrant with the
following legend:
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR QUALIFIED OR REGISTERED UNDER STATE SECURITIES OR BLUE
SKY LAWS. THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, APPLICABLE
STATE SECURITIES OR BLUE SKY LAWS AND THE APPLICABLE RULES AND
REGULATIONS THEREUNDER.
4.3 The Holder may require the Company to issue a Warrant
without either of the foregoing legends in substitution for a Warrant bearing
one of such legends if either (x) this Warrant and the Warrant Shares issuable
upon the exercise hereof have been registered under the Act and registered or
qualified under applicable state securities laws or (y) the Holder has received
an opinion of counsel reasonably satisfactory to the Company that this Warrant
may be freely sold or transferred without registration under the Act or
registration or qualification under applicable state securities laws. The
provisions of this Section 4 shall be binding on all subsequent holders of this
Warrant.
Section 5. Warrant Shares Registration Rights. The Holder shall have
such registration rights with respect to the Warrant Shares as are set forth in
Section 7 of the Stock Purchase Agreement for Series B Convertible Preferred
Stock dated as of November 15, 1993 between the Company and the Investors, as
amended from time to time, with respect to holders of Securities (as defined
therein).
Section 6. Exchange, Transfer or Assignment of Warrant.
6.1 This Warrant may be, at the option of the Holder, and upon
presentation and surrender hereof to the Company at its principal office or to
the Company's agent at its office, (x) exchanged for other Warrants of different
denominations, entitling the Holder or Holders to purchase in the aggregate the
same number of Warrant Shares at the Exercise Price or, (y) if delivered
together with a written notice specifying the denominations in which new
Warrants are to be issued and signed by the Holder, divided or combined with
other Warrants that carry the same rights.
6.2 Subject to Section 4, this Warrant may be transferred and
assigned, at the option of the Holder, upon surrender of this Warrant to the
Company at its principal office or to the Company's agent at its office, with
the Warrant assignment form attached hereto ("Warrant Assignment Form") duly
executed and accompanied by funds sufficient to pay any transfer tax. The
Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees named in such Warrant Assignment Form
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and, if the Holder's entire interest is not being transferred or assigned, in
the name of the Holder; and this Warrant shall promptly be cancelled.
6.3 Any transfer or exchange of this Warrant shall be without
charge to the Holder and any Warrant or Warrants issued pursuant to this Section
6 shall be dated the date hereof.
Section 7. Lost, Mutilated or Missing Warrant. Upon receipt by the
Company or its agent of evidence satisfactory to it of the loss, theft or
destruction of this Warrant, and of satisfactory indemnification, and upon
surrender and cancellation of this Warrant if mutilated, the Company or its
agent shall execute and deliver a Warrant of like tenor and date in exchange for
this Warrant.
Section 8. Rights of the Holder. The Holder shall not, by virtue
hereof, be entitled to any rights of a shareholder in the Company, either at law
or in equity, and the rights of the Holder are limited to those expressed in
this Warrant.
Section 9. Anti-dilution.
9.1 The Exercise Price shall be adjusted as described below in
the event the Company shall fix or have fixed a record date at any time after
the date hereof and before the expiration of the Exercise Period for a Stock
Distribution, a Below Market Issuance or a Distribution (all as defined below).
(a) Stock Dividends, Subdivisions, Combinations,
Reclassifications, etc.
(i) A "Stock Distribution" shall be deemed to
have occurred upon (A) the declaration of a dividend or distribution on the
Common Stock payable in shares of capital stock (whether shares of Common Stock
or of capital stock of any other class), (B) the subdivision of shares of the
Common Stock into a greater number of shares, (C) the combination of the Common
Stock into a smaller number of shares or (D) the issuance of any shares of its
capital stock by reclassification of the Common Stock in connection with a
consolidation or merger with a subsidiary of the Company in which the Company is
the continuing corporation and in which the Company issues securities
representing, immediately prior to such issuance, more than 30% of the combined
voting power of the Company's then outstanding voting securities having power to
vote in the election of directors.
(ii) Upon the occurrence of a Stock Distribution,
the Holder shall be entitled to receive the aggregate number and kind of shares
which, if the Warrant had been exercised immediately prior to such record date,
it would have been entitled to receive by virtue of such dividend, distribution,
subdivision, combination or reclassification, and the Exercise Price shall be
appropriately adjusted. Such adjustment shall be made successively whenever any
event listed in subparagraph (i) shall occur.
(b) Issuance at Less Than Fair Market Value.
(i) A "Below Market Issuance" shall be deemed to
have occurred upon the Company's issuance of rights, options or warrants to all
holders of Common Stock entitling them to subscribe for or purchase Common Stock
at a price per share or having a conversion or exercise price per share
(including the amount paid, if any, for such rights, options or warrants) less
than the Exercise Price on such record date
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(excluding rights or warrants that are not immediately exercisable and for which
provision is made for the Holder to receive comparable rights or warrants).
(ii) Upon the occurrence of a Below Market
Issuance, the number of Warrant Shares to be received hereunder after such
record date shall be determined by multiplying the number of shares receivable
hereunder immediately prior to such record date by a fraction, the denominator
of which shall be the number of shares of Common Stock outstanding on such
record date plus the number of shares of Common Stock that the aggregate
offering price of the total number of shares so offered for subscription or
purchase would purchase at the Exercise Price on such record date, and the
numerator of which shall be the number of shares of Common Stock outstanding on
such record date plus the number of additional shares of Common Stock offered
for subscription or purchase, and the Exercise Price shall be appropriately
adjusted.
(iii) Shares of Common Stock owned by or held
for the account of the Company or any subsidiary of the Company on such record
date shall not be deemed outstanding for the purpose of any such computation.
Such adjustment shall become effective immediately after such record date. Such
adjustment shall be made successively whenever any such Below Market Issuance
shall occur. If such rights, options or warrants are not so issued, the number
of Warrant Shares receivable hereunder shall again be adjusted to be the number
that would have been in effect had such record date not been fixed.
(iv) On the expiration of such rights, options or
warrants, the number of Warrant Shares receivable hereunder shall be readjusted
to be the number that would have obtained had the adjustment made upon the
issuance of such rights, options or warrants been made upon the basis of the
issuance of only the number of shares of Common Stock actually issued upon the
exercise of such rights, options or warrants, provided, however, that if the
Holder of this Warrant shall have exercised this Warrant prior to any such
readjustment, the number of Warrant Shares that have been delivered or the
number of Warrant Shares to be delivered shall not be subject to any
readjustment.
(v) In any case in which this Subsection (b)
shall require that an adjustment in the number of shares receivable hereunder or
the Exercise Price be made effective as of a record date for a specified event,
the Company may elect to defer until the occurrence of such event issuing to the
Holder of any Warrant exercised after such record date the number of Warrant
Shares, if any, issuable upon such exercise over and above the number of Warrant
Shares, if any, issuable upon such exercise on the basis of the Exercise Price
in effect prior to such adjustment; provided, however, that the Company shall
deliver to such Holder a due bill or other appropriate instrument evidencing
such Holder's right to receive such additional Warrant Shares upon the
occurrence of the event requiring such adjustments.
(c) Distribution of Subscription Rights, Warrants,
Evidences of Indebtedness or Assets.
(i) The Company shall be deemed to have made a
"Distribution" upon the making of a distribution to all holders of Common Stock
(or other securities deliverable hereunder) (including any such distribution to
be made in connection with a consolidation or merger in which the Company is to
be the continuing corporation) of (A) any shares of capital stock of the Company
(other than Common Stock), (B) subscription rights or warrants (excluding those
for which adjustment is provided in Subsection 9.1(b) above and excluding those
that are not immediately exercisable and for which provision is
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made for the Holder to receive comparable subscription rights or warrants) or
(C) evidences of its indebtedness or assets (excluding (x) dividends paid in or
distributions of the Company's capital stock for which the number of Warrant
Shares receivable hereunder shall have been adjusted pursuant to Subsection
9.1(a) and (y) cash dividends or distributions payable out of earnings or
surplus not in excess of 10% of the Exercise Price before the date of
declaration multiplied by the number of outstanding shares of Common Stock) (any
of the foregoing being hereinafter in this paragraph (iii) called the
"Securities").
(ii) Upon the making of any such Distribution
(unless the Company elects to reserve shares or other units of such Securities
for distribution to each Holder upon exercise of the Warrant so that, in
addition to the shares of the Common Stock to which each Holder is entitled,
each Holder will receive upon such exercise the amount and kind of such
Securities which such Holder would have received if the Holder had, immediately
prior to the record date for the distribution of the Securities, exercised the
Warrant), the number of Warrant Shares receivable hereunder after such record
date shall be determined by multiplying the number of Warrant Shares receivable
hereunder immediately prior to such record date by a fraction, the denominator
of which shall be the Exercise Price on the day immediately prior to the date on
which the right to receive such Securities accrues, less the fair market value
(as determined in the reasonable judgment of the Board of Directors of the
Company and described in a statement mailed by certified mail to the Holder) of
the portion of the assets or evidences of Indebtedness so to be distributed to a
holder of one share of the Common Stock or of such subscription rights or
warrants applicable to one share of the Common Stock, and the numerator of which
shall be the Exercise Price on such date; and the Exercise Price shall be
appropriately adjusted.
(iii) Such adjustment shall become effective
immediately after such record date and shall be made successively whenever such
a record date is fixed. If such distribution is not so made, the number of
Warrant Shares receivable hereunder shall be readjusted to be the number that
was in effect immediately prior to such record date.
(iv) In the event that the Holder of this Warrant
exercises this Warrant after an adjustment is made under this Subsection (c) and
prior to a readjustment under this Subsection (c), the number of Warrant Shares
that have been delivered or the number of Warrant Shares to be delivered shall
not be subject to any readjustment. In any case in which this Subsection (c)
shall require that an adjustment in the number of Warrant Shares receivable
hereunder or the Exercise Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event issuing to the Holder of any Warrant exercised after such record date the
number of Warrant Shares, if any, issuable upon such exercise over and above the
number of Warrant Shares, if any, issuable upon such exercise on the basis of
the Exercise Price in effect prior to such adjustment; provided, however, that
the Company shall deliver to such Holder a due bill or other appropriate
instrument evidencing such Holder's right to receive such additional Warrant
Shares upon the occurrence of the event requiring such adjustments.
9.2 Reorganization Event. In case of any Reorganization Event
the Company shall, as a condition precedent to the consummation of the
transaction constituting, or announced as, such Reorganization Event, cause
effective provisions to be made so that the Holder shall have the right
immediately thereafter, by exercising this Warrant, to receive the aggregate
amount and kind of shares of stock and other securities and property that were
receivable upon such Reorganization Event by a holder of the number of shares of
Common Stock that would have been received immediately prior to such
Reorganization Event upon exercise of this Warrant. Any such provision shall
include provision for adjustments in
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respect of such shares of stock and other securities and property that shall be
as nearly equivalent as may be practicable to the adjustments provided for in
Subsection 9.1. The foregoing provisions of this Subsection 9.2 shall similarly
apply to successive Reorganization Events.
9.3 Fractional Shares. No fractional shares of Common Stock (or
other securities deliverable hereunder) or scrip shall be issued to any Holder
in connection with the exercise of this Warrant. Instead of any fractional
share of Common Stock (or other securities deliverable hereunder) that would
otherwise be issuable to such Holder, the Company shall pay to such Holder a
cash adjustment in respect of such fractional interest in an amount equal to
such fractional interest multiplied by the Exercise Price per share of Common
Stock (or other securities deliverable hereunder) on the date of such exercise.
9.4 Carryover. Notwithstanding any other provision of this
Section 9, no adjustment shall be made to the number of shares of Common Stock
(or other securities deliverable hereunder) to be delivered to each Holder (or
to the Exercise Price) if such adjustment would represent less than one percent
of the number of shares to be so delivered, but any such adjustment shall be
carried forward and shall be made at the time and together with the next
subsequent adjustment which, together with any adjustments so carried forward,
shall amount to one percent or more of the number of shares to be so delivered.
9.5 Notices of Certain Events. If at any time after the date
hereof and before the expiration of the Exercise Period:
(a) the Company authorizes the issuance to all holders of
its Common Stock of (i) rights or warrants to subscribe for or purchase shares
of its Common Stock or (ii) any other subscription rights or warrants; or
(b) the Company authorizes the distribution to all holders
of its Common Stock of evidences of its indebtedness or assets (other than cash
dividends or distributions excluded from the operation of subsection 9.1(c)); or
(c) there shall be any capital reorganization of the
Company or reclassification of the Common Stock (other than a change in par
value of the Common Stock or an increase in the authorized capital stock of the
Company not involving the issuance of any shares thereof) or any consolidation
or merger to which the Company is a party (other than a consolidation or merger
with a subsidiary in which the Company is the continuing corporation and that
does not result in any reclassification or change in the Common Stock
outstanding) or a conveyance or transfer of all or substantially all of the
properties and assets of the Company;
(d) there shall be any voluntary or involuntary
dissolution, liquidation or winding-up of the Company; or
(e) there shall be any other event that would result in an
adjustment pursuant to this Section 9 in the Exercise Price or the number of
Warrant Shares that may be purchased upon the exercise hereof;
the Company will cause to be mailed to the Holder, at least fifteen days (or ten
days in any case specified in clauses (a) or (b) above) before the applicable
record or effective date hereinafter specified, a notice stating (i) the date as
of which the holders of Common Stock of record entitled to receive any such
rights, warrants or distributions is to be determined, or (ii) the date on which
any such reorganization, reclassification, consolidation, merger,
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conveyance, transfer, dissolution, liquidation or winding-up is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record will be entitled to exchange their shares of Common Stock for
securities or other property, if any, deliverable upon such reorganization,
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding-up.
9.6 Failure to Give Notice. The failure to give the notice
required by Subsection 9.5 or any defect therein shall not affect the legality
or validity of any distribution right, warrant, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding-up or the vote upon
any such action.
Section 10. Net Issue Election. The Holder may elect to receive,
without the payment by the Holder of any additional consideration, shares equal
to the value of this Warrant or any portion hereof by the surrender of this
Warrant or such portion to the Company, with the net issue election notice
annexed hereto duly executed, at the office of the Company; provided, that the
Holder may not make such an election unless (i) the Company has registered the
Common Stock pursuant to the Act or in connection with such registration or (ii)
upon the expiration of this Warrant. Thereupon, the Company shall issue to the
Holder such number of fully paid and nonassessable shares of Common Stock as is
computed using the following formula:
X = Y (A-B)
-------
A
where X = the number of shares to be issued to the Holder pursuant to this
Section 10.
Y = the number of shares covered by this Warrant in respect of which the
net issue election is made pursuant to this Section 10.
A = the fair market value of one share of Common Stock. If the Common
Stock is registered pursuant to the Act, the fair market value shall
mean the average high and low prices of the Common Stock on the day
prior to the exercise of this Warrant, if the Common Stock is being
traded on a national exchange; or the last reported sale price on the
day prior to exercise of this Warrant, if the Common Stock is traded
on the Nasdaq National Market, and the Common Stock is not traded on
a national exchange; or the closing bid price (or average of bid
prices) last quoted on the day prior to the exercise of this Warrant
by an established quotation service for over-the-counter securities,
if the Common Stock is not reported on the Nasdaq National Market or
a national exchange. If the election occurs in connection with the
registration of Common Stock under the Act, then the fair market
value shall be the price offered to the public. Otherwise, the fair
market value shall be as determined in good faith by the Board of
Directors of the Company, at the time the net issue election is made
pursuant to this Section 10.
B = the Exercise Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 10. The Board of
Directors shall promptly respond in writing to an inquiry by the
Holder as to the fair market value of one share of Common Stock.
Section 11. Officers' Certificate. Whenever the number of Warrant
Shares that may be purchased on exercise of this Warrant or the Exercise Price
is adjusted as required by the provisions of Section 9, the Company will
forthwith file in the custody of its
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Secretary or an Assistant Secretary at its principal office and at the office of
its agent an officers' certificate showing the adjusted number of Warrant Shares
that may be purchased at the Exercise Price on exercise of this Warrant and the
adjusted Exercise Price determined as herein provided, setting forth in
reasonable detail the facts requiring such adjustment and the manner of
computing such adjustment. Each such officers' certificate shall be signed by
the President, Chief Financial Officer or Treasurer of the Company and by the
Secretary or an Assistant Secretary of the Company. Each such officers'
certificate shall be made available at all reasonable times for inspection by
the Holder. The Company shall, forthwith after each such adjustment, cause a
copy of such certificate to be mailed to the Holder.
Section 12. Warrant Register. The Company will register this Warrant
in the Warrant Register in the name of the record holder to whom it has been
distributed or assigned in accordance with the terms hereof. The Company may
deem and treat the registered Holder of this Warrant as the absolute owner
hereof (notwithstanding any notation of ownership or other writing hereon made
by anyone) for the purpose of any exercise hereof or any distribution to the
Holder and for all other purposes, and the Company shall not be affected by any
notice to the contrary.
Section 13. Successors. All of the provisions of this Warrant by or
for the benefit of the Company or the Holder shall bind and inure to the benefit
of their respective successors and assigns.
Section 14. Headings. The headings of sections of this Warrant have
been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 15. Amendments. This Warrant may be amended by the
affirmative vote of Holders holding Warrants to purchase not less than two-
thirds of the Warrant Shares purchasable pursuant to all of the then outstanding
Warrants; provided, that, except as expressly provided herein, this Warrant may
not be amended, without the consent of the Holder, to change (a) any price at
which this Warrant may be exercised, (b) the period during which this Warrant
may be exercised, (c) the number or type of securities to be issued upon the
exercise hereof or (d) the provisions of this Section 15.
Section 16. Notices. Unless otherwise provided in this Warrant, any
notice or other communication required or permitted to be made or given to any
party hereto pursuant to this Warrant shall be in writing and shall be deemed
made or given if delivered by hand, on the date of such delivery to such party
or, if mailed, on the fifth day after the date of mailing, if sent to such party
by certified or registered mail, postage prepaid, addressed to it (in the case
of a Holder) at its address in the Warrant Register or (in the case of the
Company) at its address set forth below, or to such other address as is
designated by written notice, similarly given to each other party hereto.
Section 17. Governing Law. This Warrant shall be deemed to be a
contract made under the laws of the Commonwealth of Pennsylvania and for all
purposes shall be construed in accordance with the laws of said Commonwealth as
applied to contracts made and to be performed in Pennsylvania between
Pennsylvania residents.
10
IN WITNESS WHEREOF, the Company has duly caused this Warrant to be
signed and attested by its duly authorized officer and to be dated as of the
date first above written.
APOLLON, INC.
By ---------------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
11
PURCHASE FORM
The undersigned, -------------, hereby irrevocably elects to exercise
the within Warrant to purchase ------ shares of Common Stock and hereby makes
payment of $-------- in payment of the exercise price thereof.
Date: ------------, ---- ------------------------------------------
[Signed]
------------------------------------------
[Street Address]
------------------------------------------
[City and State]
NET ISSUE ELECTION NOTICE
The undersigned, ------------------------, hereby irrevocably
elects under Section 10 to surrender the right to purchase -------- shares of
Common Stock pursuant to this Warrant. The certificate(s) for the shares
issuable upon such net issue election shall be issued in the name of the
undersigned or as otherwise indicated below.
Date: ----------, ------- --------------------------------------
Signature
--------------------------------------
Name of Registration
--------------------------------------
[Street Address]
--------------------------------------
[City and State]
WARRANT ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned, ------------------
("Assignor"), hereby sells, assigns and transfers unto
Name: --------------------------------------- ("Assignee")
(Please type or print in block letters.)
Address: -------------------------------------
-------------------------------------
Social Security or Taxpayer I.D. No.: ------------------
Assignor's right to purchase up to ------ shares of Common Stock represented by
this Warrant and does hereby irrevocably constitute and appoint the Company and
any of its officers, secretary, or assistant secretaries, as attorneys-in-fact
to transfer the same on the books of the Company, with full power of
substitution in the premises.
Date: ------------, ---- -----------------------------------------
[Signed]