exv4w1



 





Exhibit 4.1




CELL GENESYS, INC.




WARRANT TO PURCHASE COMMON STOCK




To Purchase [           ] Shares of Common Stock




Date of Issuance: __________, 2007




VOID AFTER [            ], 2012




     THIS CERTIFIES THAT, for value received, [            ], or permitted registered
assigns (the ‘‘Holder’’), is entitled to subscribe for and purchase at the Exercise Price (defined
below) from Cell Genesys, Inc., a Delaware corporation (the ‘‘Company’’), up to [            ]
shares of the common stock of the Company, par value $0.001 per share (the ‘‘Common Stock’’). This
warrant is one of a series of warrants issued by the Company as of the date hereof (individually a
‘‘Warrant’’; collectively, ‘‘Company Warrants’’) pursuant to that certain subscription agreement
between the Company and the Holder, dated as of _____, 2007 (the ‘‘Subscription Agreement’’).



     1. DEFINITIONS. Capitalized terms used herein but not otherwise defined herein
shall have their respective meanings as set forth in the Subscription Agreement. As used herein,
the following terms shall have the following respective meanings:



     (a) ‘‘Exercise Period’’ shall mean the period commencing with the date occurring six months
after the date hereof and ending five years from the date hereof, unless sooner terminated as
provided below.



     (b) ‘‘Exercise Price’’ shall mean $_____ per share, subject to adjustment pursuant to
Section 4 below.



     (c) ‘‘Exercise Shares’’ shall mean the shares of Common Stock issuable upon exercise of
this Warrant.



     (d) ‘‘Trading Day’’ shall mean (i) any day on which the Common Stock is listed or quoted
and traded on its primary Trading Market, (ii) if the Common Stock is not then listed or quoted and
traded on any eligible market (meaning any of the NYSE, AMEX or NASDAQ), then a day on which
trading occurs on the OTC Bulletin Board (or any successor thereto), or (iii) if trading does not
occur on the OTC Bulletin Board (or any successor thereto), any Business Day.



     2. EXERCISE OF WARRANT. The rights represented by this Warrant may be exercised
in whole or in part at any time during the Exercise Period, by delivery of the following to the
Company at its address set forth on the signature page hereto (or at such other address as it may
designate by notice in writing to the Holder):



     (a) An executed Notice of Exercise in the form attached hereto; and



     (b) Payment of the Exercise Price either (i) in cash or by check (subject to the
limitations in Section 2.1 below), or (ii) pursuant to net exercise terms outlined under
Section 2.1 below.



     Execution and delivery of the Notice of Exercise shall have the same effect as cancellation of
the original Warrant and issuance of a new Warrant evidencing the right to purchase the remaining
number of Exercise Shares, if any. If requested by the Company, Holder agrees to provide this
Warrant, or an affidavit of lost security, to the Company within a reasonable period after the
delivery of the Notice of Exercise.



     Certificates for shares purchased hereunder shall be transmitted by the transfer agent of the
Company to the Holder by crediting the account of the Holder’s prime broker with the Depository
Trust Company through its Deposits and Withdrawal at Custodian (DWAC) system if the Company is a
participant in such system, and otherwise by physical delivery to the address specified by the
Holder in the Notice of Exercise within three business



 









 







days from the delivery to the Company of the Notice of Exercise, surrender of this Warrant and
payment of the aggregate Exercise Price as set forth above. This Warrant shall be deemed to have
been exercised on the date the Exercise Price is received by the Company. The Exercise Shares shall
be deemed to have been issued, and Holder or any other person so designated to be named therein
shall be deemed to have become a holder of record of such shares for all purposes, as of the date
this Warrant has been exercised by payment to the Company of the Exercise Price. If by the close
of the third Trading Day after delivery of an Notice of Exercise, the Company fails to deliver to
the Holder a certificate representing the required number of Exercise Shares in the manner required
pursuant to this Section 2, and such failure to deliver the Exercise Shares is caused by the
Company’s failure to use commercially reasonable efforts to comply with this Section 2 and/or the
covenants in Section 3.1herein, and if after such third Trading Day and prior to the receipt of
such Exercise Shares, the Holder purchases (in an open market transaction or otherwise) shares of
Common Stock to deliver in satisfaction of a sale by the Holder of the Exercise Shares which the
Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall, within three
Trading Days after the Holder’s request and in the Holder’s sole discretion, either (1) pay in cash
to the Holder an amount equal to the Holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased (the “Buy-In Price”), at which
point the Company’s obligation to deliver such certificate (and to issue such Exercise Shares)
shall terminate or (ii) promptly honor its obligation to deliver to the Holder a certificate or
certificates representing such Exercise Shares and pay cash to the Holder in an amount equal to the
excess (if any) of the Buy-In Price over the product of (A) such number of Exercise Shares, times
(B) the closing bid price on the date of the event giving rise to the Company’s obligation to
deliver such certificate.



     The person in whose name any certificate or certificates for Exercise Shares are to be issued
upon exercise of this Warrant shall be deemed to have become the holder of record of such shares on
the date on which this Warrant was surrendered and payment of the Exercise Price was made,
irrespective of the date of delivery of such certificate or certificates, except that, if the date
of such surrender and payment is a date when the stock transfer books of the Company are closed,
such person shall be deemed to have become the holder of such shares at the close of business on
the next succeeding date on which the stock transfer books are open.



     To the extent permitted by law, the Company’s obligations to issue and deliver Exercise Shares
in accordance with the terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect to any provision
hereof, the recovery of any judgment against any person or entity or any action to enforce the
same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other person or entity of any obligation to the Company or any
violation or alleged violation of law by the Holder or any other person or entity, and irrespective
of any other circumstance which might otherwise limit such obligation of the Company to the Holder
in connection with the issuance of Exercise Shares. Nothing herein shall limit a Holder’s right to
pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver certificates representing shares of Common Stock upon exercise of this
Warrant as required pursuant to the terms hereof.



     2.1 NET EXERCISE. If during the Exercise Period, the Holder is not permitted to
sell Exercise Shares pursuant to the Registration Statement, as defined in the Subscription
Agreement, or any other effective registration statement or an exemption to the registration
requirements of the Securities Act of 1933, as amended, and the fair market value of one share of
the Common Stock is greater than the Exercise Price (at the date of calculation as set forth
below), the Holder will not be permitted to exercise this Warrant by payment of cash or by check
and may only exercise this warrant by electing to receive shares equal to the value (as determined
below) of this Warrant (or the portion thereof being canceled). Upon delivery of a properly
endorsed Notice of Exercise, 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 of Common Stock to be issued to the Holder






2









 






	 	 	 	 	 
	Y

	 	=
	 	the number of shares of Common Stock purchasable under this
Warrant or, if only a portion of this Warrant is being
exercised, the portion of this Warrant being canceled (at the
date of such calculation)
	 
	 	 	 	 
	A

	 	=
	 	the fair market value of one share of the Company’s Common Stock (at the date of such calculation)
	 
	 	 	 	 
	B

	 	=
	 	Exercise Price (as adjusted to the date of such calculation)






     For purposes of the above calculation, the ‘‘fair market value’’ of one share of Common Stock
shall mean (i) the average of the closing sales prices for the shares of Common Stock on the NASDAQ
Global Market or other trading market where such security is listed or traded as reported by
Bloomberg Financial Markets (or a comparable reporting service of national reputation selected by
the Company and reasonably acceptable to the Holder if Bloomberg Financial Markets is not then
reporting sales prices of such security) (collectively, ‘‘Bloomberg’’) for the ten (10) consecutive
trading days immediately preceding such date, or (ii) if the NASDAQ Global Market is not the
principal trading market for the shares of Common Stock, the average of the reported sales prices
reported by Bloomberg on the principal trading market for the Common Stock during the same period,
or, if there is no sales price for such period, the last sales price reported by Bloomberg for such
period, or (iii) if neither of the foregoing applies, the last sales price of such security in the
over-the-counter market on the pink sheets or bulletin board for such security as reported by
Bloomberg, or if no sales price is so reported for such security, the last bid price of such
security as reported by Bloomberg or (iv) if fair market value cannot be calculated as of such date
on any of the foregoing bases, the fair market value shall be as determined by the Board of
Directors of the Company in the exercise of its good faith judgment.



     In the event that (i) the Holder is not permitted to sell Exercise Shares pursuant to the
Registration Statement, as defined in the Subscription Agreement, or any other effective
registration statement or an exemption to the registration requirements of the Securities Act of
1933, as amended, (ii) the Holder is not permitted to exercise this Warrant by payment of cash or
by check and may only exercise this warrant by electing to receive shares equal to the value of
this Warrant as determined above, or (iii) is subject to a Black-Out Period as defined in Section
3.1 below, the Company shall notify the Holder upon receipt of the Notice of Exercise and the
Holder shall have a right to immediately rescind the Notice of Exercise and not receive the
Exercise Shares.



     2.2 ISSUANCE OF NEW WARRANTS. Upon any partial exercise of this Warrant, the
Company, at its expense, will forthwith and, in any event within five business days, issue and
deliver to the Holder a new warrant or warrants of like tenor, registered in the name of the
Holder, exercisable, in the aggregate, for the balance of the number of shares of Common Stock
remaining available for purchase under this Warrant.



     2.3 EXERCISE LIMITATIONS; HOLDER’S RESTRICTIONS. A Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the
extent that after giving effect to such issuance after exercise, such Holder (together with such
Holder’s affiliates), as set forth on the applicable Notice of Exercise, would beneficially own in
excess of 4.99% of the number of shares of the Common Stock outstanding immediately after giving
effect to such issuance. For purposes of the foregoing sentence, the number of shares of Common
Stock beneficially owned by such Holder and its affiliates shall include the number of shares of
Common Stock issuable upon exercise of this Warrant with respect to which the determination of such
sentence is being made, but shall exclude the number of shares of Common Stock which would be
issuable upon (A) exercise of the remaining, nonexercised portion of this Warrant beneficially
owned by such Holder or any of its affiliates and (B) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any
other shares of Common Stock or Warrants) subject to a limitation on conversion or exercise
analogous to the limitation contained herein beneficially owned by such Holder or any of its
affiliates. Except as set forth in the preceding sentence, for purposes of this Section
2.4, beneficial ownership shall be calculated in



3









 







accordance with Section 13(d) of the Exchange Act, it being acknowledged by a Holder that the
Company is not representing to such Holder that such calculation is in compliance with Section
13(d) of the Exchange Act and such Holder is solely responsible for any schedules required to be
filed in accordance therewith. To the extent that the limitation contained in this Section
2.4 applies, the determination of whether this Warrant is exercisable (in relation to other
securities owned by such Holder) and of which a portion of this Warrant is exercisable shall be in
the sole discretion of a Holder, and the submission of a Notice of Exercise shall be deemed to be
each Holder’s determination of whether this Warrant is exercisable (in relation to other securities
owned by such Holder) and of which portion of this Warrant is exercisable, in each case subject to
such aggregate percentage limitation, and the Company shall have no obligation to verify or confirm
the accuracy of such determination. For purposes of this Section 2.4, in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares
of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case
may be, (y) a more recent public announcement by the Company or (z) any other notice by the Company
or the Company’s Transfer Agent setting forth the number of shares of Common Stock outstanding.
Upon the written or oral request of a Holder, the Company shall within two Trading Days confirm
orally and in writing to such Holder the number of shares of Common Stock then outstanding. In any
case, the number of outstanding shares of Common Stock shall be determined after giving effect to
the conversion or exercise of securities of the Company, including this Warrant, by such Holder or
its affiliates since the date as of which such number of outstanding shares of Common Stock was
reported. The provisions of this Section 2.4 may be waived by such Holder, at the election
of such Holder, upon not less than 61 days’ prior notice to the Company, and the provisions of this
Section 2.4 shall continue to apply until such 61st day (or such later date, as determined
by such Holder, as may be specified in such notice of waiver).



     3. COVENANTS OF THE COMPANY.



     3.1 COVENANTS AS TO EXERCISE SHARES. The Company covenants and agrees that all
Exercise Shares that may be issued upon the exercise of the rights represented by this Warrant
will, upon issuance, be validly issued and outstanding, fully paid and nonassessable, and free from
all taxes, liens and charges with respect to the issuance thereof. The Company further covenants
and agrees that the Company will at all times during the Exercise Period, have authorized and
reserved, free from preemptive rights, a sufficient number of shares of Common Stock to provide for
the exercise of the rights represented by this Warrant. If at any time during the Exercise Period
the number of authorized but unissued shares of Common Stock shall not be sufficient to permit
exercise of this Warrant, the Company will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number
of shares as shall be sufficient for such purposes. The Company shall use commercially reasonable
efforts to keep a registration statement (a “Registration Statement”) with respect to the issuance
and sale of the Exercise Shares to the Holder, or such Holder’s valid assignee, in effect during
the Exercise Period or such shorter period that will terminate when this Warrant has been
exercised, and during such time period shall use commercially reasonable efforts to obtain the
prompt withdrawal of any stop order suspending the effectiveness of any such Registration
Statement. At any time during which the Exercise Shares are included in a then-effective
Registration Statement, the Company may suspend the ability of the Holder to exercise this Warrant
in any manner contemplated by this Warrant, for a reasonable period or periods (a “Black-out
Period”), in the event that (i)(A) an event occurs and is continuing as a result of a which the
Registration Statement including the Exercise Shares, any related prospectus or any document
incorporated therein by reference as then amended or supplement would, in the Company’s good faith
judgment, contain an untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which the were
made, not misleading, and (B) the Company determined in its good faith judgment that the disclosure
of such event at such time would be to the detriment of the business, operations or prospects of
the Company or the disclosure otherwise relates to a business transaction which has not yet been
publicly disclosed, or (ii) the Registration Statement is no longer effective and the holder is not
permitted to sell Exercise Shares pursuant to any other registration statement or an exemption to
the registration requirements of the Securities Act of 1933, as amended; provided, however, that in
the event that a Black-out Period occurs subsequent to the one year anniversary of the Date of
Issuance, this Warrant shall be exercised subject to the terms and conditions of Section 2.1.
Notwithstanding the foregoing provisions of this Section 3.1, (i) if a Holder is not able to
exercise this Warrant because the Company has implemented a Black-out Period, then the Exercise
Period shall be extended for the number of calendar days covered by such Black-out Period and (ii)
(A) the Company will use



4









 







commercially reasonable efforts to ensure that the aggregate number of days covered by
Black-out Periods shall not last for more than twenty (20) consecutive days or exceed sixty (60) in
a particular calendar year; (B) a Black-out Period may not be in effect for more than thirty (30)
consecutive days; provided, however, that the holder may not receive any penalties, cash payments
or any other liquidated damages for failure to deliver registered Exercise Shares so long as the
Company has used commercially reasonable efforts to deliver the Holder the Exercise Shares as
contemplated in Section 2 herein or otherwise complies with the covenants in this Section 3.1, and
(C) if the Black-out Period is required because the Registration Statement is no longer effective
and the Holder is not permitted to sell Exercise Shares pursuant to any other registration
statement or an exemption to the registration requirements of the Securities Act of 1933, as
amended, then the Exercise Period shall be extended until such Holder may sell such Exercise
Shares.



     3.2 NO IMPAIRMENT. Except and to the extent as waived or consented to by the
holders of Company Warrants representing at least two-thirds of the number of shares of Common
Stock then subject to outstanding Company Warrants, the Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or performed hereunder by
the Company, but will at all times in good faith assist in the carrying out of all the provisions
of this Warrant and in the taking of all such action as may be necessary or appropriate in order to
protect the exercise rights of the Holder against impairment.



     3.3 NOTICES OF RECORD DATE AND CERTAIN OTHER EVENTS. In the event of any taking
by the Company of a record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend or other distribution, the Company
shall mail to the Holder, at least ten (10) days prior to the date on which any such record is to
be taken for the purpose of such dividend or distribution, a notice specifying such date. In the
event of any voluntary dissolution, liquidation or winding up of the Company, the Company shall
mail to the Holder, at least ten (10) days prior to the date of the occurrence of any such event, a
notice specifying such date. In the event the Company authorizes or approves, enters into any
agreement contemplating, or solicits stockholder approval for any Fundamental Transaction, as
defined in Section 6 herein, the Company shall mail to the Holder, at least ten (10) days
prior to the date of the occurrence of such event, a notice specifying such date.



     4. ADJUSTMENT OF EXERCISE PRICE AND SHARES.



     (a) In the event of changes in the outstanding Common Stock of the Company by reason of
stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of
shares, separations, reorganizations, liquidations, consolidation, acquisition of the Company
(whether through merger or acquisition of substantially all the assets or stock of the Company), or
the like, the number, class and type of shares available under this Warrant in the aggregate and
the Exercise Price shall be correspondingly adjusted to give the Holder of this Warrant, on
exercise for the same aggregate Exercise Price, the total number, class, and type of shares or
other property as the Holder would have owned had this Warrant been exercised prior to the event
and had the Holder continued to hold such shares until the event requiring adjustment. The form of
this Warrant need not be changed because of any adjustment in the number of Exercise Shares subject
to this Warrant.



     (b) If at any time or from time to time the holders of Common Stock of the Company (or any
shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall
have received or become entitled to receive, without payment therefor,




     (i) Common Stock or any shares of stock or other securities which are at any time
directly or indirectly convertible into or exchangeable for Common Stock, or any rights or
options to subscribe for, purchase or otherwise acquire any of the foregoing by way of
dividend or other distribution (other than a dividend or distribution covered in Section
4(a) above);




     (ii) any cash paid or payable otherwise than as a cash dividend; or



5









 






     (iii) Common Stock or additional stock or other securities or property (including
cash) by way of spinoff, split-up, reclassification, combination of shares or similar
corporate rearrangement (other than shares of Common Stock pursuant to Section 4(a)
above),


then and in each such case, the Holder hereof will, upon the exercise of this Warrant, be entitled
to receive, in addition to the number of shares of Common Stock receivable thereupon, and without
payment of any additional consideration therefor, the amount of stock and other securities and
property (including cash in the cases referred to in clauses (ii) and (iii) above) which such
Holder would hold on the date of such exercise had such Holder been the holder of record of such
Common Stock as of the date on which holders of Common Stock received or became entitled to receive
such shares or all other additional stock and other securities and property.




     (C) Upon the occurrence of each adjustment pursuant to this Section 4, the Company
at its expense will, at the written request of the Holder, promptly compute such adjustment in
accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment,
including a statement of the adjusted Exercise Price and adjusted number or type of Exercise Shares
or other securities issuable upon exercise of this Warrant (as applicable), describing the
transactions giving rise to such adjustments and showing in detail the facts upon which such
adjustment is based. Upon written request, the Company will promptly deliver a copy of each such
certificate to the Holder and to the Company’s transfer agent.



     5. FRACTIONAL SHARES. No fractional shares shall be issued upon the exercise of
this Warrant as a consequence of any adjustment pursuant hereto. All Exercise Shares (including
fractions) issuable upon exercise of this Warrant may be aggregated for purposes of determining
whether the exercise would result in the issuance of any fractional share. If, after aggregation,
the exercise would result in the issuance of a fractional share, the Company shall, in lieu of
issuance of any fractional share, pay the Holder otherwise entitled to such fraction a sum in cash
equal to the product resulting from multiplying the then current fair market value of an Exercise
Share by such fraction.



     6. FUNDAMENTAL TRANSACTIONS. If, at any time while this Warrant is outstanding,
(i) the Company effects any merger or consolidation of the Company with or into another entity, in
which the shareholders of the Company as of immediately prior to the transaction own less than a
majority of the outstanding stock of the surviving entity, (ii) the Company effects any sale of all
or substantially all of its assets in one or a series of related transactions, (iii) any tender
offer or exchange offer (whether by the Company or another person or entity) is completed pursuant
to which holders of Common Stock are permitted to tender or exchange their shares for other
securities, cash or property, or (iv) the Company effects any reclassification of the Common Stock
or any compulsory share exchange pursuant to which the Common Stock is effectively converted into
or exchanged for other securities, cash or property (other than as a result of a subdivision or
combination of shares of Common Stock covered by Section 4 above) (each, a ‘‘Fundamental
Transaction’’), then the Holder shall have the right thereafter to receive, upon exercise of this
Warrant, the same amount and kind of securities, cash or property as it would have been entitled to
receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to
such Fundamental Transaction, the holder of the number of Exercise Shares then issuable upon
exercise in full of this Warrant (the ‘‘Alternate Consideration’’). To the extent necessary to
effectuate the foregoing provisions, any successor to the Company or surviving entity in such
Fundamental Transaction shall issue to the Holder a new warrant consistent with the foregoing
provisions and evidencing the Holder’s right to exercise such warrant into Alternate Consideration.
The terms of any agreement pursuant to which a Fundamental Transaction is effected shall include
terms requiring any such successor or surviving entity to comply with the provisions of this
Section 6 and ensuring that this Warrant (or any such replacement security) will be
similarly adjusted upon any subsequent transaction analogous to a Fundamental Transaction.
Notwithstanding the foregoing, in the event of a Fundamental Transaction involving the acquisition
of the Company by a Public Acquirer (as defined below) for consideration consisting of all or part
cash, at the option of the Holder, in lieu of any cash in respect of shares of Common Stock
underlying this Warrant, this Warrant (or such proportion thereof as is equal to the proportion of
cash to stock to be paid for the Company) shall thereafter be exercisable for the common stock of
the Public Acquirer for the remainder of the Exercise Period (and otherwise in accordance with the
terms hereof), with the number of shares thereafter underlying this Warrant determined by
multiplying the number of shares for which this Warrant is exercisable immediately prior to such
transaction by a fraction, the numerator of which is the cash consideration per share paid



6









 







for the Company and the denominator of which is the Market Price of the Public Acquirer’s
common stock, where “Market Price” means the average closing price of the Public Acquirer’s common
stock over the five trading days immediately following the closing date of the transaction. In the
case of a transaction involving partial cash consideration, the proportion of this Warrant as is
equal to the proportion of stock to cash in such transaction shall thereafter be exercisable for
stock of the Public Acquirer in accordance with the preceding terms of this Section 6, with the
number of shares underlying this Warrant adjusted to reflect the number of shares of common stock
of the Public Acquirer to be issued for each share of Common Stock of the Company. Following any
adjustment hereunder, the Exercise Price shall be proportionately adjusted, by multiplying the
Exercise Price then in effect by a fraction, the numerator of which is the number of shares
issuable prior to the adjustment and the denominator of which is the number of shares issuable
after the adjustment. “Public Acquirer” means any entity that has publicly traded common stock
whether publicly traded in the United States or in any other jurisdiction, it being understood that
(1) “common stock” as used in this Section 6 includes common equity equivalents, trust shares,
limited partnership interests, ordinary shares, American Depositary Receipts, American Depositary
Shares, and any other similar securities or derivate thereof, and (2) the Company shall be deemed
to have been acquired by a Public Acquirer where any successor entity has publicly traded common
stock whether traded in the United States or any other jurisdiction, even if such successor entity
is not the direct acquirer or successor to the Company. Following any transaction contemplated by
this Section 6, the term Exercise Shares shall be deemed to refer to the shares for which this
Warrant is thereafter exercisable in accordance with the provisions hereof. In addition, if
holders of Common Stock are given a choice as to the securities, cash (which shall be treated in
accordance with the preceding paragraph) or property to be received in a Fundamental Transaction
(including a right to elect to receive any particular one or combination of more than one of the
foregoing), then the Holder shall be given the same choice of consideration upon any exercise of
this Warrant following such Fundamental Transaction, which choice of consideration can be made at
the time of exercise at any time prior to the expiration of the Exercise Period.



     7. NO STOCKHOLDER RIGHTS. Other than as provided in Section 3.3 or
otherwise herein, this Warrant in and of itself shall not entitle the Holder to any voting rights
or other rights as a stockholder of the Company.



     8. TRANSFER OF WARRANT. Subject to compliance with any applicable laws, this
Warrant and all rights hereunder are transferable, by the Holder in person or by duly authorized
attorney, upon delivery of this Warrant and the form of assignment attached hereto to any
transferee designated by Holder. The transferee shall sign an investment letter in form and
substance reasonably satisfactory to the Company and its counsel.



     9. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost,
stolen, mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise as it
may reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination and tenor as this Warrant so lost, stolen,
mutilated or destroyed. Any such new Warrant shall constitute an original contractual obligation of
the Company, whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall be at
any time enforceable by anyone.



     10. NOTICES, ETC. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed telex or facsimile if sent during normal business hours of the
recipient, if not, then on the next business day, (c) five days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or (d) one day after
deposit with a nationally recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the Company at the address listed on
the signature page hereto and to Holder at the applicable address set forth on the applicable
signature page to the Subscription Agreement or at such other address as the Company or Holder may
designate by ten (10) days advance written notice to the other parties hereto.



     11. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute
acceptance of and agreement to all of the terms and conditions contained herein.



     12. GOVERNING LAW. This Warrant shall be governed by, and construed in
accordance with, the laws of the State of New York. The Holder hereby submits to the non-exclusive
jurisdiction of the Federal and state courts



7









 







in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of
or relating to this Agreement or the transactions contemplated thereby. The Holder irrevocably and
unconditionally waives any objection to the laying of venue of any suit or proceeding arising out
of or relating to this Warrant in Federal and state courts in the Borough of Manhattan in The City
of New York and irrevocably and unconditionally waives and agrees not to plead or claim in any such
court that any such suit or proceeding in any such court has been brought in an inconvenient forum.



     13. AMENDMENT OR WAIVER. Any term of this Warrant may be amended or waived
(either generally or in a particular instance and either retroactively or prospectively) with the
written consent of the Company and the holders of Company Warrants representing at least two-thirds
of the number of shares of Common Stock then subject to outstanding Company Warrants.
Notwithstanding the foregoing, (a) this Warrant may be amended and the observance of any term
hereunder may be waived without the written consent of the Holder only in a manner which applies to
all Company Warrants in the same fashion and (b) the number of Exercise Shares subject to this
Warrant and the Exercise Price of this Warrant may not be amended, and the right to exercise this
Warrant may not be waived, without the written consent of the Holder. The Company shall give prompt
written notice to the Holder of any amendment hereof or waiver hereunder that was effected without
the Holder’s written consent. No waivers of any term, condition or provision of this Warrant, in
any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver
of any such term, condition or provision.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




8









 








     IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized
officer as of ___, 2007.



	 	 	 	 	 
	 	CELL GENESYS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	500 Forbes Boulevard	 
	 	South San Francisco, CA	 
	 	94080	 



9









 





NOTICE OF EXERCISE




TO: CELL GENESYS, INC.





     (1) [   ] The undersigned hereby elects to purchase [            ] shares of the
common stock, par value $0.001 (the ‘‘Common Stock’’), of CELL GENESYS, INC. (the ‘‘Company’’)
pursuant to the terms of the attached Warrant, and tenders herewith payment of the exercise price
in full, together with all applicable transfer taxes, if any, subject to the limitations set forth
in Section 2.1 of the Warrant.



           [   ] The undersigned hereby elects to purchase [            ] shares of Common Stock
of the Company pursuant to the terms of the net exercise provisions set forth in Section
2.1 of the attached Warrant, and shall tender payment of all applicable transfer taxes, if any.



     (2) Please issue the certificate for shares of Common Stock in the name of, and pay any
cash for any fractional share to:



	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	 
	 	Print or type name
	 	 
	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	 
	 	Social Security or other Identifying Number	 	 
	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	 
	 	Street Address	 	 
	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	 
	 	City State Zip Code	 	 






     (3) If such number of shares shall not be all the shares purchasable upon the exercise of
the Warrants evidenced by this Warrant, a new warrant certificate for the balance of such Warrants
remaining unexercised shall be registered in the name of and delivered to:



     Please insert Social Security or other identifying number: ______________________________________________


 



(Please print name and address)




Dated: ___________________________




     (Date)



	 	 	 	 	 
	 

	 	 	 	 
	 

	 	(Signature)
	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	(Print name)	 	 






10









 






ASSIGNMENT FORM




     (To assign the foregoing Warrant, execute this form and supply required information. Do not
use this form to purchase shares.)



     FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned
to



	 	 	 	 	 
	Name:

	 	 	 	 
	 

	 	(Please Print)	 	 
	 
	 	 	 	 
	Address:
	 	 	 	 
	 

	 	(Please Print)	 	 
	Dated:    
    , 200[        ]
	 	 	 	 






	 	 	 	 	 
	Holder’s Signature:

	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Holder’s Address:
	 	 	 	 
	 

	 	 	 	 




NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face
of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations
and those acting in a fiduciary or other representative capacity should file proper evidence of
authority to assign the foregoing Warrant.





11