Exhibit 10.10
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 ACT, AS AMENDED (THE "1933
ACT"). THE HOLDER HEREOF, BY PURCHASING THIS WARRANT, AGREES FOR THE
BENEFIT OF THE COMPANY THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT AND ANY APPLICABLE STATE
SECURITES LAWS, OR (C) IF REGISTERED UNDER THE 1933 ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
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MICROHELIX, INC.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
Expires April 8, 0000
Xxxxxxxx, Xxxxxx
Original Issue Date: April 8, 2005
IN CONSIDERATION OF $1,000.00, the representations and covenants set forth
herein, and other good and valuable consideration received, and subject to the
provisions hereinafter set forth, microHelix, Inc., an Oregon corporation (the
"Company"), hereby certifies that ____________________________or its registered
assigns (the "Warrant Holder") is entitled to subscribe for and purchase, during
the period specified in this Warrant, up to [xxx,xxx] shares ("Warrant Shares")
(subject to adjustment as hereinafter provided) of the duly authorized, validly
issued, fully paid and non-assessable Common Stock of the Company, at an
exercise price per share equal to $0.25 per share (subject to adjustment as
hereinafter provided, the "Exercise Price") subject, however, to the provisions
and upon the terms and conditions hereinafter set forth. The right to purchase
Warrant Shares will expire at 12:01 a.m., Pacific Time, on April 8, 2015.
1. Registration of Warrant. The Company will register this Warrant upon
records to be maintained by the Company for that purpose (the "Warrant
Register"), in the name of the record Warrant Holder hereof from time to time.
The Company may deem and treat the registered Warrant Holder of this Warrant as
the absolute owner hereof for the purpose of any exercise hereof or any
distribution to the Warrant Holder, and for all other purposes, and the Company
will not be affected by notice to the contrary.
2. Representations and Covenants of the Warrant Holder. This Warrant has
been entered into by the Company in reliance upon the following representations
and covenants of the Warrant Holder:
(a) The Warrant Holder by accepting this Warrant represents that the
Warrant Holder is acquiring this Warrant for its own account or the account of
an affiliate for investment purposes and not with the view to any offering or
distribution and that the Warrant Holder will not sell or otherwise dispose of
this Warrant or the underlying Warrant Shares in violation of applicable
securities laws.
(b) The Warrant Holder acknowledges that the certificates
representing any Warrant Shares will bear a legend indicating that they have not
been registered under the United States Securities Act of 1933, as amended (the
"1933 Act"), and may not be sold by the Warrant Holder except pursuant to an
effective registration statement or pursuant to an exemption from registration
requirements of the 1933 Act and in accordance with federal and state securities
laws.
(c) In no event will the Warrant Holder make a disposition of any of
its rights to acquire Common Stock or Common Stock issuable upon exercise of
such rights unless and until (i) it has notified the Company of the proposed
disposition, and (ii) if requested by the Company, it has furnished the Company
with an opinion of counsel satisfactory to the Company and its counsel to the
effect that (A) appropriate action necessary for compliance with the 1933 Act
has been taken, or (B) an exemption from the registration requirements of the
1933 Act is available. Notwithstanding the foregoing, the restrictions on the
transferability of any security will terminate when such security is effectively
registered under the 1933 Act and sold by the holder thereof in accordance with
such registration, or such security is sold without registration in compliance
with Rule 144 under the 1933 Act. Whenever the restrictions imposed under this
section terminate, the Warrant Holder or holder of a share of Common Stock then
outstanding as to which such restrictions have terminated will be entitled to
receive from the Company one or more new certificates for the Warrant or for
such shares of Common Stock not bearing any restrictive legend.
(d) The Warrant Holder is an "accredited investor" within the
meaning of Rule 501(a) of Regulation D promulgated under the 1933 Act.
(e) The Warrant Holder has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of its investment, and has the ability to bear the economic risks of its
investment.
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(f) The Warrant Holder understands that if a registration statement
covering the this Warrant or the Common Stock if not in effect when it desires
to sell this Warrant or the Common Stock, it may be required to hold such
securities for an indefinite period. The Warrant Holder also understands that
any sale of its rights to purchase Common Stock or Common Stock which might be
made by it in reliance upon Rule 144 under the 1933 Act may be made only in
accordance with the terms and conditions of that Rule.
3. Validity of Warrant and Issue of Shares. The Company represents and
warrants that this Warrant has been duly authorized and validly issued and
warrants and agrees that all of Common Stock that may be issued upon the
exercise of the rights represented by this Warrant will, when issued upon such
exercise, be duly authorized, validly issued, fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issue thereof. The
Company further warrants and agrees that during the period within which the
rights represented by this Warrant may be exercised, the Company will at all
times have authorized and reserved a sufficient number of Common Stock to
provide for the exercise of the rights represented by this Warrant.
4. Registration of Transfers of Warrant. Subject to compliance with the
legend set forth on the face of this Warrant and Section 2(c), the Company will
register the transfer of any portion of this Warrant in the Warrant in the
Warrant Register, upon surrender of this Warrant with the Form of Assignment
attached hereto duly completed and signed, to the Company. Upon any such
registration or transfer, a new warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new warrant, a "New Warrant"),
evidencing the portion of this Warrant so transferred will be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, will be issued to the transferring Warrant Holder.
The acceptance of the New Warrant by the transferee thereof will be deemed the
acceptance of such transferee of all of the rights and obligations of a Warrant
Holder of a Warrant.
5. Exercise of Warrants.
(a) Upon surrender of this Warrant with the Form of Election to
Purchase attached hereto duly completed and signed to the Company, and upon
payment and delivery of the Exercise Price per Warrant Share multiplied by the
number of Warrant Shares that the Warrant Holder intends to purchase hereunder,
in lawful money of the United States of America, in cash or by certified or
official bank check or checks, to the Company, all as specified by the Warrant
Holder in the Form of Election to Purchase, the Company will promptly issue or
cause to be issued and cause to be delivered to or upon the written order of the
Warrant Holder and in such name or names as the Warrant Holder may designate
(subject to the restrictions on transfer described Section 2(c) and in the
legend set forth on the face of this Warrant), a certificate for the Warrant
Shares issuable upon such exercise, with such restrictive legend as required by
the 1933 Act. Any person so designated by the Holder to receive Warrant Shares
will be deemed to have become the holder of record of such Warrant Shares as of
the Date of Exercise of this Warrant.
(b) A "Date of Exercise" means the date on which the Company will
have received (i) this Warrant (or any New Warrant, as applicable), with the
Form of Election to Purchase attached hereto (or attached to such New Warrant)
appropriately completed and duly signed, and (ii) payment of the Exercise Price
for the number of Warrant Shares indicated by the Warrant Holder to be
purchased.
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(c) If less than all of the Warrant Shares which may be purchased
under this Warrant are exercised at any time, the Company will issue or cause to
be issued a New Warrant evidencing the right to purchase the remaining number of
Warrant Shares.
(d) After April 8, 2006 the holder of this Warrant may, at its
election, exercise this Warrant in whole or in part and, in lieu of making the
cash payment otherwise contemplated to be made to the Company upon such exercise
in payment of the aggregate Exercise Price, elect instead to receive upon such
exercise the "Net Number" of shares of Common Stock determined according to the
following formula (a "Cashless Exercise"):
Net Number = (A x (B - C))/B
(ii) For purposes of the foregoing formula:
A = the total number shares with respect to which this Warrant
is then being exercised.
B = the average Market Price (as defined below) over a
twenty-one (21) day period ending three trading days before
the effective date of the Exercise Notice.
C = the Warrant Exercise Price then in effect at the time of
such exercise.
"Market Price" means, with respect to Warrant Shares, if (i) the shares are
listed or admitted for listing on any national securities exchange or included
in The Nasdaq National Market or the Nasdaq SmallCap Market, the last reported
sales price as reported on such exchange or market; (ii) if the shares are not
so listed or admitted for trading, the average of the last reported closing bid
and asked quotation for the shares as reported on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or a similar service if
NASDAQ is not reporting such information; or (iii) if the shares are not so
listed or admitted for trading or quoted by NASDAQ or a similar service, the
average of the last reported bid and asked quotation for the shares as quoted by
a market maker in the shares (or if there is more than one market maker, then
the average of the lowest bid and highest asked quotation). In the absence of
any available public quotations for the shares, the Board of Directors of the
Company will determine in good faith the fair market value of the shares, which
determination will be set forth in a certificate signed by the Secretary of the
Company.
6. Adjustment of Exercise Price and Number of Shares. The character of the
shares of stock or other securities at the time issuable upon exercise of this
Warrant, the number of Warrant Shares, and the Exercise Price are subject to
adjustment upon the occurrence of the following events, and all such adjustments
will be cumulative:
(a) The Exercise Price of this Warrant and the number of shares of
Common Stock or other securities at the time issuable upon exercise of this
Warrant will be appropriately adjusted to reflect any stock dividend, stock
split, combination of shares, reclassification, recapitalization or other
similar event affecting the number of outstanding shares of stock or securities.
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(b) In case of any consolidation or merger of the Company with or
into any other corporation, entity or person, or any other corporate
reorganization, in which the Company will not be the continuing or surviving
entity of such consolidation, merger or reorganization (any such transaction
being hereinafter referred to as a "Reorganization"), then, in each case, the
holder of this Warrant, on exercise at any time after the consummation or
effective date of such Reorganization (the "Effective Date"), will receive, in
lieu of the shares of stock or other securities at any time issuable upon the
exercise of the Warrant issuable on such exercise prior to the Effective Date,
the stock and other securities and property (including cash) to which such
holder would have been entitled upon the Effective Date if such holder had
exercised this Warrant immediately prior thereto (all subject to further
adjustment as provided in this Warrant).
(c) In case of any adjustment or readjustment in the price or kind
of securities issuable on the exercise of this Warrant, the Company will
promptly give written notice thereof to the holder of this Warrant, setting
forth such adjustment or readjustment and showing in reasonable detail the facts
upon which such adjustment or readjustment is based.
7. Fractional Shares. The Company will not be required to issue or cause
to be issued fractional Warrant Shares on the exercise of this Warrant. The
number of full Warrant Shares that will be issuable upon the exercise of this
Warrant will be computed on the basis of the aggregate number of Warrants Shares
purchasable on exercise of this Warrant so presented. If any fraction of a
Warrant Share would, except for the provisions of this Section 7, be issuable on
the exercise of this Warrant, the Company will, at its option, (i) pay an amount
in cash equal to the Exercise Price multiplied by such fraction or (ii) round
the number of Warrant Shares issuable, up to the next whole number.
8. Sale or Merger of the Company. In the event of a sale of all or
substantially all of the assets of the Company or the merger or consolidation of
the Company in a transaction in which the Company is not the surviving entity,
Warrant Holder will have the right to exercise the warrants concurrent with the
sale.
9. Notice of Intent to Sell or Merge the Company. The Company will give
Warrant Holder 30 days notice before the event of a sale of all or substantially
all of the assets of the Company or the merger or consolidation of the Company
in a transaction in which the Company is not the surviving entity.
10. Right To Include ("Piggy-Back") Registration Rights.
(a) Provided that the Warrant Shares are not then registered
if, at any time prior to the date all Warrant Shares may be sold by Warrant
Holder pursuant to Rule 144 under the 1933 Act, the Company proposes to register
shares of its Common Stock under the 1933 Act (other than by a registration
which would not permit registration of such securities for sale to the public,
on Form S-8, or any successor form thereto, or on Form S-4, or any successor
form thereto) on an underwritten basis (either best-efforts or firm-commitment),
the Company will each such time give prompt written notice to the Warrant Holder
of its intention to register its securities. Upon the written request of the
Warrant Holder made within fifteen (15) days after the receipt of any such
notice from the Company (which request will specify the number of Warrant Shares
intended to be disposed of by such Warrant Holder and the intended method of
disposition thereof), the Company will, subject to the terms of this Warrant,
use its commercially reasonable best efforts to include such Warrant Shares in
the registration statement which covers the securities which the Company
proposes to register.
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(b) If at any time after written notice of its intention to register
any securities and prior to the effective date of the registration statement
filed in connection with such registration the Company determines for any reason
either not to register or to delay registration of such securities, the Company
will give written notice of such determination to the Warrant Holder. In the
case of a determination not to register, the Company will be relieved of the
obligation to register any Warrant Shares in connection with such registration.
(c) The Company will pay all registration expenses in connection
with each registration of Warrant Shares requested pursuant to this Section,
except the Warrant Holder will pay its pro rata portion of the discounts or
commissions payable to any underwriter.
(d) If the managing underwriter of the underwritten offering
contemplated by this Section informs the Company and Warrant Holder in writing
that it believes that the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering, then the
Company will include in such registration up to the number of Warrant Shares
which the Company is advised by the managing underwriter can be sold in such
offering, after taking into account Company's obligations to its other
securities holders with registration rights.
11. Notices. All notices and other communications hereunder will be in
writing and will be deemed to have been given (i) on the date they are delivered
if delivered in person; (ii) on the date initially received if delivered by
facsimile transmission followed by registered or certified mail confirmation;
(iii) on the date delivered by an overnight courier service; or (iv) on the
third business day after it is mailed by registered or certified mail, return
receipt requested with postage and other fees prepaid as follows:
If to the Company:
microHelix, Inc.
00000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
Fax 000-000-0000
Attention: Tyram X. Xxxxxx
If to the Warrant Holder:
Either party may subsequently designate another address for notices by written
notice to the other party.
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12. Miscellaneous.
(a) This Warrant constitutes the entire agreement between the
Company and Warrant Holder with respect to the subject matter hereof, and
supersedes all prior agreements between the parties with respect to such subject
matter. This Warrant will be binding on and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. This Warrant may
be amended only in a writing signed by the Company and the Warrant Holder.
(b) Nothing in this Warrant will be construed to give to any person
or corporation other than the Company and the Warrant Holder any legal or
equitable right, remedy or cause of action under this Warrant; this Warrant will
be for the sole and exclusive benefit of the Company and the Warrant Holder.
(c) This Warrant will be governed by, construed and enforced in
accordance with the internal laws of the State of Oregon without giving effect
to principles of conflicts of law. The parties hereto irrevocably submit to the
jurisdiction of any state or federal court sitting in Multnomah County, Oregon,
in any action or proceeding brought to enforce, or otherwise arising out of or
relating to, this Warrant, and hereby waive any objection to venue in any such
court and any claim that such forum is an inconvenient forum.
(d) Each party hereby irrevocably waives any right it may have, and
agrees not to request, a jury trial for the adjudication of any dispute
hereunder or in connection herewith or arising out of this Warrant or any
transaction contemplated hereby. In the event suit or action is brought by any
party under this Warrant to enforce any of its terms, or in any appeal
therefrom, it is agreed that the prevailing party or parties will be entitled to
reasonable attorneys fees to be fixed by the arbitrator, trial court, and/or
appellate court.
(e) The parties agree that a breach or violation of this Warrant
will result in immediate and irreparable harm to the non-breaching party in an
amount that will be impossible to ascertain at the time of the breach or
violation, and that the award of monetary damages will not be adequate relief to
the non-breaching party. The non-breaching party will be entitled to seek
equitable or injunctive relief, in addition to other remedies to which it may be
entitled at law or equity. In any action for equitable relief, the parties agree
to waive any requirement for the posting of a bond or security.
(f) The headings herein are for convenience only, do not constitute
a part of this Warrant and will not be deemed to limit or affect any of the
provisions hereof.
(g) In case any one or more of the provisions of this Warrant will
be invalid or unenforceable in any respect, the validity and enforceability of
the remaining terms and provisions of this Warrant will not in any way be
affected or impaired thereby and the parties will attempt in good faith to agree
upon a valid and enforceable provision which will be a commercially reasonably
substitute therefore, and upon so agreeing, will incorporate such substitute
provision in this Warrant.
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(h) The Warrant Holder will not, by virtue hereof, be entitled to
any voting or other rights of a shareholder of the Company, either at law or
equity, and the rights of the Warrant Holder are limited to those expressed in
this Warrant.
(i) This Warrant may be executed in one or more counterparts, each
of which when executed will be deemed to be an original, but all of which taken
together will constitute one and the same agreement. A facsimile transmission of
this signed Warrant will be legal and binding on all parties hereto.
IN WITNESS WHEREOF, each party has caused this Warrant to be duly
executed by its authorized officer effective as of the Original Issue Date.
Company: Warrant Holder:
MICROHELIX, INC.
By: ________________________________ By: _________________________________
Name: Tyram X. Xxxxxx Name:________________________________
Title: President & CEO Title:_______________________________
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FORM OF ELECTION TO PURCHASE
(To be executed by the Warrant Holder to exercise the right to purchase shares
of Common Stock under the foregoing Warrant)
To: MICROHELIX, INC.
In accordance with the Warrant enclosed with this Form of Election to Purchase,
the undersigned hereby irrevocably elects to purchase ______________ shares of
Common Stock ("Common Stock"), no par value, of microHelix, Inc. and encloses
one warrant and the Exercise Price (as defined in the Warrant, originally $0.25
per Warrant Share) for each Warrant Share being purchased or an aggregate of
$________________ in cash or certified or official bank check or checks, which
sum represents the aggregate Exercise Price together with any applicable taxes
payable by the undersigned pursuant to the Warrant.
The undersigned requests that certificates for the shares of Common Stock
issuable upon this exercise be issued in the name of:
------------------------------------------------------------
------------------------------------------------------------
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(Please print name and address)
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(Please insert Social Security or Tax Identification Number)
If the number of shares of Common Stock issuable upon this exercise will not be
all of the shares of Common Stock which the undersigned is entitled to purchase
in accordance with the enclosed Warrant, the undersigned requests that a New
Warrant (as defined in the Warrant) evidencing the right to purchase the shares
of Common Stock not issuable pursuant to the exercise evidenced hereby be issued
in the name of and delivered to:
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
(Please print name and address)
Dated: Name of Warrant Holder:
-------------------
(Print)
--------------------------------
(By:)
---------------------------------
(Name:)
-------------------------------
(Title:)
------------------------------
Signature must conform in all respects
to name of Warrant Holder as specified
on the face of the Warrant
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FORM OF ASSIGNMENT
(To be signed only on transfer of Warrant)
TO: MICROHELIX, INC.
FOR VALUE RECEIVED, the undersigned Registered Holder
--------------------------
Print Name of Holder
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(Please insert Social Security or Tax Identification
Number of Registered Holder)
hereby sells, assigns and transfers unto
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
(Please Print Name and Address including Zip Code)
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(Please insert Social Security or Tax Identification Number of Assignee)
The right to purchase ________ shares of Common Stock of microHelix, Inc.,
evidenced by the attached Warrant, and irrevocably constitutes and appoints
_____________________________________ attorney to transfer this Warrant on the
books of microHelix, Inc. with the full power of substitution in the premises.
If this assignment is not an assignment of all of the shares of Common Stock
which the undersigned is entitled to purchase in accordance with the enclosed
Warrant, the undersigned requests that a new Warrant evidencing the right to
purchase the shares of Common Stock not assigned hereby be issued in the name of
and delivered to the Registered Holder.
Dated:
---------------------------
Signature:
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By:__________________________________________
Title:_______________________________________
(Signature must conform in all respects to the name of the Registered Holder as
specified on the face of the attached Warrant in every particular, without
alteration or any change whatsoever.)
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