WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE BEEN ACQUIRED FOR INVESTMENT
NOT FOR DISTRIBUTION, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
1933, AS AMENDED NEITHER THE WARRANT NOR THE SHARES MAY BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH
OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED. THIS WARRANT
MUST BE SURRENDERED TO THE COMPANY OR ITS TRANSFER AGENT AS A CONDITION
PRECEDENT TO THE SALE, PLEDGE OR OTHER TRANSFER OF ANY INTEREST IN THIS WARRANT
OR THE SHARES ISSUABLE HEREUNDER.
MultiCell Technologies, Inc.
Stock: Common Stock
Date: February 28, 2007
Date: February 28, 2012
WARRANT TO PURCHASE COMMON STOCK is
issued pursuant to that certain Securities Purchase Agreement dated as of the
date hereof (the “Purchase Agreement”) by and between MultiCell Technologies,
Inc., a Delaware corporation (the “Company”), to La Jolla Cove Investors, Inc.
(“Holder”). Capitalized terms not defined herein shall have the meanings
ascribed to them in the Debenture or the Purchase Agreement.
1.1 Warrants. The
Company hereby grants to Holder the right to purchase 10,000,000 shares of
Company’s Common Stock (the “Shares” or “Warrant Shares”) at a price per share
equal to the Exercise Price set forth in section 2.4 below. Upon each conversion
of any portion of the Principal Amount (as defined in the Debenture) outstanding
under the Debenture (as defined in the Purchase Agreement), Holder will
simultaneously purchase a percentage of the Warrant Shares that is equal to
percentage obtained by dividing the amount of the Principal Amount of the
Debenture being converted by the Purchase Price (as defined in the Purchase
Agreement). For purposes of illustration only, if the Purchase Price of the
Debenture is equal to $100,000, and the Holder elects to convert $1,000 of
Principal Amount of the Debenture, Holder would simultaneously purchase 100,000
Warrant Shares under the terms of this Warrant. The date that the Holder issues
a Conversion Notice under the Debenture is hereafter referred to as the
of Warrants. This
Warrant shall expire and Holder shall no longer be able to purchase the Warrant
Shares on the Expiration Date. Provided however, in
event the Company redeems the outstanding Principal Amount of the Debenture,
plus all accrued and unpaid interest thereon, the Company shall have the right
to terminate the Warrant and the Company shall have no further obligation to
issue any remaining unexercised Shares issuable under this Warrant.
may exercise this Warrant by delivering a duly executed Warrant Notice of
Exercise in substantially the form attached as Appendix
principal office of the Company.
of Certificate and New Warrant.
promptly as practicable after the receipt of the Warrant Notice of Exercise,
in any event not more than two (2) Business Days after the Company’s receipt of
the Warrant Notice of Exercise, the Company shall issue the Shares and cause
be mailed for delivery by overnight courier to Holder a certificate representing
the Shares acquired and, if this Warrant has not been fully exercised and has
not expired, a new Warrant substantially in the form of this Warrant
representing the right to acquire the portion of the Shares not so acquired.
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of loss, theft or
destruction, on delivery of an indemnity agreement reasonably satisfactory
form and amount to the Company or, in the case of mutilation, or surrender
cancellation of this Warrant, the Company at its expense shall execute and
deliver, in lieu of this Warrant, a new warrant of like tenor.
Exercise Price of this Warrant shall be $1.09 per Share.
Exercise Limits. For
period of one year after the Closing Date, if and to the extent that, on any
date, the holding by the Holder of this Warrant would result in the Holder’s
being deemed the beneficial owner of more than 9.9% of the then Outstanding
shares of Common Stock, then the Holder shall not have the right, and the
Company shall not have the obligation, to exercise any portion of this Warrant
as shall cause Holder to be deemed the beneficial owner of more than 9.9% of
then Outstanding shares of Common Stock.
TO THE SHARES
number of Shares purchasable upon the exercise of this Warrant and the Exercise
Price shall be subject to adjustment from time to time upon the occurrence
certain events, as follows:
of any reclassification or change of outstanding securities of the class
issuable upon exercise of this Warrant then, and in any such case, the Holder,
upon the exercise hereof at any time after the consummation of such
reclassification or change, shall be entitled to receive in lieu of each Share
theretofore issuable upon exercise of this Warrant, the kind and amount of
shares of stock, other securities, money and/or property received upon such
reclassification or change by a holder of one Share. The provisions of this
Section 3.1 shall similarly apply to successive reclassifications or
or Combination of Shares.
Company at any time while this Warrant remains outstanding and unexpired shall
subdivide or combine its Shares, the Exercise Price shall be proportionately
decreased in the case of a subdivision or increased in the case of a
Company, at any time while this Warrant is outstanding shall pay a dividend
respect to its Shares payable in Shares, or make any other distribution of
Shares with respect to Shares (except any distribution specifically provided
in Section 3.1 and Section 3.2 above), then the Exercise Price shall be
adjusted, effective from and after the date of determination of shareholders
entitled to received such dividend or distribution, to that price determined
multiplying the Exercise Price in effect immediately prior to such date of
determination by a fraction, (a) the numerator of which shall be the total
number of Shares outstanding immediately prior to such dividend or distribution,
and (b) the denominator of which shall be the total number of Shares outstanding
immediately after such dividend or distribution.
Company at any time while this Warrant is outstanding shall pay a dividend
respect to Shares payable in securities other than Shares or other non-cash
property, or make any other distribution of such securities or property with
respect to Shares (except any distribution specifically provided for in Section
3.1 and Section 3.2 above), then this Warrant shall represent the right to
acquire upon exercise of this Warrant such securities or property which a holder
of Shares would have been entitled to receive upon such dividend or
distribution, without the payment by the Holder of any additional consideration
for such securities or property.
of Reorganization and Asset Sales.
(i) reorganization or reclassification of the Common Stock (ii) consolidation
merger of the Company with or into another corporation, or (iii) sale or all
substantially all of the Company’s operating assets to another corporation
followed by a liquidation of the Company (any such transaction shall be referred
to herein as an “Event”), is effected in such a way that holders of common Stock
are entitled to receive securities and/or assets as a result of their Common
Stock ownership, the Holder, upon exercise of this Warrant, shall be entitled
receive such shares of stock securities or assets which the Holder would have
received had it fully exercised this Warrant on or prior the record date for
such Event. The Company shall not merge into or consolidate with another
corporation or sell all of its assets to another corporation for a consideration
consisting primarily of securities of such corporation, unless the successor
acquiring corporation, as the case may be, shall expressly assume the due and
punctual observance and performance of each and every covenant and condition
this Warrant to be performed or observed by the Company and all of the
obligations and liabilities hereunder, subject to such modification as shall
necessary to provide for adjustments which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section 3. The foregoing
provisions shall similarly apply to successive mergers, consolidations or sales
of Number of Shares.
each adjustment in the Exercise Price, the number of Shares shall be adjusted,
to the nearest whole share, to the product obtained by multiplying the number
Shares, purchasable immediately prior to such adjustment by a fraction, the
numerator of which shall be the Exercise Price immediately prior to such
adjustment and the denominator of which shall be the Exercise Price immediately
Company shall not, by amendment of its articles or certificate of incorporation
or through a 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 under this Warrant by the Company, but shall at all times
in good faith assist in carrying out all of the provisions of this Warrant
in taking all such action as may be reasonably necessary or appropriate to
protect Holder’s rights hereunder against impairment. If the Company takes any
action affecting its Common Stock other than as described above that adversely
affects Holder’s rights under this Warrant, the Exercise Price shall be adjusted
downward and the number of Shares issuable upon exercise of this Warrant shall
be adjusted upward in such a manner that the aggregate Exercise Price of this
Warrant is unchanged.
fractional Shares shall be issuable upon the exercise of this Warrant, and
number of Shares to be issued shall be rounded down to the nearest whole
as to Adjustments.
any adjustment of the Exercise Price, the Company, at its expense, shall compute
such adjustment and furnish Holder with a certificate of its Chief Financial
Officer setting forth such adjustment and the facts upon which such adjustment
is based. The Company shall, upon written request, furnish Holder a certificate
setting forth the Exercise Price in effect upon the date thereof and the series
of adjustments leading to such Exercise Price.
Rights of Shareholders.
Warrant does not entitle Holder to any voting rights or any other rights as
shareholder of the Company prior to the exercise of Holder’s right to purchase
Shares as provided herein.
AND COVENANTS OF THE COMPANY
Company hereby represents and warrants to Holder that all Shares which may
issued upon the exercise of the purchase right represented by this Warrant,
shall, upon issuance, be duly authorized, validly issued, fully paid and
nonasessable, and free of any liens and encumbrances.
of Certain Events.
Company proposes at any time (a) to declare any dividend or distribution
upon its Common Stock, whether in cash, property, stock, or other securities
whether or not a regular cash dividend; (b) to offer for subscription pro rata
to the holders of any class or series of its stock any additional shares of
stock of any class or series or other rights; (c) to effect any reclassification
or recapitalization of Common Stock; (d) to merge or consolidate with or into
any other corporation, or sell, lease, license, or convey all or substantially
all of its assets, or to liquidate, dissolve or wind up; or (e) offer holders
registration rights the opportunity to participate in an underwritten public
offering of the Company’s securities for cash, then, in connection with each
such event, the Company shall give Holder (1) at least 20 days prior written
notice of the date on which a record will be taken for such dividend,
distribution, or subscription rights (and specifying the date on which the
holders of Common Stock will be entitled thereto) or for determining rights
vote, if any, in respect of the matters referred to in (c) and (d) above; (2)
the case of the matters referred to in (c) and (d) above at least 20 days prior
written notice of the date when the same will take place (and specifying the
date on which the holders of Common Stock will be entitled to exchange their
Common Stock for securities or other property deliverable upon the occurrence
such event); and (3) in the case of the matter referred to in (e) above, the
same notice as is given to the holders of such registration rights.
as Holder holds this Warrant and/or any of the Shares, the Company shall deliver
to Holder (a) promptly after mailing, copies of all notices or other written
communications to the shareholders of the Company, (b) within ninety (90)
days of their availability, the annual audited financial statements of the
Company certified by independent public accountants of recognized standing,
(c) within forty-five (45) days after the end of each fiscal quarter or
each fiscal year, the Company’s quarterly, unaudited financial
of Warrant Shares.
Company has reserved and will keep available, out of the authorized and unissued
shares of Common Stock, the full number of shares sufficient to provide for
exercise of the rights of purchase represented by this Warrant.
AND COVENANTS OF THE HOLDER
understands (i) that the Shares issuable upon exercise of Holder’s rights
contained in the Warrant are not registered under the Act or qualified under
applicable state securities laws on the ground that the issuance contemplated
the Warrant will be exempt from the registration and qualifications requirements
thereof, and (ii) that the Company’s reliance on such exemption is predicated on
Holder’s representations set forth in this Article 5.
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.
of No Registration.
understands that if the Company does not register with the Securities and
Exchange Commission pursuant to Section 12 of the Act, or file reports pursuant
to Section 15(d), of the Securities Exchange Act of 1934 (the “1934 Act”), or if
a registration statement covering the securities under the Act is not in effect
when it desires to sell (i) the right to purchase Shares pursuant to the
Warrant, or (ii) the Shares issuable upon exercise of the right to purchase,
may be required to hold such securities for an indefinite period.
is an “accredited investor,” as such term is defined in Regulation D promulgated
pursuant to the Act.
Warrant is exercisable, in whole or in part, at any time and from time to time
on or after the Issue Date and on or before the Expiration Date set forth
with Securities Laws on Transfer.
Warrant may not be transferred or assigned in whole or in part without
compliance with applicable federal and state securities laws by the transferor
and the transferee (including, without limitation, the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company, as reasonably requested by the Company). The Company shall not require
Holder to provide an opinion of counsel if the transfer is to an affiliate
shall have the right without the consent of the Company to transfer or assign
whole or in part this Warrant and the Shares issuable upon exercise of this
Warrant. Holder agrees that unless there is in effect a registration statement
under the Act covering the proposed transfer of all or part of this Warrant,
prior to any such proposed transfer the Holder shall give written notice thereof
to the Company (a “Transfer Notice”). Each Transfer Notice shall describe the
manner and circumstances of the proposed transfer in reasonable detail and,
the company so requests, shall be accompanied by an opinion of legal counsel,
a form reasonably satisfactory to the Company, to the effect that the proposed
transfer may be effected without registration under the Act; provided that
Company will not require opinions of counsel for transactions involving
transfers to affiliates or pursuant to Rule 144 promulgated by the
Securities and Exchange Commission under the act, except in unusual
notices and other communications required or permitted hereunder shall be in
writing and shall be delivered personally, or sent by telecopier machine or
nationally recognized overnight courier service, and shall be deemed given
so delivered personally, or by telecopier machine or overnight courier service
George Washington Highway
Rhode Island 02865
Cove Investors, Inc.
Herschel Avenue, Suite 200
such other address as the Company shall have furnished to the Holder. Each
notice or other communication shall for all purposes of this agreement be
treated as effective or having been given when delivered if delivered
personally, or, if sent by mail, at the earlier of its receipt or five days
after the same has been deposited in a regularly maintained receptacle for
deposit of the United States mail, addressed and mailed as
agreement may be executed in any number of counterparts, each of which shall
enforceable against the parties actually executing such counterparts, and all
which together shall constitute one instrument. Facsimile execution shall be
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought.
event of any dispute between the parties concerning the terms and provisions
this Warrant, the party prevailing in such dispute shall be entitled to collect
from the other party all costs incurred in such dispute, including reasonable
Warrant shall be governed by and construed in accordance with the laws of the
State of California, without giving effect to its principles regarding conflicts
of law. Each of the parties hereto consents to the jurisdiction of the federal
courts whose districts encompass any part of the City of San Diego or the state
courts of the State of California sitting in the City of San Diego in connection
with any dispute arising under this Warrant and hereby waives, to the maximum
extent permitted by law, any objection including any objection based on forum
non conveniens, to the bringing of any such proceeding in such
6.9 Remedies. The
Company acknowledges that a breach by it of its obligations hereunder will
irreparable harm to the Holder, by vitiating the intent and purpose of the
transactions hereby. Accordingly, the Company acknowledges that the remedy
law for a breach of its obligations under this Warrant will be inadequate and
agrees, in the event of a breach or threatened breach by the Company of the
provisions of this Warrant, that the Holder shall be entitled, in addition
all other available remedies at law or in equity, and in addition to the
penalties assessable herein, to an injunction or injunctions restraining,
preventing or curing any breach of this Warrant and to enforce specifically
terms and provisions hereof, without the necessity of showing economic loss
without any bond or other security being required.
|MultiCell Technologies, Inc.
||La Jolla Cove Investors, Inc.
NOTICE OF EXERCISE
undersigned hereby elects to purchase _____ shares of the Common Stock of
MultiCell Technologies, Inc. pursuant to the terms of the Warrant to Purchase
Common Stock issued to La Jolla Cove Investors, Inc. on February 28,
issue a certificate or certificates representing said shares in the name of
undersigned or in such other name as is specified below:
Cove Investors, Inc.
Herschel Ave., Suite 200