WARRANT TO PURCHASE COMMON STOCK
Exhibit 10.15
THIS WARRANT AND THE SECURITIES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
IRVINE SENSORS CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
Number of Shares: |
500,000 shares | |
Warrant Price: |
$1.30 | |
Issuance Date: |
February 4, 2008 | |
Expiration Date: |
February 4, 2013 |
THIS WARRANT CERTIFIES THAT for value received, Maxim Partners LLC or its registered assigns
(hereinafter called the “Holder”) is entitled to purchase from Irvine Sensors Corporation
(hereinafter called the “Company”), the above referenced number of fully paid and nonassessable
shares (the “Shares”) of common stock (the “Common Stock”), of Company, at the Warrant Price per
Share referenced above; the number of shares purchasable upon exercise of this Warrant referenced
above being subject to proportional adjustment from time to time as described herein. The exercise
of this Warrant shall be subject to the provisions, limitations and restrictions contained herein.
1. Term and Exercise.
1.1 Term. This Warrant is exercisable in whole or in part (but not as to any fractional
share of Common Stock), at any time and from time to time prior to 5:00 p.m. on the Expiration Date
set forth above.
1.2 Warrant Price.
The Warrant shall be exercisable at $1.30 per share (the “Warrant Price”).
1.3 Procedure for Exercise of Warrant. Holder may exercise this Warrant by delivering the
following to the principal office of the Company in accordance with Section 5.1 hereof: (a) a duly
executed Notice of Exercise in substantially the form attached as Schedule A, (b) payment of the
Warrant Price then in effect for each of the Shares being purchased, as designated in the Notice of
Exercise, and (c) the original of this Warrant. Payment of the Warrant Price may be in cash,
certified or official bank check payable to the order of the Company, or wire transfer of funds to
the Company’s account (or any combination of any of the foregoing) in the amount of the Warrant
Price for each share being purchased. Notwithstanding the foregoing, except as set forth below, if
the Current Market Price (as defined below) is greater than the Warrant Price as of the day of
exercise, the Holder may elect to receive shares of Common Stock equal to the value of the “spread”
on the Shares (or the portion thereof being canceled) by surrender of this Warrant at the principal
office of the Company in accordance with Section 5.1, together with the Notice of Exercise, in
which event the Company shall issue to the Holder hereof a number of shares of Common Stock
computed using the following formula:
X = Y x (CMP-WP)
CMP
CMP
Where:
|
X | = | the number of shares of Common Stock to be issued to the Holder pursuant to this net exercise | |||
| Y | = | the number of shares of Common Stock purchasable under the Warrant or, if only a portion of the Warrant is being exercised, that portion of the Warrant requested to be exercised | ||||
| CMP | = | the Current Market Price (as of the date of such calculation) of one share of Common Stock | ||||
| WP | = | the Warrant Price (as proportionally adjusted as of the date of such calculation) |
For purposes of this Warrant, the “Current Market Price” of one share of the Company’s Common Stock
as of a particular date shall be determined as follows: (a) if traded on a national securities
exchange or through the Nasdaq Capital Market, the Current Market Price shall be the closing sale
price of the Common Stock on such exchange or market as of the business day immediately prior to
the date of exercise indicated in the Notice of Exercise (or if no reported sales took place on
such day, the last date on which any such sales took place prior to the date of exercise); (b) if
traded over-the-counter but not on the Nasdaq Capital Market, the Current Market Price shall be the
closing bid price as of the business day immediately prior to the date of exercise indicated in the
Notice of Exercise; (c) if traded in the “Pink Sheets” published by the National Quotation Bureau
Incorporated (or a similar organization or agency succeeding to its functions of reporting prices),
the Current Market Price shall be the most recent bid price per share of the Common Stock so
reported prior to the date of exercise indicated in the Notice of Exercise; and (d) if there is no
active public market, the Current Market Price shall be the fair market value of the Common Stock
as of the date of exercise, as determined by an independent appraiser selected by the Board of
Directors of the Company.
1.4 Delivery of Certificate and New Warrant. In the event of any exercise of the rights
represented by this Warrant, a certificate or certificates for the shares of Common Stock so
purchased, registered in the name of the Holder or such other name or names as may be designated by
the Holder, together with any other securities or other property which the Holder is entitled to
receive upon exercise of this Warrant, shall be delivered to the Holder hereof, at the Company’s
expense, within a reasonable time after the rights represented by this Warrant shall have been so
exercised; and, unless this Warrant has expired, a new Warrant representing the number of Shares
(except a remaining fractional share), if any, with respect to which this Warrant shall not then
have been exercised shall also be issued to the Holder
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hereof within such reasonable time. The
person in whose name any certificate for shares of Common Stock is issued upon exercise of this
Warrant shall for all purposes be deemed to have become the holder of record of such shares on the
date on which the Warrant was surrendered and payment of the Warrant Price was received by the
Company, irrespective of the date of delivery of such certificate, except that, if the date of such
surrender and payment is on 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.
1.5 Restrictive Legend. Each certificate for Shares shall bear a restrictive legend in
substantially the form as follows, together with any additional legend required by (a) any
applicable state securities laws and (b) any securities exchange upon which such Shares may, at the
time of such exercise, be listed:
“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO IRVINE SENSORS CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED.”
Any certificate issued at any time in exchange or substitution for any certificate bearing such
legend shall also bear such legend unless, in the opinion of counsel for the Holder thereof (which
counsel shall be reasonably satisfactory to counsel for the Company), the securities represented
thereby are not, at such time, required by law to bear such legend.
1.6 Fractional Shares. No fractional Shares shall be issuable upon exercise or conversion
of the Warrant and the number of Shares to be issued shall be rounded down to the nearest whole
Share. If a fractional share interest arises upon any exercise or conversion of the Warrant, the
Company shall eliminate such fractional share interest by paying to Holder an amount computed by
multiplying the fractional interest by the Current Market Price of a full Share.
2. Representations and Warranties.
2.1 Representations and Warranties. Holder represents and warrants to the Company as
follows:
(a) Holder is an “accredited investor” within the meaning of Regulation D promulgated under
the Securities Act of 1933. In addition, Holder has a preexisting personal or business
relationship with the Company or one or more of the officers or directors of the Company.
(b) Holder is acquiring this Warrant and any Shares issuable upon the exercise of this Warrant
for Holder’s own account, and not as nominee, for investment purposes only and not for the purpose
of resale or distribution. Holder has no contract, undertaking, agreement or arrangement with any
person to sell, transfer or pledge to such person, or anyone else, all or any part of the Warrant
or the Shares issuable upon the exercise of this Warrant, and Holder has no present plan to enter
into any such contact, undertaking, agreement or arrangement. Holder further agrees to execute and
deliver any further investment certificates as counsel to the Company deems necessary or advisable
to comply with state or federal securities laws.
(c) Holder has had an opportunity to review information regarding the Company, its business
and financial condition and the terms and conditions of the Warrant and the Shares. Holder
believes it has reviewed all the information it considers necessary or appropriate for deciding
whether to acquire the Warrant and Shares. Holder acknowledges that it is able to fend for itself,
can bear the economic risk of its investment and has such knowledge and experience in financial or
business matters that it is capable of evaluating the merits and risks of the investment in the
Warrant and the Shares.
(d) Holder acknowledges and agrees that the Warrant and the Shares have not been registered
under the Securities Act of 1933, as amended, or any similar federal statute, and the rules and
regulations of the Securities and Exchange Commission thereunder or under the securities laws of
any state, in reliance upon certain exemptive provisions of such statutes, and have not been
registered under or qualified under the securities or other laws of any other jurisdiction. Holder
further acknowledges that, because the Warrant and Shares have not been registered under federal
and state laws, they may only be resold, assigned, transferred, pledged or otherwise disposed of
pursuant to an effective registration statement under the Securities Act and any applicable state
securities laws, or pursuant to a valid exemption from such registration requirements. Holder
represents that it is familiar with Rule 144 of the Securities and Exchange Commission, as
presently in effect and promulgated under the Securities Act, and understands the resale
limitations imposed thereby.
(e) Holder does not beneficially own (as defined in Rule 13d-3 of the Securities Exchange Act
of 1934, as amended) any shares of the Company’s Common Stock (without taking into account the
Warrant or the Shares).
3. Proportional Adjustments.
3.1 Subdivision or Combination of Shares. In case the Company shall at any time subdivide
its outstanding Common Stock into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall be proportionately reduced and the number of Shares
obtainable upon exercise of this Warrant shall be proportionately increased. Conversely, in case
the outstanding Common Stock of the Company shall be combined into a smaller number of shares, the
Warrant Price in effect immediately prior to such combination shall be proportionately increased
and the number of Shares obtainable upon exercise of this Warrant shall be proportionately
decreased.
4. Ownership and Transfer.
4.1 Ownership of This Warrant. The Company may deem and treat the person in whose name
this Warrant is registered as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for all purposes and shall not
be affected by any notice to the contrary until presentation of this Warrant for registration of
transfer as provided in this Section 4.
4.2 Transfer and Replacement. This Warrant and all rights hereunder are transferable in
whole or in part upon the books of the Company by the Holder hereof in person or by duly authorized
attorney, and a new Warrant or Warrants, of the same tenor as this Warrant but registered in the
name of the transferee or transferees (and in the name of the Holder, if a partial transfer is
effected) shall be made and delivered by the Company upon surrender of this Warrant duly endorsed,
at the office of the Company in accordance with Section 5.1 hereof. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft or destruction, and, in such case, of
indemnity or security reasonably satisfactory to it, and upon surrender of this Warrant if
mutilated, the Company will make and deliver a new Warrant of like tenor, in lieu of this Warrant.
This Warrant shall be promptly cancelled by the Company upon the surrender hereof in connection
with any transfer or replacement. Holder will not transfer this Warrant and the rights hereunder
except in compliance with federal and state securities laws and except after providing evidence of
such compliance reasonably satisfactory to the Company.
4.3 Grant of Piggyback Registration Rights. Subject to the Company obtaining all necessary
third-party consents and waivers, the Company covenants to grant to the Holder, with respect to the
Shares, the same piggyback registration rights, if any, granted by the Company to the investors in
the proposed offering of the Company’s securities for which the Holder shall act as placement
agent. The rights granted in this Section 4.3 are expressly subordinate and junior to any other
registration rights granted by the Company.
5. Miscellaneous Provisions.
5.1 Notices. Any notice or other document required or permitted to be given or delivered to
the Holder shall be delivered or forwarded to the Holder at c/o Maxim Partners LLC, Attn: Xxxxx
Xxxxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax No. (000) 000-0000, or to such
other address or number as shall have been furnished to
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the Company in writing by the Holder. Any
notice or other document required or permitted to be given or delivered to the Company shall be
delivered or forwarded to the Company at 0000 Xxxxxxx Xxx., Xxxxx Xxxx, Xxxxxxxxxx 00000, Attn:
Chief Financial Officer, with a copy to Xxxxxx & Whitney LLP, 00 Xxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxx 00000, Attn: Xxxxx X. Xxxxxxxx, Esq., or to such other address or number as shall have
been furnished to Holder in writing by the Company.
5.2 All notices, requests and approvals required by this Warrant shall be in writing and shall be
conclusively deemed to be given (a) when hand-delivered to the other party, (b) when received if
sent by facsimile at the address and number set forth above; provided that notices given by
facsimile shall not be effective, unless either (i) a duplicate copy of such facsimile notice is
promptly given by depositing the same in the mail, postage prepaid and addressed to the party as
set forth below or (ii) the receiving party delivers a written confirmation of receipt for such
notice by any other method permitted under this paragraph; and further provided that any notice
given by facsimile received after 5:00 p.m. (recipient’s time) or on a non-business day shall be
deemed received on the next business day; (c) five (5) business days after deposit in the United
States mail, certified, return receipt requested, postage prepaid, and addressed to the party as
set forth in Section 5.1 above; or (d) the next business day after deposit with an international
overnight delivery service, postage prepaid, addressed to the party as set forth below with next
business day delivery guaranteed; provided that the sending party receives confirmation of delivery
from the delivery service provider.
5.3 No Rights as Stockholder. This Warrant shall not entitle the Holder to any of the
rights of a stockholder of the Company except upon exercise in accordance with the terms hereof.
5.4 Governing Law. This Warrant shall be governed by and construed in accordance with the
laws of the State of California as applied to agreements among California residents made and to be
performed entirely within the State of California, without giving effect to the conflict of law
principles thereof.
5.5 Binding Effect on Successors. This Warrant shall be binding upon any corporation
succeeding the Company by merger, consolidation or acquisition of all or substantially all of the
Company’s assets and/or securities. All of the obligations of the Company relating to the Shares
issuable upon the exercise of this Warrant shall survive the exercise and termination of this
Warrant. All of the covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the
5.6 Waiver, Amendments and Headings. This Warrant and any provision hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by both parties (either
generally or in a particular instance and either retroactively or prospectively). The headings in
this Warrant are for purposes of reference only and shall not affect the meaning or construction of
any of the provisions hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized officer
this 4th day of February, 2008.
| COMPANY: | IRVINE SENSORS CORPORATION |
|||
| By | /c/ Xxxx X. Xxxxxx, Xx. | |||
| Print Name: | Xxxx X. Xxxxxx, Xx. | |||
| Title: | Chief Financial Officer | |||
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SCHEDULE A
FORM OF NOTICE OF EXERCISE
[To be signed only upon exercise of the Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO EXERCISE THE WITHIN WARRANT
TO EXERCISE THE WITHIN WARRANT
The undersigned hereby elects to purchase ______ shares of Common Stock (the “Shares”) of Irvine
Sensors Corporation (the “Company”) under the Warrant to Purchase Common Stock dated ______,
which the undersigned is entitled to purchase pursuant to the terms of such Warrant, and [check
one]:
| • | Cash Exercise. The undersigned has delivered $______, the aggregate Warrant Price for ______ Shares purchased herewith, in full in cash or by certified or official bank check or wire transfer; | |
| • | Net Exercise. In exchange for the issuance of ______ Shares, the undersigned hereby agrees to surrender the right to purchase ______ shares of Common Stock pursuant to the net exercise provisions set forth in Section 1.3 of the Warrant. |
Please issue a certificate or certificates representing such shares of Common Stock in the
name of the undersigned or in such other name as is specified below and in the denominations as is
set forth below:
The initial address of such Holder to be entered on the books of the Company shall be:
The undersigned hereby represents and warrants that the undersigned is an “accredited
investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, and
that the undersigned is acquiring such shares for his own account for investment purposes only, and
not for resale or with a view to distribution of such shares or any part thereof.
| By: | ||||
| Print Name: | ||||
| Title: | ||||
| Dated: | ||||
FORM OF ASSIGNMENT
(ENTIRE)
(ENTIRE)
[To be signed only upon transfer of entire Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO TRANSFER THE WITHIN WARRANT
TO TRANSFER THE WITHIN WARRANT
FOR VALUE RECEIVED _______________ hereby sells, assigns and transfers unto
_______________ all rights of the undersigned under and pursuant to the within Warrant, and
the undersigned does hereby irrevocably constitute and appoint ____________ Attorney to
transfer the said Warrant on the books of Irvine Sensors Corporation, with full power of
substitution.
| [Type Name of Holder] | ||||
| By: | ||||
| Title: | ||||
| Dated: | ||||
NOTICE
The signature to the foregoing Assignment must correspond exactly to the name as written upon the
face of the within Warrant, without alteration or enlargement or any change whatsoever.
FORM OF ASSIGNMENT
(PARTIAL)
(PARTIAL)
[To be signed only upon partial transfer of Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO TRANSFER THE WITHIN WARRANT
TO TRANSFER THE WITHIN WARRANT
FOR VALUE RECEIVED __________________ hereby sells, assigns and transfers unto
_______________ (i) the rights of the undersigned to purchase ____________
shares of Common Stock of Irvine Sensors Corporation (the “Company”) under and pursuant to the
within Warrant, and (ii) on a non-exclusive basis, all other rights of the undersigned under and
pursuant to the within Warrant, it being understood that the undersigned shall retain, severally
(and not jointly) with the transferee(s) named herein, all rights assigned on such non-exclusive
basis. The undersigned does hereby irrevocably constitute and appoint _______________
Attorney to transfer the said Warrant on the books of the Company, with full power of substitution.
| [Type Name of Holder] | ||||
| By: | ||||
| Title: | ||||
| Dated: | ||||
NOTICE
The signature to the foregoing Assignment must correspond exactly to the name as written upon the
face of the within Warrant, without alteration or enlargement or any change whatsoever.
