EXHIBIT 4.5
WARRANT TO PURCHASE COMMON STOCK
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 THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT TO PURCHASE COMMON STOCK
Number of Shares: Up to 250,000 shares (subject to adjustment)
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Warrant Price: Minimum of $1.50
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Issuance Date: December 20, 2002
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Expiration Date: December 19, 2005
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THIS WARRANT CERTIFIES THAT for value received, Mercator Momentum Fund, LP 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 adjustment from time to time as described
herein. This Warrant is issued in connection with that certain Subscription
Agreement dated as of December ___, 2002, by and between the Company and Holder
(the "Subscription Agreement") whereby the Holder was issued 10,000 shares of
the Company's Series E Convertible Preferred Stock (the "Convertible Stock").
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 beginning
60 days after the date all of the Company's Convertible Stock has been converted
into shares of Common Stock but prior to 6:00 p.m. on the Expiration Date set
forth above.
1.2 Warrant Price.
The Warrant shall be exercisable at the Current Market Price (as defined below)
of the Company's Common Stock calculated as of the day of the Closing of the
Subscription Agreement (the "Warrant Price"); provided, however that, the
Warrant Price shall not be less than $1.50 per share.
1.3 Maximum Number of Shares
The maximum number of Shares of Common Stock exercisable pursuant to this
Warrant is 250,000 Shares. However, notwithstanding anything herein to the
contrary, in no event shall the Holder be permitted to exercise this Warrant for
a number of whole Shares that, when aggregated with the number of shares issued
upon conversion of the Convertible Stock pursuant to the terms of the
Subscription Agreement and the Company's Series E Preferred Stock Certificate of
Designation (the "Certificate of Designation"), would equal over 19.99% of the
Company's Common Stock then outstanding. For illustration purposes only,
assuming the Company has 7,463,489 shares of Common Stock then outstanding, (a)
if the Convertible Stock is converted into 1,411,675 shares of Common Stock,
this Warrant shall only be exercisable for 80,276 Shares or (b) if the
Convertible Stock is convertible at the time into 800,000 shares of Common
Stock, then this Warrant shall be exercisable for the full 250,000 Shares.
1.4 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: (i) a duly executed Notice of Exercise in substantially
the form attached as Schedule A, (ii) payment of the Warrant Price then in
effect for each of the Shares being purchased, as designated in the Notice of
Exercise, and (iii) 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 any provisions herein to the contrary, 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, without the payment by the Holder of
any additional consideration, 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)
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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 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:
(i) if traded on a national securities exchange or through the Nasdaq SmallCap
Market, the Current Market Price shall be deemed to be the volume weighted
average trading price of the Common Stock on
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such exchange as of five business days 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); (ii) if traded over-the-counter but not on the Nasdaq SmallCap
Market, the Current Market Price shall be deemed to be the average of the
closing bid and asked prices as of five business days immediately prior to the
date of exercise indicated in the Notice of Exercise; and (iii) 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 in good faith by the
Board of Directors of the Company; provided that such five trading day period
shall be extended by the number of trading days during such period on which
trading in the Company's Common Stock is suspended, by, or not traded on the
Nasdaq SmallCap Stock Market or a subsequent market on which the Common Stock is
then listed.
1.5 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, not exceeding fifteen (15) calendar
days, 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
hereof within such 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.
1.6 Restrictive Legend. Each certificate for Shares shall bear a restrictive
legend in substantially the form as follows, together with any additional legend
required by (i) any applicable state securities laws and (ii) 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 and may not be sold, offered for
sale, transferred or pledged in the absence of such registration or an
exemption therefrom under such Act."
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.
1.7 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, Warranties and Covenants.
2.1 Representations and Warranties.
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of its state of incorporation and has all necessary
power and authority to perform its obligations under this Warrant;
(b) The execution, delivery and performance of this Warrant has been duly
authorized by all necessary actions on the part of the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms; and
(c) This Warrant does not violate and is not in conflict with any of the
provisions of the Company's Certificate of Incorporation or Certificates of
Designation, Bylaws and any resolutions of the Company's Board of Directors or
stockholders, or any agreement of the Company, and no event has occurred and no
condition or circumstance exists that might (with or without notice or lapse of
time) constitute or result directly or indirectly in such a violation or
conflict.
2.2 Issuance of Shares. The Company covenants and agrees that all shares of
Common Stock that may be issued upon the exercise of the rights represented by
this Warrant will, upon issuance, be validly issued, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
issue thereof. The Company further covenants and agrees that it will pay when
due and payable any and all federal and state taxes which may be payable in
respect of the issue of this Warrant or any Common Stock or certificates
therefor issuable upon the exercise of this Warrant. The Company further
covenants and agrees that the Company will at all times have authorized and
reserved, free from preemptive rights, a sufficient number of shares of Common
Stock to provide for the exercise in full of the rights represented by this
Warrant. If at any time the number of authorized but unissued shares of Common
Stock of the Company shall not be sufficient to effect the exercise of the
Warrant in full, subject to the limitations set forth in Section 1.3 hereto,
then the Company will take all such corporate action as may, in the opinion of
counsel to the Company, be necessary or advisable to increase the number of its
authorized shares of Common Stock as shall be sufficient to permit the exercise
of the Warrant in full, subject to the limitations set forth in Section 1.3
hereto, including without limitation, using its best efforts to obtain any
necessary stockholder approval of such increase. The Company further covenants
and agrees that if any shares of capital stock to be reserved for the purpose of
the issuance of shares upon the exercise of this Warrant require registration
with or approval of any governmental authority under any federal or state law
before such shares may be validly issued or delivered upon exercise, then the
Company will in good faith and as expeditiously as possible endeavor to secure
such registration or approval, as the case may be. If and so long as the Common
Stock issuable upon the exercise of this Warrant is listed on any national
securities exchange or the Nasdaq Stock Market, the Company will, if permitted
by the rules of such exchange or market, list and keep listed on such exchange
or market, upon official notice of issuance, all shares of such Common Stock
issuable upon exercise of this Warrant.
3. Other 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 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.
3.2 Dividends in Common Stock, Other Stock or Property. If at any time or from
time to time the holders of Common Stock (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:
(a) Common Stock, Options or any shares 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;
(b) any cash paid or payable otherwise than as a regular cash dividend; or
(c) Common Stock or additional shares or other securities or property
(including cash) by way of spin-off, split-up, reclassification, combination of
shares or similar corporate rearrangement (other than
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Common Stock issued as a stock split or adjustments in respect of which shall be
covered by the terms of Section 3.1 above) and additional shares, other
securities or property issued in connection with a Change (as defined below)
(which shall be covered by the terms of Section 3.4 below), then and in each
such case, the Holder hereof shall, 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 clause (b) above and this clause (c)) 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.
3.3 Reorganization, Reclassification, Consolidation, Merger or Sale. If any
recapitalization, reclassification or reorganization of the share capital of the
Company, or any consolidation or merger of the Company with another corporation,
or the sale of all or substantially all of its shares and/or assets or other
transaction (including, without limitation, a sale of substantially all of its
assets followed by a liquidation) shall be effected in such a way that holders
of Common Stock shall be entitled to receive shares, securities or other assets
or property (a "Change"), then, as a condition of such Change, lawful and
adequate provisions shall be made by the Company whereby the Holder hereof shall
thereafter have the right to purchase and receive (in lieu of the Common Stock
of the Company immediately theretofore purchasable and receivable upon the
exercise of the rights represented hereby) such shares, securities or other
assets or property as may be issued or payable with respect to or in exchange
for the number of outstanding Common Stock which such Holder would have been
entitled to receive had such Holder exercised this Warrant immediately prior to
the consummation of such Change. The Company or its successor shall promptly
issue to Holder a new Warrant for such new securities or other property. The new
Warrant shall provide for adjustments which shall be as nearly equivalent as may
be practicable to give effect to the adjustments provided for in this Section 3
including, without limitation, adjustments to the Warrant Price and to the
number of securities or property issuable upon exercise of the new Warrant. The
provisions of this Section 3.3 shall similarly apply to successive Changes.
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; provided that if the Holder hereof is an instrumentality
of a state or local government or an institutional holder or a nominee for such
an instrumentality or institutional holder an irrevocable agreement of indemnity
by such Holder shall be sufficient for all purposes of this Warrant, and no
evidence of loss or theft or destruction shall be necessary. This Warrant shall
be promptly cancelled by the Company upon the surrender hereof in connection
with any transfer or replacement. Except as otherwise provided above, in the
case of the loss, theft or destruction of a Warrant, the Company shall pay all
expenses, taxes and other charges payable in connection with any transfer or
replacement of this Warrant, other than stock transfer taxes (if any) payable in
connection with a transfer of this Warrant, which shall be payable by the
Holder. 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.
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
Mercator Group, LLC, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: President (Facsimile No. 213/_____________, with a
copy to Sheppard, Mullin, Xxxxxxx & Xxxxxxx, LLC, 000 Xxxxx Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxx (Facsimile No.
213/620-1398), or to such other address or number as shall have been furnished
to 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,
Attention: Chief Financial Officer (Facsimile No. 714/ 444-8773, with a copy to
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, 00 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxxxx, Esq. (Facsimile No. 949/790-6301), 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 (i) when hand-delivered to
the other party, (ii) 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 (a) 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 (b) 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; (iii) 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 below; or (iv) 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 Shareholder; Limitation of Liability. This Warrant shall not
entitle the Holder to any of the rights of a shareholder of the Company except
upon exercise in accordance with the terms hereof. No provision hereof, in the
absence of affirmative action by the Holder to purchase shares of Common Stock,
and no mere enumeration herein of the rights or privileges of the Holder, shall
give rise to any liability of the Holder for the Warrant Price hereunder or as a
shareholder of the Company, whether such liability is asserted by the Company or
by creditors of the Company.
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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WARRANT TO PURCHASE COMMON STOCK
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly
authorized officer this 23rd day of December, 2002.
COMPANY:
IRVINE SENSORS CORPORATION
By /s/ Xxxx X. Xxxxxx, Xx.
_______________________________
Print Name: Xxxx X. Xxxxxx, Xx.
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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
The undersigned hereby elects to purchase _______ shares of Common Stock (the
"Shares") 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 1.2 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:
___________________________________________________________________________
[Type Name of Holder as it should appear on the stock certificate]
__________________________________________________________________________
[Requested Denominations - if no denomination is specified, a single
certificate will be issued]
The initial address of such Holder to be entered on the books of Company
shall be:
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
The undersigned hereby represents and warrants 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)
[To be signed only upon transfer of entire Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
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 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.
FORM OF ASSIGNMENT
(PARTIAL)
[To be signed only upon partial transfer of Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
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 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 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.
