EXHIBIT 10.34
THESE WARRANTS HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933
AND ARE NOT TRANSFERABLE
EXCEPT AS PROVIDED HEREIN
MICROHELIX, INC.
PURCHASE WARRANTS
Issued to:
----------------------
Exercisable to Purchase
__________ Units
of
MICROHELIX, INC.
This is to certify that, for value received and subject to the terms and
conditions set forth below, the Warrantholder (hereinafter defined) is entitled
to purchase, and the Company promises and agrees to sell and issue to the
Warrantholder, at any time during the Term(hereinafter defined), the number of
Units (hereinafter defined) of the Company at the Exercise Price provided below.
This Warrant Certificate is issued subject to the following terms and
conditions:
1. DEFINITIONS OF CERTAIN TERMS. Except as may be otherwise clearly
required by the context, the following terms have the following meanings:
"ACT" means the Securities Act of 1933, as amended.
"CASHLESS EXERCISE" means an exercise of the Warrants in which, in lieu of
payment of the Exercise Price, the Holder elects to receive a lesser number of
Securities such that the value of the Securities that such Holder would
otherwise have been entitled to receive but has agreed not to receive, as
determined by the average high closing bid price for such Securities on the 20
trading days immediately preceding the date of exercise, is equal to the
Exercise Price with respect to such exercise. A Holder may only elect a Cashless
Exercise if the Securities issuable by the Company on such exercise are publicly
traded securities.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock of the Company.
"COMPANY" means microHelix, Inc., an Oregon corporation.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXERCISE PRICE" means the price at which the Warrantholder may purchase one
Unit upon exercise of a Warrant and shall be equal to 90% of the initial public
offering price of the Units in the Public Offering, subject to adjustment as
provided herein.
"PUBLIC OFFERING" means a registered public offering of equity securities of the
Company following which the Company will be obligated to file reports under
Section 12 of the Exchange Act.
"RULES AND REGULATIONS" means the rules and regulations of the Commission
adopted under the Act.
"SECURITIES" means the securities obtained or obtainable upon exercise of the
Warrants or securities obtained or obtainable upon exercise, exchange, or
conversion of such securities.
"TERM" means a period of three years commencing on the later to occur of the
first anniversary of the effective date of a Public Offering that is effective
prior to December 31, 2001 and March 31, 2002.
"UNITS" means units consisting of one share of Common Stock and one Common Stock
purchase warrant. The units will be identical to the units offered to the public
in the Public Offering. If securities other than Units are sold in the Public
Offering, "Units" shall be redefined to mean such securities in such numbers as
shall, as nearly as may be, constitute an equivalent value to the Warrantholder.
"WARRANTHOLDER" means the record holder of Warrants or Securities
"WARRANTS" means the warrants evidenced by this certificate. One Warrant is
initially exercisable to purchase one Unit.
2. EXERCISE OF WARRANTS. All or any part of the Warrants may be
exercised at any time during the Term by surrendering this Warrant Certificate,
together with appropriate instructions, duly executed by the Warrantholder or by
its duly authorized attorney, and, unless a Cashless Exercise is elected, paying
the applicable Exercise Price at the office of the Company, 00000 XX 00xx Xxx.,
Xxxxxxxx, Xxxxxx 00000, or at such other office or agency as the Company may
designate. The date on which such instructions are received by the Company shall
be the date of exercise. If the Holder has elected a Cashless Exercise, such
instructions shall so state. Upon receipt of notice of exercise, the Company
shall immediately instruct its transfer agent to prepare certificates for the
Securities to be received by the Warrantholder upon completion of the Warrant
exercise. When such certificates are prepared, the Company shall notify the
Warrantholder and deliver such certificates to the Warrantholder or as per the
Warrantholder's instructions immediately upon payment in full by the
Warrantholder, in lawful money of the United States, of the Exercise Price (if
any) payable with respect to the Securities being purchased, if any.
Certificates representing the Securities received upon exercise of Warrants
shall bear such legends as may be required by the Act, the Rules and Regulations
and any comparable provisions of State law.
If fewer than all the Securities purchasable under the Warrants are
purchased, the Company will, upon such partial exercise, execute and deliver to
the Warrantholder a new Warrant Certificate (dated the date hereof), in form and
tenor similar to this Warrant Certificate, evidencing that portion of the
Warrants not exercised. The Securities to be obtained on exercise of the
Warrants will be deemed to have been issued, and any person exercising the
Warrants will be deemed to have become a holder of record of those Securities,
as of the date of the payment of the Exercise Price or notice of Cashless
Exercise.
3. ADJUSTMENTS IN CERTAIN EVENTS. The number, class, and price of the
securities for which the Warrants are exercisable are subject to adjustment from
time to time upon the happening of certain events as follows:
(a) In case of any change in the Common Stock through merger,
consolidation, reclassification, reorganization, partial or complete
liquidation, purchase of substantially all the assets of the Company, or other
change in the capital structure of the Company, then, as a condition of such
change, lawful and adequate provision will be made so that the holder of this
Warrant Certificate will have the right thereafter to receive upon the exercise
of Warrants the kind and amount of shares of stock or other securities or
property to which it would have been entitled if, immediately prior to such
event, it had held the number of shares of Common Stock obtainable upon the
exercise of such Warrants. In any such case, appropriate adjustment will be made
in the application of the provisions set forth herein with respect to the rights
and interest thereafter of the Warrantholder, to the end that the provisions set
forth herein will thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other property thereafter deliverable upon
the exercise of Warrants. The Company will not permit any change in its capital
structure to occur unless the issuer of the shares of stock or other securities
to be received by the holder of this Warrant Certificate, if not the Company,
agrees to be bound by and comply with the provisions of this Warrant
Certificate.
(b) When any adjustment is required to be made in the number of shares
of Common Stock, other securities, or the property purchasable upon exercise of
the Warrants, the Company will promptly determine the new number of such shares
or other securities or property purchasable upon exercise of the Warrants and
(i) prepare and retain on file a statement describing in reasonable detail the
method used in arriving at the new number of such shares or other securities or
property purchasable upon exercise of the Warrants and (ii) cause a copy of such
statement to be mailed to the Warrantholder within thirty (30) days after the
date of the event giving rise to the adjustment.
(c) No fractional shares of Common Stock or other securities will be
issued in connection with the exercise of the Warrants, but the Company will
pay, in lieu of fractional shares, a cash payment therefor on the basis of the
mean between the bid and asked prices of the Common Stock and/or other
securities in the over-the-counter market or the closing price on a national
securities exchange on the day immediately prior to exercise.
(d) Notwithstanding anything herein to the contrary, there will be no
adjustment made hereunder on account of the sale of the Common Stock or other
Securities purchasable upon exercise of the Warrants.
4. RESERVATION OF SECURITIES. The Company agrees that the number of
shares of Common Stock or other Securities reasonably sufficient to provide for
the exercise of the Warrants upon the basis set forth above will at all times
during the term of the Warrants be reserved for exercise.
5. VALIDITY OF SECURITIES. All Securities delivered upon the exercise of
the Warrants will be duly and validly issued in accordance with their terms, and
the
Company will pay all documentary and transfer taxes, if any, in respect of
the original issuance thereof upon exercise of Warrants.
6. RESTRICTIONS ON TRANSFER. This Warrant Certificate and the Warrants
may not be sold, transferred, assigned or hypothecated except as specifically
provided in this Section 6. This Warrant Certificate and the Warrants are
transferable:
(a) in whole, but not in part, to an entity that controls, is
controlled by or is under common control with the transferor;
(b) in a prorata distribution to the owners of the transferor;
(c) by will or pursuant to the laws of descent and distribution; or
(d) in connection with a bona fide pledge or hypothecation of the
Warrants as security for indebtedness of the Warrantholder, or
any foreclosure pursuant to the terms of such pledge or
hypothecation.
7. REDEMPTION OF THE WARRANTS. The Company may redeem all or any part of
the Warrants upon 15 days prior notice to the holders at any time on or after
March 31, 2003 for the $2.80 per Warrant.
8. NO RIGHTS AS A SHAREHOLDER. Except as otherwise provided herein, the
Warrantholder will not, by virtue of ownership of Warrants, be entitled to any
rights of a shareholder of the Company but will, upon written request to the
Company, be entitled to receive such quarterly or annual reports as the Company
distributes to its shareholders.
9. LIMITATION ON EXERCISE. Notwithstanding anything to the contrary
herein, the Warrantholder shall not be permitted to exercise Warrants to the
extent that such exercise would cause the Warrantholder to be the beneficial
owner of more than 5% of the then outstanding Common Stock immediately following
such exercise. This limitation shall not be deemed to prevent the Warrantholder
from acquiring more than an aggregate of 5% of the Common Stock, so long as the
Warrantholder does not beneficially own more than 5% of Common Stock immediately
following such exercise.
10. NOTICE. Any notice permitted or required hereby shall be deemed
validly given if (i) sent by registered mail, return receipt requested, or by a
recognized package delivery company that maintains a record of deliveries, or
(ii) received at the address of the person to whom such notice is directed by
any physical or electronic means. Any notice to the Company shall be addressed
to the Company at
00000 XX 00xx Xxx.
Xxxxxxxx, XX 00000
Telephone (000) 000-0000
or at any fax or email address maintained by the Company for general
corporate purposes. Any notice to the Warrantholder shall be addressed
to the Warrantholder at
____________________________
____________________________
____________________________
Tel: _______________________
Fax: _______________________
with a copy to:
____________________________
____________________________
____________________________
Tel: _______________________
Fax: _______________________
or at any fax or email address maintained by Lender for general corporate
purposes.
Either party may change addresses at which it wishes to receive notice
by valid notice to the other setting forth the new address.
11. APPLICABLE LAW. This Warrant Certificate shall be governed by and
interpreted under the laws of the State of Oregon, excluding provisions thereof
relating to conflict of laws.
Dated as of June __, 2001
MicroHelix, Inc.
By: ________________________________
Title: _____________________________
