Exhibit 10.38
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
("THE ACT") OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE (THE
"LAWS"). THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION AND QUALIFICATION OF THESE
SECURITIES UNDER THE ACT AND THE LAWS OR AN OPINION OF COUNSEL SATISFACTORY
TO THE ISSUER THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED
UNDER THE ACT AND THE LAWS.
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this "AGREEMENT") is entered into and effective
as of March 16, 2004 (the "EFFECTIVE DATE"), by and between MicroIslet, Inc., a
Nevada corporation (the "COMPANY"), and [_________________________]
("WARRANTHOLDER").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, the Company and the Warrantholder certify and agree
as follows:
1. GRANT OF THE RIGHT TO PURCHASE COMMON STOCK. For value received, the
adequacy of which is hereby acknowledged, the Company hereby grants to
Warrantholder, and Warrantholder is entitled to, upon the terms and subject to
the conditions set forth in this Agreement, a warrant (the "WARRANT") to
subscribe for and purchase from the Company a number of shares (the "SHARES") of
the Company's common stock, $0.001 par value (the "COMMON STOCK") equal to
[___________________________________] [(_________)] Shares of the Common Stock
at a purchase price of One Dollar ($1.00) per Share (the "EXERCISE PRICE"). This
Warrant is being issued pursuant to the Securities Purchase Agreement dated
March 16, 2004, by and between the Company and the Warrantholder (the "PURCHASE
AGREEMENT"). Notwithstanding anything to the contrary in this Agreement, the
rights under this Warrant are subject to the limitations stated in the Purchase
Agreement.
2. EXPIRATION. The Warrant shall expire and cease to be exercisable at
5:00 p.m. Pacific time on March 16, 2009 (the "EXPIRATION DATE").
3. METHOD OF EXERCISE; PAYMENT; ISSUANCE OF SHARES.
3.1 GENERAL. This Warrant is exercisable at the option of the
holder of record hereof, at any time or from time to time, up to the Expiration
Date for all or any part of the Shares (but not for a fraction of a share) which
may be purchased hereunder. The Company agrees that the Shares purchased under
this Warrant shall be and are deemed to be issued to the Warrantholder hereof as
the record owner of such shares as of the close of business on the date on which
this Warrant shall have been surrendered, together with the completed and
executed Notice of Exercise in the form attached as APPENDIX A delivered and
payment made for such Shares. Certificates for the Shares so purchased, together
with any other securities or property to which the Warrantholder hereof is
entitled upon such exercise, shall be delivered to the Warrantholder hereof by
the Company at the Company's expense within thirty (30) days after the rights
represented by this Warrant have been so exercised. In case of a purchase of
less than all the shares which may be purchased under this Warrant, the Company
shall cancel this Warrant and execute and deliver a new Warrant or Warrants of
like tenor for the balance of the shares purchasable under the Warrant
surrendered upon such purchase to the Warrantholder hereof within thirty (30)
days. Each stock certificate so delivered shall be in such denominations of
Common Stock as may be requested by the Warrantholder hereof and shall be
registered in the name of such Warrantholder. Notwithstanding anything to the
contrary set forth above, each exercise of the Warrant shall cover at least the
lesser of (i) 30,000 Shares (as adjusted for stock splits, stock dividends,
combinations and the like), or (ii) the total number of Shares then subject to
the Warrant.
3.2 NET ISSUE EXERCISE.
(a) Section 3.2(b) shall not apply and shall have no
force or effect if, in accordance with the terms of the Purchase Agreement, the
Shares issuable upon exercise of this Warrant have been registered for resale
under the Securities Act of 1933, as amended, on a registration statement on
Form SB-2, or another appropriate form.
(b) Notwithstanding any provisions herein to the
contrary (other than Section 3.2(a)), if the fair market value of one share of
Common Stock is greater than the Exercise Price (at the date of calculation as
set forth below), in lieu of exercising this Warrant for cash, the Warrantholder
may elect to receive shares of Common Stock equal to the value (as determined
below) of this Warrant (or the portion thereof being canceled) by surrender of
this Warrant at the principal office of the Company together with the properly
endorsed Notice of Exercise in which event the Company shall issue to the
Warrantholder a number of Shares computed using the following formula:
X = Y (A-B)
A
Where X = the number of shares of Common Stock to be issued to the Warrantholder
Y = the number of Shares
purchasable under the Warrant
or, if only a portion of the
Warrant is being exercised,
the portion of the Warrant
being canceled (at the date of
such calculation)
A = the fair market value of
one share of the Common Stock
(at the date of such
calculation)
B = Exercise Price (as adjusted
to the date of such calculation)
For purposes of the above calculation, fair market value of one share of Common
Stock shall be the volume weighted average price of the Common Stock from the
hours of 9:30 a.m. to 4:00 p.m. on the OTC Bulletin Board as reported by
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Bloomberg Financial for the five (5) trading days immediately preceding the date
of exercise for which there are reported transactions in the Common Stock.
4. RESERVATION OF SHARES. The Company shall at all times have
authorized and reserved a sufficient number of shares of its Common Stock to
provide for the exercise of the rights to purchase the Shares as provided in
this Agreement.
5. NO RIGHTS AS STOCKHOLDER. This Agreement does not entitle
Warrantholder to any voting rights or other rights as a stockholder of the
Company prior to the purchase of the Shares as provided in this Agreement.
6. ADJUSTMENT RIGHTS. The Exercise Price and the number of Shares
purchasable hereunder are subject to adjustment from time to time as follows:
6.1 MERGER AND SALE OF ASSETS. If at any time there shall be
(i) a reorganization of the shares of the Common Stock (other than a
combination, reclassification, exchange or subdivision of shares otherwise
provided for herein), or a merger or consolidation of the Company with or into
another corporation where the Company is not the surviving corporation, or a
reverse triangular merger in which the Company is the surviving entity but the
shares of the Company's capital stock outstanding immediately prior to the
merger are converted by virtue of the merger into other property, whether in the
form of securities, cash, or otherwise, or (iii) the sale of all or
substantially all of the Company's properties and assets to any other person,
then, as a part of such reorganization, merger, consolidation or sale, whether
for stock, cash, or other consideration, lawful provision shall be made so that
Warrantholder shall thereafter be entitled to receive upon exercise of its
Warrants the number of shares of Common Stock or other securities of the
successor corporation resulting from such merger or consolidation to which
Warrantholder would have been entitled if the Warrants had been exercised
immediately prior to such capital reorganization, merger, consolidation or sale.
In any such case, appropriate adjustment (as determined in good faith by the
Company's Board of Directors) shall be made in the application of the provisions
of this Warrant Agreement with respect to the rights and interest of
Warrantholder after such reorganization, merger, consolidation or sale so that
the provisions of this Agreement (including adjustments of the Exercise Price
and the number of Shares issuable pursuant to the terms and conditions of this
Agreement) shall be applicable after such event, as near as reasonably may be,
in relation to any shares deliverable after that event upon the exercise of the
Warrants.
6.2 RECLASSIFICATION OF SHARES. If the Company at any time
shall, by combination, reclassification, exchange or subdivision of securities
or otherwise, change all of the outstanding shares of Common Stock into the same
or a different number of securities of any other class or classes, this
Agreement shall thereafter represent the right to acquire such number and kind
of securities as would have been issuable hereunder had the Warrantholder
exercised its rights with respect to all of the shares then represented by this
Agreement immediately prior to such combination, reclassification, exchange,
subdivision or other change.
6.3 SUBDIVISION OR COMBINATION OF SHARES. If the Company at
any time shall combine or subdivide its Common Stock, the Exercise Price shall
be proportionately decreased in the case of a subdivision, or proportionately
increased in the case of a combination.
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6.4 STOCK DIVIDENDS. If the Company at any time shall pay a
dividend payable in the Common Stock, then the Exercise Price shall be adjusted,
from and after the date of determination of shareholders entitled to receive
such dividend, to a price determined by multiplying the Exercise Price in effect
immediately prior to such date of determination by a fraction (i) the numerator
of which shall be the total number of all shares of the Common Stock outstanding
immediately prior to such dividend (assuming all convertible securities are then
converted into Common Stock) and (ii) the denominator of which shall be the
total number of all shares of the Common Stock outstanding immediately after
such dividend (assuming all convertible securities are then converted into
Common Stock). Warrantholder shall thereafter be entitled to purchase, at the
Exercise Price resulting from such adjustment, the number of shares of Common
Stock (calculated to the nearest whole share) obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
shares of Common Stock issuable upon the exercise hereof immediately prior to
such adjustment and dividing the product thereof by the Exercise Price resulting
from such adjustment.
6.5 UNAVAILABILITY OF REGISTRATION STATEMENT. The Exercise
Price shall adjust as set forth in Section 3.01(a)(iii) of the Purchase
Agreement.
7. TRANSFERABILITY OF WARRANT.
7.1 WARRANT TRANSFERABLE. This Warrant is transferable on the
books of the Company at its principal office by the Warrantholder upon surrender
of this Warrant properly endorsed, subject to compliance with Section 7.2 and
applicable federal and state securities laws. The Company shall issue and
deliver to the transferee a new Warrant representing the Warrant so transferred.
Upon any partial transfer, the Company will issue and deliver to Warrantholder a
new Warrant with respect to the Warrant not so transferred.
7.2 CONDITIONS OF TRANSFER. It shall be a condition to any
transfer of this Warrant that at the time of such transfer, the transferee shall
provide the Company with a representation in writing that the transferee is
acquiring this Warrant and the Shares to be issued upon exercise for investment
purposes only and not with a view to any sale or distribution. As a further
condition to any transfer of this Warrant or any or all of the Shares issuable
upon exercise of this Warrant, other than a transfer registered under the Act,
the Company may request a legal opinion, in form and substance satisfactory to
the Company and its counsel, reciting the pertinent circumstances surrounding
the proposed transfer and stating that such transfer is exempt from the
registration and prospectus delivery requirements of the Act.
8. RESTRICTED SHARES/LEGEND. Warrantholder understands that the Shares
issuable upon the exercise of the Warrant under this Agreement shall be
"restricted securities" as that term is defined in Rule 144 promulgated under
the Securities Act of 1933, as amended, and shall bear a legend in the form
substantially as follows:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "ACT") OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE
(THE "LAWS"). THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION AND
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QUALIFICATION OF THESE SECURITIES UNDER THE ACT AND THE LAWS OR AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION
AND QUALIFICATION ARE NOT REQUIRED UNDER THE ACT AND THE LAWS.
9. MISCELLANEOUS.
9.1 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to its conflicts of law principles, and the federal law of the United States of
America. The Company irrevocably consents to the jurisdiction of the courts of
the State of California and of any federal court, in each case located in San
Diego, California in connection with any action or proceeding arising out of, or
relating to, this Agreement, any document or instrument delivered pursuant to,
in connection with, or simultaneously with this Agreement, or a breach of this
Agreement or any such document or instrument. 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 AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
9.2 ENTIRE AGREEMENT. This Agreement and the Purchase
Agreement constitute the final, complete and exclusive agreement between the
parties pertaining to the subject of this Agreement, and supersede all prior and
contemporaneous agreements. This Agreement represents the Warrant required to be
delivered pursuant to the Purchase Agreement. None of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver. No
waiver shall be binding unless executed in writing by the party making the
waiver. Any changes or supplements to this Agreement must be in writing and
signed by the Company and the Warrantholder.
9.3 ASSIGNMENT. This Agreement shall be binding on, and shall
inure to the benefit of, the parties and their respective heirs, legal
representatives, successors and assigns.
9.4 NOTICES, ETC. All notices, requests, demands or other
communications that are required or permitted under this Agreement shall be
given in accordance with Section 5.01 of the Purchase Agreement, and shall be
deemed received as set forth therein.
9.5 SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement or in any other document referenced in
this Agreement, shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement or any other such
document.
9.6 TIME IS OF THE ESSENCE. Time is absolutely of the essence
in construing each provision of this Agreement.
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9.7 INTERPRETATION. The headings set forth in this Agreement
are for convenience only and shall not be used in interpreting this Agreement.
9.8 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument. A faxed signature
shall be as valid as an originally executed signature.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the Effective Date.
MICROISLET, INC.,
a Nevada corporation
By:
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Xxxx X. Steel IV, Chief Executive Officer
Acknowledged and Agreed To:
Print Name:
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Title, if Applicable:
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[WARRANT SIGNATURE PAGE]
Appendix A
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Notice of Exercise
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To: Chief Financial Officer
MicroIslet, Inc.
Ladies and Gentlemen:
The undersigned hereby elects to purchase ___________ Shares of MicroIslet, Inc.
pursuant to the terms of the attached Warrant Agreement dated March 16, 2004
(the "AGREEMENT") at the Exercise Price (as defined in the Agreement).
Pursuant to the terms of the Agreement the undersigned has (check one that
applies):
|_| Delivered the aggregate Exercise Price herewith in full in
cash or by certified check or wire transfer; or
|_| Elected to Net Issue Exercise as described in Section 3.2 of
the Agreement.
WARRANTHOLDER
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Signature
Name:
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Title:
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